Kabushenga wrong over omnibus Bill
Mar 15, 2005
OLOKA ONYANGO<br><br>I must admit that I was both dismayed and surprised to read Robert (Bob) Kabushenga’s piece on the omnibus bill, Sunday Vision, March 13, because either it was a deliberate attempt to misinterpret the law and mislead the public, or my good friend has forgotten all the Consti
OLOKA ONYANGO
I must admit that I was both dismayed and surprised to read Robert (Bob) Kabushenga’s piece on the omnibus bill, Sunday Vision, March 13, because either it was a deliberate attempt to misinterpret the law and mislead the public, or my good friend has forgotten all the Constitutional Law he learnt at Makerere.
Because the case has now been filed in court, I will not talk about its merits or otherwise. Instead, I would like to focus on the numerous technical falsehoods pervaded by the article about the law and the power of our courts.
Among the most glaring inaccuracies are the following:
“That it is premature and unnecessary to bring a suit against the omnibus bill;
“That the courts of law have no jurisdiction (power) to hear such a petition, and
“That the MP’s action to stop the bill is simply an attempt to score political pointsâ€.
If Kabushenga had bothered to read the 1995 Constitution, he would have found that any question regarding the interpretation of the Constitution can be instituted at any time.
To be more specific, Article 137 of the Constitution gives the Constitutional Court the power to interpret any provision of the instrument if there is a dispute over it. With Cabinet asserting that the omnibus bill is okay and a host of legal experts (including the Law Reform Commission, the Electoral Commission and the Judiciary itself) expressing doubts about the bill, surely it is quite clearly a matter ripe for interpretation.
There is no doubt that there are numerous critical questions especially regarding the provisions in Chapter 18 concerning amendment, not to mention Article 1, regarding the power of the people, calling out for judicial intervention.
Surely, every Ugandan needs to have an authoritative interpretation of what is the correct position.
The MPs are simply carrying out their civic duty of defending the Constitution. Kabushenga is himself clearly concerned about the bill when he offers several alternative options on how the matter should be dealt with in order to head off what he clearly sees to be a looming crisis.
Secondly, Bob knows very well that the timing of a court action depends on the gravity of the threat anticipated. In other words, what is the point of waiting for a violation to take place if you can stop it from harming you in the first instance?
This was clearly anticipated by Article 50 of the Constitution which states, “Any person who claims that a fundamental or other right or freedom guaranteed under this Constitution has been infringed or threatened, is entitled to apply to a competent court for redress….â€
Several submissions to the Committee on Legal and Parliamentary Affairs have given vivid testimony of the human rights and other legal principles under threat if the bill is passed into law.
To allow the bill to proceed would have numerous repercussions not only for the politics of the country, but also for the overall protection of human rights and legal order. Put another way, a stitch in time saves nine! Regarding the power of the courts to oversee Parliament, it appears that Bob has forgotten the recent decision overturning the first (abortive) attempt to amend the 1995 Constitution.
In that case (concerning issues such as the parliamentary quorum and voting method), the court very clearly stated that where Parliament has violated any provisions of the Constitution, a petition can be competently brought against it. This is because Article 2 stipulates that all institutions and all persons in Uganda are bound by the terms of the Constitution.
Article 126 vests judicial power i.e. the power to settle disputes, within the Judiciary. If it is not the Judiciary to oversee implementation of the Constitution, who will?
Quite clearly, this does not amount to a violation of the separation of powers principle, but simply the upholding of the doctrine of constitutional governance, which lies at the foundation of the 1995 Constitution.
Finally, Kabushenga seems to have problems with the lawyer chosen by the MPs to bring the court action. While Peter Walubiri can ably defend himself from scurrilous attacks, the crucial point we should be asking is whether or not the MPs have a valid legal and constitutional claim? If Bob’s worst enemy were to tell him that his house was on fire, would he dismiss the message simply on account of the messenger?
The fact is that the omnibus bill presents a clear danger to established freedoms and liberties in this country. Whosoever helps in highlighting its pitfalls should therefore be fully supported in this endeavour. Indeed, Kabushenga would do well to join in the suit because of the real threat the bill poses to media freedoms and free expression in the country.
