September 9, 2013

Experts Query Ruling on Expelled MPs

Legal experts have described the constitutional court ruling against the expelled NRM legislators as vague and unlawful.

On Friday, four of the five judges of the constutional court led by Acting Deputy Chief Justice Steven Kavuma issued an interim order barring the MPs from conducting any parliamentary business until a petition challenging their stay in the house is disposed of.

(L-R) Expelled NRM legislators Wilfred Niwagaba, Theodore Ssekikubo and Barnabas Tinkasiimire and their lawyer Prof George Kanyeihamba at the Constitutional Court recently. PHOTO Courtesy
(L-R) Expelled NRM legislators Wilfred Niwagaba, Theodore Ssekikubo and Barnabas Tinkasiimire and their lawyer Prof George Kanyeihamba at the Constitutional Court recently. PHOTO Courtesy

The affected MPs are Bernabas Tinkasimire of Buyaga West, Theodore Ssekikubo of Lwemiyaga, Wilfred Niwagaba of Ndorwa East and Kampala Central legislator Muhammed Nsereko. The Four judges who delivered the ruling are Richard Buteera, Faith Mwondha, Steven Kavuma and Augustine Nshimye.

However, legal experts argue that the ruling is neither binding on the MPs nor on the Speaker of parliament because the judges of the constitutional court used unclear words, which are alien in law.

Lawyer Abdu Katuntu, the Bugweri county MP, says by asking the MPs to step aside, the judges don’t state clearly whether the MPs will be earning half of their salaries or not. Katuntu argues that it will be hard for the speaker to enforce such a ruling because of the ambiguity that surrounds it.

He says that the speaker cannot restrain the MPs from carrying out activities in their constituencies because their electorate still looks at them as their representatives.

Caleb Alaka, another city lawyer says that ruling has implications on the MPs, their constituencies, which will remain unrepresented and taxpayers who will be paying redundant legislators. He says there was no reason to warrant the temporary injunction since court had earlier said that it was ready to deliver judgment on the main petition. Former Supreme Court Judge George Kanyeihamba, the lead counsel of the embattled MPs says they were called to receive judgment on the main petition but instead ended up with a ruling he described as peculiar.

He also argued that the bench that delivered the ruling was inappropriately constituted because two of the judges jumped on the case, when it was already in the middle. Kanyeihamba argues that Justices Faith Mwondha and Richard Buteera were added onto the bench after his team challenged the composition of the constitutional court.

He argues that when the two judges were added to the bench, the case should have started afresh for the judges to understand the proceedings. Medard Ssegona, the Shadow Justice and Constitutional Affairs minister also argues that the MPs can not leave parliament until their appeal, which is before the Supreme Court is disposed of.

He cites the Parliamentary Elections Act, which provides that even where a Member of Parliament loses an election petition, for the sake of keeping representation which is a constitutional matter, the MP does not leave until his appeal has been disposed off. According to Ssegona the embattled MPs have an appeal in the Supreme Court against the Constitutional Court ruling in which they applied for a stay of execution of the order of the Lordships in the Constitutional court.

Ssegona noted that it must have been a fundamental error for the Constitutional Court to rule that the MPs refrain from Parliament and their duties. He calls on the Speaker to exercise caution for now saying that the executive is trying to use Parliament as an extension of the disciplinary committee of NRM.

In his dissenting ruling, Justice Remmy Kasule said the court had earlier decided against granting a temporary injunction because the issues in the application for a temporary injunction were similar to the issues in the main petition.

Kasule argued that court had already heard the main petition to conclusion and therefore did not see any reason why the judgment on the petition was not pronounced but instead of a temporarily injunction, pending judgment on the case that was already decided.

Hellen Kawesa, the spokesperson of parliament says that the speaker will consult the parties once she recieves the judgement before a decision is taken. The Four judges who delivered the ruling are Richard Buteera, Faith Mwondha, Steven Kavuma and Augustine Nshimye.

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