08 May 2013

Rt. Hon. Rebecca A. Kadaga Speaker of Parliament Parliament of Uganda Parliament House P.O.Box 7178 KAMPALA Rt. Hon Speaker, Re: Request by the Secretary General of the

National Resistance Movement to declare the seats of Hon Mohammed Nsereko, Hon Theodore Ssekikubo, Hon Barnabas Tinkasimire and Hon. Wilfred Niwagaba in Parliament vacant.
On 16 April, 2013, the Secretary General of the National Resistance Movement requested you to declare the seats of Hon Mohammad Nsereko, Hon Theodore Ssekikubo, Hon Barnabas Tinkasimire and Hon Wilfred Niwagaba vacant. The purpose of this declaration was to allow byeelections to be held in the respective constituencies of the MPs who had been expelled from the National Resistance Movement. In your Letter Ref SPSC/NTF/01 dated the 2nd May 2013 you declined to do and stated among others as follows: Article 83 of the Constitution that addresses the tenure of members of Parliament and indeed from reading of the whole Constitution [that] there is no specific provision on

the expulsion of Members of Parliament by their political parties leading to the declaring of their seats in Parliament vacant. In your response to this request, you stated; As a Speaker of Parliament, it is my firm belief that a decision on this matter has the potential of having serious Constitutional ramifications. This is especially so given that the office of a Member of Parliament is a weighty office which goes to the core of our democracy and therefore a decision to declare such an office vacant can only be made on clear, unambiguous and unequivocal provisions of law. I dont find such circumstances pertaining. And according to the Hansard of Thursday the 2nd May, 2013 of the proceedings of Parliament, you reiterated that; from reading of the whole Constitution, there is no specific provision of the Constitution on the expulsion of Members of Parliament by their political parties leading to the declaration of their seats in Parliament vacant. Unfortunately none of the above reflects the other provisions of the Constitution that you considered in arriving at your conclusion besides Article 83. It is however apparent from your argument that your decision was based on your conclusion that there was no law on whether the expulsion of Members of Parliament by their political parties would lead to the declaration of their seats in Parliament vacant. It is also apparent from your conclusion that political parties have no influence or

control over their Members of Parliament or their conduct beyond the gates of Parliament. In your communication to the House, you stated that your position was supported by a decision of the Supreme Court of Uganda in the Brig. Henry Tumukunde case. The Supreme Court judgement in the Tumukunde case noted that; .in 1642, when Charles I of England at the time, an absolute monarch attempted to arrest five members of the house of Commons and demanded that its Speaker identify them so that they could be arrested, the then Speaker of Parliament, Lenthall, bravely, politely but firmly responded to the King, thus: Sire, I have neither the eyes to see nor ears to hear except as directed by this House whose servant I am. The above quotation is inapplicable to the current situation because it is inconsistent with the Constitution of the Republic of Uganda. Unlike n England, the Constitution and NOT parliament is the Supreme Law of the land. Clause (2) of Article 2 adds; If any other law or any custom is inconsistent with any of the provisions of this Constitution, the Constitution shall prevail, and that other law or custom shall, to the extent of the inconsistency be void. Thus the Constitution is above Parliament. Accordingly you do have the eyes to see or the ears to hear anything

inconsistent with the provisions of the Constitution of the Republic of Uganda. The matter of the four MPs must therefore be dealt with in strict adherence with the Constitution of the Republic of Uganda. And clause (3) of Article 79 imposes a duty on Parliament to protect the Constitution. Furthermore Article 1 of the Constitution of the Republic of Uganda provides; (1) All power belongs to the people who shall exercise their sovereignty in accordance with this Constitution. (2) Without limiting the effects of clause (1) of this article, all authority in the State emanates from the people of Uganda; and the people shall be governed through their will and consent. (3) All power and authority of Government and its organs derive from this Constitution, which in turn derive its authority from the people who consent to be governed in accordance with this Constitution. (4) The people shall express their will and consent on who shall govern them and how they should be governed, through regular, free and fair elections of their representatives or through referenda. Thus the people and NOT Parliament, are sovereign with power of determining how they want to be governed. In fact Clause 1 of Article 69 provides;

