‘SPEAKER KADAGA & MPs, JUST IGNORE JUDGE ELUBU’S ILLEGAL COURT ORDER’, SAYS LAWYER MALE MABIRIZI

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OPINION

WHEN I set out to stand by rule of law, I meant it and that is why although the Judiciary has been my worst tormentor, when Pius Bigirimana purported to reduce the Registrars’ and Magistrate’s allowances, I filed a case to reverse that.

Because Judicial officers equally need our protection when invaded by those who take themselves to be the law.

I now have no choice but to defend Kadaga and Parliament up to the East African Court of Justice because it has been invaded yet its capacity to defend self is crippled since it has to depend on the Executive and the Judiciary which are its invaders.

Today, I write to defend Parliament and in particular, its leader, Rt. Hon. Rebecca Alitwala Kadaga because this is the time she needs our protection, notwithstanding my knowledge that she has undermined Rule of Law in the past but she is now caught up by my saying that collapse of Rule of law is like a hailstorm which ravages crops of both the pagans and the religious.

Although the sovereign authority of Uganda lies in the people as stated under article 1 of the Constitution, Parliament as an arm of Government is superior to both the Executive and the Judiciary and the framers of our Constitution were deliberate in providing for Parliament under Chapter 6, Executive Chapter 7 and Judiciary Chapter 8.

In one of the symposiums at the Law School, Prof. George Kanyeihamba was clear that the arrangement of the chapters was resisted by some people who wanted the executive to come first but the majority insisted on  Parliament because of its closeness to the people.

In his book; The Search for National Consensus; The making of the 1995 Constitution, Benjamin Odoki, former Chief Justice who was the chairperson of the Constitutional commission wrote on page 331 that “Parliament is the symbol of representative government and voice of the people…In Uganda, the main concerns of the people about Parliament included the failure of legislature to be representative of the people…manipulation by the executive…”

What is happening is manipulation by the Executive aided by the already manipulated judiciary which had no shame in making an order in the same words said by Museveni a day before the order of 29th April 2020 on all televisions and radios.

The order given by Judge Elubu telling MPs how to spend money was clearly illegal and in contravention of Article 156(1) of the Constitution which provides that “The heads of expenditure contained in the estimates, other than expenditure charged on the Consolidated Fund by this Constitution or any Act of Parliament, shall be included in a bill to be known as an Appropriation Bill which shall be introduced into Parliament to provide for the issue from the Consolidated Fund of the sums necessary to meet that expenditure and the appropriation of those sums for the purposes specified in the bill.”

Therefore, without an appropriation Act or a Supplementary appropriation Bill, no one can decide how moneys are to be spent.

Indeed, the Judge acted illegally in contravening the supplementary appropriation Act without hearing the main case but merely on an application to maintain the status quo.
Article 126(1) provides that “Judicial power is derived from the people and shall be exercised by the courts established under this Constitution in the name of the people and in conformity with law and with the values, norms and aspirations of the people.”

Hence courts must follow the law but what happens when a Judge ignores the law and instead proceeds as if he is a fake witch doctor who does not refer to any book? IN MY OPINION, THE PUBLIC IS NOT BOUND BY SUCH ORDER AND IT SHOULD IGNORE IT AS IF NOTHING HAPPENED.

The Uganda Supreme Court has made this clear that even courts are not bound by illegal decisions.

In Uganda Revenue Authority Vs Rabbo Enterprises (U) Ltd & Anor Uganda Supreme Court Civil Appeal No. 12 OF 2004, Prof. Lialian Tibatemwa-Ekirikubinza stated that “I further take note of the fact that in Meera Investments, Kanyeihamba JSC did not discuss the meaning of the phrase “subject to the provisions of this Constitution?’, found in Article 139 (1) of the Constitution, a phrase which, as already discussed in this judgment above, places the powers of the High Court within the wider context of the constitution as an entire document.

Further still, the learned Justice did not address his mind to the cardinal rule of law that while adjudicating matters touching the constitution, a court must read the constitution as an integrated  whole with no particular provision destroying the other. Article 139 deals with the power of the High Court to resolve disputes and so does Article 152 (3).

The learned Justice did not address his mind to the need to give effect to the purpose of the legislature in providing for the establishment of Tax Tribunals while aware of the ‘unlimited” original jurisdiction of the High Court.

For these two identified lapses, I find that the Meera decision was made per incurium. To that extent, I am not bound to follow the Meera decision cited by Counsel for the respondent as authority for the proposition that Article 152 (3) does not oust the unlimited original jurisdiction of the High Court in some taxation matters.”

Therefore, just like the Supreme Court did in ignoring that decision, let MPs also ignore that illegal order because respecting it will empower weakling judges to make more illegal orders.

Be that as it is, this is matter I am going to put before the East African Court of Justice in my novel case against all Museveni’s evils during this Covid-19 Period.

This is because eroding Parliamentary superiority over the executive and the Judiciary amounts to eroding the people’s ability to control what is going on in government.

I need not finish without reminding you that I am still fundraising for our anti-age limit removal in East African Court of Justice via mobile money numbers 0701881231/0779869880.

The writer Male H. Mabirizi K. Kiwanuka LLB (HONS)-MUK (2012) is applicant in East African Court of Justice Reference No.6 OF 2019 & 8 OF 2020

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