1.
ATTORNEY GENERAL
2.
THE ELECTORAL COMMISSION ::::::::::RESPONDENTS
JOINT JUDGEMENT OF;
1.
HON. L.E.M. MUKASA-KIKONYOGO, DCJ
2.
HON. C.N.B. KITUMBA, JA
This petition is filed by Brigadier Henry Tumukunde, hereinafter to be referred to as the petitioner. It is brought under articles
137, 20, 2I, 29, 80, 83 and 84 of the Constitution and Legal Notice No. 4 of 1996. The grounds of the petition are contained in the petition itself and in the affidavit in support thereof deponed to by the petitioner
on 7/06/05. The petitioner alleges as follows:-
“ 1.
That your petitioner is an adult male citizen of Uganda of sound mind being aggrieved by
actions infringing my rights under the Constitution and also having interest in the defence of the Constitution and affected by the
following matters being inconsistent with the Constitution of the Republic of Uganda, 1995, whereby your petitioner is also aggrieved.
2.
That the act of the Commander- in- Chief and some
senior officers of the UPDF directing your petitioner to resign from his position as Army Representative in Parliament of Uganda is
inconsistent with and contravenes articles 80, 83(1) and 84 of the Constitution.
3.
That the act of the Speaker of Parliament in
accepting and declaring your petitioner’s seat in
Parliament vacant on the basis of a letter implementing a directive to resign is inconsistent and contravenes articles 80, 83(1)
and 84 of the Constitution when the petitioner has not done any act in conflict with article 80 of the Constitution.
4.
That the act of Uganda Peoples Defence Forces of
restraining your petitioner as a member of Parliament from expressing himself on all political matters irrespective of the Constituency
that your petitioner represents while exempting others from the same restriction is contrary to Articles 20, 21 and 29 of the Constitution.
5.
The Electoral Commission is in the process of
declaring the petitioner’s seat vacant and is about to commence the electoral process to replace the petitioner as a member
of Parliament contrary to article 83(1) and 84 of the Constitution whereas the petitioner is still willing and able to serve as a
member of Parliament.
6.
That this petition is accompanied by the affidavit
deponed by your petitioner.” (sic)
The petitioner is praying this court for the following reliefs:-
“ (a)
A declaration that the act of the Commander-in- Chief and Army Command in directing our petitioner
to resign his position as Army representative in Parliament of Uganda is inconsistent with and contravenes articles 80, 83 and 84
of the Constitution.
(b)
A declaration that the action of the Speaker of Parliament of Uganda in accepting and declaring your petitioner’s seat in Parliament
vacant on the basis of a letter implementing a directive to resign is inconsistent and contravenes articles 83 (1), 80 and 84 of
the Constitution.
(c)
A declaration that the act of Uganda Peoples Defence Forces in restraining your petitioner as a member of Parliament from expressing
himself on all political matters irrespective of the Constituencies that your petitioner represents while allowing others to do so
with impunity contravenes articles 20, 21 and 29 of the Constitution.
(d)
Orders of redress in terms of damages to your
petitioner for violation of inherent rights and freedoms
for;
(i)
Freedom of speech
(ii)
Freedom of Movement and assembly.
(e)
Grant an Order of Redress by restraining the
respondents and all their officials and agents from taking any further steps towards the conduct of the elections for army representative
in place of your petitioner.
(f)
A declaration that your petitioner is still the legally elected representative of the Uganda Peoples Defence Forces in the Parliament
of Uganda and an Order forbidding, prohibiting and/or restraining the 2nd respondent from declaring the petitioner’s seat vacant or conducting elections to replace the petitioner.
(g)
An order that the respondents pay the costs of this
petition to the petitioner. (sic)”
The petitioner was represented by Hon. Emmanuel Twarebiraho and Mr. Oscar Kambona. The Solicitor General Mr. L. Tibaruha assisted
by Mr. Joseph Matsiko, Ag. Director of Civil Litigation and Mr. Okello Oryema SSA appeared for the Attorney General, hereafter to
be referred to as the 1st respondent and the Electoral Commission also to be referred to as the 2nd respondent.
In their answer to the petition, the respondents denied all the allegations contained in the petition. The answer reads as follows:-
“ 1.
Save what is herein expressly admitted, the respondents deny all allegations contained in
the petition as if the same were set forth and traversed seriatim.
2.
In reply to paragraph 2 of the petition the respondents deny any contravention of articles
80, 83(1) and 84 of the Constitution and aver that the petitioner was never forced to resign from his position as Army Representative
in Parliament, and that his resignation is effective and not unconstitutional.
3.
The respondents further aver that in any event the alleged actions of the President/Commander-
in- Chief are not challengeable in Court.
4.
In reply to paragraph 3 of the petition, the respondents aver that in accepting the petitioner’s
letter of resignation, the Speaker did not breach articles 80, 83, or 84 (1) of the Constitution.
5.
In reply to paragraph 4 of the petition, the
respondents aver that the petitioner is barred by the Constitution and the Uganda People’s Defence Forces Act from engaging
in partisan politics and from making statements or engaging in conduct that is partisan or prejudicial to good order and discipline
of the Army, and contravention of articles 20, 21 and 29 of the Constitution is denied.
6.
In reply to paragraph 5 of the petition, The
respondents aver that the petitioner’s seat in Parliament fell vacant and the 2nd respondent has not breached articles 83 (1) and 84 of the Constitution as alleged or at all.
7.
The respondents aver that this petition is incompetent, misconceived and shall contend at the hearing that it is not supported by
admissible evidence or at all, and that the petitioner is not entitled to any reliefs”.
WHEREFORE it was prayed for the respondents that this Court dismisses the petition with costs.
The answer was supported by two affidavits. One was deponed to on 14/06/05 by Angella Kiryabwire Kanyima, a Principal State Attorney
in the 1st respondent’s chambers. The second one dated 22/06/05 was sworn by Major General Joshua Masaba, the Chief of Staff of the Uganda
Peoples Defence Forces (UPDF) and a member of UPDF Forces Council. (sic)
Following the scheduling conference the parties agreed to the five following issues.
1.
Whether the actions of the Commander- in- Chief can be challenged in a Court of Law.
2.
Whether the petitioner’s letter dated 28th May 2005 amounted to a resignation of his seat in Parliament.
3.
Whether the notification of the Electoral Commission that the petitioner’s seat had fallen vacant contravened articles 80, 83(1)
and 84 of the Constitution.
4.
Whether UPDF in pressing charges against the petitioner contravened articles 20, 21, and 29 of the Constitution.
5.
What reliefs are available to the parties?
Issue No. 1
On Issue No. 1, it was Mr. Oscar Kambona’s contention that the acts of the President of Uganda and Commander- in- Chief were
challengeable in a competent court of law. He gave two reasons for taking that position. Firstly article 2 of the Constitution of Uganda proclaims the supremacy of the Constitution.
