TO split or not to split the omnibus Constitutional (amendment) Bill 2005, should by now have ceased being a question of why, but of when. Considering the amount of criticism the bill has elicited from all sides, including the implementers (Electoral Commission) and guardians (courts of law), it would be politically imprudent and foolhardy to drag on with debate.
Having listened to most of the submissions before the legal and parliamentary affairs committee from a cross section of institutions and individuals, I am compelled to believe that the Government has not many options, but to withdraw and reconsider the bill.
Whereas the Attorney General (AG) and Justice minister Kiddu Makubuya has proffered that the Government arrived at the decision after â€˜serious considerationâ€™, the AG should think twice before walking straight into the impending legal storm.
And while he rightly argues that the decision to amend the articles of the Constitution en masse was taken to avoid some articles infecting others, this argument too falls flat on its face because the very courts that made the ruling on â€˜infectionâ€™ have cautioned against the mode he is taking.
This is because of the simple fact that the Constitution lays out procedures of amending specified articles under 259, 260 and 261, and that it ought not be circumvented.
â€œThe main reason for adoption of the omnibus bill is that the courts have decided that by amending one provision of the Constitution, Parliament could impliedly amend or infect other provisions not amendable by the method adopted, or not intended to be amended,â€ Makubuya told the committee.
He said this was to avoid a repeat of the Constitutional (amendment) Act of 2000, which the courts ruled had impliedly infected articles 28 and 137 of the Constitution. â€œThe advantage of the omnibus Bill is that all the provisions of the bill are enacted and come into force at the same time,â€ he told legislators.
But the Electoral Commission chief, Badru Kiggundu, contends that taking these three categories of articles to the people in one bill would, besides being illegal, present execution problems and jeopardise articles that the Parliament should have passed with finality. This is because all articles in the Bill, desired or not desired, will receive one verdict from the people, a YES, or a NO.
Considering a couple of provisions, the bill says the next presidential, parliamentary and local council elections shall be held under a multi-party setting, which is a desired and agreed position.
Now if such a provision is put in the same bill with one that suggests open terms for the presidency, members of the opposition, who detest the latter will have no option, but to endorse both, as they have to answer YES or NO, to a question reading like â€œDo you approve or ratify this Bill? This is because they want to be freed and risk going back in bondage if they answer no because of third term.
So they would have indirectly though unwillingly endorsed the kisanja project. Whatever intention the Government had when it conceived the idea, what is now apparent is that the legality of the Bill will certainly be challenged when it is left to go as it is.
What the Government should do is to quickly withdraw the Bill, have the three types of articles separated, which can be done within days and bring it back such that they are all navigated through the Parliament concurrently.
However, this still presents the small problem of time, as even the one currently in contention, is time bared. But this shouldnâ€™t worry anyone as it can be avoided by leaving out public hearings, since all the stakeholders have already had their say. The sooner the better.
Split ominibus Bill into three seperate articles