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Is open voting by army MPs unconstitutional?

By Vision Reporter

Added 5th May 2005 03:00 AM

I am writing in response to Eriya Kategaya’s views about possible UPDF partiality in politics, recently published in The New Vision, April 30, and May 2, and The Monitor, May 1.

I am writing in response to Eriya Kategaya’s views about possible UPDF partiality in politics, recently published in The New Vision, April 30, and May 2, and The Monitor, May 1.

I am writing in response to Eriya Kategaya’s views about possible UPDF partiality in politics, recently published in The New Vision, April 30, and May 2, and The Monitor, May 1.
I believe Mr Kategaya is making an issue where none exists. That is why he notes that the problem of Parliamentary rules of debate has “attracted (only) my attention but has not been noticed by many people”. Indeed, many people have not noticed it because it does not exist.
His concern is that, under the open voting method, which Parliament has adopted, UPDF MPs will be forced to take partisan positions, and, he wonders, whether the character of the UPDF will “remain respected, and loved by majority Ugandans, if not all, whether they believe in Kisanja or otherwise”. He is worried about how UPDF representatives will vote, on “controversial” constitutional issues, in Parliament, in a system where the MPs are required to givee their views openly, and the answer is recorded against their names. He also wonders whether whichever stand a person like Lt Gen. Aronda, the Army Commander, takes, will be his personal or the stand of the UPDF. He further wonders whether the army MPs will not be deemed partisan depending on the stand they take.
These concerns are unfounded. The UPDF MPs, whether by open method, or secret ballot, must express the position of their constituency — the UPDF. In other words, UPDF MPs can never, and should never, represent, and express personal views in Parliament. Indeed, as Kategaya, correctly, notes, UPDF is, just like workers, women, youth, and people with disabilities, a “special interest group” in Parliament. Representatives of such groups, have a clear mandate from their respective interest groups. This mandate broadly defines the interests that they have to promote, and defend in Parliament, as well as their conduct in Parliament, whether in debates, or otherwise. Such MPs, more than the other MPs, are duty bound, to religiously, respect their mandate. Otherwise, their presence in Parliament would be redundant.
In the case of the UPDF, in addition to the limitations imposed on them by virtue of the law and military professionalism, which every Army MP is assumed to know, there are clear guidelines on how they are to behave in order to be effective without compromising the character of the institution. These guidelines include: acting as listening posts (Kategaya mentions this in his article); giving guidance to Parliament; and when in doubt on any issue, to always seek guidance from their constituency, the UPDF (UPDF Council/High Command). These guidelines are intended to provide safeguards against the fears that Kategaya expresses. They are intended to protect the character of the UPDF, as defined by Article 208 (2) of the 1995 Constitution, and other laws, as well as the patriotic and nationalistic ideology of the NRA/UPDF.

Thus, the hypothetical dilemma raised on whether, if Lt Gen Aronda, votes publicly, he will be expressing a personal view or not, does not arise. What Kategaya perceives as a problem that “whichever stand Aronda takes, one will not know whether his answer is personal or the UPDF’s stand, cannot arise. Remember, on fundamental issues, such as constitutional issues, UPDF always takes a stand. It did this when the High Command/Army Council, meeting in Gulu barracks, resolved that the institution of traditional leaders should be restored. Later, during the constitution-making exercise, it submitted its position to the Uganda Constitution Commission, and, when the Constituent Assembly was elected, we elected representatives to the Assembly. The most important point to note is that whichever stand the UPDF takes is always in the national interest, in the interest of the national unity, national cohesion, and stability. Thus, the Army MPs, whether secretly or openly, are duty-bound to give expression to this stand, and conduct themselves in a manner consistent with this stand.
The point made about the danger of UPDF MPs being, or misperceived to be, partisan, may appear legitimate on the surface. However, why does this question arise now and from Kategaya of all people? The current exercise in Parliament is of amending the 1995 Constitution. In the promulgation of that constitution itself, decisions were made openly both in Committee and plenary sessions. In the current rules of procedure of Parliament, the Speaker has powers to order for a division, that is, open voting (Rule 77). Usually this is over matters where there is no consensus, matters that are controversial. Indeed, this rule has been invoked many times. If in the last 10 years, with the open voting method in operation, and participation by the UPDF in decision-making both in the CA and the last two Parliaments, the UPDF has not been perceived to be partisan, why should this danger arise now? The fact that it has not been perceived thus all this proves the perception cannot be because of open voting in Parliament. As long as UPDF MPs are disciplined and stick to their mandate, there is no question of the impartiality of the UPDF being compromised. The stand that the UPDF takes must be expressed as it is, whether, privately or publicly, secretly or openly. Thus, the stand of the Army Commander must never be perceived to be a personal stand. It must reflect the position of the Army, through its political organs (UPDF Council/High Command).
As for the example Kategaya gave of Lt Gen Tinyefuza and the late Lt Col Serwanga Lwanga, during the promulgation process of the Constitution in the Constituent Assembly, 1994/5, their behaviour had nothing to do with the Rules of Procedure of Parliament (or even the CA then). They expressed their personal views publicly, moreover, on controversial issues. They were admonished by the High Command and the Commander-in-Chief/Chairman of the High Command, acting on behalf of the special interest group, their constituency, the UPDF. It is true one or two Army MPs, have, even in the current Parliament, continued to make personal and controversial utterances in Parliament as well as in the media. That disciplinary action has not been taken against them does not mean the mechanism to do so does not exist, or the problem is the Rules of Procedure of Parliament. It does not mean they cannot be, or will not be sanctioned. In fact, it was amazing listening to one of the officers in the current Parliament on a live radio talk show lecturing about the importance of conducting affairs of the army professionally, and yet, in his utterances, he violates every rule in the rulebook of military professionalism!
In fact, any Army MP who takes a personal position in Parliament is acting ultra vires (beyond or exceeding) his/her mandate, and is liable to be disciplined in accordance with the rules, regulations, and policy of the UPDF. I believe this ought to be so even in respect of the other interest groups. Similarly, there should be disciplinary regulations/mechanisms, in these special interest groups, to deal with MPs who violate their respective mandate, or who conduct themselves inappropriately.