Article 2 states that:
“This Constitution is the supreme law of Uganda and shall have binding force on all authorities and persons throughout Uganda”.
It follows, therefore, that its observance and protection is mandatory on all persons including the Commander- in- Chief of the Uganda
People’s Defence Forces, hereafter to be referred to as UPDF. The petition is not on the person of the President but the issue
is observance of fundamental human rights and freedoms.
Secondly, the Constitutional Court is seized with jurisdiction under article 137 of the Constitution to entertain a petition for observance of human rights and freedoms. Its purpose is to determine whether the acts of both the President
and the UPDF Officers were inconsistent with and contravened the Constitution. Counsel invited the Court to answer this issue in
the affirmative.
For the respondents it was argued by the learned Solicitor General that the issue was basically a matter of the law which goes to
the root of the petition. Relying on article 98 clauses 1 and 4 of the Constitution it was the learned Solicitor General’s contention that actions of the President cannot be challenged in a court of law with
the exception of article 104(8) of the Constitution.
Clause (1) of Article 98 reads as follows:
“There shall be a President of Uganda who shall be the Head of State, Head of Government and Commander-in-Chief of the Uganda
Peoples’ Defence Forces and the Fountain of Honour”.
Clause (4) reads that:
“While holding office, the President shall not be liable to proceedings in any court”.
Clause (5) of Article 98 reads as follows:-
“Civil or criminal proceedings may be instituted against a person after ceasing to be President, in respect of anything done
or omitted to be done in his or her personal capacity before or during the term of office of that person; and any period of limitation
in respect of any such proceedings shall not be taken to run during the period while that person was President”.
Counsel further argued that the importance of clause 1 of article 98 is that each of the four attributes mentioned in that clause namely, Head of State, Head of Government, Commander- in- Chief of UPDF
and Fountain of Honour constitute the person of the President. Whilst holding that office, the President cannot be liable to any
proceedings in any court in his official or private capacity. With the exception of the Presidential Election Petitions under article 104(8) of the Constitution, by challenging the act or acts of the President in court, the petitioner is subjecting him to judicial proceedings.
Further, the Solicitor General submitted that as for the directive to resign, it is argued for the respondents that it was not inconsistent
with and did not contravene the Constitution. It is not disputed that as the Commander-in-Chief, the President could advise the petitioner
as an army representative in Parliament without contravening the Constitution. Counsel pointed out that the directive to resign can
never be a subject of challenge in any proceedings in any court of law. He, therefore, prayed court to answer Issue No. I in the
negative. Further, as far as the Solicitor General was concerned his submissions on this issue are sufficient to dispose of the petition
because he contended it was incompetent and misconceived. However, he decided to proceed to address the court on the remaining issues,
presumably should he be overruled.
We accept that as submitted by the learned Solicitor General that the President of Uganda with the four attributes stated in article 98(1) (supra) is at all times entrusted with the complete control of the affairs of the state. He occupies a unique office with powers
and responsibilities so vast and so important that public interest demands that he devotes his undivided time and attention to his
public duties.
Historically, the President/King has been over and above all other persons. See: Constitutional and Administrative Law by Stanley De Smith and Rodney Brazier 7th Edition pages 153-154. He enjoyed sovereign immunity. In the case of Nighell vs Sultan of Jahore (1894) QB 149, the defendant successfully pleaded sovereign immunity from the jurisdiction of the Court. The plaintiff’s action was discontinued.
The rationale behind that is not hard to find. Clearly each of the three arms of the Government namely; the Executive, the Legislature
and the Judiciary is independent. There is need for each arm to respect the duties of the others. Unless the President is immune
from legal proceedings while holding office, there exists a threat of judicial interference with the executive branch through orders,
and other court decisions which would violate the separation of power principle.
In the case of Baker vs Cart 369 U.S. 1962 it was held by the USA Supreme Court that, when the President is exercising his constitutional executive powers, he is exempted from
judicial scrutiny. However, the aforesaid notwithstanding, the courts can review the Head of State powers if the President acts in
bad faith or misconstrued his powers. It is an accepted fact when executing his duties, he must do so legally and constitutionally.
He has to exercise his powers in a non-arbitrary manner.
As long as the President acts in good faith and if the political decisions are objectively rational, the court will not interfere
with the decision because it disagrees with it.
On the other hand, in the more recent case of William Jefferson Clinton, petitioner vs Paula Corbin Jones, 520 U.S. 681 (1997) when
the doctrine of Presidential Immunity was extensively considered, the courts in U.S.A decided that, the doctrine with respect to
actions taken in his “public character” that is official acts, the President may be disciplined principally by impeachment, but not by private law suits for damages. But
he is, otherwise, subject to the laws for his purely private acts.
In Uganda we are alive to the provisions of articles 98 (1), and 4, and article 104(8) of The Constitution (supra) which are relevant to the issue before court. Article 104 (8) reads as follows:-
“For the purposes of this article, clause (4) of article 98 of this Constitution shall not apply”.
In Uganda, on a proper interpretation of the Constitution and other relevant laws, our considered view is that there is nothing to
stop this Court from entertaining a complaint challenging the President’s act or acts. Article 137 is clear and needs no further explanation.
However, challenging the act or acts of the President is one thing and prosecuting him and bringing him before a court of law is
another. We agree that under clause 4 of article 98 (supra) the President cannot be prosecuted for a criminal offence or sued in a civil action in any court. The sole exception is the Presidential
Election Petition. An aggrieved party in any other civil or criminal matter will have to wait until the end of his term of office.
Clause (5) of article 98 reads:
“ Civil or criminal proceedings may be instituted against a person after ceasing to be President, in respect of anything done
or omitted to be done in his or her personal capacity before or during the term of office or that person; and any period of limitation
in respect of any such proceedings shall not be taken to run during the period while that person was President”.
With regard to the parties to the action for complaints against an act or acts of the President, the proper respondent or person
to sue is the Attorney General. In the premises we accept Mr. Oscar Kambona’s submission that the act or acts of the President
of Uganda in appropriate cases can be challenged in courts of law. However, while holding office, the President shall not be liable
to proceedings in any court. The answer to Issue No. 1 is in the affirmative.
On issue No. 2 that is concerning the petitioner’s letter written on 28th May 2005, it was submitted for the petitioner that the said letter was and is not a resignation letter.
It reads as follows:-
“
28 May 05
Hon. BRIG. H. Tumukunde
Right Honourable Speaker of Parliament
of Uganda
P.O. Box 7178, Kampala
Mr. Speaker Sir,
I was summoned to a meeting by the Commander in Chief of the UPDF on the 27th of May 2005 to which I comply.
During the meeting attended by UPDF Command, I was directed to write to you Mr. Speaker resigning. This directive had a deadline
of 12 hours. This explains my writing on a weekend.
The purpose of this communication is to draw your attention to the above directive and to accord comply.
Please do not hesitate to contact me if you need my further clarifications.
