Saturday January 10 2015

How Zziwa lost trust of Eala members

Former Eala speaker Margaret Zziwa

Former Eala speaker Margaret Zziwa welcomes President Museveni to the Eala Assembly in Kigali, Rwanda in 2013. 


When interviewed by Daily Monitor last week about the impeachment of Ms Margaret Zziwa, East African Legislative Assembly (Eala) Speaker Dan Kidega said: “Unfortunately, the information available to the Ugandan public has been scanty. There has been a lot of blackmail, slander and lies about what was going on in Eala.”

There is, therefore, need to examine the merits and demerits of the impeachment and in the process access the information Mr Kidega says we don’t have.

Ms Zziwa was charged with 14 articles of impeachment. She refused to appear before the investigating committee to present her side of the story and challenge the evidence which was adduced against her. Instead, she sent her lawyers to inform the Committee that they were involved in illegalities. However, most of the evidence presented against her is documentary which makes it easier for us to review the case against her.

Abolition of rotational sittings
Rotational sittings mean the practice by which the Assembly holds its sittings in Kampala, Nairobi, Kigali, Bujumbura and Dar-es-Salaam. Under Article 55 (1) of the Treaty for the Establishment of the Community and Rule 11 (7) of the Rules of the House, the Assembly is vested with power to sit in any place outside Arusha.

That is the basis for rotational sittings. The first rotational sitting was held in Kampala on February 25, 2002 in a result of the resolution of the House at its sitting in Arusha on December 3, 2001. By the time Ms Zziwa took office, these sittings had been held every year for 10 years.

In April 2013 at a dinner hosted by the Speaker of Rwanda in honour of Eala members, Ms Zziwa decreed that there would be no more rotational sittings. Both the Commission and the House resisted the decree as shown by the minutes of the Commission presented in evidence.

Under the Treaty (Supreme law of the Community comparable to a national Constitution), the power for rotational sittings is vested in the House and not the Speaker.
Further, Rule (11) (7) of the Rules of the House gives power to the House and not the speaker to hold the rotational sittings. What is authorised by law cannot be taken away by an announcement at a dinner dance.

The decision was clearly a naked usurpation of the powers of the House and a contravention of the law. Absent from the duty station unofficially.

The petitioners relied on Ms Zziwa’s failure to appear before the Committee as evidence that she was absent from the duty station in contravention of her terms and conditions of service. Failure to appear before the Committee does not mean she was not at her duty station. There is, therefore, no evidence that she was absent from the station.

Attempting to illicitly obtain benefits
A letter written by Ms Zziwa to the chairman Council of Ministers, Mr Shem Bageine, was produced in evidence. In the letter, she requests an increase in her salary and informs the minister her emoluments are $7,500 (about Shs20m) per month. However, an official document was also tendered in evidence against her showing that her monthly emoluments were $11,500 (Shs32m).This proved she had lied to the minister.

Secondly, she said: “I request that my request is considered in the meantime when Uganda and yourself are still the chair of Council of Ministers.” That is soliciting benefits on sectarian grounds as both Ms Zziwa and Mr Bageine are Ugandans.

She wanted a decision made before Mr Bageine vacated the office. It is clear that she did not trust a minister from another country to increase her salary. This, in my view, was misconduct that brought the office of speaker into disrepute.

Allowing husband to interfere in Assembly
The evidence adduced in the Committee comprises of a video clip said to show Mr Francis Babu attempting to gate crush a meeting between President Uhuru [of Kenya] in his capacity as chair of the Summit and some members of the Assembly.
Even if this evidence is true, it is difficult to see how his bad behaviour can be laid at the feet of Ms Zziwa.

She has, and can have no control over the actions of her husband. The other evidence comprises of video clips showing him insulting members of the Assembly for trying to remove his wife from office of the speaker. The solution to this would be legal proceedings against Mr Babu not impeachment of Ms Zziwa.

Flouting and manipulating rules with impunity.
To me, this was the most grave of all articles of impeachment because it has a direct bearing on democracy, good governance and the rule of law which are fundamental principles of the Community clearly provided in Article 6 of the Treaty. The evidence presented to the Committee was all documentary (Hansard) and therefore, unchallengeable. Even if Ms Zziwa had appeared, she would not have disputed the evidence.

In their book Practice and Procedure of Parliaments, Kaul and Shakdhar, who in are leading authorities on the subject, state: “Under no circumstances is it justified for a speaker to use his powers arbitrarily or in such manner as to prevent the House from functioning.

