By J. Oloka Onyango
IT rather absurd, nay outrageous, that following the recent Supreme Court ruling that declared the first amendment to the Constitution invalid, there has been a hunt for scapegoats. First of all, Parliament accuses Attorney General Francis Ayume of incompetence for losing the case.
On his part, Ayume passes the buck on to his subordinates, who he claims are both over-worked and under-paid, and that it was an oversight for the State Attorney who represented the Government not to have sought the certificate of compliance from the Speaker of the House. Conveniently, the said State Attorney is now on suspension for unrelated misdemeanours, lending more credence to Ayumeâ€™s claim that he was incompetent. The Attorney General now says that he is consulting â€˜prominent lawyersâ€™ in town on whether or not he should apply to the Supreme Court for a review of the holding.
Such â€˜consultationâ€™ is a waste of both time and resources, especially since the Attorney General has already told us he is over-worked. Moreover, the Cabinet is full of lawyers of some prominence who could advise him just as competently. Ayume simply needs to re-read the judgment of Justice Kanyeihamba to realise that the issue of the certificate was in fact not the most important aspect of the case. The more prominent (and in fact fatal) omission was the failure by Parliament to follow Articles 261 and 262 of the Constitution. Article 261 states that the amendment Bill must be supported on the second and third readings by the votes of not less than two-thirds of all members of Parliament. But more crucially, Article 262 states that the votes on the second and third readings must be separated by at least fourteen sitting days of Parliament. Since the amendment Bill was passed in the record time of a single day, it is quite clear that Article 262 was also violated. No amount of consultation will change this fact.
Thus, a review may only embarrass the Attorney General further. The fact is that the said Constitutional amendment was fatally flawed.
But how did this crisis arise in the first instance? First, it must be recalled that the original Referendum Act was declared null and void by the Constitutional Court because of a lack of quorom. That bill had been brought to the House only a few weeks before the stipulated deadline. Consequently, the government would have been faced with the crisis of not being able to hold the Referendum as mandated by the Constitution. And yet, holding the referendum was crucial to ensuring that the Movement system remained in place, and that the hated political parties remained under lock and key. After the Courtâ€™s nullification of the Act, the Executive and Parliament decided to resort to politics and to by-pass the law, even though they were well aware of the implications of doing so.
By arguing that the Government was faced by a crisis, the Executive was able to convince or coerce the House to pass a law that was manifestly unconstitutional. A more sober review of this case will reveal that the real villains in this story were the 6th Parliament and Ayumeâ€™s predecessor, Mr Jehoash Mayanja-Nkangi, alongside the other members of the Executive at the time. Indeed, some MPs (like current foreign affairs minister James Wapakabulo who were in both the 6th and the current Parliament had a major role to play in the mess that led to the first constitutional amendment.
â€˜Wapaâ€™ (who was also the national political commissar at the time) argued loudest that the judgment by Court had created a â€˜crisisâ€™ and that the only way out of it was for Parliament to amend the Constitution. On his part, the Prime Minister, Prof Apolo Nsibambi, wrote that the decision of the Constitutional Court overturning the Referendum Bill â€œ...almost plunged the country into chaos,â€ and the only way out of it was to pass the amendment.
Virtually all the lawyers in the House at the time joined the â€˜crisisâ€™ band-wagon and supported the claim that the only way to resolve the issue was through an amendment to the Constitution. All of these claims were blatantly false. They were simply designed to whip up patriotic hysteria and to support the claim that the supremacy of parliament was under threat.
The fact is that the Movement had committed a political blunder, which would have necessitated the Government to concede to the Courtâ€™s viewpoint, and to face the consequences. At the end of the day, the decision of the Supreme Court demonstrates that the Constitution is supreme. This means that all the organs of the State (including the Executive and the Legislature) must abide by it. In sum, political expedience cannot take precedence over the law.
Nagenda has not written. He will write next week.