(Thursday, April 12, 2018. Court resumes after lunch)
Adrole: My lords, my name is Richard Adrole, Senior State Attorney and I will be presenting issue 6a. The issue framed is whether the entire process of conceptualising, consulting, debating and enacting the Act was inconsistent with Articles of the Constitution as hereunder. My lords, this issue was split up.
It’s the contention of the petitioner - Uganda Law Society - in paragraphs 1 (e) that the Act of Parliament in proceeding on a Private Member’s Bill whose effect is to authorise payment to the 10th Parliament after the expiry of their initial constitutional five-year term is inconsistent with Article 93 (b) of the Constitution.
My lords, the respondent denies the contentions in paragraph 6 of the answer to the petition of the Uganda Law Society.
Our response is supported by the additional affidavit of Keith Muhakanizi. It’s a contention in the petition of Hon Karuhanga and five others that the decision of the government to impose an illegal charge on the Consolidated Fund is inconsistent with Article 93 of the Constitution and that the payment of Shs29m to MPs was in contravention of Article 93.
(a). In the same petition No.5, it’s contended by the petitioner that by drawing money from the Consolidated Fund to facilitate the constitution amendment No. 2 Bill that was tabled by a private member, is in contravention of Article 93.
It’s contended in the petition by Prosper Busingye and three others Vs Attorney General in paragraph 7 (b) that Section 2, 6, 8 of the impugned Act, which amended articles 73 (3) 181 (4) , 29 and 291 of the Constitution to retrospectively enlarge the term of the current Members of Parliament, local government councils from five years to seven in the middle of the existing term of office that were smuggled into the Bill without a certificate of financial implication, is in contravention of Article 93 of the Constitution. The respondent (Attorney General) denies the contentions in petition No. 10 and the answer to the petition is further supported by the affidavit of Keith Muhakanizi.
My lords, it’s the contention of the petition of Mr Male Mabirizi Vs Attorney General that the action of Parliament in entertaining the presentation and the grant of the Private Member’s Bill which had effect of charging money on the Consolidated Fund was inconsistent with Articles 93 (a) and (b).
The respondent denies paragraph 6 of the answer to the petition and in the subsequent affidavit of Mr Keith Muhakanizi and we shall bring those details later.
There were two certificates of financial implication, one of which is attached, of Mr Muhakanizi. Muhakanizi also deponed affidavits in constitutional petition No. 5 of Hon Karuhanga and five others in constitutional No.49 of Mr Mabirizi and that of Busingye.
The contention of the petitioners didn’t demonstrate that these things existed without a financial certificate.
Justice Kasule: Sorry counsel, you said there are two certificates and both of them are on court record?
Adrole: From my submissions, I said one of them is attached and that is of Mr Keith Muhakanizi as annexture C. The other is seen in the answers not necessary in physical form and my lords we have already made orders that they should be produced at the next schedule.
Justice Kakuru: Who attached this one certificate?
Adrole: My lords, it was our office
Justice Dollo: Proceed
Adrole: My lords if I may proceed to Article 93. When dealing with Article 93 I will treat it in 2 legs, there is 93 (a) and 93 (b) of the Constitution.
My lords, 93 (a) says Parliament shall not, unless a Bill or motion is introduced on behalf of government, proceed upon a Bill including amendment Bill…. The pivot of Article 93a is that Parliament cannot proceed unless a Bill of motion is introduced on behalf of government.
Justice Barishaki: Can a Private Member move a Bill?
Adrole: A Private Member can move a Bill and it should not be restricted by any of the following which I have mentioned above.
Honourable Raphael Magyezi presented a Bill in the House. I will refer you to the constitutional petition of the Uganda Law Society Vs the Attorney General…. My lords, the facilitation for the Bill did not contravene Article 93 (a) 1-4.
My lords, allow me go to the second leg, which is 93b; that is the issue of the referendum…. Parliament shall not unless the Bill or a motion is introduced on behalf of government consider a motion including an amendment... My understanding of the article is that it’s dealing with motions or amendments of motions and my lords, what we had in Parliament was a Bill.
