THE REPUBLIC OF UGANDA
IN THE SUPREME COURT OF UGANDA
(CORAM: ODOKI, CJ; TSEKOOKO; KATUREEBE; KITUMBA; TUMWESIGYE; KISAAKYE; JJSC, MPAGI-BAHIGEINE; AG.JSC.)
CONSTITUTIONAL APPEAL NO. 02 OF 2007
JOHN KEN-LUKYAMUZI::::::::::::::::::::::::::::::::::: APPELLANT
1. ATTORNEY GENERAL
2. ELECTORAL COMMISSION ::::::::::::::::::: RESPONDENTS
[An Appeal from the decision of the Constitutional Court of Uganda at Kampala, Mukasa-Kikonyogo, DCJ, Okello, Engwau, Twinomujuni, Byamugisha, JJA) dated 26th March 2007 in Constitutional Petition No. 19 of 2006)
JUDGMENT OF TUMWESIGYE, JSC
This is an appeal by John Ken-Lukyamuzi, herein referred to as “the appellant”, from the decision of the Constitutional Court given on 26th March, 2007. The appellant had filed in that court a constitutional petition against the Attorney General and the Electoral Commission, referred to in this judgment as “1st respondent” and “2nd respondent” respectively, contesting firstly his removal from Parliament before the expiry of his term and secondly his being barred from nomination as a candidate in the parliamentary elections that were held in February 2006.
BACKGROUND AND PROCEDURAL HISTORY
The facts leading to this appeal are that on 23rd February, 2001 the appellant was elected as a member of Parliament for Lubaga South Constituency. His term as a member of Parliament fixed by the Constitution was five years. However, before the expiration of his term, the appellant was informed by the Speaker of Parliament that he had ceased to be a Member of Parliament because of breaching the Leadership Code Act, 2002.
The Leadership Code Act is enforced by the Inspectorate of Government normally referred to as the Inspector General of Government (IGG). On 30th September 2005 the IGG submitted a report to the Speaker of Parliament containing her finding that the appellant had breached the Leadership Code Act by failing without reasonable cause to submit his declaration of income, assets and liabilities to the IGG as required by the Leadership Code Act. The only punishment for such a breach under the Leadership Code Act is dismissal or vacation of office. The implementing authority for the decision of the IGG with respect to members of Parliament is the Speaker of Parliament. The IGG, therefore, in her report asked the Speaker of Parliament to implement her decision by removing the appellant from Parliament. The Speaker of Parliament implemented her decision.
Soon after the appellant was informed by the Speaker of Parliament that he had lost his seat, the Clerk to Parliament notified the Electoral Commission that the seat for Lubaga South in Parliament had fallen vacant. On 12th January, 2006, the Chairman of the Electoral Commission wrote to the Returning Officer of Kampala District, in which Lubaga South Constituency is located, that since a person removed from office for a breach of the Leadership Code Act was barred by the same Act from holding any other public office for five years from the date of his or her removal, the appellant was not eligible to be nominated as a candidate in the Parliamentary elections to be held in February 2006. The appellant was, therefore, barred from standing in that election.
Believing that his constitutional rights were violated, the appellant filed a petition in the Constitutional Court challenging his removal from Parliament and also challenging his being barred from standing in the February 2006 parliamentary elections. He based his petition on several grounds. I will mention here only those grounds which are relevant to this appeal.
He complained in his petition that his removal from his seat as a member of Parliament for Lubaga South was a violation of Articles 2 and 83(1) (e) of the Constitution; that the Speaker of Parliament acted contrary to Articles 2, 3(4) and 83 (1) (e) of the Constitution when he implemented the decision of the IGG to declare his seat vacant, and that the Chairperson of the 2nd respondent acted contrary to Articles 2, 3(4), 62, 80 and 83 (1) (e) of the Constitution when he barred him from being nominated as a candidate in the parliamentary elections of February 2006.
The petition was accompanied by the appellant’s affidavit which had several attachments. It was also supported by the affidavit of Suzan Nampijja Lukyamuzi, his daughter, who had been elected as a member of Parliament for Lubaga South in the February 2006 elections.