Bob, remember that in deliberately distorting the objective of the court action, you are riding a tiger.
It will only be a matter of time before it turns on you.
Oloka-Onyango
HURIPEC, Makerere University
I must admit that I was both dismayed and surprised to read Robert (Bob) Kabushenga’s piece on the omnibus bill, Sunday Vision, March 13, because either it was a deliberate attempt to misinterpret the law and mislead the public, or my good friend has forgotten all the Constitutional Law he learnt at Makerere.
Because the case has now been filed in court, I will not talk about its merits or otherwise. Instead, I would like to focus on the numerous technical falsehoods pervaded by the article about the law and the power of our courts.
Among the most glaring inaccuracies are the following:
“That it is premature and unnecessary to bring a suit against the omnibus bill;
“That the courts of law have no jurisdiction (power) to hear such a petition, and
“That the MP’s action to stop the bill is simply an attempt to score political pointsâ€.
If Kabushenga had bothered to read the 1995 Constitution, he would have found that any question regarding the interpretation of the Constitution can be instituted at any time.
To be more specific, Article 137 of the Constitution gives the Constitutional Court the power to interpret any provision of the instrument if there is a dispute over it. With Cabinet asserting that the omnibus bill is okay and a host of legal experts (including the Law Reform Commission, the Electoral Commission and the Judiciary itself) expressing doubts about the bill, surely it is quite clearly a matter ripe for interpretation.
There is no doubt that there are numerous critical questions especially regarding the provisions in Chapter 18 concerning amendment, not to mention Article 1, regarding the power of the people, calling out for judicial intervention.
Surely, every Ugandan needs to have an authoritative interpretation of what is the correct position.
The MPs are simply carrying out their civic duty of defending the Constitution. Kabushenga is himself clearly concerned about the bill when he offers several alternative options on how the matter should be dealt with in order to head off what he clearly sees to be a looming crisis.
Secondly, Bob knows very well that the timing of a court action depends on the gravity of the threat anticipated. In other words, what is the point of waiting for a violation to take place if you can stop it from harming you in the first instance?
This was clearly anticipated by Article 50 of the Constitution which states, “Any person who claims that a fundamental or other right or freedom guaranteed under this Constitution has been infringed or threatened, is entitled to apply to a competent court for redress….â€
Several submissions to the Committee on Legal and Parliamentary Affairs have given vivid testimony of the human rights and other legal principles under threat if the bill is passed into law.
To allow the bill to proceed would have numerous repercussions not only for the politics of the country, but also for the overall protection of human rights and legal order. Put another way, a stitch in time saves nine! Regarding the power of the courts to oversee Parliament, it appears that Bob has forgotten the recent decision overturning the first (abortive) attempt to amend the 1995 Constitution.
In that case (concerning issues such as the parliamentary quorum and voting method), the court very clearly stated that where Parliament has violated any provisions of the Constitution, a petition can be competently brought against it. This is because Article 2 stipulates that all institutions and all persons in Uganda are bound by the terms of the Constitution.
Article 126 vests judicial power i.e. the power to settle disputes, within the Judiciary. If it is not the Judiciary to oversee implementation of the Constitution, who will?
Quite clearly, this does not amount to a violation of the separation of powers principle, but simply the upholding of the doctrine of constitutional governance, which lies at the foundation of the 1995 Constitution.
Finally, Kabushenga seems to have problems with the lawyer chosen by the MPs to bring the court action. While Peter Walubiri can ably defend himself from scurrilous attacks, the crucial point we should be asking is whether or not the MPs have a valid legal and constitutional claim? If Bob’s worst enemy were to tell him that his house was on fire, would he dismiss the message simply on account of the messenger?
The fact is that the omnibus bill presents a clear danger to established freedoms and liberties in this country. Whosoever helps in highlighting its pitfalls should therefore be fully supported in this endeavour. Indeed, Kabushenga would do well to join in the suit because of the real threat the bill poses to media freedoms and free expression in the country.
Bob, remember that in deliberately distorting the objective of the court action, you are riding a tiger.
It will only be a matter of time before it turns on you.
Oloka-Onyango
HURIPEC, Makerere University