July 17th 2013 The Rt. Hon. Speaker of Parliament Parliament Building Parliament Avenue P. O.

Box 7178 KAMPALA PRIVILEGED AND CONFIDENTIAL Dear Madam Speaker, RE: HON. GENERAL ARONDA NYAKAIRIMA

Further to the request dated July 16th 2013 for the Uganda Law Society to attend the South Committee Room regarding issues concerning the appointment of the nominee in caption as a Minister in the Government of Uganda, while retaining his commission in the Uganda Peoples Defence Forces, we have considered the matter and in exercise of our mandate under the Uganda Law Society Act Cap 276, we are glad to render our opinion as below. This opinion is rendered only in connection with the laws of Uganda as at the date hereof. It is not an opinion on the political ramifications should a decision be taken to approve or not approve the said nominee. The decision to approve or not to approve rests solely with the Parliament of Uganda. In considering this issue, we have adopted the factual basis provided in the letter from the Clerk to Parliament. We have also examined the Laws of Uganda indicated in the Clerks letter and other laws as appeared relevant to the matter. These are as below: (a) (b) (c) The Constitution of Uganda; The Uganda Peoples Defence Forces Act; The Political Parties and Other Organizations Act;

The issue at hand is whether a serving army officer who is also a Member of Parliament, is qualified for appointment as a Cabinet Minister in the Government of Uganda and if so, whether the said army officer must, prior to being approved by Parliament in respect of such appointment, resign his/her commission or retire from the army.

As pertinent to this issue, the law of Uganda currently provides as follows: Constitution of Uganda Article 113 (1) provides that Cabinet Ministers shall be appointed by the President with the approval of Parliament from among Members of Parliament or persons qualified to be elected members of Parliament. As such Parliament has a crucial Constitutional role to play regarding Ministerial appointments. Firstly, Cabinet nominees can only be drawn from Members of Parliament or persons qualified to be Members of Parliament. Secondly, Parliament approves the appointments. Article 113(3) provides that A Cabinet Minister shall have respon sibility for such functions of Government as the President may, from time to time, assign to him or her. A Minister is therefore responsible for the Government department to which he/she is assigned. There is no limitation as to what those assignments can be or which departments he/she can be assigned to. Article 115 requires a Minister to take the Oath of Minister prior to assuming his/her duties of office. The Oaths taken provide as follows: Oath of Allegiance I _______ swear in the name of the Almighty God/solemnly affirm that I will be faithful and bear true allegiance to the Republic of Uganda and that I will preserve, protect and defend the Constitution This oath relates to the Republic of Uganda and to the Constitution. Oath of Minister I________ being appointed a Minister of Uganda swear in the name of the Almighty God/solemnly affirm that I will at all times well and truly serve the Republic of Uganda in the office of a Minister; and that I will support and uphold the Constitution of the Republic of Uganda as by law established; and that I will to the best of my judgment at all times when required, freely give my counsel and advice to the President of Uganda and his/her successors in office as by law established for the good management of the public affairs of the Republic of Uganda; and that I will not directly or indirectly reveal any matter as shall come to my knowledge in the discharge of my duties and committed to my secrecy

This oath relates to service to the Republic of Uganda, upholding the Constitution, counsel and advice to the President and secrecy. There is no mention of allegiance to a political party or organisation. Article 117 provides that Ministers shall individually be accountable to the President for the administration of their Ministries and collectively be responsible for any decision made by the Cabinet. This provision makes it clear that administration of a Ministry lies with the Minister while accountability for that Ministry is made to the President. It also sets up the principle of collective responsibility for Cabinet decisions. As such, no Minister can divert from a decision taken by Cabinet, whatever that decision may be. Under collective responsibility therefore, an individual Ministers personal attributes and strengths are subjugated to those of the wider Cabinet and its position. The qualifications for appointment as a Minister are the same, regardless of the political system in operation. These qualifications, which appear in Article 80 are the following: a. b. c. d. e. A citizen of Uganda A registered voter Has completed Advanced Level Education or its equivalent as a minimum Is of sound mind Is not holding or acting in an office the functions of which involve responsibility for or in connection with the conduct of an election f. Is not a traditional or cultural leader g. Is not an undischarged bankrupt h. Is not under a sentence of death or one exceeding 9 months imposed by a court of competent jurisdiction without the option of a fine i. Has not, within 7 years immediately preceding an election been convicted by a competent court of a crime involving dishonesty or moral turpitude j. Has not, with 7 years immediately preceding an election been convicted by a competent court of an offence under any law relating to elections conducted by the Electoral Commission. There is no requirement that a nominee for a Ministerial position belong to a political party or organisation. There is also no requirement that the nominee should or should not be a member of the army. Once a person is a Member of Parliament, regardless of the constituency he/she represents, that person is qualified for appointment under the provisions of Article 113(1). From the provisions of the Constitution cited above, an army officer who is also a Member of Parliament is qualified for appointment as a Minister in the