The appellant in his petition prayed for a number of declarations. I will mention here declarations that I consider relevant to this appeal. These are:
That the appellant’s removal from his seat as a member of Parliament for Lubaga South Constituency was null and void for being inconsistent with Articles 2 and 83(1)(e) of the Constitution.
(b) That the appellant’s disqualification by the Chairperson of the 2nd respondent from being nominated for election as a member of Parliament for alleged breach of the Leadership Code Act was inconsistent with Articles 2, 3 (4), 62, 80, 83(1) (e) of the Constitution.
The appellant also prayed for an order directing the 1st respondent to compute and pay all the emoluments the appellant would have earned as a member of Parliament from the time he was removed from his seat until the expiry of his term as a member of Parliament.
The appellant further prayed for the costs of the petition with a certificate for two counsel.
The 1st and 2nd respondents filed a joint answer to the petition denying that the appellant was unconstitutionally removed from his seat as a member of Parliament for Lubaga South and denying further that the appellant was unconstitutionally barred from being nominated as a candidate in the February 2006 parliamentary general elections. The answer to the petition was accompanied by the affidavit of Eng. Dr. Badru Kiggundu, Chairperson of the 2nd respondent, and that of Justice Faith Mwondha who was then the IGG. There were several attachments to her affidavit. The respondents prayed for dismissal of the petition with costs.
The Constitutional Court heard the petition, resolved all the issues framed in the negative and dismissed the petition with costs. The appellant being aggrieved by the decision of the Constitutional Court filed this appeal. The memorandum of appeal which was jointly drawn by two counsel, Mr. Muzamiru Kibeedi and Mr. James Akampumuza, contained ten grounds. However, in their written submissions they abandoned three of the grounds and retained seven grounds. The grounds of appeal retained were:
“1. That the learned Justices of Appeal erred in law when they held that the IGG is indeed the “appropriate tribunal” under Article 83(1)(e) of the Constitution.
2. That the learned Justices of Appeal erred in law when they failed to apply a wholistic approach while interpreting the term “appropriate tribunal” under Article 83(1)(e) of the Constitution, and thereby came to the wrong conclusion that the IGG is the “appropriate tribunal” in glaring breach of Articles 28(1), 44(c), 20(2) and 225(d) of the Constitution.
3. That the learned Justices of Appeal erred in law and fact when they held that the Inspector General of Government (IGG), the Speaker of Parliament and Chairperson of the Electoral Commission never committed any breaches against Articles 2 and 3 (4) of the Constitution or any other Article of the Constitution.
4. That the learned Justices of Appeal failed to properly evaluate the evidence on record and to apply the law applicable to it and thereby erred in not holding that the IGG had breached Articles 2, 3(4) and 83(1)(e) of the Constitution when, by her report dated 30th September 2005, she required the Speaker of Parliament to take action against the petitioner to vacate his seat in Parliament on the ground of alleged breach of the Leadership Code Act, 2002.
5. That the learned Justices of Appeal failed to properly evaluate the evidence on record and to apply the law to it and thereby erred in not holding that the Speaker of the 7th Parliament, in the course of his duties as an official of the 1st Respondent, had acted contrary to Article 2, 3(4) and 83(1)(e) of the Constitution when he implemented the decision of the IGG contained in her report dated 30th September 2005 requiring the petitioner to vacate his seat in Parliament on the ground of alleged breach of the Leadership Code Act, 2002.
6. That the learned Justices of Appeal failed to properly evaluate the evidence on record and to apply the law applicable to it and thereby erred in not holding that the Chairperson of the 2nd respondent, while acting as an official and/or agent of and/or servant of the 2nd respondent had acted contrary to Articles 2, 3(4), 62, 80, 83(1)(e) of the Constitution when he declared that the Petitioner was not eligible for nomination as a candidate to contest for election as the member of Parliament representing Lubaga South Constituency in the 8th Parliament of Uganda on the sole ground of breach of the Leadership Code well aware that the procedure for removal from the 7th Parliament did not meet the standard set out in the Constitution.
