Parliament can't force ministers to step aside

By Hillary Nsambu

PARLIAMENT has no powers under the Constitution to order the Prime Minister or any minister of Government to step aside, the Constitutional Court has ruled.

The Constitution, the court ruled yesterday, vests powers to remove the Prime minister or ministers in the President who is the Chief executive Officer, except where the minister dies, vacates on their own or disqualified to be Member of Parliament.

"It is the onerous responsibility of the Prime Minister and each of the ministers to, with consent of the head of the executive, take an individual decision, each one on his own to step aside pending investigations. This is the constitutional position," the court said.

The ruling was in respect of a petition filed by a lawyer  Severino Twinobusingye  who argued that it was unconstitutional for Parliament to demand for the stepping aside of the Prime Minister Amama Mbabazi and Ministers Sam Kutesa and Hilary Onek, pending the investigations.

"Even where Parliament, by resolution passes a vote of censure against a minister, it is not vested with powers to order that the censured minister vacates the office of minister," the judges ruled.

Members of Parliament and the Speaker also came in for some criticism over the manner in which the Oil Debate was conducted. The judges noted that although parliament is independent and its members are free to say anything on the floor of the House, they are however obliged to exercise such freedoms in a manner that gives parliament honor and admiration in the eyes of the public.

They observed that "the Speaker, as the head of the house has a big role to play in guiding parliamentarians not to use unparliamentary and reckless language that may infringe on other people's rights which are entrenched in the Constitution, by calling them to order.

Parliament should avoid acts which are akin to mob justice because such acts undermine the respect and integrity of the National Parliament. It is not in keeping with the basic tenets of the Constitution, for example when an Honourable Member of Parliament advocates for executing expel without trial, like Idi Amin did to many Ugandans and this member is not called to order, but is just cheered on by the rest of the House."

Court concluded that this kind of conduct in the Oil Debate was unfortunate.

The Court however, observed that Parliament acted within its powers to set up the ad-hoc committee to investigate the accusations against the Prime Minister and the two cabinet ministers.

"Our observations notwithstanding, we find that the setting up of the ad-hoc committee by Parliament in that heated atmosphere was constitutional under Article 90 of the Constitution and this Court cannot interfere with it. To do so would amount to this court interfering with the legitimate internal workings of Parliament," the court ruled.

The court's registrar, Elia Omar Kisawuzi, read the judgment on behalf of the five-judge Coram headed the Deputy Chief Justice Alice Mpagi-Bahigeine. The other members were justices Steven Kavuma, Augustine Sebutulo Nshimye, Stella Arach-Amoko and Remmy Kasule.

The Constitutional court also lifted the order it issued stopping Parliament from conducting investigations into the oil bribery allegations.

Contacted after the court ruling, MP Michael Kafabusa Werikhe (NRM), Chairperson of the Parliamentary ad-hoc committee probing the allegations, said they would resume their work after consulting the Speaker.

"We are going to reconvene as a committee and meet the speaker about the way forward since our mandate was for three months and it's about to expire.  Although government has tabled new oil bills, the committee's work will enrich these bills instead of compromising them," he said.

"It's important that the committee's work is allowed to take its course in order to come up with the best for this country. How much Uganda benefits from its oil and gas sector will depend on the kind of laws that it will put in place to regularize the sector," he added.

The Constitutional court said that in modern democracies, the term "stepping aside" is now generally taken as part of the responsibility of the holder of public office in discharging one's duty of being accountable to the people.

"A culture has developed in modern democracies, Uganda inclusive, whereby a public officer whose conduct in a public office is being questioned steps aside, on his or her own, to enable investigations to be carried out without his or her influence," the court asserted.

The petitioner, a resident of Kinkizi West, Kanungu district, was represented in court by John Mary Mugisha and Chris Bakiiza.

Among other things, the petitioner's lawyers argued that the Prime Minister and the two cabinet ministers, Mbabazi, Kutesa and Onek respectively were denied a right to fair hearing before Parliament passed the resolutions affecting them.

They further contended that the Prime Minister and the ministers were not accorded adequate time and facilities for the preparation of their respective defences and that Parliament acted capriciously on forged documents whose veracity it deliberately declined to test.

The petitioner argued that Parliament violated the Prime Minister's and the Ministers' rights to presumption of innocence and their right to fair treatment in administrative decisions.

The petitioner argued that the ad-hoc committee that Parliament set up was inherently biased and this had made Parliament a judge in its own cause.

However, senior State Attorneys George Kalemera and Daniel Gantungo, who represented the Attorney General, had opposed the petition saying that it was premature and raised no issues that required constitutional interpretation.

The attorneys had contended that the Attorney General, had not by any act or omission, violated the Constitution and had asked the court to dismiss the claims with costs against the petitioner.