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Executive can’t be judge in own case

By Vision Reporter

Added 12th February 2004 03:00 AM

THURSDAY, January 29, a Coram of seven Supreme Court judges unanimously ruled in favour of DP leader Paul Ssemogerere and others that the Constitutional (Amendment) Act 13 of 2000 was null and void.

THURSDAY, January 29, a Coram of seven Supreme Court judges unanimously ruled in favour of DP leader Paul Ssemogerere and others that the Constitutional (Amendment) Act 13 of 2000 was null and void.

According to them, in a lead judgment written by Justice George Kanyeihamba, the Act was invalidly passed because Parliament failed or ignored to comply with specific procedures laid down for amending certain provisions of the Constitution. The petitioners were also awarded costs.

As a result, the combined political opposition and critics of the Movement have been falling over each other, and heels overheads falsely claiming there is no legitimate government in Uganda.

In fact, some led by Ssemogerere and UPC’s James Rwanyarare were so naïve to ask President Yoweri Museveni to “resign”.

Indeed, if there was a power vacuum, the logical step would be for those who make such claims to come forward and assume state power. Otherwise engaging in wishful thinking won’t be useful to them.

Yet the truth and fact that cannot be disputed or run away from is that the referendum took place on June 29, 2000 and on whose basis the 2001 presidential, parliamentary and local council elections were all held.

And even if Ssemogerere as he has vowed to challenge the Referendum Act 2000 and obtains a favourable judgment, that may as well come after the return to multipartysm, going by the present pace of disposal of constitutional petitions.

The lessons while good would mainly be valid for research and academic purposes rather than achieving state power, which Ssemogerere and the opposition are thirsty for.

By asking Museveni or Attorney General Francis Ayume to resign merely because a case has been lost before an independent, objective, professional and impartial court, the opposition seem to believe that the executive should be a “judge,” in its own case.

That line of thinking betrays their democratic posturing, and yet we have not heard or about to hear Ssemogerere quitting either from DP leadership or politics generally for losing elections in 1962, 1980, 1996, and 2001 in which he was a Kiiza Besigye proxy.

In addition, although an old man, at 74 years, Ssemogerere seem not to have learnt from the African traditional saying of the wise that don’t count your chicks before they hatch!

He counted his chicks in 1980 when he claimed to have won elections against UPC, and actually sent fictitious election results to Voice of Kenya at the time, and other foreign media. And he has continuously repeated those baseless if not absurd claims during the first Resistance council elections (1987) and expanded NRC in February 1989.

From this factual historical perspective, it is not farfetched to conclude that this bout of victory celebrations at Gaba beach, City, and Uganda House as well as in corridors of Parliament by a section of opposition MPs will come to pass.

Also Uganda’s Constitution does not provide for a single instance for courts of law to grant political state power to a litigant, except by going through a bye or re-election.
That being the case, it means that even where a litigant obtains a favourable court ruling, he or she must contend with mobilising the actual registered voters to get into office, a feat Ssemogerere is yet to climb.

While this specific Supreme Court ruling shows the Judiciary is more independent and impartial and consolidates democracy and the rule of law, it should provide insightful lessons to all stakeholders.

For instance, Parliament and the Attorney General’s chambers may be blamed for failure to strictly and accurately interpret and apply the rules of procedure for amending the Constitution.

The revelation by the Speaker, Edward Ssekandi, that the disputed law, the Constitutional (Amendment) Act 13 of 2000 was not assented to by the President on August 31, 2000 as alleged by the petitioners and upon which court based its ruling is a spanner in the wheels.

And Ssekandi added quite confidently that even if “a million people were deployed,” they would not find that law in Uganda.

So the petitioners misled court, while the AG’s chambers absconded in its duty to properly guide so that the deliberate mischief of the petitioners is discovered early enough.

While it is not the responsibility of court to adduce evidence in a case, it should not treat kindly
litigants who deliberately distort material facts such as a date when a disputed law was assented to!

This case puts into
question as to which Constitutional (Amendment) Act 13 of 2000 the court looked at because the date of Assent should have been prominent on it!

Since the Supreme Court has powers to review its own decision, it is only fair and logical that the AG requests it to do so in light of the discovery of numerous fundamental flaws in facts of law.

These include, among others, the fact that parliament records
in the relevant Hansard was not used to show that actually head count and not voice was used in voting on that particular subject, and also that a certificate of compliance from the Speaker to the President was sent.

Executive can’t be judge in own case

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