My lords, this is where I disagree with the petitioners because the motion we are dealing with here is not of Shs29m alone. My lords, it’s our submission that when the motion by Hon Magyezi was introduced on the floor of Parliament on September 27, was to introduce a Private Member’s Bill .
If you look at our authority that touched the rules of procedure of Parliament, there is a distinction between Bills and motions.
On page 5 on my list of references, my lords, a motion means a proposal by a Member of Parliament or of the committee, expressing that something should be done or expresses an opinion concerning some matter; that is a motion.
While the Bill, if you look at page 1 of the Rules of Procedure in Parliament, means a draft of an Act of Parliament and includes both a Private Member’s Bill and a government Bill. So my lords, there is a distinction between the two.
My lords, a certificate that was issued is attached to the respondent’s additional answer in support of the opinion and these are technocrats. Their job is to look at issues to do with finances, what challenges we shall have in introducing this Bill financially. I will refer you to page 3 of the certificate.
My lords, on funding and budgetary allocation, that is on page 5 of the annexure C is a certificate of financial implication and there are no additional financial implications. A private member can bring up a Bill even if it’s going to create a charge. The Constitution does not restrict that from what I am reading from Article 93.
Mwesigwa Rukutana (Deputy AG): My lords, we are dealing with a Bill and Article 93 (a) says government cannot introduce a Bill that makes provisions, operation-wise, for any of the following by either imposing taxation or reduction on the Consolidated Fund. My lords, let’s take one by one. For the motion for leave to introduce a private member’s bill there was no financial implication. It was just a motion for leave. For the Bill, it has several clauses and none of Magyezi’s bills provided for a charge and the economy was not to be affected by the introduction of the bill.
Justice Kakuru: But the financial certificate of implication shows that the bill had impact on the economy and data of expenditure.
Rukutana: The Bill contains ambiguous wording in the body so you have to look at the conclusion of the certificate.
Adrole: Parliament does not enact a law that will not be implemented due to lack of resources. My lords, it is our submission that a Private Member’s Bill did not create a charge on the Consolidated Fund.
Justice Musoke: Counsel, we would like guidance; Hon Magyezi introduced a Bill and took it to Parliament. By the time the Act was passed, which is now being questioned, other issues had been inserted including increasing the term of MPs, local councils and restoration of presidential term limits. Now refer to the certificate of financial implication, does it relate to the transformed or original Bill by Magyezi? And are you still contending that after this Bill had been transformed into an Act, that there was still compliance with article 93 of the Constitution?
Justice Dollo: To help my learned brother, when a Bill becomes a law, does it directly charge on the Consolidated Fund?
Rukutana: My lords, Article 93, refers to the time the Bill is being produced in Parliament. When it evolved, another certificate of financial implication was obtained taking into consideration of the new additions. Our submission is that we are looking at entry of the Bill into Parliament not the exit. That is right interpretation of article 93. My lord, we have convinced you on that and that is our understanding of that article (laughter in court).
Justice Musoke: You say what is material is the entry of Bill but the language of the article is Parliament shall not proceed upon a Bill including an amendment Bill that makes provision. Does this not impose an obligation on Parliament that once when dealing with Private Member’s Bill, once an item is brought in that affect, any of the provisions of article 93 ought not to proceed.
Rukutana: Yes my lord.
Justice Musoke: Was it done in this case?
Rukutana: It was done by seeking clarification from the people in charge of finances whether the Bill imposes or does not impose a charge on the Consolidated Fund.
Justice Dollo: Suppose court said on evidence that it has implication of its consequences being charged on the Consolidated Fund. If this court does not nullify the amended Act or provisions, which flow naturally into holding the elections, is there a need to hold a referendum to harmonise the terms of elections?
Rukutana: The Constitution is now amended and it was two different terms. The courts certify that it’s okay and we pray that it does, then people of Uganda look at the Constitution and decide whether to harmonise.
