After court ruling todayasking the Speaker of Parliament to throw out 5 Mps expelled by the ruling National Resistance Movement (party) is receiving a lot of commentary. That may be because its one of the most important political cases to come before the courts.
Its political weight is in what the ruling, should it stand, means to how the NRM will handle dissenting opinions or even internal competition, within this transition period. In short, the courts, should they rule that Mps once expelled by their party, can lose their seat for which they had been elected, will hand such a party the ability to hire and fire.
In situations where little or no democracy exists in a political party, this potential to lose one’s seat according to what the minders of the party decide is a huge stick in the hands of party executives. For the NRM, whose birth into a political party, was almost a still birth after many contenders in those 2006 primaries complained that the party had fixed, rigged or played favorites, such a ruling restores the status quo.
In the period after 2006, the NRM struggled to maintain rank. The party’s political organs and programs were undermined by “independents” or basically NRM misfits (like the rebel Mps”) who run for office anyway and were elected to parliament.
The 9th Parliament has the highest number of independents. As a block they are larger than the opposition and form a caucus chaired by Sam Owor Amooti Otada (Kibanda county).
If a favorable ruling emerges at the end of this process, the fear of losing their seats as well as other powerful resources concentrated in the hands of the party bosses will give unbridled power to party hawks to keep its members in line.
In particular it would be interesting to see how the Speaker Rebecca Kadaga reacts. As an NRM Mp as well as Speaker, a ruling in favor of the party amounts basically to a recall mechanism. In the present atmosphere of reported disagreements between her and the Secretary General of her party- the chief complainant in the rebel Mps case- the effect of the ruling would mean a disciplinary hearing would seal the fate of her office.
She too can now be fired.
After the 2005 “lifting” of Presidential term limits as well as other “transactional” moments in the relationship between NRM Mps and those who run the party, this power must be feared by many individual Mps as well as pro-democracy watchers. Democracy aside (no pun intended), the power to hire and fire Mps is essential to some of the transitional questions before the party. Most pertain the political career of its chairman, President Yoweri Museveni.
Will he run in 2016? Will he be viable as a candidate in 2022? If not how will the NRM “manage” that transition internally? What process will best reflect how the NRM will choose its future leaders and with it its power to continue governing the country within the present pluralistic system?
These weighty questions have been foisted on the judiciary by way of the present constitutional petitions and from the start their political ramifications have rattled the court.
So perhaps the dissenting ruling of the Hon. Justice Remmy Kasule best illustrates the tension inside the cloistered confines of the courts. In short Justice Kasule ruled that a grant of temporary injunction at this stage when all the arguments and evidence had been heard- was not simply unjust and outside the law, it was also biased.
An accusation of bias by a senior judge should be taken with the seriousness it deserves. Out of the coram of 5 judges, only Kasule did not come from the Executive branch. His colleagues who made short work of their ruling (it was basically a statement that never offered reasons as to why these rebel Mps should leave parliament before the courts decided their fate in the final ruling) are all ex-politicos.
Until he was appointed Judge, now Justice Richard Buteera was the long serving Director of Public Prosecutions while Justice Faith Mwondha was the former Inspector General of Government whose career suffered immensely from public accusations of bias towards the executive. Both justices have had their share of grief over their relationship with the Executive- despite holding constitutionally independent offices. The other two judges Justice SBK Kavuma, a former junior minister for defense and A.S Nshimye, another former junior foreign affairs minister have been identified as co-founders of the NRM as a political organization.
The “rebel Mps” and their lawyers have not raised the issue of conflict of interest within their petition but have done so outside the courts. Only Justice Kasule has, in the form of his dissenting ruling which amongst others questioned the impartiality of his colleagues. In his words, acting as the ruling has done, to kick the Mps out of the house amounted to ‘pre-judging” the main suit (in other words telling the country their mind was made up since the action of leaving parliament was what the NRM had asked the courts to do). In “legalese” Justice Kasule said this action was “pre-judicial (unlawful), pre-judgemental (biased and contrary to the duty imposed on this court, not only to act, but also appear to be acting, impartially (basically political).
A lot will be written about the merits of the “rebel Mps” case but as I said it is a very crucial political case. At the heart of it is whether or not Ugandans can elect their own leaders or have them chosen by a political organization. This in turn tests the constitutional premise that power belongs to the people- who make their choice through universal adult suffrage. If an Mp loses his seat because his party does not like him- what does this do to that power? And can Mps be called people’s representatives who are afraid to lose their seat because their party will boot them?
Universal suffrage is also how Ugandans elect their President. The 1995 constitution not only says the power belongs to the people but also that it will be exercised according to the constitution. In the case of the President- his “recall” through an impeachment is prescribed within the constitution. The same document does not say Mps who are “impeached” by their parties lose their seats. If the courts rule they can perhaps they are suggesting that once a ruling party within our political system evicts their leader who is President, he can lose his office-, which would of course be ridiculous. Or is it?
Next time I wish to write about the relationship between Ugandan courts and power- in particular how when their decisions may affect the composition of political power, the bench tends to err on the side of those currently in power. This Kelsenian view of the law and politics may well be why under the present structure of our judiciary- it cannot be an arbiter of political conflict. Along with this is present jurisprudential challenge of the so-called basic character doctrine of constitutionalism. This basically suggests that any changes to the constitution by way of amendments ( and I would add judicial interpretation) should not alter the basic character of any constitution.
Issues like universal suffrage, so central to the question of how power must reflect the legitimate will of the people impugn on the basic character of the constitution. This is another reason why the “rebel Mps” case is so important.
As I said in a lecture last week, the Ugandan political system is ripe for constitutional reforms.
More so in these transitory period before Uganda in 2022.