Yours faithfully, (sic)
Henry Tumukunde
BRIGADIER
c.c
Commander in Chief of the UPDF
”
c.c.
UPDF Forces Council
His counsel argued that it was not disputed by both respondents that the petitioner is currently in detention. In those circumstances,
he submitted, that the letter could not have been written voluntarily to make it a resignation. As far as the petitioner is concerned
it was a directive and indeed that is what he communicated to the Hon. Speaker of Parliament and not a resignation. Additionally,
counsel argued, that the petitioner was the best person to explain a document of which he is the author. In the instant petition
another person, a stranger, cannot come and say that the letter was a resignation. On perusal of article 83 of the Constitution it is clear that a directive from a superior is not one of the instances a Member of Parliament may vacate his seat.
On the averment contained in paragraph 4 of Angella Kiryabwire’s affidavit to the effect that there was no evidence of force
used, counsel argued that there was no need for further evidence. To him, the petitioner’s letter speaks for itself. It clearly
states it is a directive and that no more evidence of force is required. He also invited this court to disregard paragraphs 8, 9,
and 10 of Major General Masaba’s affidavit where he attempts to throw some light on the matter which, to him was an attempt
by the 1st respondent to distort the events that occurred. Advice and a directive are different things. Relying on sections 92 and 94 of The Evidence Act, counsel submitted that it was wrong to adduce oral evidence to contradict a written document. Masaba’s affidavit clearly stated
that they were not happy before the petitioner’s letter of 28/05/05, was written which shows it must have been a directive.
The petitioner should have been recalled and not given a directive. It was vehemently argued for the petitioner that the Commander-in-Chief
of UPDF and the members of the High Command were wrong in directing the petitioner to resign his position as an army representative
in the Parliament of Uganda. The directive was inconsistent with and contravened articles 80, and 84 of the Constitution.
In reply, the learned Solicitor General submitted that the petitioner’s letter of 28/05/2-005 was an effective letter of resignation
which made his seat in Parliament vacant for a number of reasons.
Firstly, there is no constitutional requirement that to be an effective resignation, it must be accompanied by reasons. To support
his submissions, counsel referred the court to article 83(1) (a) of The Constitution.
“ (1)
A member of Parliament shall vacate his or her seat in Parliament (a) if he or she resigns his
or her office in writing signed by him or her and addressed to the Speaker;”
Secondly, the letter fulfilled the three requirements provided under article 83(1) (a) of the Constitution and it was, therefore, an effective letter of resignation. Before accepting the resignation, the Speaker does not have to demand
to know reasons why a member of Parliament is resigning. It was submitted for the respondents that the directive of the President
was not unconstitutional.
We listened to the submissions and arguments advanced by counsel on both sides on this issue and we have considered them carefully.
Whether the petitioner was directed or advised by the Commander- in- Chief there is no evidence to show that he was forced to write
the letter of resignation to the Speaker. In any case he did not have to write it. He could have refused. He states in his letter
that he was given 12 hours in which to write the letter. He wrote it voluntarily on his letterhead and sent it to the Hon. Speaker.
Further, the petitioner who is a soldier, had no choice but to obey orders from the Commander- in- Chief. The fact that he wrote
the letter under the directive did not affect the effectiveness of the letter to the Speaker. On the evidence before court we do
not accept that the directive contravened articles 80, 83, and 84 of the Constitution. Article 80 provides for qualifications and disqualifications of the members of Parliament.
Clearly, the Commander–in-Chief did not deny the fact that the petitioner had the necessary qualification for membership of
Parliament. He was only displeased with his conduct. On perusal of the provisions of articles 83(1), the petitioner’s tenure of office ceased when the Speaker received the letter and accepted it. The letter amounted to a resignation
because article 83(1) reads as follows:-
“1.
A member of Parliament shall vacate his or her seat in Parliament-
(a)
If he or she resigns his or her office in writing signed by him or her and addressed to the Speaker.”
The petitioner wrote a letter resigning his seat in Parliament. He addressed it to the Hon. Speaker of Parliament. He (Speaker) accepted
the resignation. It is not a requirement for the Speaker to investigate the reasons for the resignation. All that was required was
fulfilled and hence the letter was an effective resignation. In accordance with the Constitution the Hon. Speaker declared the petitioner’s
seat vacant. With regard to the petitioner’s complaint on the President’s directive to him to write the letter to vacate
his seat, for the reasons already mentioned it was not unconstitutional. The President had powers to give orders to the petitioner,
a Brigadier in UPDF and a member of the UPDF Council. Under section 10(4) of UPDF Act (Cap 307) the Uganda People’s Defence Council operates under the general direction of the President. There is no doubt the President,
the Commander-in-Chief of the UPDF has the authority to direct or guide any soldier including an army representative in Parliament
on any military matter. It is true there is a laid down procedure by Parliament under which a member of Parliament could be recalled
from that office on any of the three grounds mentioned therein and including
“(a)
Misconduct or misbehaviour likely to bring hatred contempt or disrepute to the office”.
The petitioner’s constituency namely UPDF Council did not have to follow that procedure as submitted by his counsel. For the
aforesaid reasons our answer on issue No. 2 is in the affirmative.
Issue No. 3
It was the contention of the petitioner that the notification to the Electoral Commission by the Speaker that the petitioner’s
seat had fallen vacant contravened articles 80 and 83(1) and 84 of the Constitution. He relied on his earlier submissions on issue No. 2 that there was no resignation, and that no record was taken. Counsel submitted
that the Hon. Speaker wrongly notified the Electoral Commission of the petitioner’s seat falling vacant. Counsel emphasized
the fact that notification must be made only when there is a vacancy which was not the case.
The Solicitor General did not agree with counsel for the petitioner. He submitted that the Speaker of Parliament was right to accept
the resignation. Consequently he did not contravene the Constitution when he notified the Electoral Commission that the petitioner’s
seat had fallen vacant.
In our view, on the record before court, the Hon. Speaker cannot be faulted for notifying the Electoral Commission of the vacant seat.
The law is clear and speaks for itself. Having ruled that the petitioner’s resignation was effective, the only course open
to the Speaker was to comply with the relevant provisions of the law. There was no contravention of the Constitution. We answer Issue
No. 3 in the negative.
Issue No. 4
With regard to issue No. 4 relating to charges preferred against the petitioner, it was submitted for him that they contravened articles 20, 21 and 29 of the Constitution. The petitioner was charged before the General Court-Martial with two offences. The gist of the said charges is that on several occasions
the petitioner contacted the press and made public statements over the radio which were prejudicial to the good order and discipline
in the army. He was also charged with spreading harmful propaganda contrary to section 38(1) and 2 (c) of the UPDF Act. It was strongly argued for him that the act of UPDF in restraining him as a member of Parliament from expressing himself on all
political matters irrespective of constituencies that he represents while allowing the others to do so with impunity contravenes
articles 20, 21, and 29 of the Constitution.
