Court name
Supreme Court of Uganda
Judgment date
15 November 2011

Advocates Coalition For Development & Environment & 4 Ors v Attorney General & Anor (Constitutional Petition-2011/14) [2011] UGSC 11 (15 November 2011);

Cite this case
[2011] UGSC 11
Short summary:
HR, Development

THE REPUBLIC OF UGANDA
IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA
CONSTITUTIONAL PETITION NO.14 OF 2011


BETWEEN

1.      

ADVOCATES COALITION FOR
DEVELOPMENT AND ENVIRONMENT
2.       HON. ATIM A. O. BEATRICE                                    PETITIONERS
3.       ACTION AID UGANDA                                           
4.       FORUM FOR WOMEN IN DEMOCRACY
5.       CENTRE FOR PUBLIC INTEREST LAW

 



AND
1.      

ATTORNEY GENERAL                                             RESPONDENTS
2.       THE PARLIAMENTARY COMMISSION             



CORAM :           HON. JUSTICE A.E.N.MPAGI-BAHIGEINE, DCJ;
HON. JUSTICE S.B.K.KAVUMA, JA;
HON. JUSTICE A.S.NSHIMYE, JA
HON. JUSTICE M.S.ARACH AMOKO, JA;
HON. JUSTICE REMMY KASULE, JA;

 

 

 


JUDGEMENT OF THE COURT


INTRODUCTION:

This petition is brought under Article 137(3)(b) of the Constitution, the Constitutional Court (Petitions and References) Rules, S.I No. 91 of 2005 and all the other enabling laws.
 
It was brought by Advocates Coalition for Development and Environment, Hon. Atim A.O Beatrice, Action Aid Uganda, Forum For Women In Democracy and the Centre For Public Interest Law, (hereinafter individually referred to as the 1st, 2nd, 3rd, 4th and 5th Petitioners respectively and together as the petitioners).

In the Petition, the petitioners variously describe themselves as hereunder:-

1.      
The 1st, 4th and 5th Petitioners are companies limited by guarantee engaged in and carrying out independent public policy research and advocacy, capacity building and lobbying to ensure respect for human rights, good governance, transparency and accountability in the conduct of the public affairs of the State of Uganda.
2.       The 2nd Petitioner was a member of the 8th Parliament representing the Women of Kitgum District.
3.      
The 3rd Petitioner is a Non-Governmental Organisation duly registered under the laws of Uganda and with objectives and carrying on activities similar to those of the 1st, 4th and 5th Petitioners.
4.      
The 1st Respondent is sued in its representative and constitutional capacity representing the Government of Uganda.
5.       The second Respondent is a body Corporate established under section 2(3) of the Administration of Parliament Act, Cap. 257 of the laws of Uganda with power to sue and be sued in its name.

The Petitioners make the following averments:-

(i)     
That the petitioners have a constitutional and civic duty to defend and uphold the Constitution of Uganda and prevent wastage of public resources in accordance with Objective No.XXIX of the National Objectives and Directive Principles of State Policy and Article 17 of the Constitution.
(ii)     That the Executive and Legislative arms of government, represented by the respondents in this petition, are bestowed with public trust to, inter alia, manage public resources and run the affairs of the State of Uganda in accordance with the Constitution and the wishes and aspirations of the people of Uganda.
(iii)    That in January 2010, the respondents, without the authority of any law or motion of Parliament, caused to be paid to each member of Parliament a total sum of Uganda Shillings 20, 000, 000/= to monitor government programmes.
(iv)    
That the said payment was done in total disregard of Articles 1(1), (2), 8A, 85(1) and 2, 154 (1) (a) and ( b), 154 (2), 159, 164 , 90(1), (2) - (4) and 94 and Objective Principles of State Policy Nos. XXVI and XX1X of the Constitution of Uganda and was neither appropriated nor made under any enabling law and was an interference with the independence and autonomy of Parliament and was made contrary to its Rules of Procedure.
(v)     
That the legislative duty of monitoring government programs is not a function of an individual member of Parliament but rather, a duty executed through Committees of Parliament as provided for under Articles 90 (1) – (4) and 94 of the Constitution and Part XXVI of the Rules of Procedure of the Parliament of Uganda.
(vi)    
That payment by the 1st and 2nd Respondents of the sum of Ushs. 20 (Twenty) million to each member of Parliament and a total sum of Ushs 6.2 bn (Six billion Two Hundred Million), without authorization is a breach of trust and a violation of the sovereignty of the people of Uganda and is inconsistent with and/or in contravention of Objective XXVI of the National Objectives and Directive Principles of State Policy and Article 1, 2, 8A and 164 of the Constitution.
(vii)   
That the act of receiving, using and/or refusing to return the said unlawful and unconstitutional payment by members of Parliament is an abuse of the public trust bestowed upon them and a negation of their duties to prevent wastage of public resources and is, therefore, inconsistent with and in contravention of Articles 1, 17(1) (i) and 164(2) and (3) of the Constitution.