The people of Uganda shall have the right to choose and adopt a political system of their choice through free and fair elections or referenda. Clause (2) of the same article addsThe political systems referred to in clause (1) of this article shall include(a) the movement political system; (b) the multiparty political system; and (c) any other democratic and representative political system. So it is the people if Uganda who have the right to choose and adopt any of the above-mentioned political system. The people of Uganda chose a Multiparty Political system. It follows that any decision that is made and is likely to bring about anarchy in the political system chosen by the people of Uganda cannot be said to be consistent with the provision of the Constitution of the Republic of Uganda. By retaining in the House the four MPs expelled from the National Resistance Movement, the message that is being sent out is that an MP who is elected to Parliament on a party ticket is at liberty to conduct parliamentary business in accordance with their wishes irrespective of his or her political party. Accordingly, therefore, MPS would be independent of their political parties and parties would have no control of their members. This could not have been the spirit behind

the provisions of the Constitution or the Political Parties and organisations Act (Act 18 of 2005). The Constitution provides for the composition and functions of Parliament. It says; (1) Parliament shall consist of(a) members directly elected to represent constituencies; (b) one woman representative for very district; (c) Such members of representatives of the army, youth, workers, persona with disabilities and other groups as Parliament may determine; and (d) the Vice President and Ministers, who if not already elected members of Parliament, shall be ex officio members of Parliament without the right to vote for any issue requiring a vote in Parliament. It is apparent from the above-quoted provisions of Article 78 that, the people of Uganda having chosen a multiparty political system, the only member provided for under Article 78 of the Constitution are(i) Members of political parties; (ii) Representatives if the army. However clause 4 of Article 72 addsAny person is free to stand for an election as a candidate independent of a political organisation or political partly. Thus any person can come to parliament independent of a political partly, it is however apparent that a person can only come to parliament as an independent through

elections. Thus the law proves for only three categories of Members of Parliament, namely; (a) members of Parliament representing political parties; (b) Representatives of the army; and (c) Independents. HON MOHAMMAD NSEREKO, HON THEODERE SSEKIKUBO, HON BARNABAS TINKASIMIRE AND HON WILFRED NIWAGABA, having been expelled from the National Resistance Movement, do not belong to any party. And it is inconceivable that even if they challenged their expulsion, Court would coerce the National Resistance Movement to accept them as members of the Party. They are not and cannot be representatives if the army. And they could not remain members if Parliament because they did not stand for elections as independents in accordance with Clause 4 of Article 72 of the Constitution. The four therefore do not belong to any of the categories of Members of Parliament provided for by the Constitution of the Republic of Uganda. Accordingly they are ALIENS in the Parliament of Uganda. Their continued stay in Parliament is unconstitutional and an abuse of the rule of law in Uganda. Their stay in Parliament is inconsistent with the Political System that the people of Uganda chose to adopt. The Constitution lays out the circumstances under which an MP may vacate their seat. Article 83 of the Constitution of Uganda provides(1) A Member of Parliament shall vacate his or her seat in Parliament-(g)If that person leaves the political party for

which he or she stood as a candidate for election to Parliament to join another party or to remain in Parliament as an independent member. In order for the provisions of Article 83 to be applicable, the following must be proved(i) the person vacating must be a member of parliament; (ii) he/she must have had a seat in parliament; (iii) he/she must have been a member of a political party for which he or she stood as candidate for elections to parliament; and (iv) he/she left the above-mentioned political party to join another party or to remain in parliament as an independent member. There is no doubt that HON MOHAMMAD NSEREKO, HON HEODERE SSEKIKUBO, HON BARNABAS TINKASIMERE AND HON WILFRED NIWAGABA were members of Parliament and that thy had seats in that parliament. The four also were members of the National Resistance Movement party for which they stood as candidates for election to parliament. The major contention is whether by being expelled from the National Resistance Movement, they had left the party for which they had stood as candidates for elections to Parliament to join another party or to remain in Parliament as independents. There has been controversy as to what the word leaves in the above-mentioned paragraph means and includes for the paragraph does not give a clue as to whether the word leaves does cover both voluntary and involuntary leaving of the political party for which the member of