To require the petitioner to obtain permission is a violation of his freedom of speech and expression. According to article 20 of the Constitution, fundamental rights and freedoms of an individual are inherent and not granted by the State. Article 79 of the Constitution outlines the functions of a member of Parliament. Once a member of Parliament, the petitioner is under an obligation under article 79(3) of the Constitution to protect the Constitution and promote the democratic governance of Uganda. There is nothing in the Constitution to restrict a member
of Parliament to his or her constituency. He or she can make law for the whole country. To restrain him or her from freely visiting
or mixing with Ugandans generally is unconstitutional.
In reply, the learned Solicitor General did not agree with counsel for the petitioner on this issue. As far as he was concerned, the
charges preferred against the petitioner did not contravene articles 20, 21 and 29 of the Constitution. Additionally, he explained that they were not entrenched. He pointed out that military law enjoins the petitioner to observe it.
He must also comply with the army code of conduct. In accordance with the UPDF Act and standing orders, he is required to obtain
permission before communicating any information to an outsider or stranger, and especially to the press.
We heard the submissions and arguments advanced by the learned counsel for both sides and we appreciate the petitioner’s concerns.
We agree that soldier members of Parliament are full members of Parliament with equal rights and obligations as the civilian members
of Parliament. They subscribe to an oath of office to defend, support and uphold the Constitution at all times. It is not disputed
that the petitioner is entitled to all the powers and privileges any other member of Parliament has.
The aforesaid not withstanding, the petitioner as an officer of the UPDF remained a soldier. He must, therefore, obey the army code
of conduct and observe the discipline. To defend the Constitution, the petitioner does not have to commit a breach of the law. He
is enjoined to employ lawful means to fulfill his obligations. The rights and freedoms provided under articles 20, 21 and 29 of the Constitution must be enjoyed within the confines of the law. Those rights are apparently not absolute. They are important but are no derogable
freedoms under article 44 of the Constitution.
Clearly the petitioner knew that participating in radio talk shows and making statements to outsiders without permission from the
relevant authority was an offence under the UPDF Act, military standing orders, army code of conduct and other military law enacted
in accordance with the Constitution to operationize it. The petitioner should, therefore, not have chosen those methods he used to
defend the Constitution and fulfill his obligations as a member of Parliament. He should have employed appropriate ones.
Rule 20 of the Army Standing Orders (Vol.1) states as follows:-
“Military personnel are not allowed to contact the press unless approved by the Army Commander”
We are mindful that the authority or regulations or rules must be subordinated to the Constitution. However, the petitioner has not
proved to the satisfaction of this Court that the army code of conduct, standing orders or any other existing military law or regulations
are inconsistent with the Constitution.
As regards the complaint of discrimination of soldier members of Parliament there is no evidence on record to support it. They are
not prohibited to speak to the press, to address rallies and to attend local or national functions. All that is required of them
is to obtain permission or approval of the Commanding Officer. In our opinion we do not consider that requirement unreasonable. It
must have been enacted to enforce observance of discipline and also for security reasons. Members of Parliament are not above the
law. In this we are fortified by the provisions of article 43 of the Constitution which under clauses 1 and 2 provide as follows:
“(1)
In the enjoyment of the rights and freedoms prescribed in this chapter, no person shall
prejudice the fundamental or other human rights and freedoms of others or the public interest”.
“(2)
Public interest under this article shall not permit-
(a)
………………………………………..
(b)
……………………………………….
(c)
any limitation of the enjoyment of the rights and freedoms prescribed by this chapter beyond what is accepted and demonstrably justifiable
in a free and democratic society, or what is provided in this Constitution”.
To deny the UPDF to enforce military law and especially the army code of conduct against its officers representing it in Parliament
would be tantamount to authorizing indiscipline on their part.
For the aforesaid reasons we hold that preferring charges against the petitioner in the circumstances in which it was done, was not
inconsistent with and did not contravene articles 20, 21 and 29 of the Constitution. The answer to issue No. 4 is in the negative.
Issue No.5
Reliefs
Lastly what reliefs is the petitioner entitled to if any?
Counsel for the petitioner prayed for damages under article 137 of the Constitution but, on the record before us there is no evidence
of violation of the petitioner’s fundamental human rights and freedoms to justify awarding him damages. Although issue No.1
is decided in his favour, it is on a point of law and as such does not entitle him to any damages. We are, therefore, unable to award
him any.
The petitioner had also originally prayed for more declarations but he had to abandon several of them because they had been overtaken
by events. This Court is, hence, left with the determination of only the five issues framed and agreed upon by the parties at the
scheduling conference. Our declarations on the issues framed by the parties are as follows:-
1.
On issue No.1 Actions of the President of Uganda can be challenged in a competent court of law. However, while holding office, the
President shall not be liable to proceedings in court.
2.
On issue No.2 we are satisfied that the petitioner’s letter dated 28th May 2005 addressed to the Rt. Hon. Speaker amounted to resignation of the petitioner’s seat in Parliament.
3.
With regard to issue No.3 notification of the Electoral Commission that the petitioner’s seat had fallen vacant did not contravene
articles 80, 83, and 84 of the Constitution.
4.
On issue No.4, the acts of the UPDF Council preferring charges against the petitioner were not inconsistent with and did not contravene
articles 20, 21 and 29 of the Constitution.
5.
On issue No.5 no damages are awarded to the petitioner.
In the premises this petition must fail. We would dismiss it and order each party to pay its own costs.
Lastly from the conclusions reached by the justices on the coram in the four judgments delivered in this petition, the decision of
this Court is as follows:-
(1)
On issue No.1
By a majority of four to one it is declared that the actions of the President of Uganda can be challenged in a competent court of
law. However, while holding office, the President shall not be liable to proceedings in court.
(2)
On issue No.2
By a unanimous decision of the court the letter dated 28th May 2005 addressed to the Rt. Hon. Speaker amounted to resignation of the petitioner’s seat in Parliament.
(3)
On issue No. 3
By a unanimous holding of the Court the notification of the Electoral Commission that the petitioner’s seat had fallen vacant
did not contravene articles 80, 83, and 84 of the Constitution.
(4)
Issue No.4
By a majority declaration of three to two, the acts of the UPDF Council in pressing charges against the petitioner were not inconsistent
with and did not contravene articles 20, 21 and 29 of the Constitution.
(5)
Issue No. 5
By a unanimous decision of the court the petitioner is not awarded damages.
In the result by a majority of three to two the petition is dismissed. Each party will bear its own costs.
Dated at Kampala this……………..day of August 2005.
1.
L.E.M. MUKASA-KIKONYOGO
HON. DEPUTY CHIEF JUSTICE
2.