10. That the learned Justices of Appeal erred in not granting the reliefs sought by the appellant.”
The respondents were represented by Mrs. Robinah Rwakoojo, Ag. Director for Civil Litigation, and Ms. Christine Kaahwa, Principal State Attorney, both from the Ministry of Justice and Constitutional Affairs. In their written submissions presented to this court, they raised a preliminary objection that grounds 4, 5 and 6 of the appellant’s grounds of appeal offended Rule 82 (1) of the Rules of this court for being argumentative and narrative.
Rule 82(1) of the Supreme Court Rules, 1996, provides as follows:
“A memorandum of appeal shall set forth concisely and under separate heads without argument or narrative, the grounds of objection to the decision appealed against, specifying the points which are alleged to have been wrongly decided, and the nature of the order which it is proposed to ask the court to make.”
In their response to this preliminary objection, counsel for the appellant argued that the respondents were barred by Rule 98(b) to raise such an objection without the leave of the court; that the grounds do not breach the Rules of this court as claimed and that no injustice had been suffered by the respondents. They further argued that the respondent understood the substance of the contested grounds and had furnished appropriate answers.
I respectfully agree with counsel for the respondents that grounds 4, 5 and 6 of the memorandum of appeal lack conciseness, as in my view, they are unnecessarily wordy. They are also argumentative. Counsel for the appellant are expected to be familiar with this rule and to comply with it. I find that the arguments presented by counsel for the appellant in answer to this preliminary objection lack merit. However, it would not be just for the court to strike out the appellant’s appeal for this reason as it would, in my view, be visiting the sins of the erring counsel on an innocent person. I will, therefore, only warn counsel for the appellant not to repeat it and proceed to consider the grounds of appeal since admittedly their substance can be understood.
In their written submissions learned counsel for the appellant argued ground 1 and 2 together, then ground 3, 4, 5 and 6 together, and lastly ground 10. I will follow the same order.
A Brief Background to the Leadership Code of Conduct.
Before proceeding to consider the appellant’s grounds of appeal, I will give a brief background to the Leadership Code of Conduct for easy comprehension of the issues involved in this appeal.
In 1992 the National Resistance Council, the then interim Parliament of Uganda, enacted a Statute called the Leadership Code. It was to be enforced by a Leadership Code Committee. This Leadership Code Committee was never constituted and so the Leadership Code was not enforced.
In 1995 a new national Constitution was enacted. The ideas of the Leadership Code 1992 greatly influenced the enactment of the provisions of the Constitution in Chapter 14 on the Leadership Code of Conduct. Article 233(1) of the Constitution provides that “Parliament shall by law establish a Leadership Code of Conduct for persons holding such offices as may be specified by Parliament”, and Article 234 vests the powers of enforcing the Leadership Code of Conduct in the IGG “or such other authority as Parliament may by law prescribe”. Section 1(2) of the Constitution (Consequential Provisions) Act, 1995, provides that until Parliament prescribes any other authority to be responsible for enforcing the Leadership Code of Conduct, the IGG shall be responsible for enforcing the Code.
In 2002 the Leadership Code, 1992, was repealed and the Leadership Code Act, 2002, was passed. Section 2(2) of the Leadership Code Act, 2002, provides that the provisions of the Code shall constitute the Leadership Code of Conduct under Chapter 14 of the Constitution.
Specified leaders who are bound by the provisions of the Code are listed in the Second Schedule to the Act. The list is long. It includes the President, Vice-President, Speaker of Parliament, Prime Minister, Ministers, members of Parliament, Judges and magistrates, permanent secretaries, directors, presidential advisors, ambassadors and high commissioners, Governor Bank of Uganda and heads of departments of the bank, constitutional commissioners, Auditor General, Inspector General of Government, Vice-Chancellors of Government controlled universities, chairpersons of districts and district councilors, top civil servants of local governments.
Section 4(1)(b) of the Act requires every leader to submit a written declaration of his or her income, assets and liabilities once every two years during the month of March to the IGG.