Whatever powers have been conferred by the rules on the speaker, they are for only one purpose, that the House should be enabled to function at all times…The speaker should not conceive his duties or interpret his powers as to act independently of the House or to override its authority…and in the ultimate analysis the speaker is a servant of the House, not its master. The speaker should not on his own raise a matter and then give his decision thereon….He should not give a ruling that has the effect of reversing a decision already taken by the House.”

Treating members and staff with disrespect
Evidence was brought to the Committee in which the speaker refers to members as displaying adolescent behaviour berserk and sly in presence of the Chairman of the Summit and on another occasion before a speaker of a national parliament.

Video recording were produced showing the speaker on several television stations in East Africa threatening to deal with those members who were involved in trying to remove her from office. There was also evidence of her referring to Members of Parliament as jihadists, broke, quacks.

In the Australia House of Representatives, a motion of no confidence was moved in speaker Peter Slipper for using vulgar and sexist language in a phone text message to a member of staff. The motion failed in a 70 to 69 vote. Nevertheless he resigned, saying his position as speaker was no longer tenable. That is an example to show what type of conduct is expected of a Speaker. No, doubt on the unchallenged evidence produced Ms Zziwa fell far short.

Using media and other fora to defame members.
Television video clips and newspaper clippings of interviews with newspapers such as the East African, The New Vision and others in East Africa were adduced in evidence. They show an angry Zziwa lashing out at members for trying to remove her from office.

If a matter is pending decision in an institution whether court, tribunal, parliament or cabinet, it is advisable that the head of that body goes to the media not only to discuss the merits of that matter but to attack the people who have raised it? In my view, that is not conduct befitting of a speaker. She should have left the matter to be decided by the House without putting it in the court of public opinion for debate.

Secondly, it had the potential to attract litigation against the speaker in defamation with dire consequences of how to preside over that House and also appear with the same members in courts of law to defend herself.

Wasting resources, poor time management
Ms Zziwa convened two meetings in Kigali and Mombasa to meet with all committee chairpersons and the Commission (governing body) respectively. The members flew into the cities for the meetings but the speaker did not show up, make any communication nor delegate responsibility. She turned up two days late. Again since this was documentary evidence in form of minutes, it is difficult to see how Ms Zziwa could have rebutted this evidence of her misconduct. It is definitely expensive for East Africans to pay hotel bills for 17 MPs doing nothing.

Practicing favouritism
Evidence was adduced to show that whereas Ms Zziwa appointed some members to attend as many nine international conferences, there were others who had only one such appointment. Conferences have the advantage of exposing one to new experiences and parliamentary practices and are important to all members.

They also enable one to establish international parliamentary networks. There was no evidence before the Committee to the effect that the Speaker did not have the sole responsibility of making such appointments.

Inter parliamentary games
The five national parliaments and Eala play friendly matches. The teams comprise of MPs and staff. Evidence was adduced to show that in neither one of the netball matches, the Eala team comprised of a player who was neither a member nor staff of Eala. Evidence to that effect was led to by way of photographs to the effect. That in itself would not have been a problem. However, there was evidence that she directed that the player be paid out of the Assembly budget. That is fatal.

Wrongful reallocation of budgetary provisions
I do not agree with the Committee’s finding on this matter. The speaker is not the accounting officer of the Assembly. It is, therefore, difficult to fathom how she could reallocate funds she does not control. I am not convinced that Ms Zziwa was guilty of this charge.

Failing to provide leadership in the House
More than two thirds of members of the House in Kigali and Nairobi signed statements clearly showing they had no confidence in Ms Zziwa. The Committee came to the conclusion that in such a situation, trust in her had been eroded to the extent that restoration of normal working relationship was now impossible to achieve.

In 2009, 23 members of the British House of Commons signed a petition that they no longer had confidence in Speaker Michael Martin and were commencing proceedings for his removal. That House is composed of 650 members. The speaker did not wait for the motion to come up for debate.

He argued that if 23 or 3 per cent of his members had lost confidence in him, to keep around and fight would cause disunity in the House and be a disservice to the British people. He said he was looking at the bigger picture and not himself as an individual. Eighty per cent of Eala members commenced impeachment proceedings against Zziwa. She went on television to say she would not resign.

Apart from the obvious statistics, how did Ms Zziwa expect to stay as speaker with 80 per cent of the members against her? What would a reasonable speaker do in such circumstances?
Refusing to submit to the will of the House and supremacy of the rule of the House and thereby creating mistrust and paralysis.

This is yet grave charge. Documentary evidence was adduced showing that Ms Zziwa filed a case in the East African Court of Justice challenging the rules of the House. Rules of procedure of any Parliament are not a simple matter. They have their foundation in national constitutions and in respect of East Africa they derive their existence from Article 49 (2)(g) of the Treaty.

