What happens when a constitution legislates ?
Feb 06, 2011
SOON after the draft of the Uganda constitution of 1995 was published for public debate, a legal commentator complained in an article in the New Vision that the draft constitution talked too much about too many things.
By Peter Mulira
SOON after the draft of the Uganda constitution of 1995 was published for public debate, a legal commentator complained in an article in the New Vision that the draft constitution talked too much about too many things.
Indeed our Constitution is not as short as that of the US, for example, and what differentiates the two documents is that while the American constitution limits itself to principles without legislating ours does both.
When a constitution makes directives of a legislative nature it means that actions of individuals will more regularly be tested against its provisions unlike the case the US where with the exception of human rights issues constitutional issues are normally raised against interpretation of laws and their impact or the actions of those who conduct public affairs.
The just concluded constitutional case in which the Constitutional Court interpreted article 83(1)(g) and (h) of the constitution against the actions of MP William Okecho illustrates what happens when a constitution legislates.
Article 83(1)(g)(h) provides that “A member of Parliament shall vacate his or her seat in Parliament (a) if that person leaves the political party for which he or she stood as candidate for election to Parliament to join another political party or to remain in Parliament as an independent or (h) if, having been elected to parliament as an independent candidate that person joins a political party.â€
Such wording is normally found in laws of Parliament whose interpretation by courts affects only parties to the suit. Okecho’s case on the other hand has affected 70 members of Parliament.
Okecho contested in the National Resistance Movement party primaries in 2006 and having failed he successfully stood as an independent MP.
In August 2010, Okecho contested in the National Resistance Movement Party elections while still an independent MP.
The petitioner Mr George Owor complained to the Constitutional Court that Okecho’s actions contravened article 83(1)(g)and (h) of the Constitution. It is interesting to note that Okecho did not at any time inform the speaker of Parliament that he had ceased to be an independent member.
The court agreed with the petitioner. In its concluding remarks the court directed its registrar “to serve, as soon as possible, this judgment to the Speaker of Parliament and the Chairman Electoral Commission to take note of its contents and take appropriate action.†The implication here is that the court declared Okecho’s seat vacant and all that the Speaker and the Chairman of the Electoral Commission had to do was to implement the court’s decision.
Assuming that Okecho was of the view that he did not contravene article 83(1)(g))h) only the High Court and not the Constitutional Court would have power to make a binding decision on his membership. Article 86 of the constitution provides. “The High Court shall have jurisdiction to hear and determine any question whether a person has been validly elected a MP or the seat of a member of parliament has become vacant.â€
Apart from lacking jurisdiction to determine Okecho’s membership, the court’s interpretation of article 83(1)(g) can be challenged.
The court held that a member must vacate his/her seat if he was elected on a party ticket and elects to be nominated as an independent before the term of parliament comes to an end.
This is not in the body of the article. The article talks of one becoming an independent from a political party he was elected under and sitting as an independent.
There is no mention about a member losing his seat if he elects to be nominated to stand for election as an independent. Indeed so long as one remains a sitting member on the ticket of the party he was elected under and subscribes to that party’s policies his future intentions to sit as an independent cannot contravene article 83.
The construction the court put on article 83(1)(h) can also be flawed. The court held that if an independent MP joins a political party before the end of the term of Parliament “he or she cannot be validly nominated on a political party ticket for election to the next parliament.â€
This holding goes beyond the mandate of the court which is to interpret the meaning of the article in question. It is not open to the court to stifle the constitutional right of a person to stand for an election. If the Constitution intended to derogate on this right it would have specifically stated so.
The crisis which has resulted can be blamed on the petitioner’s decision to go to the Constitutional Court to challenge Okecho’s membership.
He should have gone to the High Court.
We need to implement the constitution by enacting laws to guide such situations.
The writer is a Lawyer
SOON after the draft of the Uganda constitution of 1995 was published for public debate, a legal commentator complained in an article in the New Vision that the draft constitution talked too much about too many things.
Indeed our Constitution is not as short as that of the US, for example, and what differentiates the two documents is that while the American constitution limits itself to principles without legislating ours does both.
When a constitution makes directives of a legislative nature it means that actions of individuals will more regularly be tested against its provisions unlike the case the US where with the exception of human rights issues constitutional issues are normally raised against interpretation of laws and their impact or the actions of those who conduct public affairs.
The just concluded constitutional case in which the Constitutional Court interpreted article 83(1)(g) and (h) of the constitution against the actions of MP William Okecho illustrates what happens when a constitution legislates.
Article 83(1)(g)(h) provides that “A member of Parliament shall vacate his or her seat in Parliament (a) if that person leaves the political party for which he or she stood as candidate for election to Parliament to join another political party or to remain in Parliament as an independent or (h) if, having been elected to parliament as an independent candidate that person joins a political party.â€
Such wording is normally found in laws of Parliament whose interpretation by courts affects only parties to the suit. Okecho’s case on the other hand has affected 70 members of Parliament.
Okecho contested in the National Resistance Movement party primaries in 2006 and having failed he successfully stood as an independent MP.
In August 2010, Okecho contested in the National Resistance Movement Party elections while still an independent MP.
The petitioner Mr George Owor complained to the Constitutional Court that Okecho’s actions contravened article 83(1)(g)and (h) of the Constitution. It is interesting to note that Okecho did not at any time inform the speaker of Parliament that he had ceased to be an independent member.
The court agreed with the petitioner. In its concluding remarks the court directed its registrar “to serve, as soon as possible, this judgment to the Speaker of Parliament and the Chairman Electoral Commission to take note of its contents and take appropriate action.†The implication here is that the court declared Okecho’s seat vacant and all that the Speaker and the Chairman of the Electoral Commission had to do was to implement the court’s decision.
Assuming that Okecho was of the view that he did not contravene article 83(1)(g))h) only the High Court and not the Constitutional Court would have power to make a binding decision on his membership. Article 86 of the constitution provides. “The High Court shall have jurisdiction to hear and determine any question whether a person has been validly elected a MP or the seat of a member of parliament has become vacant.â€
Apart from lacking jurisdiction to determine Okecho’s membership, the court’s interpretation of article 83(1)(g) can be challenged.
The court held that a member must vacate his/her seat if he was elected on a party ticket and elects to be nominated as an independent before the term of parliament comes to an end.
This is not in the body of the article. The article talks of one becoming an independent from a political party he was elected under and sitting as an independent.
There is no mention about a member losing his seat if he elects to be nominated to stand for election as an independent. Indeed so long as one remains a sitting member on the ticket of the party he was elected under and subscribes to that party’s policies his future intentions to sit as an independent cannot contravene article 83.
The construction the court put on article 83(1)(h) can also be flawed. The court held that if an independent MP joins a political party before the end of the term of Parliament “he or she cannot be validly nominated on a political party ticket for election to the next parliament.â€
This holding goes beyond the mandate of the court which is to interpret the meaning of the article in question. It is not open to the court to stifle the constitutional right of a person to stand for an election. If the Constitution intended to derogate on this right it would have specifically stated so.
The crisis which has resulted can be blamed on the petitioner’s decision to go to the Constitutional Court to challenge Okecho’s membership.
He should have gone to the High Court.
We need to implement the constitution by enacting laws to guide such situations.
The writer is a Lawyer