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Members of Parliament (MPs) are very well compensated to perform their tasks without compromise. Among their core roles, as enshrined under Article 79(1)(2) of the Constitution, is legislation. The tasks currently bringing trouble to our MPs are not their core mandates if the doctrine of separation of powers is critically construed.
Appropriation of cash, like oversight roles, is not the core mandate of MPs but was introduced as a way of checking the executive branch to prevent it from wielding too much authority.
Parliamentary immunity should not be used as an escape route from criminal responsibility by MPs. All persons, whether legislators or otherwise, must and should be subservient to all provisions of Uganda’s municipal laws. None of us should remain above our municipal status as no statute places one above our legal provisions.
In one of the leading cases on immunities and privileges regarding MPs, the court in India observed that these privileges and immunities are not a gateway for MPs to commit crimes against the general laws of the land. This was the holding in State v. Kerala, an Indian case often cited by academicians and legal practitioners.
In Uganda, Article 97 of the Constitution grants some level of immunity to MPs, including parliamentary staff, in certain situations and provides privileges to MPs, such as not being arrested over defamatory statements uttered on the floor of Parliament. However, this immunity is usually limited to MPs while they are within the precincts or on the floor of Parliament deliberating—not in secluded hotels negotiating deals on budget increments and cuts, as has been reported where the trio were arrested soliciting for silver.
The spirit behind Article 97 of the Constitution was to allow MPs to exercise free speech as legislators, which is why no defamation case can be brought against an MP for statements uttered on the floor of Parliament. Conversely, in some English cases, related arguments were made that even MPs’ telephones should not be protected by the law so that no one should use the information on an MP’s telephone for criminal prosecution as is happening now.
However, in other countries, especially in Latin America, MPs enjoy a lot of immunity, making it impossible to try an MP for any criminal offence, such as murder, unless Parliament waives such immunity. MPs in those countries can even kill someone without charges being pressed against them unless the killing was, for example, captured on camera or recorded in some way, or it was a case of in flagrante delicto (caught red-handed). This means mere allegations against an MP won’t result in arrest. Other jurisdictions have argued that prosecuting MPs for corruption could potentially disrupt the stability of government.
In Uganda, the doctrine of separation of powers tries to allocate different roles to state actors, and none should be seen executing the roles of another. The Constitution further directs that all state actors are equal before the law, as guaranteed under Article 21 of the Constitution. This means when you commit a crime, you are subject to Article 21, which guarantees equality before the law, and any special provisions creating exemptions are thoroughly suspended.
The general presumption of the law is that accused persons are always innocent until proven otherwise. However, an exploration of Ugandan municipal laws shows that no protection is granted to MPs once they are proven to have involved themselves in criminal matters. Uganda has “thousands” of punitive laws on crime, such as the Anti-Corruption Act 2009, the Penal Code, and anti-terrorism laws among other enabling provisions.
Our legislators ought to know in advance that they are subject to Article 21 of the Constitution, which guarantees equality for everyone under the laws of Uganda. The immunity guaranteed under Article 97 of our Constitution was calculated to allow them freedom to debate in Parliament, not freedom for criminal deals.
MPs can’t be arrested for what is said on the floor of Parliament in Uganda. When Hon. Theodore Sekikubo claimed that Hon. Sam Kutesa was a criminal and threw a series of verbal assaults against Hon. Kutesa while Sekikubo was on the floor of Parliament, Hon. Kutesa dared Sekikubo to repeat the same statements outside the precincts of Parliament.
The immunity envisioned by the Constitution for members was meant to enable them to execute their roles on the floor of Parliament and not outside Parliament. It is immunity to represent and legislate, not immunity to enter deals for personal aggrandizement.