The petitioners seek the following declarations:

a)      
A declaration that the acts of the 1st and 2nd Respondents of approving and paying to each individual member of Parliament a sum of 20,000,000/= is inconsistent with and in contravention of Articles 1(1), (2) and (3), 85(1) and (2), 154(1) (a) and (b) and 154(2) of the Constitution of Uganda.
b)       A declaration that the act of paying members of Parliament by the Respondents to monitor government programmes is in contravention of Articles 1, 79, 90(1), (2) and (3) of the Constitution and the Rules of Procedure made pursuant to the provisions of Article 90(3) of the Constitution.

The petitioners seek orders that:
a)      
The 1st and 2nd Respondent recover the Shs. 6.2 billion paid out to the members of Parliament in January 2011 and refund the same to the Consolidated Fund within one month from the date of judgment.
b)      
The Respondents be restrained from making payments to members of Parliament without following the provisions of the Constitution and the relevant laws.
 
The Petition is accompanied by the affidavits in support sworn by Mr. Godber W. Tumushabe, that by the 2nd Petitioner together with her affidavit in rebuttal and her further supplementary affidavit in rebuttal of the respondents’ affidavits. Further affidavits in support of the petition are from Hon. Nabila Nagayi Sempala, and Hon. Erias Lukwago, both members of the 8th Parliament.
 
These affidavits basically narrate the background of the petition and amplify the averments of the petitioners.
 
The answers to the petition filed by the respondents are accompanied by affidavits sworn by the Clerk to Parliament, the Secretary to the Treasury and Ms. Eva Kabundu, a State Attorney at the 1st respondent’s Chambers.

The respondents contend that the acts of the respondents complained of by the petitioners are neither inconsistent with nor in contravention of any of the Articles of the Constitution cited by the Petitioners or any other law. They contend, further, that the Petitioners are not entitled to the declarations and the orders they seek from court.

The issues:
There are four agreed issues, namely:
i)      
Whether the act of authorization, withdrawal and payment to each Member of Parliament a sum of Shs.20m was in contravention of Articles 1(1)(2) and (3), 79, 85 (1) and (2), 154(1), (2), (3) and 164 (2) of the Constitution.
ii)      Whether the act of paying individual members of Parliament to monitor Government programmes is inconsistent with Articles 79, 85(1), and (2) of the Constitution and the Rules of procedure of Parliament made pursuant to Article 90(3) in as far as the duties of members of Parliament and the Committees of the House are concerned.
iii)     Whether the act of receiving and using the said payment by Members of Parliament is an abuse of public trust bestowed upon them and a negation of their duties to prevent waste of public resources and therefore inconsistent with and in contravention of Articles 1, 17(1)(i), 164 (2) and (3) of the Constitution.
iv)      Whether the parties are entitled to the reliefs sought.
 
Representation:
At the hearing of the petition, learned counsel Muhumuza Kaahwa, Francis Tumusiime, Francis Gimara and Nicholas Opio represented the petitioners while Mr. Henry Oluka, Principal State Attorney assisted by Mr. Daniel Gantungo, State Attorney represented the 1st respondent and Ms. Stina Cherotich appeared for the 2nd Respondent.

