MP represents voters, not party under whose whip he sits in House
The Constitutional (Amendment) Act which removed presidential age limit from the Constitution and extended the parliamentary term from five to seven years has now become law after the President assented to it. However, confusion still remains over its constitutional efficacy.
An Act of Parliament must state in its body its commencement date and in the case of extension of the parliamentary term from five to seven years, such commencement date can be one of two dates, namely the date on which the President signed the Bill into law or the date of the present Parliament’s first sitting as prescribed in Article 77 of the Constitution.
In both cases, the date selected will likely contravene Article 96, which provides that “Parliament shall stand dissolved upon expiration of its term as prescribed in Article 77….” Article 77 provides “Subject to this Constitution, the term of Parliament shall be five years from the date of the first sitting after a general election.”
If the date of the first sitting is taken as the commencement date for the new Act, it will mean that Parliament will be dissolved in 2023, but if the date of signing is chosen, the seven years will expire in 2025. Either way, Article 96 will determine the constitutionality of the date chosen.
In addition to the above, if the date of the first sitting is chosen, this will mean that the Act is in effect legislating retrospectively.
The term retrospective legislation refers to Acts of Parliament, which are made to operate on some subject, which existed before the passing of the Act. Such legislation undermines the principles of the rule of law because it gives the majority in Parliament discration to do what it wants instead of what the law ordains.
It is important to note that Parliament has not bothered to pass a law to operationalise Article 259, which allows it to amend the Constitution “by way of addition, variation and repeal.”
Only an Act of Parliament can define the meaning of such terms and in the absence of such a law, arbitrariness governs.
This arbitrariness was responsible for the chaotic scenes in Parliament, which we witnessed during the debates on the amendment Bill.
Although this was a private members Bill, the Cabinet adopted it as its own, at least in deeds, contrary to Article 111, which provides: “The functions of the Cabinet shall be to determine, formulate and implement the policy of government and to perform such other functions as may be conferred by this constitution or any other law.”
Neither the Constitution nor any other law confers power on Cabinet to amend the Constitution. This is as it should be because a Constitution is a contract between the people to which government is not a party.
One lesson can be learned from the practice of the British Parliament to avoid the confrontations of the last few months over the Bill.
A Member of Parliament represents the people, who elected them and not the party under whose whip he sits in the House.
However, each party appoints an official known as the Chief Whip, whose role, among others, is to ensure that other party members are present at voting time and that they vote in a particular way.
Every week, the Whip sends out a circular showing upcoming parliamentary business. Importance of the business ahead is ranked by the number of lines they are underlined.
A three line whip means that defying it can result in the Whip being withdrawn. That is the only way a member can be disciplined for defying his party in parliament.
Mr Mulira is a lawyer.
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