Recently, the president of Uganda closed the great, great Makerere University pursuant to section 26 of the Universities and other tertiary institutions Act, 2001.
Some legal minds, at that time, were quick to point out that the section 26 does not confer such powers upon the president and that therefore the closure of the university on that basis was ultra vires.
Today, while I scrolled through my news feed on Facebook, I came across a post of a friend of a friend which was saying that some law students from the great Makerere have instituted a suit against the president for closing the university ultra vires.
It got me thinking about the immunity enjoyed by heads of state while they are still in office. Interestingly, presidential immunity is provided for, usually, in the Constitution, the supreme law of any country. It therefore leaves such immunity unquestionable, and not subject to any other law or legal principle.
Article 98(4) and (5) of the Constitution of Uganda 1995 (as amended) provides thus:
(4) While holding office, the President shall not be liable to proceedings in any court.
(5) Civil or criminal proceedings may be instituted against a person after ceasing to be President, in respect of anything done or omitted to be done in his or her personal capacity before or during the term of office of that person; and any period of limitation in respect of any such proceedings shall not be taken to run during the period while that person was President.
Unambiguously, the President is immune from all legal proceedings while he is in office.
Article 137 of the Constitution of Uganda empowers the Constitutional Court to interpret the constitution. The first case to bring the above article for interpretation before the Court was of Brigadier Tumukunde V Attorney General and the Electoral Commission. The case is popularly known as the Tumukunde case.
In the Tumukunde Case, the Petitioner, Brigadier Tumukunde (as he was at that time) was the Army Representative in parliament. He argued that the President’s order to him to resign from parliament as the army representative was unconstitutional and therefore challengeable. The presiding judge, Justice Kavuma in his judgment said,
“The sum total of these provisions is clearly, in my view, to grant the President total immunity against court proceedings both criminal and civil arising out of his/her acts or omissions done or omitted to be done either before or during his/her term in ofﬁce as President. Any person who wishes to challenge those acts or omissions of the President in court, has to wait until the President has ceased to be one”
Justice Kavuma further added that taking away the president’s immunity would hinder the performance of his duties as the president and would open a flood gate of litigation against the president’s actions and omissions thus creating ‘unnecessary burden on the President’s time and energy that would deﬁnitely impair the effective performance of his ofﬁce’. This reasoning however does not consider what could happen if the President did not have immunity from legal proceedings. He or she would probably spend his or her time doing things which are legal, being on the right side of the law like any other citizen, to avoid being summoned to court to defend him or herself.
In his judgment, Justice Kavuma goes on to say that presidential immunity does not extend to persons to whom the president has delegated some of his powers. Presidential immunity as provided for under article 98 is exclusive.
That is why in the case of Gilbert Balibaseka Bukenya V the Attorney General, the appellant’s (the former Vice President’s) submission that he was immune from prosecution on the basis that the charges against him were for actions committed in his capacity as Vice President when he was acting on behalf and on the instructions of the president, was dismissed. It was held that:
“It is thus clear that the immunity granted protects the holder of the ofﬁce of the President from civil or criminal liability in his/her personal capacity while in ofﬁce. It is not a defence to a legal action as the words themselves indicate. It is only a temporary protection which eliminates or postpones the accuser’s ability to slap a claim against the immune during the latter’s time in ofﬁce. The immunity is intended to ensure that the exercise of presidential duties and functions are free from any hindrance or distraction, considering that such an ofﬁce is a job which, apart from requiring all the presidential time, also demands individual attention. It is, therefore, intended to bar any form of inhibition of the President in the performance of his/her duties while in ofﬁce so that the wheels of governance are not held at ransom under any guise. Were the President to face suits or prosecutions while in ofﬁce, the stakes would extend far beyond the individual himself/herself. To ignore this fact is to ignore the political context and the potential danger to the nation as a whole”.
The Court further held that article 98(5) ‘underscores the determination of Ugandans as expressed both as a preamble to and in the spirit of the Constitution, to do away with impunity’, and that the president is not above the law because he ‘is accountable for actions/omissions in his/her personal capacity once he/she leaves ofﬁce’.
Presidential Immunity would be relevant if there were presidential term limits in Uganda. But in a country where the president may be such until he dies, article 98(4) and (5) is not only irrelevant but it also serves no purpose.
Justice Kavuma’s reasoning seems to assume that MPs can easily remove the President from office as provided for in the constitution. His reasoning ignores the fact that in the 10th Parliament whose term commenced in 2016 and will end in 2021, there are 375 Members of Parliament of whom 263 belong to the National Resistance Movement, the ruling party; 10 belong to the Army; and only 102 belong to the opposition (of whom 43 are independents who are mostly NRM members who lost in their party primaries). The President would never even let such a thing happen. In 2013, he threatened that if Members of Parliament continued being assertive, the army would take over. See the Daily Monitor, Uganda Newspaper online of January 18th, 2013
Justice Kavuma’s reasoning is blind to the political reality in today’s Uganda. To think that the president would be removed from office is a political fallacy, for now.
To the students at Makerere, you can sue the Attorney General. He is, after all, the government’s legal advisor. It is enough that the president is inviolable, his ministers should be accountable.
BY SASHA MUSIGI
This article appears in our weekly digital law magazine, The Deuteronomy Vol 8, Issue 3 of November 18th, 2016
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