Put simply, his argument is that the second respondent is allowed by the Constitution to stand for an election in any party or as an Independent and the people of Uganda, being sovereign, have a right to elect whoever they wish.

He called upon us to look at all ‘the provisions of the Constitution together as required by the rules of  interpretation and to hold that the 2nd respondent had a constitutional right to offer his candidature as a member of NRM political party while at the same time representing his constituency as an Independent member of Parliament. He called upon us to dismiss the petition.

DETERMINATION OF ISSUES

This petition is extremely important for the people of Uganda. It raises very pertinent questions that must be answered in light of the forthcoming national parliamentary elections in which a sizeable number of sitting members of Parliament have offered themselves and have been nominated for election to the next Parliament of Uganda. Determination is necessary if Uganda’s current political system as a multiparty democracy is to have any meaningful survival and orderly growth. It raises two main questions:

(a) Can a Member of Parliament elected on an Independent ticket be validly nominated as a flag bearer candidate of a political part while still holding the Parliamentary seat? (Issue No.2)
(b) If such a person offers himself for nomination as a flag bearer of a political party, and he/she is nominated, can he/she validly continue to sit in Parliament up to its dissolution? (Issue No.3)

We have carefully considered issues that are raised by this petition. We have also considered the pleadings of the parties to this petition, the arguments and authorities relied upon by counsel and the rationale of the constitutional amendment that gave rise to article 83 of the Constitution.
We are in position to give a short but well considered decision on these issues as follows:

ISSUE NO.1

The leading authorities on this matter are Baku Raphael and Anor vs Attorney General (supra), Serugo vs Kampala City Council, Const. Appeal No.2 of 1998 and Nakachwa Joyce vs Attorney General & 2 Others Constitutional Petition N0.2 of 2001. The opinion expressed in the judgment of his Lordship Odoki, CJ, in Baku Raphael (supra) summaries neatly the law on this point. He said:

“In my opinion, where a petition challenges the constitutionality of an act of Parliament, it sufficiently discloses a cause of action if it specifies the Act or its provision complained of and identifies the provision of the Constitution with which the Act or its provision is inconsistent or in contravention, and seeks a declaration to that effect. A liberal and broader interpretation should in my view be given to a constitutional petition than a plaint when determining whether a cause of action has been established.”

We have no doubt that this petition is on all fours with this opinion as expressed by His Lordship the Chief Justice of Uganda. The issue is answered in the affirmative.

ISSUE NO.2 AND NO.3 5

This is whether the 2nd respondent’s act of contesting in the NRM party primaries elections having been elected as an Independent Member of Parliament contravenes and or is inconsistent with specified articles of the Constitution.

Whether the 2nd respondent’s continuing to sit in the 8th Parliament having participated in the NRM party primary elections is inconsistent and/or contravenes the constitution.

These two issues appear to us to be two sides of the same coin and we propose to handle them together. Though many articles of the Constitution are cited as being inconsistent with the alleged acts of the respondent, we find only two of them the most relevant and we cite them hereunder:

Article 72(4) provides:
“Any person is free to stand for an election as a candidate, independent of a political organisation or political party.”

Article 83(1)(g) and (h) provides:

“(i) A Member of Parliament shall vacate his or her seat in Parliament –
(g) If the person leaves the political party for which he or she stood as a candidate for election to Parliament to join another party or to remain in Parliament as an Independent Member;
(h) If, having been elected to Parliament as an Independent candidate, that person joins a political party.”

We are alive to the cardinal principles of Constitutional interpretation and especially one which commands that 20 all provisions of the Constitution must be looked at and be considered together as an integrated whole.

Therefore, all the articles of the constitution sighted or not sighted in the petition will be brought in focus in order to determine the meaning of articles 72(4) and (5) and 83(1)(g) and (h) of the Constitution.

Meaning of Article 83(l)(g) of the constitution

This provision is a recent addition to the Constitution brought in by the 2005 constitutional amendment. It was necessary to give meaning to the constitutional provision relating to the decision of the people of Uganda to turn to a multiparty political system of government.

It’s a very simple and clear provision. It is not ambiguous and should be construed basing on the    natural meaning of the English words used in the relevant clause. In our judgment the provision means:

(I) A Member of Parliament must vacate his/her seat if he/she was elected on a political party/organisation ticket and then before the end of that Parliament the member joins another party.

(II) He/she must vacate his/her seat if she was elected on a party ticket and elects to be nominated as an Independent before the term of the Parliament comes to the end.

(III) If he/she was elected to parliament on a party ticket, he/she cannot remain in Parliament as an independent member.

(IV) Common sense dictates that if one was elected to Parliament on a political party ticket and joins another party, he/she cannot be validly nominated for election on the ticket of that latter party unless he/she has at the time of nomination resigned or vacated the seat in Parliament.

(V) If one was elected to Parliament on a party ticket and he/she leaves that party to become independent, he/she cannot validly be nominated as an independent unless he/she has ceased to be or has vacated the seat in Parliament.

The rationale of this interpretation is easy to see. You cannot, in a multiparty political system, continue to represent the electorate on a party basis in Parliament while at the same time offering yourself for election for the next Parliament on the ticket of a different political party or as an independent.

It would be a betrayal of the people who elected you and an exhibition of the highest form of political hypocrisy and opportunism the evil, we believe, article 83(1)(g) of the Constitution was designed to prevent. It is also an exhibition of political indiscipline and an abuse of people’s sovereignty which is so strongly enshrined in our Constitution.

Meaning of Article 83(1)(h) of the Constitution

The simple and straightforward construction of this article is in our view as follows:

If an Independent Member of Parliament joins a political party before the end of the term of Parliament he/she was elected to, he/she must resign the seat. If he or she fails to vacate or resign from Parliament, he/she cannot be validly nominated on a political party ticket for election to the next Parliament. Next Page 3

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