C.N.B. KITUMBA
HON. JUSTICE OF APPEAL
JUDGEMENT OF A.E.N. MPAGI-BAHIGEINE, JA
This petition was filed by Brigadier Henry Tumukunde, hereinafter referred to as the petitioner. It is under articles 137, 20, 21,
29, 83 and 84 of the Constitution of Uganda 1995 and Rules of the Constitutional Court (Petitions for Declarations under article
137 of the Constitution) Directions, Legal Notice No 4 of 1996 and all other enabling laws.
The petitioner’s grievances are:-
1.
That the act of the Commander-in-Chief and some senior officers of the UPDF directing your petitioner to resign from his position
as Army Representative in Parliament of Uganda is inconsistent with and contravenes articles 80, 83 (1) and 84 of the Constitution.
2.
That the act of the Speaker of Parliament in accepting and declaring you petitioner’s seat in Parliament vacant on the basis
of a letter implementing a directive to resign is inconsistent and contravenes Articles 80, 83 (1) and 84 of the Constitution when
the petitioner has not done any act in conflict with Article 80 of the Constitution.
3.
That the act of Uganda Peoples Defence Forces of restraining your petitioner as a Member of Parliament from expressing himself on
all political matters irrespective of the constituency that your petitioner represents while exempting others from the same restriction
is contrary to Articles 20, 21 and 29 of the Constitution.
4.
That Electoral Commission is in the process of declaring the petitioner’s seat vacant and is about to commence the electoral
process to replace the petitioner as a Member of Parliament contrary to Articles 83(1) and 84 of the Constitution whereas the petitioner
is still willing and able to serve as a Member of Parliament.
He seeks the following reliefs:-
(a)
A declaration that the act of the Commander-in-Chief and Army command in directing our petitioner to resign his position as Army Representative
in Parliament of Uganda is inconsistent with and contravenes Articles 80, 83 (1) and 84 of the Constitution.
(b)
A declaration that the action of the Speaker of Parliament of Uganda in accepting and declaring your petitioner’s seat in Parliament
vacant on the basis of a letter implementing a directive to resign is inconsistent and contravenes articles 83(1), 80 and 84 of the Constitution.
(c)
A declaration that the act of Uganda Peoples Defence Forces in restraining your petitioner as a Member of Parliament from expressing
himself on all political matters irrespective of the constituencies that your petitioner represents while allowing others to do so
with impunity contravenes articles 20, 21 and 29 of the Constitution.
(d)
Orders of redress in terms of damages to your petitioner for violation of inherent rights and freedom for;
(1)
Freedom of speech.
(2)
Freedom of Movement and Assembly.
(e)
Grant an Order of Redress by restraining the respondents and all their officials and agents from taking any further steps towards
the conduct of the elections for Army Representative in place of your petitioner.
(f)
That all actions taken by the respondent subsequent to the letter of 28th May 2005 seeking to replace the petitioner as Member of Parliament be declared null and void.
The petition was supported by the petitioner’s affidavit sworn on 7th June 2005.
The respondent filed an answer to the petition contending that the petitioner was not entitled to any of the reliefs sought as none
of the Constitutional provisions alleged were ever breached. In particular, the following paragraphs of the answer state:
“2. In reply to paragraph 2 of the petition the respondent deny any contravention of articles 80, 83 (1) and 84 of the Constitution
and aver that the petitioner was never forced to resign form his position as Army Representative in Parliament, and that his resignation
is effective and not unconstitutional.
1.
The respondent further avers that in any event the alleged actions of the President/Commander-in-Chief are not challengeable in court.
2.
….the respondents aver that in accepting the petitioner’s letter of resignation, the Speaker did not breach articles 80,
83 or 84(1) of the Constitution.
3.
….the petitioner is barred by the Constitution and the People’s Defence Act from engaging in partisan or making statements
or engaging in conduct that is partisan or prejudicial to good order and discipline of the Army, aid contravention of articles 20,
21 and 29 of the Constitution is denied.”
In the respondent’s view the petition is misconceived, incompetent and is not supported by any evidence.
The answer was supported by two affidavits; one deponed by Ms. Angella Kiryabwire Kanyima, Principal State Attorney and dated 4th June 2005. The other affidavit dated 22 June 2005 was sworn by Major General Joshua Masaba, the Chief of Staff of the Uganda People’s
Defence Forces (UPDF) and member of the UPDF Council of which the President is the Chairman.
The agreed facts after conferencing are as follows;
1.
On 28th May 2005 the petitioner wrote to the Speaker of Parliament a letter attached as Annexture “A” to the affidavit in support
of the petition.
2.
The Speaker subsequently received the said letter.
3.
The Clerk to Parliament notified the Electoral Commission in writing that the petitioner’s seat had fallen vacant.
4.
The petitioner is currently under detention following charges brought against him before the General Court Martial, on four counts
for allegedly making statements that were prejudicial to the good order and discipline of the Army or Government of Uganda and other
alleged statements that tantamount to nepotism and sectarianism.
The agreed issues are:-
1.
Whether the actions of the Commander-in-Chief/President can be challenged in a court of law.
2.
Whether the petitioner’s letter dated 28th May 2005, amounted to a resignation of his seat in Parliament.
3.
Whether the notification to the Electoral Commission that the petitioner’s seat had fallen vacant contravened articles 80, 83(1)
and 84 of the Constitution.
4.
Whether the UPDF in pressing charges against the petitioner contravened articles 20, 21 and 29 of the Constitution.
5.
What reliefs are available to the parties.
Mr. Emmanuel Twarebiraho with Mr. Oscar Kambona represented the petitioner. The Solicitor General, Mr. Lucien Tibaruha with Mr. Joseph
Matsiko Ag Director of Civil Litigation assisted by Mr. Henry Oluka, Senior State Attorney appeared for the respondent Attorney General.
Regarding issue No 1, whether the actions of the Commander-in-Chief can be challenged in a court of law, Mr. Oscar Kambona, learned
counsel, argued that such actions area challengeable in court for the following reasons.
1.
Article 2 proclaims the supremacy of the Constitution. It follows thus that observance of the Constitution and its protection is mandatory
on all persons including the Commander-in-Chief without exception. Mr. Kambona pointed out that the petition was not about the person
of the President. It only sought orders aimed at observance of the Constitution, the fundamental human rights of the petitioner.
2.
The petition is against the Attorney General and not the Commander-in- Chief/the President. He pointed out that under article 137
(1) this court can enquire into the Constitutionality of any act or omission by any person or authority and this time it follows
that the acts of the Commander-in-Chief and President are challengeable in this court.
He prayed court to resolve this issue in the affirmative.
In reply the learned Solicitor General opposing the petition argued that the actions of the President could not be challenged in
a court of law. Referring to article 98 (1) and (4) he submitted that in the presidency are infused four attributes of Head of State,
Head of Government and Commander-in-Chief of the UPDF and Fountain of Honour. These attributes are inseparable. Clause 4 makes it
clear that while in office the President cannot be sued or made liable in court neither in his official nor in his personal capacity,
the only exception being article 104 (8) when the President can be dragged to court to defend a presidential election petition.