Government of Uganda. The pool from which Ministers may be drawn is limited to Members of Parliament who include persons who represent the UPDF. For these persons to represent UPDF in Parliament they must be serving army officers. Article 208(2) provides that Uganda Peoples Defence Forces shall be non-partisan, national in character, patriotic, professional, disciplined, productive and subordinate to civilian authority as established under [the] Constitution. The said attributes may refer to the institution, or to the collective of those who make up the institution or to an individual member of the institution. Reading through the attributes, some can be shared by the institution and an individual member; while others such as national in character appear to relate to the institution. Under Article 210, Parliament is empowered to make laws regulating the UPDF. Uganda Peoples Defence Forces Act 2005 Section 99 of this Act provides that a serving officer or militant who desires to seek political office shall first resign or retire from the Defence Forces according to regulations made by the Minister The phrase who desires to seek political office is not defined. The literal interpretation of it refers to a person who of his own volition seeks political office. A purposive interpretation might include a person who, though not offering himself/herself for election, accepts a nomination to political office. It is important to note that the provision does not deal with a person who seeks to offer himself/herself in an election. Seeking political office may therefore include offering oneself for election and accepting a nomination for a position that is a political office. In the case of Darlington Sakwa and Another vs The Electoral Commission and 44 others Constitutional Petition No. 8 of 2006, the Constitutional Court held that Ministers are not like Permanent Secretaries. They are members of the Executive Arm of Government. They are responsible for political supervision of the ministries assigned to them by the President. They are agents or representatives of the President. The office of a Minister is therefore a political office.

Uganda can be governed under several political systems. The most familiar ones are the movement political system and the multi-party political system. In the movement political system partisan politics does not exist in law. Under the multi-party political system, partisan politics exists in law and practice. Since Uganda is currently under the multi-party political system, it is important to consider the provisions of the law dealing with political organisations. The Political Parties and Other Organizations Act 2005 Section 16 provides that a member of the UPDF... shall not be a founder, promoter or other member of a political party or organization; hold office in a political party or organisation; speak in public or publish anything involving matters of political party or organization controversy; and engage in canvassing in support of a political party or organization or of a candidate standing for public election sponsored by a political party or organization. From this provision, it is clear that any person who is a member of the UPDF cannot engage in the stated matters as relates to political parties or organisations. However it is also clear that political party or organisation controversy can be commented upon by a member of the UPDF in private. As a Minister, one cannot avoid public statements or some of the other matters dealt with under Section 16 above. If one is also a serving army officer they would, in making controversial public statements, be acting in direct violation of that law. As previously stated, on the literal interpretation of Articles 113, 117 and 208, there is no bar to the appointment. A purposive interpretation, which brings into focus the practical realities of an appointment to a cabinet position may have an impact on the approval by Parliament. Firstly, the matters that Parliament takes into consideration to approve or not to approve an appointment are not provided for in the Constitution save for where qualifications for an office are spelled out. However, these qualifications may not be the only issues relevant to the consideration of approval. There may be others but we opine that any such other matters must be lawful considerations themselves. Secondly, the Constitution can be interpreted literally, where a provision is clear and purposively where a provision may not be clear. Whatever the interpretation,

each article in the Constitution must be in harmony with all the others. A purposive interpretation approaches the issue from a determination of the intention of the framers as well as the mischief they sought to cure or regulate. In our view, and notwithstanding the literal interpretation ascribed as above, a purposive interpretation of Articles 113, 117 and 208 read together can mean that: a.. an army officer who is a Member of Parliament representing the UPDF is not permitted to be partisan because the institution he/she represents in Parliament is required to be non-partisan. if that officer on being appointed Minister also remains a Member of Parliament representing the UPDF, any partisan position he/she takes because of his/her assignment or work on being appointed a Minister would contravene Article 208. an army officer who is also a Minister is bound by the collective position adopted by Cabinet, whether that position on any matter is partisan or not.

b..

c..

From the foregoing we are of the opinion, based on the literal interpretation of the Constitution that: 1. An army officer of the UPDF who is also a Member of Parliament is qualified for appointment as a Minister in the Government of Uganda; 2. Under the laws of Uganda, it is not provided for that an officer of the UPDF must resign his/her commission prior to being appointed or approved for appointment as a Minister in the Government of Uganda; 3. An Army Representative in Parliament represents an institution which under Article 208 (2) is required to be non-partisan. It may be prudent for such Army Representative to resign his position as a Member of Parliament representing the Army prior to taking up appointment as a Minister because a Minister occupies a political office which by its nature makes it practically unlikely that he/she would be non-partisan; and 4. However, approval is at the discretion of Parliament but the considerations must be lawful. This opinion is issued in respect of the laws of Uganda as they affect an officer of the UPDF and is not rendered in respect of the laws of any other country. This opinion may not be used or relied upon by or published or communicated to any person or entity other than the addressee hereof, for any purpose whatsoever without our prior written consent in each instance. Therefore we do not assume any obligations

or liability to any third parties relying on this opinion and request that the same remain confidential. Please do not hesitate to contact us in the event of any queries. Yours faithfully,

Ruth Sebatindira President- Uganda Law Society cc. The Rt. Hon. Deputy Speaker of Parliament The Hon. Leader of Opposition Jane L. Kibirige, Clerk to Parliament