Is Kadaga at odds with the law?

By Jet John N. Tumwebaze

The Speaker of Parliament, Rebecca Kadaga, was recently quoted by the media as having rejected the legal opinion of the Attorney General (AG).

She reportedly said she did not want the AG to represent Parliament in Court and that Parliament would represent itself since it has a legal department. Her recent “reply” to a Court Order confirms my fears. These actions pose eminent danger to the Rule of Law.

Parliament is one of the three arms of Government and not a local Government or scheduled Corporation as envisaged by the Civil Procedure and Limitations (Miscellaneous Provisions) Act. Cap. 72. These have independent legal status and can choose to hire legal representation.

The Constitution under Article 119(3), (4)(a) and (c) designated the AG as the Principal Legal Adviser of the Government of Uganda with functions inter alia to give legal advice and legal services to the Government on any subject and to represent the Government in Courts or any other proceedings in which the Government is a party.

This constitutional provision was later entrenched by a Supreme Court decision in Bank of Uganda vs Banco Arabe Espanol SCCA No. 1 of 2001. The five Learned Justices unanimously held “…the opinion of the AG as authenticated by his own hand and signature regarding the laws of Uganda and their effect or binding nature…should be accorded the highest respect by the Government and public institutions and their agents…it is improper and untenable for the Government… or any other public institution or body in which the Government of Uganda has interest to question the correctness or validity of that opinion in so far as it affects the rights and interests of third parties”.

In addition, Section 10 of the Government Proceedings Act Cap. 77, states “Civil Proceedings by or against Government shall be instituted by or against the Attorney General”. Therefore, Kadaga may have personal issues with the person of the AG but the AG’s opinion is binding on the institution she heads and the AG represents Parliament (Government) in Courts by Law and not by her choosing. She should not let her feelings blur her otherwise good judgment.

Further, it is a settled principle of Law and there is a wealth of Court decisions on this subject that “Once Court orders are issued, they have to be obeyed. Once a party knows of an Order whether null or valid, regular or irregular, he cannot be allowed to disobey it. Disobedience would render the subsequent proceedings a nullity”.

It was, therefore, baffling for Kadaga (a lawyer) to receive a Court Order and instead of obeying the same choose to write to the Court that issued the Order to provide her with certified copies of the ruling. Her actions were in disobedience of a Court Order and the proceedings of Parliament and Committees in which the affected MPs participated before the Court Order was stayed are a nullity.

Note that I hold nothing against the said MPs but the Rule of Law is the axis of any Democracy and when the same is threatened and or breaks down the resultant anarchy renders every citizen a potential victim including the aggressors. The state and state actors must comply with Court Orders for a functional judicial system otherwise we surrender to lawlessness.

 The writer is an advocate