Can Party Politics Overide National Politics?

D.R.Ruhweza

Introduction

There have been various news stories in the Ugandan media and the internet to the effect that some Members of Parliament belonging to the ruling National Resistance Movement Organisation have been dismissed from the party for indiscipline.  The debate that has followed is whether the action of the NRM party means that the members of Parliament should now relinquish their seats or have their seats declared vacant supposedly by virtue of Article 83 of the Constitution of Uganda. 

L-R MPs Tinkasimire, Sekikubo, Nuwagaba

On the one hand, the Secretary General of the Party opines that the MPs should lose their seats, while the 'House spokesperson has said that the said MPs, 'Theodore Sekikubo (Lwemiyaga), Mohammed Nsereko (Kampala Central), Wilfred Niwagaba (Ndorwa East) and Barnabas Tinkasimire (Buyaga) will retain their seats since there is no indication that they have crossed to another party -- a situation which would have rendered their situation untenable in Parliament.

The Law

 Article 78(1) provides that: “Parliament shall consist of:-

(a)     “Members directly elected to represent (geographical) constituencies

(b)    One woman representative for every district

(c)      Such numbers of representatives of the army, youth, workers, persons with   disabilities and other groups as Parliament may determine”.

(4) Parliament shall, “by law, prescribe the procedure for elections of representatives referred to in paragraph (b), (c) of the clause 1 of this Article”.

Notice that there is no mention of MPs being voted by virtue of representing specific political parties

Article 83 states -

 83. Tenure of office of members of Parliament.

(1) A member of Parliament shall vacate his or her seat in
Parliament—

(a) if he or she resigns his or her office in writing signed by him or
her and addressed to the Speaker;

(b) if such circumstances arise that if that person were not a member
of Parliament would cause that person to be disqualified for
election as a member of Parliament under article 80 of this
Constitution;

(c) subject to the provisions of this Constitution, upon dissolution of
Parliament;

(d) if that person is absent from fifteen sittings of Parliament without
permission in writing of the Speaker during any period when
Parliament is continuously meeting and is unable to offer
satisfactory explanation to the relevant parliamentary committee
for his or her absence;

(e) if that person is found guilty by the appropriate tribunal of
violation of the Leadership Code of Conduct and the punishment
imposed is or includes the vacation of the office of a member of
Parliament;

(f) if recalled by the electorate in his or her constituency in
accordance with this Constitution;

(g) if that person leaves the political party for which he or she stood
as a candidate for election to Parliament to join another party or
to remain in Parliament as an independent member;

(h) if, having been elected to Parliament as an independent candidate,
that person joins a political party;

MP Muhammed Nsereko

(i) if that person is appointed a public officer.

(2) Notwithstanding clause (1)(g) and (h) of this article, membership
of a coalition government of which his or her original political party forms
part shall not affect the status of any member of Parliament.

(3) The provisions of clauses (1)(g) and (h) and (2) of this article shall
only apply during any period when the multiparty system of government is
in operation.

Issues

I have identified two issues in this debate -

1. Whether being sacked from a political party equates to 'leaving' that party as envisaged by Article 83 1(g) of the Constitution; 
2. Whether  a member of parliament can be subjected to 'disciplinary proceedings' for what he or she says in and outside parliament

Issue One

A quick search of the meaning of the words reveals to me that the synonyms for the word 'leave' are

verb.

depart - quit - abandon - forsake - go - desert

The above words are in no way literaly synonymous with the word 'dismiss' which connotes 'sending away; discharging or removing'

We can reliy on earlier Constitutional cases to give some light to how this matter will or should be concluded: 

The Supreme Court Judgement in Lukyamuzi v Attorney General, Electoral Commission (Constitutional Appeal No.2 2007) can be a starting point. In that case, the appellant contested the finding of the Constitutional Court regarding its interpretation of Article 83 (1) (e). The Supreme Court held that if the IGG was the Leadership tribunal envisaged in Article 235A of the Constitution, then the IGG as an institution makes breach of the principle of nemo judex in causa sua (no person shall be a judge in his or her own cause). 

L-R MPs Tinkasimire, Sekikubo, Nuwagaba

Similarly, the decision of the Supreme Court in Brigadier HenryTumukunde v The Attorney General & Anor (Constitutional Appeal No. 2 of 2006) should also move us into the right direction. In that case, Engwau JSC held that ''It is a misconception, in my view, to say that in all cases the Speaker does not need to know the reasons why a member of Parliament is resigning his or her seat in Parliament. He controls and safeguards the interests of Members of Parliament within the precincts of Parliament under Article 97 (1) of the Constitution and under The Parliament (Powers and Privileges) Act.'' 

In his lead Judgement, Justice Kanyeihamba, while acknowledging  that 

As long as the appellant remains an active soldier he also remains subject to the discipline and rules of the UPDF command, institutions and superior officers, only subject to the provisions of the Constitution and laws of Uganda. Whether or not any of its men and officers including the appellant committed any military offence remains a matter for the UPDF command to determine and direct what action should be taken. Subject to the Constitution and Laws of Uganda, military authorities continue to exercise jurisdiction over UPDF personnel outside Parliament.

Lastly, the decision of the Constitutional Court in Fox Odoi - Oywelowo and Another v Attorney General (Constitutional PetitionNo. 8 of 2003) also give us some guidance since they dealt with issues regarding Separation of powers /discretion when considering the removal of a public officer. 

Therefore, if the aforementioned matter is to be taken to Court, it is my submission that the Judges will probably use the 'mischief rule' of Statutory interpretation when looking at Art.83.1(g). The rule seeks 'to determine the "mischief and defect" that the statute in question has set out to remedy...''. In so doing, the Court will or should look up the Hansard of Parliament which indicates that the purpose of Article 83 1(g) was to prevent MPs from ''crossing the floor'' once they were elected to parliament. Such a situation is dissimilar to the instant case. 

Similarly, if we use the 'literal' rule of interpretation,  - it is going to be an uphill task to convince any properly constituted tribunal that the word ''leave'' means or includes ''being chased''. I n any case, the said MPs could easily argue that they would like to remain in the NRM and that it's not their intention to cross to any other party.

In spite of the above, i suspect that the golden rule of interpretation might be used to justify why the MPs should relinquish their seats but i doubt whether it will be upheld especially in light of Justice Twinomujuni's reasoning in the Lukyamuzi case (which reasoning was upheld by the Supreme Court). 

NRM Sec. General Amama Mbabazi

Issue Two

At the root of this debate however is the unenviable situation where a MP who belongs to a specific party does not agree with what his or her party position is and seeks to rebel against the party's position. Similar situations have been observed in the UK and elsewhere in which some party members have opted to 'rebel' by voting, or speaking publicly against specific bills presented by their party.  These scenarios are what Justice Kanyeihamba stated in obiter dictum while referring to the Tumkunde case. He wrote -

Firstly, I wish to observe that a Uganda soldier who is elected by his or her peers to represent them in Parliament while continuing to be a member of the UPDF occupies unenviable position of responsibility.  On the one hand, Article 79 of the Constitution prescribes that such a member of Parliament is equal in all respects to other honourable members of Parliament who are collectively empowered to exercise the supreme legislative authority of Uganda on any matter for the peace, order, development and good governance of the country.  On the other hand, such member’s continued membership and participation in the activities of the nation’s security forces severely restricts that member’s ability to perform effectively in the realization of the aspirations of the constituents he or she represents, let alone the whole of Uganda.  In my view, this unattainable dual role of the UPDF members of Parliament ought to be revisited again by this nation.  Several issues which relate to the immunities and privileges of members of Parliament need to be considered. These are partly prescribed in the Parliament (Powers and Privileges) Act which outlines some of them and other detailed rights, immunities and privileges are contained in the Rules of Parliament supplemented or amplified by ancient conventions and rules of practice in free and parliamentary democracies.

In the same breath, the position of a member of a political party - in this case the NRM, who wishes to deviate from the party position is unenviable. While such 'Member of Parliament is entitled to speak freely on any matter and no legal action can be brought against such a member for anything he/she says within Parliament,' he is liable to be sued or tried for what he or she says outside the confies of the Parliament. 

MP Sekikubo Theodore -Lwemiyaga

Even more discomforting, such member of parliament must tow the NRM party line and in breach of which, be subjected to the disciplinary procedures of the said political party pursuant to Article 9 of the NRM Constitution.

It remains to be seen whether - as in the instant case - the disciplinary procedures of a party can lead to such member losing his or her seat in parliament. 

Conclusion

In my humble opinion, this is not such a case. The Speaker of Parliament should therefore take heed of the Tumukunde  ruling by not acting 'hastily in this case and depriv(ing) (her)self of the authority to defend the ...[erstwhile NRM] Member(s) of Parliament.