Justice Steven Kavuma says Parliament acted "illegally" by setting up an ad-hoc committee.
By Hillary Nsambu and Anne Mugisa
Justice Steven Kavuma has faulted Parliament for contravening the Constitution by setting up an ad-hoc committee to investigate Prime Minister Amama Mbabazi and the two cabinet ministers.
"Clearly in my view in so acting, Parliament exceeded its powers and acted illegally in contravention of all the principles of natural justice. All its acts and decisions, therefore, are clear strangers to the law," Kavuma said in a separate judgment.
In a dissenting judgment to the majority judgment of the Constitutional Court that Parliament was constitutional in setting up the ad-hoc committee to probe Prime Minister Mbabazi and the two cabinet ministers, the judge said that Parliament acted unconstitutionally.
Kavuma, a former minister for defense, said the ad-hoc committee should be declared null and void because it is unconstitutional.
"From the evidence on record, it is clear Parliament fell into the error, probably unconsciously, of turning itself into the investigator, the prosecutor and the judge, all three in one, in a matter it was clearly an interested party when it deliberated on the matters that were on the House floor at that time," Kavuma asserted in a dissenting judgment particularly on the issue of setting up of the ad-hoc committee.
Otherwise, Kavuma was in full agreement with the Constitutional Court's majority judgment in a petition filed by Severino Twinobusingye in which he challenged as unconstitutional the setting up of the ad-hoc committee of Parliament to probe the Prime Minister and two other cabinet ministers.
Twinobusingye's petition also challenged as unconstitutional the Parliament's forcing of Mbabazi and ministers Sam Kuteesa and Hillary Onek of Foreign Affairs and Internal Affairs respectively, to leave their offices pending investigations against them over allegations of bribery in the oil sector.
In his separate judgment that was delivered by Court of Appeal Registrar Elias Omar Kisawuzi, Justice Kavuma said that the wise choice by the Parliament would have been to opt for a judicial commission of inquiry conducted independently of it [Parliament].
"As a fountain of democracy and as an organ of state, Parliament has, in all its workings to always observe the Constitution under the doctrines of supremacy of the Constitution and the separation of powers," Kavuma asserted.
He said where there is a clear case calling for intervention to determine the constitutionality or legality of any action, or where a government agent has exceeded his, her or its powers or have acted unjustly causing injury thereby, the courts, and the Constitutional Court more especially, are obliged to interfere and to do so without fear or favour.
The judge agreed with John Mary Mugisha and Chris Bakiiza, counsel for the petitioner, that the way Parliament conducted its business in passing the resolutions was biased. It had pre-determined views and conclusions about the Prime minister and each of the ministers.
He observed that although the Prime minister and the other two ministers mentioned in this case addressed Parliament at some point of its deliberations, they did so in an atmosphere and environment that was so “polluted”.
As such it did not measure up to the tenets of the rules of natural justice particularly that of a fair hearing as provided for in the Constitution.
"I am of the strong view that the ad-hoc committee appointed by Parliament from among its membership, which was tainted with the unconstitutional acts and regrettable manner in which it handled the debate leading to the passing of the impugned resolutions and the setting up the ad-hoc committee, does not itself measure up to the test of a disinterested and impartial tribunal within the meaning of Article 28(1) of the Constitution.
It is irredeemably tainted with the unconstitutional acts of the whole house from which it was constituted and from which it drew its character and derived its authority," Kavuma contended in his judgment.
Compliance with the law
Kavuma remarked that although Parliament has powers to set up committees including ad-hoc ones under the Constitution, it must exercise those powers in full compliance with the provisions of the Constitution.
"This court, being a Constitutional court, cannot justifiably abdicate its constitutional responsibility of ensuring such compliance even for fear of appearing to be interfering with the internal workings of Parliament," the judge asserted.
He further contended that the unconstitutional conduct of Parliament over the issue contagiously spread to and infected the ad-hoc committee itself in terms of its constitution and character.
"The Constitution must be religiously observed and obeyed both in letter and in spirit.
“I am, therefore, constrained to find those demands infected with the unconstitutionality surrounding the whole circumstances giving rise to this petition especially considering that the decision giving birth to the committee is no decision at law, is null and void and ultimately unconstitutional," Kavuma ruled.
Earlier on Tuesday, the deputy Chief Justice and president of the Constitutional Court Alice Mpagi-Bahigeine, in unison with four other members of the coram ruled the ad-hoc committee was constitutional and that it should carry on the probe into the allegations of bribery in the oil sector.
The judgments followed a petition filed by Severino Twinobusingye, a lawyer and resident of Kinkizi West County, a constituency represented by Amama Mbabazi, challenging the constitutionality of the ad-hoc committee of Parliament probing into the allegations against the PM and two ministers and the demand that they should vacate their respective offices pending outcome of the investigations.
Judge wants ad-hoc Parliament committees annulled