parliament stood as a candidate for election to parliament to join another party or to remain in parliament as an independent member. It is inconceivable that one would leave one party to join another party involuntarily. In my view the leaving of a political party for which a member of parliament stood as a candidate for election to parliament to join another party must be voluntary. However the leaving of a member of parliament from the political party for which he or she stood as a candidate for election to parliament to remain in parliament as an independent member may be either voluntary or involuntary. In the current case the four MPs were expelled from the National Resistance Movement due to indiscipline. In other words they were forced to leave the National Resistance Movement by the party. And upon departure from the National Resistance Movement they ceased to be associated with any party in parliament. In other words that became independent. Although this is not independence contemplated under clause 4 or Article 72, the independence referred to in paragraph (g) is wider than that independence referred to under Article 72. So when the four MPs were expelled from the National Resistance Movement, they were deemed to have left the party and so became independent, they should therefore vacate from seats in parliament under Article 83 of the Constitution of Uganda. The interpretation of the Constitution must follow certain principles. The Constitutional Court has laid down these principles as;

The Constitution must be interpreted broadly, liberally and purposively. The entire Constitution had to read as an integral whole with its letter and spirit, as the Supreme law, being respected. The principle of harmonisation goes hand in hand with the broad approach to interpreting the Constitution. Where here are several articles that conflict with each other in the same constitution by harmonising provisions. This is the rule of harmony, rule of completeness and exhaustiveness and the rule of paramountancy of the written Constitution. No one particular provision should destroy another but each supports the other. No one provision of the Constitution must be segregated from all others and considered alone. All provisions bearing upon a particular subject are to be brought into view and to be so interpreted as to effectuate the greater purpose of the instrument. The Constitution must be interpreted in the context, scene and setting that exists at the time when the interpretation has to be determined and not when it was promulgated, otherwise it will cease to take into account the growth of society which it seeks to regulate and ignore the future implications and impact of the said construction and future generations. Therefore in determining whether or not the four Members of Parliament should continue to sit in

Parliament as Member of Parliament the Constitution has to be looked at as a whole. It is wrong to consider Article 83 of the Constitution without taking into consideration Articles 1.2.69.70.71.72.73.74.78 and 83 among others. It is by considering the above-mentioned articles as whole that you would be able to determine their fate properly. Had all these Constitutional provisions been considered together you would have discovered that the continued stay of the four in Parliament is unconstitutional. Finally when HON MOHAMMAD NSEREKO, HON THEODERE SSEKIKUBO, HON BARNABAS TINKASIMIRE AND HON WILFRED NIWAGABA offered to represent their Constituencies, they made a social/political agreement with their Constituencies. The terms of the agreement included among others the following; (i) the agreement between the four members of parliament and their Constituencies was subject to the Constitution of the Republic of Uganda and any other legislation made there under; (ii) the duration of the agreement was five years; (iii) They would represent their constituencies as members of the National Resistance Movement, etc. By conducting themselves the way they did leading to their expulsion from the party, the four members of parliament did breach the social/political contract referred to above rendering their representation of their Constituencies no longer sustainable. They must go back and seek the mandate of their electorate to continue representing them.

Accordingly HON MOHAMMAD NSEREKO, HON THEODERE SSEKIKUOB, HON BARNABA TINKASIMERE AND HON WILFRED NIWAGABA, having been expelled from the National Resistance Movement, cannot legally hold their seats and are now ALIENS in the 9th Parliament. Their continued stay in parliament is illegal and an abuse of the law. The decision to allow them to stay in parliament is inconsistent with the Constitution and other legislation made thereunder. Although I was not consulted on the issue of the four members of parliament, as The Principal Legal Adviser of The Government, I am compelled to advise you to reverse your decision because it is constitutional. Hon. Peter Nyombi (MP) ATTORNEY GENERAL