Netters,
Please reaad yet another scheme that "Bank-Robber-turned-President" dictator M7 is coming up with.............
Read carefully!
BWambuga
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Constitutional Amendment: Omnibus Bill and Committee Voting another fraud
By Prof. Morris Ogenga-Latigo
Feb 25, 2005
By Prof. Morris Ogenga-Latigo
Feb 25, 2005
On Tuesday, 15th February 2005, the Attorney General, Prof. Khiddu Makubuya, tabled before Parliament Bill No. 2: The Constitutional Amendment Bill 2005 for its First Reading.
Prior to the tabling of this Bill, the desperate expectation of Ugandans was that sanity would prevail and that the Constitution would not be subjected to selfish, subversive, treacherous and wicked manipulation just to ensure that the 'Third-Term' or 'Kisanja' project succeeds. That Parliament may become part of this fraud, even inadvertently, is the greatest tragedy.
Not long ago, Hon. Dora Byamukama as Chair of the Legal and Parliamentary Affairs Committee brought the Speaker of Tanzania's Parliament, Rt. Hon. Musekwa, to talk to MPs about Tanzania's transition to multiparty politics. That evening at a party at Parliament, the Speaker of our Parliament, Rt. Hon. Edward Ssekandi, in conversations with MPs, argued that, by his interpretation, the Constitution could be amended using one "Omnibus Bill".
About the same time, coincidentally, a team of lawyers assembled at Mweya Safari Lodge by President Yoweri Museveni and his Kisanja zealots also zeroed on the "Omnibus Bill" as the best strategy for overcoming impediments to removing the Presidential term limits provided in Article 105(2) of the Constitution.
At the First Reading of the Constitutional Amendment Bill, Rt. Hon. Edward Ssekandi spoke extensively about the impending amendment process. He was emphatic that, unless otherwise challenged, when the Bill reaches the Committee Stage to be considered clause by clause, he would use the simple majority rule to vote on the amendments as provided in Parliament's Rules of Procedure. His argument was that the Constitution requires 2/3rd majority votes only at the Second and Third Readings of the Bill.
With due respect, both positions of the Speaker, on the "Omnibus Bill" and Committee Stage voting, lay bare our Constitution to predatory attack by the political jackals hunting for the Kisanja. They also run counter to what the Constitution commands of the institution he leads, spelt out in Article 79(3), that: "Parliament shall protect this Constitution..".
Intent of the CA Delegates
In the Preamble to our Constitution, the Constituent Assembly (CA) Delegates declared that they "Do hereby, in and through this Constituent Assembly, solemnly adopt, enact and give to ourselves and our posterity, this Constitution of the Republic of Uganda..". Doing so, the Delegates saw the Constitution as a lasting instrument of democracy and governance that Ugandans would uphold for a long time, and for posterity.
Based on the history of constitutional development the world over, the Delegates knew that once in a while it would be necessary to amend this or that provision of the Constitution so as to enhance its value and meet specific long-term challenges. By the Preamble and by history, they certainly never anticipated, let alone imagined, the massive overhaul of the Constitution as is now being undertaken.
In undertaking the wide-ranging amendment of the Constitution, therefore, we must and can only be guided strictly by the intent and expectations of the Founders of our Constitution, by the provisions for amendment laid down in Chapter 18 and, where required and consistent, by Parliament's Rules of Procedure. Acting otherwise undermines the obligation imposed upon us to, at all times, uphold and protect the Constitution. It also creates the risk of our being in breach of the Constitution.
The 'Omnibus Bill'
Article 258, the first in Chapter 18 of the Constitution, provides in clause (1) that: "Subject to the provisions of this Constitution, Parliament may amend by way of addition, variation or repeal, any provision of this Constitution in accordance with the procedure laid down in this Chapter." The Constitution then sets out the procedures for and specifies those provisions whose amendments require either referendum (Article 259), approval by District Councils (Article 260), or just amendment by Parliament only (Article 261).
In Chapter 18, there is no specific provision that spells out the procedure under which the Constitution may be amended using one 'Omnibus Bill'. In this circumstance, must we and are we right to interpret the three articles (259, 260, 261) as merely clarifying the process of amending the Constitution, and not as three distinct procedures for amending three distinct groups of the provisions of the Constitution? My considered response is an emphatic NO!
In the first instance, if the framers of the Constitution wanted to merely clarify the amendment process, they would have included as a matter of necessity a fourth Article on the "Omnibus" situation as now obtains, in order to avoid the legal confusion that we are presently facing.
FOR OMNIBUS BILL: Speaker Sekandi
GUIDE US, SPEAKER : Ruzindana
Secondly, the CA Delegates did not expect or imagine that anybody, and least of all President Museveni, would find cause to massively overhaul the Constitution the way it is being done now. The procedures laid out in Chapter 18 were therefore only for limited amendments, intended and providing for piecemeal growth of the Constitution over time.
Where then do the proponents of the "Omnibus Bill" derive their cause and authority? Certainly not from the intent of the Founders of the Constitution, nor from any functional expedience in the interpretation of the provisions of Chapter 18 since the "Omnibus Bill" complicates rather than simplifies the amendment process. They certainly also do not do so from Parliament's Rules of Procedure!
On 17th February 2005, Hon. Augustine Ruzindana wrote to the Chairperson of the Legal and Parliamentary Committee, Hon. Jacob Oulanyah, drawing his attention to Rule 92(1) of the Rules of Procedure of Parliament in respect of the "Omnibus Bill".
Rule 92(1) provides that "Matters with no proper relation with each other shall not be provided for in the same Bill". Hon. Ruzindana was right in recommending to the Committee that-- "in accordance with the guidance of the Speaker, that we follow the Rules while handling this process, you first examine whether the Bill should not be referred back to the Minister so that he presents another Bill or Bills conforming to Rule 92(1)".
As pointed out by him, it is a fact that "the subject matter of most clauses in the Bill have no relationship to each other". On the other hand, the Constitution groups all its provisions under three distinct Articles, 259, 260 and 261, according to how they may be amended.
The three groups are truly "matters with no proper relation with each other" in respect of the amendment process. Their inclusion in one "Omnibus Bill" therefore contravenes Rule 92(1) of Parliament's Rules of Procedure, and even the distinctions outlined in Chapter 18 of the Constitution.
The "Omnibus Bill" must be rightly returned to the Minister so that he prepares several or at least three separate Constitutional Amendment Bills to meet the requirements of Parliament's Rule 92(1), and of the Constitution.
Simple Majority at Committee Stage?
The other issue of grave contention is the assertion of the Speaker of Parliament that he will use the simple majority vote to decide the constitutional amendments at the Bill's Committee Stage; the argument being that the 2/3rd vote is only required at the Second and Third Readings of the Bill.
The fact of the matter is that, even if the Bill fails to pass either at its Second or Third Readings the attempt to amend the Constitution collapses, these two votes are not the most critical in the current process of amending the Constitution under the "Omnibus Bill".
The fact of the matter is that, even if the Bill fails to pass either at its Second or Third Readings the attempt to amend the Constitution collapses, these two votes are not the most critical in the current process of amending the Constitution under the "Omnibus Bill".
At the Second Reading, a motion is moved "that the Bill be read a Second Time", followed by presentation to the House of "the report of the Committee on the Bill" and then a general debate limited only to the merits and principles of the Bill and the report from the Committee. At the end of the debate, the Speaker puts the question on the motion that "the Bill be read for the second time". If the motion is carried, the Bill is committed to the Committee of the whole House.
During the Committee Stage, the House examines the Bill clause by clause and votes, or amends and votes on each. It is only at this stage that the actual proposed amendments of the Constitution are scrutinized and voted upon. Voting at the Committee stage is therefore critical in the constitutional amendment process. Once the whole Bill has been scrutinized and agreed upon, the Committee reports on its decision to the House.
The Third Reading of the Bill immediately follows the report of the Committee of the whole House on its consideration of the Bill. If no further amendments are raised, a motion is moved "that the Bill be read for a Third Time and do pass". If the motion is carried, the Bill as amended during the Committee Stage stands passed. If further amendments are proposed, the Bill is recommitted. The House again resolves itself into a Committee to consider the amendments and report back as above. The motion for the Third Reading is then moved, and if carried, the Bill as amended stands passed.
It is clear from the above that the 2/3rd votes requirement at the Second and Third Readings of the Bill are both votes on simple procedural motions and not on the proposed amendments themselves, and the crucial votes are at the Committee Stage.
In a single-issue amendment, the Bill and the actual amendment it carries are synonymous, and a vote for the Bill is a vote for the amendment. In the multiple-issue 'Omnibus" situation, the Bill carries mixed amendments, some desirable, some not. A vote for the Bill during the Second Reading will not be a vote for the undesirable amendments, but only a consent that the Bill moves to the Committee Stage where, it is hoped, the undesirable provisions may be voted out of the Bill. Voting on each clause of the "Omnibus Bill" at Committee Stage is therefore critical to the actual amendment of the Constitution.
The late Hon. James Wapakhabulo who chaired the Constituent Assembly was an accomplished constitutional lawyer. One then may ask why the Constituent Assembly provided the 2/3rd votes requirement only for the Second and Third Readings of the Bill and not for the crucial voting on specific proposed constitutional amendments (clauses) during the House Committee Stage!
There are only two possible explanations to this. Firstly, as argued earlier, the CA only expected occasional adjustments of one or two provisions of the Constitution and never the massive revision through the "Omnibus Bill" now being undertaken. The procedures laid out in Chapter 18 are therefore for issue-by-issue amendments made over time.
Secondly, bearing in mind normal practice and Rule 92(1) of Parliament's Rules of Procedure, it was also expected that all unrelated amendments would be brought in separate single-issue Bills, where a vote for the Bill would be a vote for the amendment it carries.
In the absence now of a specific provision in the Constitution for voting during the Bill's Committee Stage, can the Rt. Hon. Speaker justifiably apply the simple majority rule to voting on the clauses of the Bill by the Committee of the whole House? My humble submission is again an emphatic NO!
The rule being invoked by the Speaker is Rule 71(1), derived directly from Article 89(1) of the Constitution, which provides that: " Except as otherwise prescribed by the Constitution, or any law consistent with the Constitution, all questions proposed for decision of Parliament shall be determined by a majority of votes of members present and voting."
The rule being invoked by the Speaker is Rule 71(1), derived directly from Article 89(1) of the Constitution, which provides that: " Except as otherwise prescribed by the Constitution, or any law consistent with the Constitution, all questions proposed for decision of Parliament shall be determined by a majority of votes of members present and voting."
Doesn't the Constitution prescribe the standards for legislative voting under it or under any law when a proposed amendment of the Constitution is being decided upon? Yes it does, it is at least 2/3rd of all members" of both our Parliament and the District Councils!
Furthermore, the Constitution clearly spells out in Chapter 18, Article 258, that it will only be amended "in accordance with the procedure laid down in this Chapter". The simple majority proposed for use by the Speaker is not a procedure laid down in Chapter 18, neither is it consistent with the 2/3rd requirements for voting laid down in the Constitution.
I am no lawyer; I am just an insect scientist. But to introduce the simple majority vote for constitutional amendment at the Committee Stage under Rule 71(1) of Parliament's Rules of Procedure is, with all due respect, simply outrageous and unconstitutional!
Unending Quest for Kisanja
It is quite clear that the manoeuvers to unconstitutionally use the "Omnibus Bill" and 'simple majority' vote at the Bill's Committee Stage are nothing but obnoxious and despicable attempts to create avenues for the passing of the Kisanja provision for the removal of term-limits in Article 105(2) of the Constitution.
The expectation is that a simple majority vote during Parliament's Committee Stage will guarantee lifting of term limits, while vote for Federo and opening up of politics under various articles (including Article 74 with the meaningless proposal for its amendment), by Buganda and Multiparty MPs respectively, will generate sufficient support to pass the Bill and hence the Kisanja at both the Second and Third Readings.
Well, the Kisanja fanatics and fundamentalists will stop at nothing, including legal deceit, political treachery and destabilisation, in their pursuit of a "Fifth Term" for Yoweri Museveni. But we Ugandans can do something about it.
They tried 'power belongs to the people' and referendum under Article 255 but we stopped them. They are attempting to manipulate Parliament, by bribe and changing or misinterpreting its Rules of Procedure, but we can and must stop them. They have and are even trying to subvert the Constitution, but we can and shall stop them.
Learned Brothers and Sisters, the ball is in your court.
Prof. Morris Ogenga-Latigo is Vice Chair of FDC Party
Contacts: [EMAIL PROTECTED]; 077-456718.
Contacts: [EMAIL PROTECTED]; 077-456718.
© 2005 The Monitor Publications.
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