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OPINION

Chris Obore

By Chris Obore

The Daily Monitor recently ran a story quoting the President Richard Oundo as saying payment to the former Leader of the Opposition as service award was illegal.

After consultations with Parliament legal team and the Clerk to Parliament Hon Adolf Mwesige, a senior lawyer himself, Mr Oundo’s claim was misleading and false.

In the said statement, the ULS recalls its statutory duty to protect and assist the public and Government of Uganda in all matters relating to law and legislation in Uganda. It is on the basis of the above mandate that ULS deemed fit to “guide” on the issue as to “who determines the emoluments (including gratuities, allowances, pensions) of Members of Parliament?”

In the impugned statement by ULS, the author refers, and rightly so, to the provisions of Article 85 (1) of the Constitution of Uganda, 1995 as the constitutional springboard for the powers by Parliament to determine the emoluments of members of parliament such as gratuity, pension and other facilities to be determined by Parliament.

The author is quick at making reference to the provisions of Article 93 of the Constitution, and to the widely quoted Supreme Court case of Parliamentary Commission v. Mwesigye Wilson; Constitutional Appeal No. 08 of 2016” to conclude that, “Therefore to the extent that there was no Bill or motion presented on behalf of the Executive in relation to the impugned “Service Award” emoluments, they constitute an illegal charge on the Consolidated Fund of Uganda and ought to be thoroughly investigated”.

With the greatest respect to the President of ULS, I am constrained to state that the conclusion contained in the impugned statement, was not widely researched and makes a misleading inference on the position of the law on determination of emoluments of Members of Parliament.

The position of the law on determination of emoluments of Members of Parliament

It is an agreed position of the law that the emoluments of Members of Parliament are determined by Parliament pursuant to the provisions of Article 85(1) of the Constitution. It is also an agreed position of the law that the Parliament of the Republic of Uganda is not a body corporate and as such does not administer any funds. However, for administration purposes Article 87A of the Constitution of the Republic of Uganda establishes the Parliamentary Commission and stipulates that its composition and functions shall be prescribed by Parliament by law.

The law enacted for the purpose of prescribing the composition and functions of the Parliamentary Commission is the Administration of Parliament Act, Cap 257 of the Laws of Uganda. Therein, the Parliamentary is given several functions in section 6 which include:

(a) to appoint, promote and exercise disciplinary control over persons holding public office in Parliament;

(b) to review the terms and conditions of service, standing orders, training and qualifications of persons holding office in Parliament;

(c) to provide security staff to maintain proper security for the members of Parliament and facilities within the precincts of Parliament;

(d) to provide a parliamentary reporting service;

(e) to provide such other staff and facilities as are required to ensure the efficient functioning of Parliament;

(f) to cause to be prepared in each financial year estimates of revenues and expenditure for Parliament for the next financial year;

(g) to make recommendations to Parliament on or, with the approval of Parliament, determine the allowances payable and privileges available to the Speaker, Deputy Speaker and members of Parliament;

(h) to do such other things as may be necessary for the well-being of the members and staff of Parliament.

Section 6 (f) and (g) of the Administration of Parliament Act, are of paramount importance when it comes to the welfare of members of Parliament. It is clear that the Commission is clothed with the legal authority, to inter alia make recommendations to Parliament on or with the approval of Parliament, determine the allowances payable and privileges available to the Speaker, Deputy Speaker and members of Parliament.

It is also clear that the Commission is legally mandated to cause to be prepared in each financial year estimates of revenues and expenditure for Parliament for the next financial year. Upon so doing, in compliance with Article 155 (2) of the Constitution, the head of any self-accounting department, commission or organisation set up under the Constitution, (in this case the Speaker of Parliament) shall cause to be submitted to the President at least two months before the end of each financial year estimates of administrative and development expenditure and estimates of revenues of the respective department, commission or organisation for the following year.

It is these estimates that are codified in an Appropriation Bill which is introduced into Parliament to provide for the issue from the consolidated Fund of the sums necessary to meet that expenditure and the appropriation of those sums for purposes specified in the bill in line with Article 156 of the Constitution.

9. The premise of the Appropriations Bill in Article 156 of the Constitution is the dictate of Article 154 (1) and (2). It provides:
10. Withdrawal from the Consolidated Fund.

(1) No monies shall be withdrawn from the Consolidated Fund except—

(a) to meet expenditure charged on the fund by this Constitution or by an Act of Parliament; or

(b) where the issue of those monies has been authorised by an Appropriation Act, a Supplementary Appropriation Act or as provided under clause (4) of this article.

(2) No monies shall be withdrawn from any public fund of Uganda other than the Consolidated Fund, unless the issue of those monies has been authorised by law.

(3) No monies shall be withdrawn from the Consolidated Fund, unless the issue of those monies have been authorised by law.

The above constitutional provision is clear and self-explanatory which begs the question as to whether the monies that were earmarked for the service award were monies authorised by law as required by Article 154 (2).

11. The above question has been sufficiently dealt with and answered by the Constitutional Court of Uganda in Krispus Ayena Odongo v. the Attorney General and the Parliamentary Commission, Constitutional Petition No. 30 of 2017 at pages 36 – 42 wherein the court explained that Article 154 (1) (a) of the Constitution allows money to be withdrawn from the Consolidated Fund if it is charged by the Constitution or by an Act of Parliament. As such, the emoluments of Parliament do not go through the procedure of appropriation of funds under the Appropriations Act under Article 154 (1) read together with articles 155 and 156 of the Constitution. The procedure under those articles requires the President to lay before Parliament financial year estimates of revenues and expenditure by government for the next financial year. The expenses of Parliament are charged on the Consolidated Fund by section 20 of the Administration of Parliament Act. It provides:

 “20. Expenses of Parliament

The salaries and operational expenses of Parliament, including all salaries, allowances, gratuities and pensions payable to or in respect of persons serving in Parliament, shall be charged on the Consolidated Fund.”

 It is therefore clear from the law set out above that the administrative expenses of Parliament are charged on the consolidated fund and there is no requirement whatsoever before withdrawal of funds to present estimates via an appropriation bill for approval of Parliament. The funds constitute what is referred to as a statutory charge on the Consolidated Fund. Therefore, to the extent that the monies in issue, service award or otherwise, were appropriated in accordance with the above provisions of the law, they are legal. The Parliamentary Commission only executed its role as provided under section 6 (g) of the Administration of Parliament Act.

12. The reliance on the case of Mwesigye Wilson v. Attorney General and the Parliamentary Commission, Constitutional Petition No. 31 of 2011 and the resultant Supreme Court Appeal No. 08 of 2016 is misplaced as no motion or bill was ever introduced by the Parliamentary Commission to prescribe the service award to require compliance with Article 93 of the Constitution. The Parliamentary Commission on resolved to implement an idea whose funding had already been approved in line with Article 154 (2) of the Constitution, section 20 of the Administration of Parliament Act and sections 13 (10) (e) and 14 (1) of the Public Finance Management Act, 2015 (PFMA).
13. Upon approval of the budget as detailed above, an Accounting Officer, in this case the Clerk to Parliament, is required to commit the budget of a vote based on the annual cashflow plan issued under section 15 of the PFMA and to plan and manage the activities as indicated in the policy statement of the vote as dictated by section 21 (1) of the PFMA.

To answer the question as to whether the Service Awards determined by the Parliamentary Commission for the benefit of the four back bench commissioners and the former Leader of Opposition was illegal as is being stated by the President of ULS. The short and a resounding answer is NO. Without repeating the above process, it is imperative to note that the estimates for Parliamentary Commission that contained the impugned service award went through all the stages, to wit; the estimates being submitted to the President by the head of the Parliament in compliance with Article 155 (2) of the Constitution, the Government forming an opinion on the said estimates, Minister of Finance, Planning and Economic Development, on behalf of the President,laying it before Parliament for approval, submitting it before the Committee on Legal and Parliamentary Affairs for scrutiny in accordance with Section 13(4) of PFMA.

The assertion therefore that the consideration of the service award by the Parliamentary Commission was illegal, was arrived at by ULS without the full knowledge of the facts and the established legal processes. The Supreme Court of Mwesigye Wilson (supra) reiterating the provisions of Article 93 of the Constitution was quoted and relied upon out of context, and has no relevance to the circumstances of the consideration of service award by Parliamentary Commission. A casual reading of the Constitutional Court findings in Krispus Ayena Odongo v. Attorney General and the Parliamentary Commission would have cleared the cloud of misrepresentation delivered in the Uganda Law Society statement.

The Mwesigye case dealt with a different set of facts in which Members of Parliament, outside the budget framework, wanted to pay themselves money over and above the emoluments already approved by Parliament. The modalities of payment of the impugned service award was considered by the Parliamentary Commission, a body clothed with the requisite legal mandate so to do, as part of the budget estimates for FY2022/2023 but not approved by the Commission as being alleged. The Parliamentary Commission only resolved on the modalities of effecting the implementation of a decision of the Parliament of Uganda in its appropriation role.