After a seven-month wait, the Constitutional court set a precedent in its judgment last Friday.
In deciding an NRM petition challenging the Speaker Rebecca Kadaga’s decision to retain the four MPs expelled by NRM, court ruled that once an MP is expelled from his party, he or she automatically loses his or her seat in the House.
The expelled MPs are Theodore Ssekikubo (Lwemiyaga), Muhammad Nsereko (Kampala Central), Wilfred Niwagaba (Ndorwa East) and Barnabas Tinkasiimire (Buyaga West).
Keeping with their promise, the four didn’t show up to hear the ruling. They claimed they knew the court had already condemned them. However, dissenting judge Remmy Kasule said that kicking the MPs out of Parliament amounted to stifling dissenting views in political parties.
Kasule said if the country was to go by the majority judgment read by Justice Richard Buteera, it would be plunged into political instability that the 1995 Constitution had sought to cure.
“As a result of the political instabilities in the past, the Constitution had to ensure that Ugandans enjoy their freedoms and fundamental human rights. In particular, Ugandans had to be protected from dictatorship of a political party,” Kasule passionately argued.
He explained that the majority judgment would go further in entrenching the single-party system that the present Constitution had outlawed. In their majority ruling, the justices led by Buteera said that upon expulsion from the ruling party, the MPs had to relinquish their seats since their stay in parliament would endanger multiparty democracy.
Buteera’s judgment was supported by Acting Chief Justice Steven Kavuma, Justice Augustine Nshimye and Justice Faith Mwondha. They described the MPs’ stay in parliament after expulsion as political hypocrisy, opportunism, indiscipline and it could cause mayhem in the country’s political terrain.
Makerere University History lecturer Dr Tanga Odoi described the judgment as “bad for our democracy” for much the same reasons given by Justice Kasule.
“It’s very important to have a critical voice but with this (ruling), MPs will just agree with every party position, be it good or bad for the country,” Odoi said.
He added that without internal democracy in Uganda’s political parties, it set a very bad precedent for court to rule that upon expulsion from the party an MP will lose his or her seat. Kampala Lord Mayor Erias Lukwago argued that the judgment would help stifle internal democracy within political parties.
“Obviously I don’t agree with this [ruling] because it’s a very dangerous precedent to our budding democracy because people will no longer freely express their view in order to retain their seats in parliament,” Lukwago argued.
Lukwago argued that unless the Supreme Court reverses the judgment, political party heads are going to become dictators.
“It’s now going to be dangerous for any person in an elective position to annoy a party leader because it will mean dismissal from the party, hence losing your seat,” a worried Lukwago said.
Justice Kasule further defended the MPs for voting against party positions, saying that section 65 of the parliamentary rules and procedure allows an MP to vote freely.
“When MPs are on the floor of Parliament, MPs are allowed to air their views freely. If the country’s democracy is to flourish, MPs should be able to vote without fear. We cannot let a political party gauge freedom of expression,” Kasule said.
However, Makerere University Political Science Lecturer Prof Murindwa Rutanga saluted the majority judgment, saying that since the MPs belonged to the NRM, they had to comply with party positions.
“The MPs did not do justice to themselves; once you belong to a particular house you must abide with the rules of that house; if not, then you leave it,” Rutanga said.
The majority justices insisted that once an MP is voted on a particular party ticket he or she must always be in agreement with the policies of that party. This was emphasized by Justice Mwondha who said: “Their [MPs] actions showed that they had left the party, they were called by the party’s disciplinary committee to defend themselves but they refused to turn up...This can be interpreted to mean that they had left the party,” she said .
But Rutanga asserts that since Uganda’s democracy is still growing, the judgment would serve as a warning to other legislators who have been going against party positions.
“By the time you agree to stand on a particular party ticket, you should be able to conform to whatever the party says because you swear an oath of allegiance to that party,” Rutanga said.
Though Justice Kavuma ordered that the four MPs should be kicked out of the House with immediate effect, the Supreme court ruled last year that the MPs would retain their seats until the highest court disposed of their appeal. The Supreme court said then that the Constitutional court judgment would be of no effect until the MPs’ appeal is determined by the highest court.
The MPs’ lead counsel, Prof George Wilson Kanyeihamba, was perturbed by Kavuma’s order saying that it was trying to undermine the highest court in the country.
“The Supreme court ruling was very clear that the MPs cannot lose their seats until their appeal is heard and disposed of. Then how can the Constitutional court give such orders,” Kanyeihamba said.
Nevertheless, NRM’s lead lawyer John Mary Mugisha insists that the Supreme Court order is no longer active since it was on a temporary basis.
“That Supreme court order is now in limbo [or] legal muteness…It was interlocutory and now we have a final judgment which is a precedent and the MPs, unless they appeal, they should quit parliament,” Mugisha said.
Lawyer Caleb Alaka confirmed that today (Monday) the MPs would file their appeal in the Supreme court. The filing of the appeal, according to Alaka, means that the Electoral Commission cannot organize by-elections in the four constituencies.
The affected MPs said the war was still on.
“We’re not shaken because even if we lose the appeal in the Supreme court which is unlikely, we’re ready for a by-election because our constituencies know that we were dismissed because we were fighting for increased pay for teachers and doctors among other things. Our loyalty is more to our voters than the party,” Nsereko said.
Ssekikubo said they were ready to suffer for their electorate.