Tuesday, February 1, 2011

MEANING OF THE CONSTITUTIONAL JUDGEMENT ON INDEPENDENTS

MEANING OF THE CONSTITUTIONAL JUDGEMENT ON INDEPENDENTS

BY MOSES SSERWANGA

Problem is the learned judges of the Constitutional Court, have made a strict and literal interpretation of article 83(I) (g) (h) which provides that a member of parliament shall vacate his or her seat in parliament.

(g) if the person leaves the 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

Much as this article is a recent addition to our constitution to take care of the complex issues of independents, It doesn’t specify whether it's application is limited to the present or the next parliament. In my view article 83 is limited to the current parliament and not the next .

And if that's the case , my interpretation is that this article doesn’t apply to nominations for seats in the next parliament - people are free to switch alliances or move from one political party to another or more still stand as independents because they are contesting for seats in another parliament and not the present one. The candidates for seats in the next parliament therefore need not to resign as per article 83 as declared by court.


The learned judges again have erred in law by interpreting article 83 in isolation of other provisions of the constitution especially article 72 which allows people to contest for elective positions on any political party platform they so wish.

One of the core principles of constitutional interpretation is that the constitution should be ready and interpreted as a whole.

Another issue is that the judges have not addressed themselves to the transition period between nomination and swearing in of the next parliament.

Writer is Journalist and Advocate
msserwanga@gmail.com

3 comments:

Passions, Thoughts, Sights... said...

Moses, i seem to agree with your view and the position of the court in so far as one should resign (or 'vacate the seat' as stated in the constitution). However I am not in agreement with the finding that the subsequent nominations for the next parliament are null and void.

My reading of the Article 83 doesnt seem to sugest this. As you have rightly put it 'the candidates for seats in the next parliament therefore need not to resign as per article 83 as declared by court.' To put it colloquially, how can they resign from a parliament that is not yet in existence?

If the effect of this judgement is to disqualify the 70 MPs who have been nominated, doesnt that give an unfair advantage to their opponents? or better/worsestill, what happens in situations where such MP/candidate is unopposed? In my opinion, (which is unfortunately based on reading the newspaper reports and the law but not the judgement itself) is that the effect of the judgement, if allowed to stand, would mean that we re-do the elections at least for those 70+ constituencies.

However my opinion might change when i read the full judgement-although i doubt it

Passions, Thoughts, Sights... said...

Moses, i seem to agree with your view and the position of the court in so far as one should resign (or 'vacate the seat' as stated in the constitution). However I am not in agreement with the finding that the subsequent nominations for the next parliament are null and void.

My reading of the Article 83 doesnt seem to sugest this. As you have rightly put it 'the candidates for seats in the next parliament therefore need not to resign as per article 83 as declared by court.' To put it colloquially, how can they resign from a parliament that is not yet in existence?

If the effect of this judgement is to disqualify the 70 MPs who have been nominated, doesnt that give an unfair advantage to their opponents? or better/worsestill, what happens in situations where such MP/candidate is unopposed? In my opinion, (which is unfortunately based on reading the newspaper reports and the law but not the judgement itself) is that the effect of the judgement, if allowed to stand, would mean that we re-do the elections at least for those 70+ constituencies.

However my opinion might change when i read the full judgement-although i doubt it

moses paul sserwanga said...

U r spot on my bro. thats the point.