Section 4(8) of the Act provides that a leader who fails without reasonable cause to submit a declaration of his or her income, assets and liabilities to the IGG commits a breach of the Code and the penalty for this breach under section 35(b) of the Act is dismissal from or vacation of office.
The enforcement of the Leadership Code Act, 2002, had run into controversy before this appeal. In 2002 a Presidential Advisor called Major Roland Kakooza Mutale was dismissed by the President on the order of the IGG for failure to declare his income, assets and liabilities to the IGG.
Following his dismissal a Constitutional petition was lodged contesting the powers of the IGG to dismiss Presidential appointees. In that case of Fox Odoi-Oywelowo and James Akampumuza Versus Attorney General, Constitutional Court, Constitutional Petition No. 8 of 2003 (unreported) the Constitutional Court held that sections 19(1), 20(1), and 35(b) and (d) of the Act were null and void in respect of Presidential appointees because they were inconsistent with laid down procedures in the Constitution for disciplining such appointees and the same sections fettered the discretion vested in the President by the Constitution in the disciplining of his or her appointees.
The decision in that case crippled the enforcement of the Leadership Code because Presidential appointees are the main leaders in this country. In 2005 Parliament made an amendment to the Constitution under Chapter 14 – Article 235A - establishing a Leadership Code Tribunal “whose composition, jurisdiction and functions shall be prescribed by Parliament” although Article 234 of the Constitution vesting powers of enforcement in the IGG was not changed.
To date the Leadership Code Tribunal under Article 235A of the Constitution has not been established and Government and Parliament have surprisingly not taken any steps to amend the Leadership Code Act in view of the crippling effect of the decision in the case of Fox Odoi Oywelowo (supra) on its enforceability.
CONSIDERATION OF GROUNDS 1 & 2 OF APPEAL
In this appeal, the substantial issue which is at the heart of the dispute is whether the IGG is the appropriate tribunal mentioned in Article 83(1) (e) of the Constitution. The other grounds of appeal are only peripheral to this issue.
Article 83(1)(e) of the Constitution provides:
“(1) A member of Parliament shall vacate his or her seat in Parliament…..
(e) if that person is found guilty by the appropriate tribunal of violation of the Leadership Code of conduct and the punishment imposed is or includes the vacation of the office of a member of Parliament.”
In a unanimous decision, the Justices of the Constitutional Court held that the IGG was the appropriate tribunal. In their judgment they said: -
“The relevant provisions of the Leadership Code and those of the Inspectorate of Government Act have to be taken into account. We have already quoted above the provisions of Article 83(1) (e) of the Constitution. To this we must add the provisions of Article 234 of the Constitution. From these constitutional provisions it appears plain to us that the power to enforce the Leadership Code of Conduct is vested in the office of the IGG.”
The Constitutional Court addressed itself to Article 235A which was introduced to Chapter 14 of the Constitution as an amendment and which establishes a Leadership Code Tribunal. The court said: “As we write this judgment, we are not aware that such a tribunal has been set up and constituted… This amendment was passed on 30th September 2005 by which time this petition had already been filed in this court. The amendment does not affect the subject matter of this petition.”
I should make a simple correction on the above-quoted statement by the Justices of the Court of Appeal before I go any further. The appellant lost his seat as a member of Parliament with effect from 5th December 2005. He filed his petition in the Constitutional Court on 12th July, 2006 as the judgment of the Constitutional Court itself acknowledges. Clearly, several months had passed from the time the amendment was introduced in the Constitution to the time when the appellant filed his petition. The tribunal was, therefore, already established by the Constitution before the appellant lodged his petition.
Counsel’s submissions in brief.
Mr. Muzamiru Kibeedi and Mr. James Akampumuza, learned counsel for the appellant disagreed with the decision of the Constitutional Court. They contended that the Constitutional Court did not apply a wholistic approach in interpreting the term “appropriate tribunal”; that if it had considered Articles 225(1)(a) and (d), 230(1) and (4), 234, 28(1), 44(c), 20(2) and 79(3) of the Constitution, it would have come to a different decision.
