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Flouting a court order by Parliament undermines rule of law

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Added 12th January 2017 08:29 AM

Flouting a Court Order issued by a member of the top notch of the Judiciary has dire implications.

Flouting a court order by Parliament undermines rule of law

Flouting a Court Order issued by a member of the top notch of the Judiciary has dire implications.

By Samuel Baligidde

Baptising the order stopping Parliament or any individual from inquiring into the sh6b oil cash bonanza as "stupid" by the Rt Honourable speaker was invective that was tantamount to a breach of protocol and correct form but slips of the tongue do happen, don't they? However, Ms Rebecca Kadaga's anger and the incensed MPs' claims of interference in the independence of Parliament are understandable but need to be properly contextualised.

Flouting a Court Order issued by a member of the top notch of the Judiciary has dire implications for the future application of the checks and balances necessary for the functioning of a civilised democracy and prevention of peremptory behaviour by the three pillars of government, namely, the Legislature, Executive and Judiciary.

If democratic governance is to be enduring, it is essential that the laws passed by Parliament shall be upheld.

There must, therefore, be Courts of Law which ought to be respected by the citizens and all the other organs of governance. The Courts must command the confidence of the people. They ought to achieve this by their expeditious, efficient, firm and impartial dispensation of justice. Without respect for Judicial Orders the Constitution and other laws would be ridiculed resulting into the order we have enjoyed since 1986 to degenerate into chaos once again.

The Doctrine of the Separation of Powers, which is traceable back to ancient Greece was popularised by the French philosopher, Charles de Montesquieu in 1748 in L'Esprit des Lois [the Spirit of the Laws], which inspired many parliamentary democracies. He wrote that a country's freedom depended on the separation of the powers of the three pillars of governance. The doctrine has since been at the very core of constitutional governance.

To the justified fear that the Executive through the party machine's control over legislation is too powerful has been added the new phenomenon of alleged interfere in the business of the legislature by the Judiciary which prompted the Speaker's defiant act of adjourning Parliament sine die creating a situation that has the potential to spark off an unnecessary constitutional or political crisis.

Under democracy neither the Executive nor the Judiciary should unduly interfere in the functioning of a country's constitution but they should not be viewed in isolation as organs opposed to Parliament but rather as complementary to each other.

Procedurally, hasn't Parliament always been controlled by the Executive through making all the financial proposals and the necessary demands on parliamentary time that prevents MPs to adequately discuss them anyway?

When the Deputy Chief Justice's order became known angry MPs said they would frustrate the budget debate in retaliation. Jurisprudence and political ethics apart, pecuniary handshakes in the form of honoraria, gratuity, bonuses, awards or whatever they might be called by the public or private sectors are a universal best practice for rewarding exemplary service.

The intricacies of the Law of Estoppel undermine Parliament's assertion of sovereignty because when MPs accept favours from the Executive and act in accordance with its demands on one occasion but refuse to do likewise on another they are estopped by their previous actions!

The latest challenge brings back the seemingly unfinished business of determining who is sovereign.

Is it Parliament, the Executive, the Judiciary or the people?

The 1995 Uganda Constitution proclaims the people supreme and not Parliament, Executive or Judiciary. The sovereignty of Parliament, which the Speaker seems to have invoked when adjourning Parliament has no special virtue in itself but is significant, if the principle of Separation of Powers it is to be uphold.

The writer is a former diplomat

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