The learned Solicitor General further contended that the Attorney General who is being sued is not the Government but a representative
of the Government and that it is the President as Head of State, Head of Government and Commander-in- Chief of the UPDF who advised
the petitioner to resign his position which advice the petitioner accepted though he states he obliged since as senior officer he
was duty bound to obey the Commander-in-Chief. He pointed out that the act of the President in asking the petitioner to resign could
not be challenged in court. The petition is thus wholly incompetent and the court should find it so.
Under article 137 (3)-
“(3) a person who alleges that –
(a) an Act of Parliament or any other law or anything in or done under the authority of any law or
(b) any act or omission by any person or authority, is inconsistent with or in contravention of a provision of the constitution,
may petition the Constitutional Court for a declaration to that effect, and for redress where appropriate.”
It is clear that this provision empowers this Court to inquire into any act or omission by any person or authority without exception.
The President is primarily the executive branch of government. He is vested with executive power being the Head of State, Head of
Government and the Commander-in-Chief of the Armed Forces and the Fountain of Honour. He superintends the administration of the country
through various ministries/departments. He effectuates all laws passed by Parliament. If his acts/omissions were to be exonerated
from court’s jurisdiction the administration of justice would grind to a halt as my lord Twinomujuni, JA put it.
As the Fountain of Honour, the person of the President while still in office is protected against court proceedings by article 98
(4). In all these various capacities under article 119 the Attorney General, who is the Principal Legal Adviser of the Government,
represents and defends the Government including the President’s official actions and or omissions, in court. That is why this
petition is filed against the Attorney General and not the President. Regarding anything done by the President in his personal capacity,
criminal or civil proceedings may be taken against the President after he leaves office – article 98 (5). I would therefore
answer issue No 1 in the affirmative.
Regarding issue No 2 whether the petitioner’s letter dated 28th May 2005 amounted to a resignation of his seat in Parliament, this letter annexture “A” to the petition reads:-
“Mr. Speaker Sir,
I was summoned to a meeting by the Commander-in-Chief of the UPDF on the 27th of May 2005 to which I complied.
During the meeting attended by UPDF Commander, I was directed to write to you Mr. Speaker resigning. This directive had a deadline
of 12 hours. This explains my writing on a weekend.
The purpose of this communication is to draw your attention to the above directive and to accordingly comply.
Please do not hesitate to contact me if you need any further clarifications.
Yours faithfully
Sgd:
Henry
Tumukunde.
c.c. Commander-in-Chief of the UPDF
c.c. UPDF Forces Council”
Mr. Kambona, learned counsel, argued that this was not a letter of resignation. The petitioner was just directed to resign. This
explains his writing it on a weekend. Immediately thereafter, he was arrested and is currently in detention pending trial before
General Court Martial. He submitted that the surrounding circumstances cannot make the letter a resignation but a directive, though
it was contended by the respondent that it was advice. It was argued that the respondent’s admission that the petitioner was
required to be a listening post in Parliament, which he declined, proves that the letter was not a resignation but a directive. A
directive is not a recall as prescribed under article 84, counsel submitted.
In reply the learned Solicitor General argued that the letter in question was an effective letter of resignation for the following
reasons;
a)
There is no requirement that the resignation to be effective must be accompanied by reasons or that the Speaker must demand an explanation.
The letter fulfilled the requirement of article 83.
b)
The directive of the President was not unconstitutional.
In support of his arguments he refereed to the following provision;
-
Section 11 (3) (b) of the Parliamentary Elections Act 2001 providing for the electoral procedure of special interest groups and regulations
thereunder under section 99 of the Act, pointing out that under regulation No 3, representatives of the army are elected by the UPDF
Council in the manner and procedure laid down by the Council.
-
He submitted that the UPDF Council is established under section 10 (1) of the UPDF Act and it operates under the general direction
of the President. Amongst the powers conferred on the President is the power to direct any army representative in Parliament concerning
the military in accordance with the army code of conduct. The Chief of Staff, Major General Joshua Masaba, in his affidavit indicated
that the petitioner had on several occasions contacted the press without approval by the authority as provided for under the Regulations
and had made statements prejudicial to good order and conduct of the army. The President had expressed displeasure and accordingly
advised him to resign. Advising or directing the petitioner to resign was lawful.
The letter was an effective letter of resignation. The petitioner did not prove otherwise, he asserted.
With respect, the learned Solicitor General shifted the burden of proof. It is clear through the averments of the affidavit of the
Chief of Staff, Major General Joshua Masaba that it was because of the petitioner’s conduct both in and outside Parliament
that he Commander-in-Chief summoned him to a meeting with other officers. This meeting coupled with the tone of the ensuing letter,
Annexture “A”, his subsequent arrest soon thereafter and his being charged before the General Court Martial all leave no doubt that he was directed
to resign. It was a directive but the Hon Speaker being aware of the usual discretionary nature of the powers of the Commander-in-Chief
of the army, could not do otherwise than to accept the petitioner’s letter as an effective resignation.
Therefore the resignation from that view point was as effective as any under article 84 (3), (4) and 5.
I would answer issue No 2 in the affirmative.
Issue No 3 is whether the notification to the Electoral Commission that the petitioner’s seat had fallen vacant contravened
articles 80, 83 (1) and 84 of the Constitution. In view of my finding under issue No 2 that the Hon Speaker acted lawfully in accepting
the petitioner’s letter of resignation, articles 80, 83 (1) and 84 were not breached.
I turn to consider issue No 4 whether the UPDF in pressing charges against the petitioner contravened articles 20, 21 and 29 of the
Constitution.
Mr. Kambona, learned counsel, outlining the provisions of articles 20, 21 and 29 argued that despite the Constitutional safeguards,
the petitioner is currently under detention following charges brought against him before the General Court Martial. The charges evolve
around the petitioner expressing himself without permission from the relevant authority of the UPDF authority. This violates the
petitioner’s fundamental rights of freedom of speech and expression under article 29.
He pointed out that as a Member of Parliament, the petitioner is under an obligation under article 79 (3) to protect the Constitution
under the oath he took. He legislates for the entire country and does not restrict himself to his UPDF constituency. Army restrictions
on a Member of Parliament bar him/her from freely consulting constituents at large. They are thus unconstitutional and contravene
articles 20 and 29.
In reply the learned Solicitor General argued that the charges against the petitioner do not contravene articles 20 and 29. The petitioner
is a military officer operating under military law and is subject to the army code of conduct and military standing orders.
He prayed court to dismiss this issue.
The articles alleged to have been contravened read:
20.
(1) Fundamental rights and freedom of the individual are inherent and not granted by the State.
(2) The rights and freedoms of the individual and groups enshrined in this chapter shall be respected, upheld and promoted by all
organs and agencies of Government and by all persons.
Article 21 prescribes equality and freedom from discrimination before and under the law in all spheres of political, economic, social and cultural
life and in every other respect and shall enjoy equal protection of the law.
A person is not to be discriminated on grounds of, amongst others, his/her political opinion.
Article 29 (1) protects an individual’s freedom of conscience, expression, assembly and association.
The charges being pressed against the petitioner are contained in annextures “C” and “D” to the petition. They allege conduct prejudicial to good order and discipline in that he appeared in a talk show and made public
speechess/statements prejudicial to good order and discipline of the Army. This involved spreading harmful propaganda in breach of
the UPDF Act.
It is noteworthy that the petitioner was elected to Parliament as a serving officer to represent the Army under article 78 (1) (c).
According to article 84 (1), his constituency remained his interest group, which is the Army. However, as pointed out by learned
counsel Mr. Oscar Kambona the petitioner took the oath of member of Parliament to give faithful service to Parliament and to support
and uphold the Constitution. I agree with learned counsel that the oath imposed on the petitioner a wider mandate than his limited
interest group did, to legislate for the entire country and defend the Constitution in every conceivable way, not to defend it in
part in respect of his constituency alone. It is my view, therefore, that the instructions, as deponed by the Chief of Staff, Major
General Masaba, to the army representatives to be a listening post for the UPDF and to provide guidance to Parliament in military
matters, which role can be fulfilled by the Minister of Defence, are quite irreconcilable with the wider import of the oath of member
of Parliament.
The restrictions/limitations would not be assailable when applied to a non-Parliamentarian officer or soldier. They would then perhaps
pass the test under article 43 (2) (c) as being in public interest. However, once an army representative, who is so vulnerable, is
allowed to subscribe to the oath of member of Parliament, he/she is put in a situation where he or she is faced with two masters
to serve, the army code of conduct or the oath of member of Parliament. Who is the supreme master? The oath of member of Parliament.
The petitioner becomes a legislator just like any other civilian member of Parliament having descended into that arena. Consequently
the instructions to be a listening post and pressing charges against him would conflict with and violate articles 20, 21 and 29 of
the Constitution. The oath to uphold the Constitution has an overriding effect over any thing else.
I would finally declare that:
(a)
The actions of the President/Commander -n-Chief are challengeable in court.
(b)
The petitioner resigned his seat in Parliament.
(c)
The actions of the Electoral Commission were lawful
(d)
Pressing charges against the petitioner violates and contravenes articles 20, 21, and 29 of the Constitution.
The petition therefore succeeds in part.
I would order each party to bear its own costs.
Dated at Kampala this …………………………day of ……………………..2005.
A.E.N.MPAGI-BAHIGEINE
JUSTICE OF APPEAL.
JUDGMENT OF HON. JUSTICE S.B.K. KAVUMA, JA.
I have had the advantage of reading in draft the joint judgment of My Lords, Lady Justice L.E.M. Mukasa-Kikonyogo, DCJ, and Lady Justice
C.N.B. Kitumba, JA and those of My Lords Lady Justice A.E.N. Mpagi-Bahigeine, JA, and Mr. Justice A. Twinomujuni, JA. The circumstances
giving rise to this petition, and its background, the contents of the petition, the agreed issues, the declarations and reliefs sought
and the constitutional interpretation guidelines applicable are all well and clearly set out in My Lords’ judgments and I need
not reproduce them. I will go straight to the submissions of both counsel, where necessary, and the resolution of the agreed issues.
On issues 2, 3, and 4, I concur with the reasoning adopted and the conclusions arrived at by My Lords Lady Justice L.E.M. Mukasa-Kikonyogo, DCJ and Lady
Justice C.N.B. Kitumba in their joint judgment and have nothing to add.
On issue one, however, I respectfully hold a different view from my Lords and would deal with it in the following terms: -
On issue one, whether the actions of the Commander-in-Chief/President can be challenged in a court of law, Mr. Oscar Kambona, for
the petitioner argued that the acts of the Commander-in-Chief/President were challengeable in court for the following reasons: -
Article 2(1) of the Constitution provides for the supremacy of the Constitution and it has binding force over all authorities and persons throughout
Uganda. It follows therefore, that the observance and protection of the Constitution is mandatory on all persons and authorities
including the Commander-in-Chief. The petition, counsel argued further, is not about the person of the President, it seeks for orders
aimed at observance of the Constitution by seeking the observance of fundamental human rights and freedoms of the petitioner and
this court has jurisdiction to hear the petition. He further argued that the petition was brought against the Attorney General and
not the Commander-in-Chief/President. It was Mr. Kambona’s contention that in the petition and under article 137 (1) of the Constitution, the Court is to determine questions, among which are, whether certain actions of the Commander-in-Chief/President
and UPDF officers were unconstitutional.
Mr. Tibaruha, for the respondent did not agree. The learned Solicitor General contended, the acts of the Commander-in-Chief/President
cannot be challenged in court. He relied on article 98 clauses 1 and 4 of the Constitution.
According to Mr. Tibaruha, the inport of article 98 (1) is that each of the four attributes mentioned in the clause namely, Head of State, Head of Government, Commander-in-Chief of the
UPDF and Fountain of Honour, constitutes the person and office of the President. By virtue of article 98 (1), counsel contended, the President cannot be sued or made liable to any proceedings in any court, whether in his official or personal
capacity whether as Head of State, Head of Government or Commander-in-Chief of the UPDF. By challenging the actions of the Commander-in-Chief/President,
counsel asserted, the petitioner is subjecting the President to proceedings in court which is clearly prohibited by the Constitution.
The Solicitor General pointed out that in the Constitution there was one exception which is contained in article 104 (8) which deals with challenging a Presidential election.
In the present petition, Mr. Tibaruha argued, the bedrock of the case is the alleged act of the Commander-in-Chief/President in directing
the petitioner to resign from his position as an army representative in Parliament. The petitioner, the Solicitor General pointed
out, seeks a declaration that the act of the Commander-in-Chief/President and the army command, in directing the petitioner to resign,
is inconsistent with and contravenes Articles 80, 83, and 84 of the Constitution. The whole of the petitioner’s case hinges on that action of the Commander-in-Chief/President and the other
reliefs sought are secondary to and dependent on it. Mr. Tibaruha argued further that according to the unchallenged affidavit deponed
to by Major General Joshua Masaba, the UPDF Chief of Staff in support of the answer to the petition, it is clear that the President
and Commander-in-Chief advised the petitioner to resign his position as an army representative in Parliament on the 27th May 2005. The petitioner, according to Mr. Tibaruha, accepted the advice of the Commander-in-Chief/President. This act of the Commander-in-Chief
is not unconstitutional.
I have given careful consideration to the submissions of both counsel on the question of whether or not the acts of the Commander-in-Chief/President
are challengeable in court. I have also given careful consideration to the provisions of Article 98(1), (4) and (5). The article provides: -
“98 (1) There shall be a President of Uganda who shall be the Head of State, Head of Government and Commander-in-Chief of the
Uganda Peoples’ Defence Forces and the Fountain of Honour.
