Friday, February 11, 2011

MPS: Court erred in interpretation of the law

As we approach the final lap in what has truly been a grueling campaign period , the Constitution Court has thrown the proverbial spanner in the works by declaring the nominations of members of parliament who did not resign their seats before joining parties other than those for which they were elected MPs unconstitutional.
A legal assessment of this judgment handed out by a Coram of 5 judges of the Constitutional court shows that their justices applied the strict and literal interpretation rule when they considered the meaning of article 83(I) (g) (h) of the constitution.

The article provides that a member of Parliament shall vacate his or her seat in parliament 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.

This particular provision is a recent addition to the constitution to cater for the complex issues of independents and errant MPs who cross party-lines in the course of their tenure. Indeed in the 8th parliament there are some 70 MPs who fall in this category and are directly affected by the Constitution Court’s ruling.

But with due respect to the learned judges of the court, their interpretation of the meaning and application of article 83 was right in some respects but flawed in others. For instance the judges are right to hold that MPs who cross from one party to another must first vacate the seats for which they were elected as per the provisions of the constitution. This principle of the law also applies to independent MPs who have since joined parties of their choice before vacating their seats as independents. But because the term of the 8th parliament has come to an end and because the law (the constitution judgment is Law until otherwise quashed/reversed by a superior court) the errant MPs can only be compelled to refund the emoluments earned from the date when they illegally crossed party lines.

On the other hand, however, the Court erred in law when it extended the application of article 83 to the nominations of MPs for the next parliament.

It’s clear from the wording of the provisions of article 83 that it’s application is limited to the term of every seating parliament and therefore cannot be extended to the next Parliament which is even not yet constituted.

The candidates for seats in the next parliament therefore need not to resign as per article 83 as declared by court.' Otherwise how can one resign from a parliament that is not yet in existence?

In fact by operation of the law once a member of Parliament is nominated to contest seats in the next parliament their term as MPs should automatically expire. The sad thing, though, is that the law is silent about the transition period between nominations and when the next Parliament is inaugurated in May.
The learned judges again 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. I hope the Supreme Court will revisit some of the contradictions in the Constitution Court ruling and settle the issues in clear terms.

Writer is Journalist and Advocate of the High Court of Uganda

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