July 19, 2013

Law Society Okayed Aronda Appointment

The Uganda Law Society informed Parliament that General Aronda Nyakairima was qualified to become a cabinet minister in government.

The advice was given during the law society’s appearance before the parliamentary appointment’s committee on Thursday when General Aronda was approved as Internal Affairs Minister.  Parliament had sought advice from the society before approving Aronda.

Uganda Law Society president Ruth Sebatindira
Uganda Law Society president Ruth Sebatindira

The committee had further inquired from the law society whether Aronda must, prior to being approved by parliament in respect of such appointment, resign his commission or retire from office.

The law society noted to the committee in a letter signed by Ruth Sebatindira, the President of Uganda Law Society, to the Speaker of Parliament Rebecca Kadaga that the society’s opinion is rendered only in connection with the laws of Uganda as at the date hereof.

The letter further noted that it is not an opinion on the political ramifications should a decision be taken to approve or not approve the said nominee.

The letter noted that the decision to approve or not to approve rested solely with the Parliament of Uganda.

Sebatindira further noted in the letter that in consideration of Aronda’s issue, they adopted the factual basis provided in the clerk of parliament’s letter to the society and examined the laws of Uganda as appeared relevant to the matter.

The laws consulted on Aronda’s appointment were, the Constitution of Uganda, Uganda People’s Defence Forces Act and the Political Parties and Other Organizations Act.

Former Chief of Defence Forces General Aronda Nyakairima
Former Chief of Defence Forces General Aronda Nyakairima

In particular to the Constitution of Uganda, the letter noted that as pertinent to the issue, the law of Uganda currently provides in Article 113 (1) that cabinet ministers shall be appointed by the president with the approval of parliament from among members of parliament or persons qualified to be elected members of parliament.

In this regard the law society noted that parliament had a crucial constitutional role to play regarding ministerial appointments. It firstly said that cabinet nominees can only be drawn from members of parliament or persons qualified to be members of parliament and secondly parliament approves the appointments.

The society cited Article 113 (3) that provides that a cabinet minister shall have responsibility for such functions of government as the president may, from time to time assign to him or her.

Opposition members of parliament with Wafula Oguttu in their midst walking out of parliament in protest of General Aronda's appointment as Internal Affairs minister
Opposition members of parliament with Wafula Oguttu in their midst walking out of parliament in protest of General Aronda’s appointment as Internal Affairs minister

This article was interpreted that the minister is therefore responsible for the government department to which he or she is assigned and there is no limitation as to what those assignments can be or which department he or she can be assigned to.

The society also cited articles 115 concerning the minister taking oath and article 117 that provides that ministers shall be individually accountable to the president for the administration of their ministries.

The law society then noted that there is no requirement in the Constitution that a nominee for a ministerial position belong to a political party or organization.

The law society further noted that there is no requirement that the nominee should or should not be a member of the army.

LOP Nandala Mafabi led the walk out
LOP Nandala Mafabi led the walk out

They said that once a person is a member of parliament, regardless of the constituency he or she represents, that person is qualified for appointment under the provisions of Article 113(1).

The Uganda Law Society therefore said that from the provisions of the Constitution cited, an army officer who is also a Member of Parliament is qualified for appointment as a Minister in the Government of Uganda.

They added that the pool from which Ministers may be drawn is limited to Members of Parliament who include persons who represent the UPDF. For these persons to represent UPDF in Parliament must be serving army officers.

The society also cited article 208(2) which provides that Uganda People’s Defence Forces shall be non-partisan, national in character, patriotic, professional, disciplined, productive and subordinate to civilian authority as established under the Constitution.

Uganda Law Society interpreted this article saying that the attributes may refer to the institution or to the collective of those who make up the institution, some can be shared by the institution and an individual member while other such as national in character appear to relate to the institution

About the UPDF Act that has been cited continuously by legislators that it prohibits Aronda from serving as minister without resigning, Uganda Law Society noted that under Article 210, Parliament is empowered to make laws regulating the UPDF.

They cited that the UPDF Act 2005 under section 99 provides that a serving officer or militant who desires to seek political office shall first resign from the defence forces according to regulations made by the minister.

The law society in regard to this section said that the phrase “who desires to seek political office” is not defined and that the literal interpretation of it refers to a person who of his own volition seeks political office.

And that a purposive interpretation might include a person who, though not offering himself or herself for election, accepts a nomination to political office.

They also noted that the provision does not deal with a person who seeks to offer himself in an election saying that seeking political office may therefore include offering oneself for election and accepting a nomination for a position that is a political office.

The society quoted a case of Darlington Sakwa and Another Vs the Electoral Commission and 44 others Constitutional Petition No. 8 of 2006; they said that the constitutional court held that Ministers are not like Permanent Secretaries. They are members of the Executive Arm of Government. They are responsible for political supervision of the ministries assigned to them by the president. They are agents or representatives of the president and the office of a Minister is therefore a political office.

Therefore, In the Uganda law Society opinion based on literal interpretation of the constitution  an army officer in parliament represents an institution which under article 208 (2) is required to be non-partisan.

They said that it may be prudent for such army representative to resign his position as a member of parliament representing the army prior to taking appointment as a Minister because a Minister occupies a political office which by its nature makes it practically unlikely that he would be non-partisan.

However the law society noted that approval is at the discretion of Parliament but the considerations must be lawful.

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