Steven Masiga, Opinion – The Members of Parliament (MPs) are well compensated to perform their tasks without compromise or question. According to Article 79(1)(2) of the Constitution, one of the core roles of MPs is legislation. The tasks currently causing trouble for our MPs are not part of their core mandates when considering the doctrine of separation of powers. Appropriation of cash and oversight roles are not the core mandates of MPs but were introduced as a means of checking the executive branch from wielding excessive authority.
Parliamentary immunity should not be used as an escape route from criminal responsibility. All persons, whether legislators or otherwise, must be subservient to the provisions of Uganda’s laws. No one should be above the law, as there is no statute that places anyone above legal provisions.
In one of the leading cases on immunities and privileges regarding members of Parliament, an Indian court observed that privileges and immunities for MPs are not a gateway for committing crimes against the general laws of the land. This was the holding in the case of State v. Kerala, often cited by academics and legal practitioners.
In Uganda, Article 97 of the Constitution grants some level of immunity to MPs and Parliament staff in certain situations. For example, MPs are protected from being arrested over defamatory statements made on the floor of Parliament. However, this immunity is typically limited to their actions within the precincts of Parliament and does not extend to activities like negotiating budget deals in secluded hotels, as was reported in the case where MPs were arrested for soliciting bribes.
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 made on the floor of Parliament. Conversely, in some English cases, arguments were made that even MPs’ telephones should not be protected by law to prevent the use of information for criminal prosecution.
In contrast, in Latin America, MPs enjoy extensive immunity, making it nearly impossible to prosecute them for any criminal offense, such as murder, unless the immunity is waived by Parliament. In such countries, MPs can even commit serious crimes without being charged unless caught in the act.
Some jurisdictions argue that prosecuting MPs for corruption could potentially disrupt government stability. However, in Uganda, the doctrine of separation of powers allocates different roles to state actors, and none should be seen executing the roles of another. The Constitution directs that all state actors are equal before the law, as guaranteed under Article 21. This means that when a crime is committed, the principle of equality before the law applies, and any special provisions granting exemptions are suspended.
The general presumption of the law is that accused persons are innocent until proven otherwise. However, an exploration of Ugandan laws shows that there is no protection for MPs once they are proven to have been involved in criminal matters. Uganda has numerous punitive laws on crime, such as the Anti-Corruption Act 2009, the Penal Code, and anti-terrorism laws, among other provisions. MPs should know that they are subject to Article 21, which guarantees equality under Ugandan laws. The immunity under Article 97 was intended to ensure freedom of debate in Parliament, not freedom for criminal activities.
MPs cannot be arrested for statements made on the floor of Parliament in Uganda. For instance, when Hon. Theodore Sekikubo claimed that Hon. Sam Kutesa was a criminal while on the floor of Parliament, Kutesa dared Sekikubo to repeat the statements outside the precincts of Parliament. The immunity envisaged by the Constitution was meant to enable MPs to execute their roles in Parliament, not to engage in personal deals.
The writer is a researcher from Mbale. Contact: 0782231577.
