This is because one cannot continue representing one’s electorate as an independent while at the same time he/she is campaigning to be elected on the ticket of a political party. Again this would be a betrayal of the electorate that elected you as an independent Member of Parliament and exhibits the greatest form of political hypocrisy, opportunism and indiscipline, which, we believe article 83(i)(h) was designed to prevent.

The position of Hon. William Okecho M.P. (The 2nd respondent)

On the 4th January 2006, Hon. William Okecho M.P. wrote the following letter to his then political party NRM as follows:

“The District Registrar/Returning Officer
NRM Secretariat, Tororo District TORORO

Dear Sir

RE: WITHDRAW OF NRM MEMBERSHIP

Please refer to my letter of petition dated December 8, 2005 arising out of the mismanaged and grossly rigged NRM Parliamentary primary elections in West Budama North Constituency.

Following your and the NRM Electoral Commission’s failure to resolve the issues raised therein, I wish to inform you and through you the NRM Party that I have decided to withdraw from the party. I am therefore returning herewith the NRM Membership Card No.00551802 which was issued to me by your office.

In view of my withdrawal from NRM Party, I am, by copy of this letter, also informing the Chairman NRM Tororo District that I hereby resign all the positions I hitherto held in the Party in Tororo District. I am ready to handover to you any property of the Party in my custody pertaining to such office(s) at your convenience.

Wishing all of you a happy and prosperous 2006.
Yours faithfully
William Okecho
CHAIRMAN
cc Chairman, NRM Tororo District.”

Shortly after that, he offered himself for nomination as an Independent candidate for the 8th Parliament. He was subsequently elected and he has not, up to this minute, to our knowledge, resigned his seat in Parliament.

Late last year, he offered himself for nomination as a candidate for election as Member of Parliament for the 9th Parliament on the NRM ticket. He was accordingly nominated as a flag bearer of NRM in the same Budama North Constituency where he is still an Independent member of Parliament. Is that permitted by our Constitution?

The 2nd respondent contends that by virtue of article 29(i)(e) which guarantees freedom of association and article 72(4) (supra), he is at liberty and it is his right to stand as an independent candidate or a political party ticket.

We do not agree with this submission. The right to associate and the right to stand as an independent or on a political party ticket, like most rights and freedoms in the Constitution, are not absolute. They can be derogated from as long as the derogation is done within the limits provided for in article 43 of the constitution. In our view, article 83(i)(g) and (h) is a legitimate derogation of those freedoms.

As already discussed above, the respondent should have vacated his seat in Parliament before offering himself for election as a flag bearer of NRM. He did not. His nomination for election to the 9th Parliament is therefore invalid and null and void.

At the same time, by seeking the nomination of a political party when he was still a seating Independent Member Parliament, he clearly joined NRM and was accepted as its flag bearer.

He is deemed to have vacated his seat in Parliament from the date of the purported nomination as a flag bearer of NRM. He is not entitled to continue to represent the people of Budama North as the Constitution requires and cannot continue to enjoy its privileges from the date of that nomination.

If Mr. William Okecho wanted to be elected to the 9th Parliament on NRM or any other political party ticket, he should have resigned his seat before offering himself for nomination. Issues No.2 and No.3 are answered in the affirmative.

CONCLUSION

There may be several other Ugandans who have been nominated as Independents while they are still holding on to their seats in Parliament to which they were elected as political party flag bearers. There may also be some who are holding on to their seats as Independent members of Parliament but have now been nominated as flag bearers of political parties.

All those should read this judgment very carefully and take corrective measures before it is too late. We direct the Registrar of this Court to serve, as soon as possible, a copy of this judgment to the Hon. Speaker of Parliament and the Chairman Electoral Commission to take note of its contents and take appropriate action.

In the result, the petitioner succeeds on all the four issues. He is entitled to all the prayers contained in paragraph 4 of the petition.

Hon. Justice A. E.N. Mpagi-Bahigeine
Hon. Justice A. Twinomujuni
Hon. Justice S.B.K. Kavuma
Hon. Justice A.S. Nsimye

Hon. Justice M.Stella Arach Amoko

Constitutional Court (Court of Appeal) Judges

Pages: 1 2 3