Private Members Bill will not amend Constitution

Thursday 25 August, while I was in Agago burying Isaiah Okidi, the Gulu University lecturer who was tragically killed by a security guard, Deputy Speaker Jacob Oulanyah allowed in Parliament a motion to permit a very ordinary Ugandan, Mr Kafeero Ssekitoleko, to introduce a “Private Members Bill” to amend the Uganda Constitution. I was, therefore, unable to air my opinion on the matter.

This Constitution, that took the Constituent Assembly more than three years to consult on, debate and enact, and was the reason for the five-year extension of the NRM regime in 1990, has been amended before – first through a Constitutional Review Commission process and later through formal government Bills. But now we want to debase it to the extent of amending it through a Private Members Bill.

Is there any basis for the Constitution to be amended so callously and so “uselessly” without honour and decorum and without a judicious process as if we are beating a chicken thief? I say NO Mr Speaker.
The Uganda Constitution is the supreme law of the land that Parliament and its members are all commanded by Article 79(3) to protect at all times and we swear to uphold reverently, and whose value and strength lies in how we treat it and use it for the common good.

The Deputy Speaker himself and Mr Ssekitoleko, before becoming who they are now, both took the Oath of Allegiance and Oath of Member of Parliament contained in the fourth schedule of the Constitution. In taking the respective oaths, the two gentlemen publically pronounce that: “I…swear in the name of the Almighty God …that I will preserve, protect and defend the Constitution”, and that “I… swear in the name of the Almighty God …that I will … support and uphold the Constitution of the Republic of Uganda as by law established.”

Where then did the Deputy Speaker and Mr Ssekitoleko derive the mandate and audacity to seek to amend the Constitution using a mere Private Members Bill and to so callously expose the Constitution to abuse and ridicule?
I know for a fact that Mr Oulanyah, being a lawyer of great intellect, knows fully well that the Private Members Bill in Parliament’s Rules of Procedure is neither a creature of the Constitution nor of any law, but is provided for a very specific purpose. I also know from his precedent arguments that his justification for admitting Mr Ssekitoleko’s motion is that Parliament’s Rules does not prohibit members from using a Private Members Bill to introduce any constitutional amendment.

But is such an argument even tenable on a matter as solemn, weighty and grave as amending the country’s Constitution? And is his decision justified by any precedence or any other provisions in our rules and laws?
It is unfortunate that whereas in Chapter 18 the Constitution itself sets very stringent provisions on how it may be amended, our Rules of Procedure has no single provision on how Parliament must proceed with a constitutional amendment. It is equally unfortunate that the Rules of Procedure does not even define what a “Private Members Bill” is.

However, these lacuna do not justify the ruling by the Deputy Speaker in this particular instance. Mr Oulanyah probably would not have allowed the Ssekitoleko motion if only he had not been blinded to the true intent of the Private Members Bill provision in the rules, and if only he had faithfully executed his sworn obligations and duties as a lawyer and Speaker to protect the Constitution and to preserve and uphold its sanctity as the supreme law of the land.
Firstly, the intent and limits of the Private Members Bill provision are clearly spelt out in the definition of Private Members Business and in Rule 25 of our Rules of Procedure. By rules definition, “Private Members Business means business other than government business and includes business of the Opposition parties or individual members”. In contrast, Rule 25(1) states that “Government business shall consist of public business in the name, or in the charge of a minister.”

Honestly, can constitutional amendment be a private members business when we have a whole minister for Constitutional Affairs? Can Mr Ssekitoleko, who is a member of the ruling NRM party, usurp the mandate, responsibility and duty of his government to lead the amendment of the Constitution? On what grounds would he really do so?

In fact, it was so comical seeing the Attorney General and the front bench grinning sheepishly as the Opposition tried to hammer sanity into the Deputy Speaker and the mover and supporters of this unfortunate motion. How much lower can the NRM government sink?

Even precedents set in the 8th and 9th Parliaments were there to guide the Deputy Speaker. During both Parliaments, the Opposition and civil society crafted various proposals for amendment of the Constitution. Recognising that amendment of the Constitution is government business, they never tried to bring a Private Members Bill to do so but instead presented their proposals as petitions to Parliament. Speaker Rebecca Kadaga, while receiving the petitions, also assured the country that she would use her office to push government to bring a Bill to amend the Constitution as their mandate.

If ever the Deputy Speaker, in accepting the Ssekitoleko motion, wanted to give the widest latitude to the rules provision on Private Members Bill, he had no authority whatsoever to brush aside government’s mandate to lead the amendment of the Constitution. Before the motion, Gen Kahinda Otafiire, the minister for Constitutional Affairs, had publically affirmed that government would bring a comprehensive bill to amend the Constitution. The Speaker at the time he acted should have enquired from government the progress of the same.
More importantly, in their full judgment in the Amama Mbabazi Electoral Petition of 2016, the Supreme Court firmly directly the Attorney General to lead the process of amending the Constitution and set out specific timelines for government to follow the directive of the Supreme Court put the issue of amending the Constitution firmly in the hands of government. It is, therefore, illegal for any MP to purport to lead the amendment of the Constitution.
As for the politics behind the proposed amendment, I leave it for our political processes to sort things out. Let me, however, make it abundantly clear to the Deputy Speaker that the motion by Mr Ssekitoleko seeking authority of Parliament to bring a Private Members Bill to amend the Uganda Constitution is steeped in illegalities, insults the honour and dignity of our National Constitution, and breaches our sworn obligation to preserve, uphold and protect the Constitution.

What constitution says

It is unfortunate that whereas in Chapter 18 the Constitution itself sets very stringent provisions on how it may be amended, our Rules of Procedure has no single provision on how Parliament must proceed with a constitutional amendment. It is equally unfortunate that the Rules of Procedure does not even define what a “Private Members Bill” is. However, these lacuna do not justify the ruling by the Deputy Speaker in this particular instance. Mr Oulanyah probably would not have allowed the Ssekitoleko motion if only he had not been blinded to the true intent of the Private Members Bill provision in the rules, and if only he had faithfully executed his sworn obligations and duties as a lawyer and Speaker to protect the Constitution and to preserve and uphold its sanctity as the supreme law of the land.

The writer is MP Agago North/Former Leader of Opposition 8th Parliament.
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