The future of the UK Supreme Court was cemented on Tuesday by just two women, President Lady Brenda Hale and the British Guyanese petitioner Gina Miller, a successful businesswoman, who has been at the heart of Brexit litigation in the United Kingdom in the last two years.
First, the court sat enbanc [not all 12 justices], but 11 to produce an uneven result, which happened in the case, and then all justices ruled unanimously to find the Prime Minister Boris Johnson’s advice to the Queen unlawful advising that Parliament be prorogued for a record five weeks upsetting decades of constitutional convention.
The UK does not have a written constitution, but Tuesday’s ruling further cements the application of historical precedents and stature in their constitutional law, a decision of great consequence.
In Uganda, with a fairly detailed and prescriptive Constitution, very few conventions exist. We do not have a precedent, for instance, yet for the end of the term of a president. Further we do not have a precedent that requires the president to act on certain matters within a certain time, including assenting to Bills passed by Parliament.
There is one famous outstanding nominee, David Opio-Okello, who was nominated as Deputy Governor of Bank of Uganda in 1999 vetted by Parliament and his recommended for appointment which never happened. This must have been one of the few situations where the current Vice President [and former Speaker] was put in a bind by the President to explain to several hometown delegations why their home-son never took office and retired at his substantive rank of executive director.
The flurry of amendments to the 1995 Constitution has politicised its contents. First is the frequency of the amendments a dangerous development that has stepped on growth of established constitutional conventions. NRM and the President have had a major justification, sovereignty of the people. Boris Johnson will never enjoy the sort of majorities in Parliament that NRM enjoys in fact prorogation was a direct result of the Tories loss of their majority followed by sacking from the Tory Whip of 21 Members of Parliament.
Things were so hot; government withdrew its support for the Speaker behind the scenes forcing him to resign after the Tories threatened to support a challenger in his Buckingham constituency. The UK Supreme Court, an after-thought of the Blair premiership, was established in 2007 to hear final appeals of exceptional public importance in the entire UK. Scottish law is self-contained in criminal matters.
It appointed permanent law lords to sit on it, headed by a President who replaced the Lord Chancellor, who remains the eminent law lord in the House Lords, whose Privy Council still hears appeals from British overseas territories. The Brexit appeal was historical as it was addressed by another three members of the House of Lords a point which was repeated in court.
This was the time for the best in muted British comedy. No interruptions. No emotion. Hardly any breathing in between as the two sides argued their cases. Things concluded rather starkly, the order to prorogue was a blank piece paper improperly founded and of no effect. Parliament was still in session. Speaker Bercow gets his death wish to preside over one more month of Brexit debates as he has promised to leave office on October 31.
The Queen is in Buckingham Palace waiting for Boris Johnson to apologise as government works on her speech opening Parliament October 14. Memorable rebukes have come from our Supreme Court. Once Samuel Wako Wambuzi CJ wondered whether his colleagues in the Court of Appeal read cause of action from the papers after noting Seth Manyindo DCJ in allowing the David Tinyefuza petition had noted significant press interest in the man’s travails. In the referendum cases, he noted wryly rebuking current Speaker Rebecca Kadaga that quorum, an important safeguard of parliamentary proceedings, was established by counting, not an opinion.
Mr Ssemogerere is an Attorney-at-Law and an Advocate.