Tuesday, October 28, 2008


Tumukunde case a test of court’s boldness
The Supreme Court has once again upheld the constitutional doctrine of separation of powers by ensuring that the constitutional equilibrium between the organs of government; the executive, parliament and the judiciary are maintained at all times.

In it’s recent decision in the matter of Brig. Henry Tumukunde versus the Attorney General/ Electoral Commission, the Supreme Court which is the highest appellate court in the country has once again set a precedent by putting the powers of the executive ( the president and his servants) in check.

The doctrine of separation of powers is very important for our fragile democracy because as it were, there is a constitutional desire to protect citizens of this country from the excesses of the executive and stop it from abusing state power. That’s one of the roles of the judiciary and parliament and the former needs to be commended for standing up to this high ground.

The Supreme Court’s decision followed a petition by Brig. Tumukunde after President Museveni and some members of the High Command forced him to resign from his position as army representative in parliament .

Through his lawyers, on appeal to the Supreme Court, Tumukunde argued that he wrote his resignation letter under immense fear and undue coercion thereby making his purported resignation unconstitutional. In other words, it was argued that the brigadier’s resignation had no legal effect because it was secured by unconstitutional means when the executive ( the president and senior members of the UPDF), violated Tumukunde’s rights as a member of parliament when they forced him to resign from his seat.

A key piece of evidence adduced before court was the ‘resignation’ letter which Tumukunde wrote to the Speaker of Parliament in which he stated that he was directed and given a 12 hours to resign his parliamentary seat. The Supreme Court found that the manner and style in which Tumukunde framed his ‘resignation’ letter was not that coming from a free mind. The court therefore ruled that a member of parliament should never have to resign under the threat or directive of anyone but only in accordance with the provisions of the country’s constitution and the laws made by parliament and do so voluntarily. The court found Tumukunde’s letter as constituting a soldier’s obedience to superior orders under protest.

The court noted that neither the Commander–In-Chief nor members of the High Command are empowered by the constitution to force a member of parliament to resign or recall him or her from parliament. The court particularly addressed itself to the provisions of article 83 of the constitution which lays down the legal circumstances under which an MP can vacate his or her seat in parliament. And these are very specific - that’s, if one resigns voluntarily, if one is disqualified by law, when parliament is dissolved, if member is absent for 15 sittings without satisfactory explanation and if found guilty of violating the Leadership Code of Conduct.

A member of parliament can also lose his/her seat if they are recalled by the electorate, if the member leaves a political party for which they stood as candidate and if when elected as an independent decides to join a political party and if a member is appointed a public officer. The court also emphasised that the role and functions of the speaker should be impartial. Court cited a 1964 scenario in England when Charles I, then an absolute monarch, attempted to arrest five members of the House of Commons and demanded the Speaker to identify them.

The Speaker, Lenthall, bravely replied to the king thus : “ Sir, I have neither the eyes to see nor ears to hear except as directed by this House whose servant I am.” Court emphasised that the primary role of the Speaker was and has always been to parliament and not to the king or the executive. This is the reason why the separation of powers doctrine is premised on the concept of checks and balances which are core values of a democratic society.

No comments: