Ogenga Latigo on Private Members Bill

COMMENT: By Ogenga Latigo

Should an MP usurp the mandate and duty of the government to table an amendment of the Constitution?

The Deputy Speaker of Parliament, Jacob Oulanyah, onAug. 25 allowed a motion to permit a very ordinary Ugandan, Nakifuma County MP Kafeero Ssekitoleko, to introduce a “Private Members Bill” to amend the Uganda Constitution. I wish to air my opinion on the matter.

The Constitution of Uganda, which took a Constituent Assembly over three years to consult on, debate and enact, and was the reason for the 5-year extension of the NRM Regime in 1990, has been amended before; first through a Constitutional Review Commission process, and later through formal Government Bills. Now, however, we want to debase it to the extent of amending it through a Private Members Bill.

Is there any basis for the Constitution to be amended so callously and so “uselessly”, without honour and decorum, and without a judicious process; as if MPs are a mob beating a chicken thief? I say NOMr. Speaker.

The Uganda Constitution is the Supreme Law of the land that Parliament and its members are commanded byArticle 79(3) to protect at all times. We swear to uphold it reverently, and its value and strength lie in howwe treat it and use it for the common good. The Deputy Speaker himself and Ssekitoleko, before becoming who they are now, both took the Oath of Allegiance and Oath of Member of Parliament contained in the Fourth Schedule of the Constitution. In taking the respective oaths, the two gentlemen publically pronounced that: “I… swear in the name of theAlmighty God …that I will preserve, protect and defend the Constitution”, and that “I… swear in the name of theAlmighty God…that I will … support and uphold the Constitution of the Republic of Uganda as by law established.”

Where then did the Deputy Speaker and Ssekitoleko derive the mandate and audacity to seek to amend the Constitution using a mere Private Members Bill and to so callously expose the Constitution to abuse and ridicule?

I know for a fact that the deputy speaker; being a lawyer of great intellect, knows full well that the Private Members Bill in Parliament’s Rules of Procedure is neither a creature of the Constitution nor of any law, but is provided for a very specific purpose. I also know from his precedent arguments that his justification for admitting Ssekitoleko motion is that Parliament’s Rules do not prohibit members from using a Private Members Bill to introduce any constitutional amendment.

But is such an argument even tenable on a matter as solemn, weighty, and grave as amending the country’s Constitution? And is his decision justified by any precedence or any other provisions in our Rules and laws?

It is unfortunate that whereas in Chapter 18 the Constitution itself sets very stringent provisions on how it may be amended, our Rules of Procedure have no single provision on how Parliament must proceed with a constitutional amendment. It is equally unfortunate that the Rules of Procedure do not even define what a “Private Members Bill” is.

However, these lacunas do not justify the ruling by the Deputy Speaker in this particular instance. Oulanyah probably would not have allowed the Ssekitoleko motion if only he had not been blinded to the true intent of the Private Members Bill provision in the Rules, and if only he had faithfully executed his sworn obligations and duties as a lawyer and Speaker to protect the Constitution and to preserve and uphold its sanctity as the Supreme Law of the land.

Firstly, the intent and limits of the Private Members Bill provision are clearly spelt out in the definition of Private Members Business and in Rule 25 of our Rules of Procedure. By Rules definition, “Private Members Business means business other than Government business and includes business of the Opposition parties or individual members”. In contrast, Rule 25(1) states that “Government Business shall consist of public business in the name, or in the charge of a Minister.”

Honestly, can constitutional amendment be a private members business when we have a whole Minister for Constitutional Affairs? Can Ssekitoleko who is a member of the ruling NRM party usurp the mandate, responsibility and duty of his Government to lead the amendment of the Constitution? On what grounds would he really do so?

In fact it was so comical seeing the Attorney General and the Front Bench grinning sheepishly as the Opposition tried to hammer sanity into the Speaker and the mover and supporters of this unfortunate motion. How much lower can the NRM Government sink?

Even precedents set in the 8th and 9th Parliaments were there to guide the Deputy Speaker. During both Parliaments, the Opposition and Civil Society crafted various proposals for amendment of the Constitution. Recognising that amendment of the Constitution is Government Business, they never tried to bring a Private Members Bill but instead presented their proposals as petitions to Parliament. Speaker Kadaga, while receiving the petitions, also assured the country that she would use her office to push Government to bring a Bill to amend the Constitution as their mandate.

If ever the Deputy Speaker, in accepting the Ssekitoleko Motion, wanted to give the widest latitude to the Rules provision on Private Members Bill, he had no authority whatsoever to brush aside the Government’s mandate to lead the amendment of the Constitution. Before the motion, Gen. Kahinda Otafiire, the Minister for Constitutional Affairs, had publically affirmed that the Government would bring a comprehensive bill to amend the Constitution. The Speaker, at the time he acted, should have enquired fromGovernment the progress of the same.

More importantly, in their full judgment in the Amama Mbabazi Electoral Petition of 2016, the Supreme Court firmly directly the Attorney General to lead the process of amending the Constitution and set out specific timelines for Government to follow. The directive of the Supreme Court put the issue of amending the Constitution firmly in the hands of Government. It is, therefore, illegal for any MP to purport to lead the amendment of the Constitution.

As for the politics behind the proposed amendment, I leave it for our political processes to sort things out. Let me, however, make it abundantly clear to the Deputy Speaker that the motion by Ssekitoleko seeking authority of Parliament to bring a Private Members Bill to amend the Uganda Constitution is steeped in illegalities, and insults the honour and dignity of our National Constitution, and breaches our sworn obligation to preserve, uphold, and protect the Constitution.

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Prof. Morris Ogenga-Latigo is the MP Agago North and Former Leader of Opposition 8th Parliament. mwolatigo@parliament.go.ug

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editor@independent.co.ug