I thank Robert (Bob) Kabushenga for his â€˜Dear Joeâ€™ letter, although it confirmed that Bob has indeed forgotten the law, or is deliberately distorting it. Perhaps this explains why he cited the Law Development Centre (LDC).
Since I attended the same institution, I failed to grasp the relevance for that. If his point was that theory is irrelevant to practice, then we must be very afraid, because it is precisely the attitude that dismisses theory as unimportant which leads to the abrogation of constitutions and similar violations.
According to this mode of reasoning â€˜in practiceâ€™ anything is possible; the letter and spirit of the Constitution are irrelevant. If theory is indeed irrelevant, Bob should ask himself why he first did three or four years of â€˜theoryâ€™ at the Faculty of Law and only one of â€˜practiceâ€™ at the LDC or why he did not start with the single year at LDC and end with Makerere?
Kabushenga raises issues that need critical attention. I beg to differ that Article 137 refers only to â€˜active and immediate rather than anticipatedâ€™ contraventions. The phrase â€˜a billâ€™ appears in several articles of the Constitution, making it fair game for constitutional interpretation.
The point in this case is both the form and substance of the omnibus bill. Is it appropriate to amend the Constitution with this kind of bill? Can a bill to amend the Constitution contain several unrelated matters, or does it need to be more precise? Waiting for enactment of the bill into law would mean that we lose the opportunity for an interpretation of what the phrase â€˜a billâ€™ means. It is not simply the end, but also the means to the end that are important. If one examines the provisions of Chapter 18 of the Constitution (on amendment), there are critical questions regarding the form in which a bill to amend the Constitution is presented that require interpretation.
The form of the bill in a constitutional matter is also important because there is a distinction with an ordinary bill or with the amendment of ordinary legislation. An omnibus bill sets a precedent that could have several dangerous implications for the future stature of the Constitution, and this is why the very form of the bill is as important as its final impact.
Bob concedes that Article 50 is relevant to the case, but argues that since the petitioners do not mention the provision in their prayers, the Court cannot address it. Once again, Bob is confusing ordinary civil actions with issues of a constitutional nature.
A Constitutional Court is a unique kind of court, which explains both the special and different principles of interpretation applied to the document as well as the number of judges who sit on the court (five). The Constitutional Court is much more flexible than ordinary courts because of the gravity of matters it hears. Such a court will not ignore a relevant point irrespective of whether or not the parties have made reference to it. This has happened in previous cases decided by both the Supreme and Constitutional Courts since the enactment of the 1995 Constitution.
The issue of â€˜infectingâ€™, given as one of the primary reasons for overturning the first constitutional amendment in the Referendum case, was not pleaded by any party to the proceedings. This power of flexibility and inference is derived from Article 126 (2) (e) and Bob would do well to review the cases, which have used this provision to decide matters not initially in the pleadings of the parties to the petition.
Finally, Bob makes reference to the cases of Sam Kutesa and Jim Muhwezi. I am on record in an article published in 2000, to have stated that the two censorships were in effect unconstitutional.
Indeed, I also stated that the Constitutional Court erroneously dismissed the Muhwezi case on a mere technicality and thereby deprived us the benefit of appreciating the several flaws in process that the petitioners committed in the proceedings, which led to the eventual censure. Contrary to what Kabushenga suggests, I would in fact argue that even if Muhwezi had brought the petition before the censureship was concluded, he would have been well within his rights, because there were several issues of a procedural nature, which a court could legally inquire into.
Under the 1995 Constitution, even the Parliamentary Rules of Procedure are not immune to Court oversight if they threaten, or violate fundamental rights, and this power does not offend the principle of separation of powers. The Constitution is a special document. We would do well to appreciate that point. In sum Bob, practice must be guided by theory, in the same way that theories are informed by the experience of practice.
The writer is a lecturer at the Faculty of Law, Makerere University
Kabushenga got it wrong