They argued that the cardinal role of the tribunal under Article 83(1) (e) of the Constitution was to try a member of Parliament and make a finding whether he or she was guilty of violation of the Leadership Code of Conduct. They linked this role to the interpretation of the term “tribunal”. They contended that for the tribunal to be able to adjudicate, there must be an accuser and an accused and the authority most appropriate to be the accuser was the IGG. They further argued that a tribunal must have minimum standards which must include independence and impartiality in order to satisfy Article 28(1) and 44(c) of the Constitution which guarantee the right to a fair hearing.
In their written submissions to this court Mrs. Robinah Rwakoojo,
Ag. Director Civil Litigation, and Ms. Christine Kaahwa, Principal State Attorney, supported the Constitutional Court in its holding that the IGG was the appropriate tribunal and that the appellant was not unconstitutionally barred from being nominated as a candidate in the parliamentary elections of February, 2006. They further argued that the appellant’s constitutional right to a fair hearing was not compromised.
CONSIDERATION OF THE ISSUES
There is no dispute that the IGG is given power by the Constitution and other laws to enforce the Leadership Code. See for example Articles 230(4) and 234 of the Constitution; section (1)(2) of the Constitution (Consequential Provisions) Act; section 8(1)(d) of the Inspectorate of Government Act and section 3(1) of the Leadership Code. The issue, however, is whether this undisputed power of the IGG to enforce the Code translates into making the IGG a tribunal under Article 83(1)(e) of the Constitution.
Binding Powers of the IGG under the Code
Sections 19(1), 20(1) and 21 of the Leadership Code Act give the IGG power to make binding decisions. According to section 34(2)(b) of the Act, such decisions cannot even be reviewed by a court of law. They can only be appealed.
Section 19 (1) of the Act provides that upon completion of an inquiry under section 18, the IGG shall communicate his or her decision in his or her report to the “authorized person” that is, a person or body authorized to discipline a leader, and require the authorized person to implement his or her decision.
Section 20(1) of the Act provides that upon receipt of a report containing a finding of a breach of the Code, the authorized person shall effect the decision of the IGG in writing within 60 days after receipt of the report.
Section 21 (1) of the Act provides that where according to the report submitted by the IGG under section 19 a leader is proved to have obtained any property through a breach of the Code, the leader shall, subject to any appeal, forfeit the property to the Government.
Section 21(2) provides that the IGG may order a leader referred to in subsection (1) to pay to Government compensation in respect of any loss the government may have suffered and such order shall be deemed to be a decree under section 25 of the Civil Procedure Act and shall be executed in the manner provided under section 39 of the said Act.
The word “Tribunal” Defined
The definition of the word “tribunal” was called in aid by counsel for the appellant, counsel for the respondents and the Constitutional Court itself. Counsel for the appellant quoted Black’s Law Dictionary which defines a tribunal as “a court or other adjudicatory body”. Counsel for the respondents quoted the online Dictionary at http./dictionary.Ip.findlaw.com where a tribunal is defined as “1. The seat of a Judge or one acting as a judge. 2. A court or forum for Justice, a person or body of persons having power to hear and decide disputes so as to bind the parties”.
The Constitutional Court itself quoted Oxford Advanced Learners’ Dictionary of current English, Sixth Edition, which defines the word “tribunal” to mean “a type of court with the authority to deal with a particular problem or disagreement”. The Court also cited “Words and Phrases Legally Defined” which defines a statutory tribunal as “any government department, authority or person entrusted with the judicial determination as arbitrator or otherwise of questions arising under an Act of Parliament”.
Few people would quarrel with the above-quoted definitions of “tribunal”. There are key words or phrases in the above-quoted definitions which should be noted and which I consider significant to the understanding of the word “tribunal”. They include “a court or other adjudicatory body”, “the seat of a judge”; “a person or body of persons having power to hear and decide disputes so as to bind the parties” and “a person entrusted with the judicial determination as arbitrator”.
The question, therefore, is whether the IGG
fits in any of the above-quoted definitions of “tribunal”.