The authority to make and amend the rules is entirely in the hands of a Parliament. As long as they are in force they must be obeyed. If a member wishes to change any rule or provide new ones there is a procedure of how to go about it within the House and Ms Zziwa had all the freedom of doing so if she was dissatisfied with the rules. Instead she challenged them in Court.

Committee has called it refusal to submit to the will of the House. And the Committee is justified in its conclusion. That action had another consequence. Members argued that if she had no respect for their rules then she could not at the same time use them in presiding over the House. They, therefore, refused to attend sessions and as a result there were no sittings of the House. The House was in a paralysis and could no longer operate.

In the final analysis, out of the 14 articles of impeachment, I am of the view that 10 justified her impeachment and they show that Ms Zziwa was for a variety of reasons unable to perform the functions of the office of speaker.

But it is not how many because even one article is sufficient. She adopted the autocratic quasi monarchical system of governance under which Uganda is currently administered today and sought to export it to East Africa. But what is good for Uganda is not necessarily good for East Africans.

The representatives of the people of East Africa overwhelmingly rejected autocracy. I do not think they are “young biologically and immature without ideology” as stated by President Museveni for doing so. We in Uganda must reexamine our attitudes to leadership. Are leaders masters or servants is the question.

Undermining the authority of commission

Disregarded calender. The annual legislative calendar contains all business to be transacted by the House in the coming year. It is made available to the civil service (Secretariat) to enable it align its activities to those of the Assembly. It also alerts the Council of Ministers to know the dates when it can introduce Bills and reports for debate or to answer questions raised by members. Documentary evidence was produced to show that Ms Zziwa changed the March 9, 2014 session to March 22 so that she could attend the World Urban Forum in Colombia.

Effect. The Committee concluded that this undermined the authority of the Commission. I think it did more than that. It also put on hold debate on issues effecting East Africans and disrupted the careful planning of the Secretariat and Council of Ministers.

Example. Former speaker [Abdulrahman] Kinana was faced with a similar problem in 2004. He invoked Article 56 of Treaty which allows for election of an acting Speaker. We elected Mr Mabere Marando and went ahead to transact the business of the East Africa in the absence of the Speaker. I think Ms Zziwa ought to have done the same. I would say it was wrong of her to personalise the office of Speaker.

Manipulation of rules

(i) The rules of the House are clear. A Speaker cannot preside over a debate for his or her removal. Even if the rule did not exist the principles of natural justice which are part of the rule of law forbid it. Yet Ms Zziwa insisted and chaired the meeting called to remove her from office (rule 9(6)).

(ii) In order to kill the debate, she immediately adjourned the House sine die (without a date). Not only did this stop other matters affecting the Community from being debated but contravened rules of the House which vest the power to adjourn sine die in the Commission and not Speaker.(Rule 12(4).

(iii) Even when the House reconvened on three subsequent sessions between April and November last year, Ms Zziwa refused to put the motion for her removal on the order paper for debate.
It could, therefore, not be debated. The rules require that the motion which was on the floor at the time of adjournment has to be debated first when the House reconvenes.(Rule 18(2))

(iv) Without any debate and when the matter was not even on the order paper, Ms Zziwa surprised the House by making a ruling that she could not be removed from office claiming that three members had withdrawn their signatures.
That contravened the Supreme law of the Community which in Article 58 provides that all matters proposed for decision shall be determined by a majority of votes of the members present and voting. She could not overrule the supreme law of the Community just to preserve herself as Speaker. In the process she also contravened rule 54 of the Rules of the House.

(v) Members of the House lost confidence in one of their commissioners and initiated a motion for her recall from the Commission. The motion was moved on October 29, 2014 fully debated and the accused member defended herself.
The debate was closed. As a vote was to be taken, Ms [Susan] Nakawuki raised the question of quorum which led to adjournment of the House. What followed is impossible to comprehend. It is bizarre. When the House reconvened with quorum in November, the Speaker said she had a ruling to make. She ruled that the House could not proceed to vote on the motion and ordered that all that had been debated be struck off the record of Parliament.
If I had not read the Hansard , I would not have believed that the Speaker could abuse her office and undermine her own House to such an extent. To kill a pending decision of your own House and deny it the right to express itself is totally unacceptable in a parliamentary democracy.

(vi) Under the rules, it is the duty of the Speaker to maintain order and decorum in the House. Evidence was adduced in the committee which is surprising. Apparently, some members changed attire, danced and saluted each other while debate was going on in the House and Ms Zziwa failed to call them to order as required by the rules to do.
On this ground of manipulating the rules for personal interest, the House was justified in the impeachment.

Happy New Year
Wandera Ogalo, Advocate