(2)
…
(3)
…
(4)
While holding office, the President shall not be liable to proceedings in any court.
(5) Civil or criminal proceedings may be instituted against a person after ceasing to be President in respect of anything done or
omitted to be done in his or her personal capacity before or during the term of office of that person and any period of limitation
in respect of any such proceedings shall not be taken to run during the period while that person was President.”
The sum total of these provisions is clearly, in my view, to grant the President total immunity against court proceedings both criminal
and civil arising out of his/her acts or omissions done or omitted to be done either before or during his/her term in office as President.
Any person who wishes to challenge those acts or omissions of the President in court, has to wait until the President has ceased
to be one. The only exception to this is for a challenge of the election of a President of a person who happens to be the incumbent
President at the time of the challenge. This may appear a hard position but that is what the Constitution says. If the framers of
the Constitution had intended that the acts of an incumbent President should be challengeable in court, they would have clearly stated
so given the fairly detailed manner in which the Constitution deals with the question of Presidential immunity in Article 98. Where they wanted an exemption to this immunity, the framers of the Constitution said so in article 109 (8). The duty of this Court is to interpret not to amend or re-write the Constitution. Courts should resist the temptation to venture into
unnecessary judicial interpretations of the Constitution contrary to its clear provisions as they are in the instant case.
I find the cases of William Jefferson Clinton Vs. Paula Cobin Jones 520 U.S. 681 (1971) and Baker Vs. Cart 369 U.S. 1962 quite distinguishable from the present petition. In those cases, the Constitution of the United States of America, which was in issue,
does not have the equivalent of article 98 (4) and (5) of the Uganda Constitution.
It is my considered opinion that where we have specific provisions in our Constitution on any matter, the persuasive nature of foreign
decisions and principles over the same matter is very minimal. This is because in Uganda, sovereignty lies with the people and where
the people have made a constitutional provision, their sovereignty must be respected by all by giving unquestioned observance and
effect to the provision irrespective of what happens elsewhere.
I am not persuaded by the petitioner’s argument that this petition is not about the person of the President. Clearly, the main
thrust of the petition is about challenging the act of the Commander-in-Chief/President when he advised the petitioner to resign
his seat as an army representative in Parliament. Mr. Kambona himself confirms this when he asserts in his submissions that in the
petition, under article 137 (1) of the Constitution the Court is to determine questions among which are, whether certain actions of the Commander-in-Chief/President
and UPDF officers were unconstitutional. Most of the other alleged contraventions of the Constitution and most of the declarations
and reliefs sought flow from this thrust. I accept the Solicitor General’s submission that each of the four attributes of the
President in article 98 namely: - Head of State, Head of Government, Commander-in-Chief of the UPDF and Fountain of Honour constitutes the person of the
President.
Unquestionably, the Constitution is the supreme law of the land with binding force over all persons and authorities including the
President. The Constitution did not create a monarch in the person of the President. However, for a complete picture to emerge about
the relationship of article 2 (1) and the person of the President in both his/her official and private capacities under article 98 (1), (4) and (5) and the challengeability of his/her acts under article 137, all these articles must be read together. This is because,
“No one provision of the Constitution is to be segregated from the others and to be considered alone. All the provisions bearing
upon a particular subject are to be brought into view and interpreted together so as to effectuate the great purpose of the instrument.”
See South Dakota Vs. North Carolina 192 U.S. 268 (1940).
“The Constitution is a logical whole each provision of which is an integral part thereof, and it is, therefore logically proper
and indeed imperative to consider one part in the light of the provision of the other parts.” See Gopal Vs. State of Madras (1950) 5 CR 88.
Furthermore, the spirit as well as the letter of the Constitution must be considered. Once these provisions are read and construed
together and the spirit of the Constitution is taken into account, it becomes clear that as long as a person remains President, his/her
liability to challenges or challenges to his/her acts in courts of law are suspended by the Constitution. That way, articles 2 (1), 98 (1), (4) and (5) and 137 will have a harmonious existence without any, destroying the others.
Challenging any act of an incumbent President in court, as the petitioner in this petition is clearly doing, is, in effect, subjecting
the Commander-in-Chief/President to proceedings in court contrary to article 98 (4) and (5). To strike a difference between challenging acts of the President in court and making the President a party to court proceedings,
or arguing that where a party seeks to challenge the acts of the President in court, such party sues the Attorney General, is, in
my opinion, academic. The effect of either, is to erode the Presidential immunity embodied in article 98. Doing so, would greatly undermine the rationale behind the article which is to cater for the people’s aspirations about the
person and office of the President. This is the preservation of the dignity of both the person and the office of the President. The
President should be above prosecution and his/her acts above challenge in any court of law save as expressly exempted by the Constitution.
It would be absurd if the President, who takes precedence over all people in the country is liable to or his/her acts are easily
challengeable in court proceedings. The office of the President and his/her acts should have dignity, honour and respect from all.
The Constitution in articles 98 and 99 concentrates enormous executive powers and authority in the President. We have already reproduced article 98 above. Article 99 of the Constitution provides:
“99
(1)
The executive authority of Uganda is vested in the
President and shall be exercised in accordance with this Constitution and the laws of Uganda.
(2)
The President shall execute and maintain this Constitution and all laws made under or continued in force by this Constitution.
(3)
It shall be the duty of the President to abide by, uphold and safeguard this Constitution and the laws of Uganda and to promote the
welfare of the citizens and protect the territorial integrity of Uganda.
(4)
Subject of the provisions of this Constitution, the functions conferred on the President by clause (I) of this article may be exercised
by the President either directly or through officers subordinate to the President.
These are indeed extensive powers and authority concentrated into a single head but in whose choice, the whole nation has a part,
making the President the focus of public hopes and expectations. It is important that at all times there be a President who has complete
control and able to perform those duties. Courts should not encourage burdens to be placed on the President that will hamper the
performance of his/her duties. Opening the gets to challenges to President’s acts or omissions while in office, as this petition
asks court to sanction, and considering the volume of litigation a holding in the affirmative on this issue may result into, may
impose an unacceptable and unnecessary burden on the President’s time and energy that would definitely impair the effective
performance of his office.
It is of particular significance that in this case, the petition specifically and mainly challenges the act of the President as the
Commander-in-Chief of the UPDF.
Speaking of the ‘Commander-in-Chief clause’ in the Constitution of the United States of America, Edward. S. Lorwin in his “The Constitution and what it means to-day, 1978 edition at page 157 had this to say: -
“The purely military aspects of the Commander-in-Chiefship were those which were originally stressed. Hamilton said, the office
would amount to nothing more than the supreme command and direction of the military and naval forces, as first general and admiral of the confederacy”. Story wrote to the same effect in his commentaries and in 1850 the Court, speaking by Chief Justice Taney, asserted: “His (President’s) duty and power are purely military”.
Article II Section II (1) of the Constitution of the United States of America provides: -
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