Justice Kakuru: Is there a possibility?
Rukutana: There is a possibility of doing it or not.
Justice Dollo: That concludes the submission on that.
Rukutana: Yes my lord. Now having successfully convinced you on that one (laughter in court).
Justice Dollo: No, no do not take our facial expression for granted because you might sweat or celebrate at the end.
Rukutana: I now call upon Christine Kaahwa, the acting Director of Civil Litigation to submit issues 8 and 10.
Justice Dollo: Whatever questions we ask, do not leave this place with a notion that court has made its judgment. Don’t get carried away by our facial expressions. Let nobody be intimidated because you are here to argue your case.
Kaahwa: I am most obliged my lord. Allow me say that sometimes the questions from the Bench are a bit too many and as counsel, we get bombarded and that is our feeling.
Justice Barishaki: Are you prepared and can you start?
Kaahwa: I will submit on issue 8 and 10. Issue 8 is whether the passage of the Act without observing 14 sitting days of Parliament between the 2nd and 3rd readings was inconsistent with and/ or in contravention of Article 262 and 263 (1) of the Constitution. The respondent’s case is that there was no contravention of the constitution.
Justice Dollo: Do local councils have a right to come up with an Act that does not reflect the decision of Parliament?
Kaahwa: Our submission is that there was no amendment of article 26.
Justice Musoke: Counsel Kaahwa, Hon Magyezi said it loud and clear that article 263 was being amended or is there anything in the Hansard excluding this article and that what he said was not true?
Kaahwa: I am not very sure whether there is something in the Hansard but under the Act of Parliament…….(Rukutana intervenes).
Rukutana: My lord I seek your indulgence that we have here Counsel Solomon Kirunda, who is counsel to Parliament and wants to clarify.
Kirunda: I would like to refer you to page 5, 2 and 6, 2 of the Hansard. When Hon Nandala [Mafabi] moves to amend; he says I want to ask the chairperson about inserting of amendment 105. So the question in deliberation was amending 105 and our submission is the clause under discussion was amending 105.
Justice Musoke: Are you implying that what is stated in Hansard particularly on the page 5, 3 by Hon Nandala and Hon Magyezi, is incorrect?
Rukutuna: The article under consideration was article 105 however, it’s our submission that Hon Nandala and Magezi in this recording erroneously stated so (laughter in court) and when the clerk was correcting, he put in place a proper article that was amended.
Adrole: My lords, I so pray that you find merit in my submissions.
Justice Dollo: We are proposing we should stop here. I know we have issue Number 11. When we come on Tuesday, we shall start with witnesses.
Court adjourns to Tuesday, 9:30. (The judges stand up and leave the courtroom).
13 issues court must determine
1. Whether sections 2 and 8 of the age limit Act extending or enlarging the term of Parliament from 5 years to 7 are unconstitutional.
2. If so, whether applying it retroactively is unconstitutional.
3. Sections 6 and 10 of the Act extending the current term local government councils from 5 years to 7 unconstitutional.
4. If so, whether applying it retroactively is unconstitutional.
5.Whether the alleged violence/scuffle inside and outside Parliament during the enactment of the Act was unconstitutional. .
6. The entire process of conceptualising, consulting, debating and enacting the Act was unconstitutional.
7. The alleged failure by Parliament to observe its own Rules of Procedure during the enactment of the Act is true and if so, whether it was unconstitutional.
8. Passing the Act without observing 14 sitting days of Parliament between the 2nd and 3rd reading was unconstitutional.
9. The president’s assent to the Bill allegedly in absence of a certificate of compliance from the Speaker and a certificate from the Electoral Commission was unconstitutional
10. Section 5 of the Act, which reintroduces term limits and entrenches them as subject to a referendum is unconstitutional.
11. Section 9 of the Act, which seeks to harmonise the seven year term of Parliament with the President’s term is unconstitutional.
12. Sections 3 and 7 of the Act, lifting the presidential age limit are unconstitutional.
13. Remedies are available to the parties