Of course, MPs, generally, should respect their constituencies. That is why there is a provision for the sanction of the “right of recall” of MPs (Article 84 of the Constitution, and S.7 of the Parliamentary Elections Act, 2001). Noteworthy, among the grounds for recalling an MP are the following: misconduct or misbehaviour likely to cause hatred, ridicule, contempt or disrepute to the office, and persistent deserting of the electorate without reasonable cause. Desertion can be physical or constructive. Constructive desertion could include neglect to consult the electorate; expressing oneself without taking regard to the views, position of the electorate; and espousing or propagating views which are different from, or, worse still, prejudicial to the electorate; or allying oneself with holders or propagators of such views.
Having said this, however, I must disagree with Kategaya’s suggestion that it is wrong for UPDF to take a stand on controversial issues, and by extension, that it would be wrong for Army representatives to represent that stand in Parliament. Kategaya should not misconstrue the admonishment by the High Command, in respect of the incident in the Constituent Assembly, to mean that the UPDF must never pronounce itself on controversial issues. Indeed, as I earlier pointed out, NRA/UPDF has taken positions on controversial issues of national importance, and clearly, in the national interest.
In fact, as the “theatre” shifts to Parliament, with forces that want to use Parliament to undermine the constitutional and democratic gains of the people of Uganda, as well as to undermine national cohesion and national unity, the UPDF, in the national interest, cannot remain listening posts. It must ultimately act together with other democratic forces as the guardian of the State. This is even more critical during the current constitutional review process, where fundamental issues that affect the direction of the country, are being discussed by Parliament. What is important, however, is that the stand the UPDF representatives take must be consistent with the stand of the UPDF. In turn, such a position must be consistent with the Constitution, other laws, as well as the patriotic and nationalistic ideology of the NRA/UPDF. In making these decisions, however, the UPDF must draw a clear distinction between supporting the sovereignty of the people and partisan issues. The vote on the referendum for change of political system, for example, is clearly a sovereignty issue, a matter which gives power to the people, which is why the NRA (UPDF) waged an armed struggle. Article 209 of the 1995 Constitution enjoins the UPDF to, among other functions, “preserve and defend the sovereignty of Uganda”. Similarly, the Defence Policy of Uganda states as the core mission of the UPDF: “To defend and protect the sovereignty and territorial integrity of Uganda, ensure the non-violability of the people’s rights and ensure the sovereignty and individual rights of the people, the rule of law, and governance” (Defence Policy, P. 4). Everyday, we are seeing the sovereignty of the people, (the right of the people to determine their destiny) under attack, including by a few individuals in Parliament. The latest is the attempts by some forces in Parliament to deny the people their constitution-given right to determine the political system of their choice, through a referendum. The UPDF, through the Defence Council/High Command, must take a stand, and the UPDF representatives must represent that stand. What is crucial is that the positions the UPDF MPs take are consistent with the UPDF position. Any departure from this position is indiscipline and liable to disciplinary action.

So, the scenario Kategaya highlights, of UPDF representatives supporting different, and sometimes opposed (as has happened in the past or present Parliament) positions, should never arise. Yes, the UPDF, being a special interest group, has corporate interests, and, therefore, there is nothing wrong or alarming for “all (the Army MPs) to vote together on one side”. In fact, what is alarming is seeing Army MPs voting or expressing diametrically opposed views as though they represent different armies, or as though the army is divided. Like any other organisation, the UPDF, internally, can have, and, we do have different views, on issues. However, in representing the army in outside fora, the representatives must express one position: the UPDF position. If they are not sure of that position, they should consult.
Furthermore, UPDF voting “together on one side”, and UPDF “taking sides” does not mean it has become partisan, and violated Article 208 of the Constitution. Whether the UPDF is partisan must be decided on the basis of whether we have taken a position hostile to the people, or, at least the majority, or the national interest, not on whether it has a side or not. Article 208 should be read together with Article 209, and the “National Objectives and Directive Principles of State Policy”, which provides for joint civil-military responsibility for the defence of national sovereignty, national independence, and territorial integrity. This defence involves, not just joint action on the battlefield, but wherever the threat emanates. When the threats surface in Parliament, the UPDF has a responsibility to side with the people. If you take the issue of the lifting of presidential term limits, the Kisanja, it is not that it is controversial. Rather, it is whether the stand the UPDF takes is in harmony with the people. We shall always support what the majority of our people want, what is in their interest. The challenge, therefore, is how to ensure this harmony.
Finally, let me assure the country that the UPDF will remain an army for Uganda, and can never be partisan. We know our constitutional obligations, the historical challenges of nation building, the role the army has played (initially, to undermine national building), and, now, as the bedrock, on which our country is resurrecting, and rebuilding. Kategaya should, therefore, not worry that “opening” the voting method in Parliament will change the historical role and character of the NRA/UPDF, as a people’s army.

The writer is the Minister of Defence

Is open voting by army MPs unconstitutional?

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