The case for the Petitioners.
Issue 1:
Arguing issue one, counsel for the Petitioners submitted that emoluments and such other facilities of Members of Parliament are determined by Parliament under Article 85, not the Minister of Finance and Speaker of Parliament. According to them, the budget of Parliament for the financial year 2010/2011 had no funds from which the members of Parliament could be facilitated to monitor government programmes. Counsel further submitted that Articles 154(3) and (4) prohibit withdrawal of money from the Consolidated Fund which is not authorized by law. Counsel cited Section 16 of the Public Finance and Accountability Act, and Regulations 38 and 39 made under that Act. Counsel prayed court to find in the affirmative on this issue.
 
Issue 2:
Arguing issue two, counsel for the petitioners submitted that the functions of Parliament are provided for by Article 79(1) and that Article 90 of the Constitution provides for and empowers Committees of Parliament, under Rules 133 and 161(d) to monitor government programmes. He further submitted that members of Parliament are not experts on National Agricultural Advisory Services, (NAADS) and that Article 90(3) pre-supposes the non-expert nature of Parliament. He contended that MPs could not, therefore, monitor government programmes. He also submitted that MPs already have a hefty-package of allowances for carrying out their activities. Concluding this issue, counsel submitted that at the time of the payment, the members of Parliament were busy campaigning and had only three months left to the end of their term of office and as such had no time to monitor NAADS and other government programmes. He asked court to find in the affirmative on this issue.

Issues 3 and 4:
On issues 3 and 4, counsel for the Petitioners submitted that the payment by the respondents and receipt by each member of Parliament of Shs. 20m was a breach of public trust contrary to Articles 1, 164 and 8A and Objective 26 of the National Objectives and Directive Principles of State Policy of the Constitution. He submitted that the Shs.20m was paid without guidelines and Terms of Reference. He further submitted that Public Trust is a fudiciary duty between the governor and the governed in accordance with Article 1 (3) of the Constitution. He contended that when leaders misuse public funds, they must refund the same as provided for under Article 164(2) of the Constitution. He pointed out that Article 164(3) provides that Parliament shall monitor all public expenditure.
 
Counsel submitted that the Shs 20m paid to each member of Parliament was taxed yet allowances to monitor government programmes should not be taxed. He further submitted that this payment was wrongly frontloaded from the 4th to the 2nd quarter of the Financial Year 2010/2011. Counsel prayed Court to find in the affirmative on these issues and grant the petitioners the reliefs they sought.

The case for the respondents:
Issue 1
Submitting for the 1st Respondent, Mr. Henry Oluka stated that it was the case of the respondents that the acts of authorization, withdrawal and payment of the Shs 20m to each member of Parliament were not in contravention of Articles 1, (2), (3), 79, 85(1), 154(1)(2) and (3) and 164(2) of the Constitution. Counsel submitted that Article 79 (1) gives Parliament power to make laws for the good governance of Uganda. Some of the laws that Parliament made are the Public Finance Act, No. 6 of 2003 and the Administration of Parliament Act, Cap 257 of the Laws of Uganda. The administration of Parliament, counsel pointed out, is undertaken by the Parliamentary Commission established under Article 87A of the Constitution. He submitted, further, that under S4(1) (b) of the Public Finance and Accountability Act, the Minister of Finance Considers requests for money from the Consolidated Fund as she did for the Shs 20m the subject of this petition.
 
Counsel further submitted that the Speaker, as the head of Parliament and Chairman of the Parliamentary Commission is empowered to make financial estimates on expenditure under Section 6(f) of Cap 257. To counsel, the Speaker was not wrong to consult with the Minister of Finance who, under Section 3 (b) of the Public Finance and Accountability Act, 2003, supervises and monitors the public finances of Uganda. He, further still, submitted that it was not illegal for the Speaker to request for additional funding to facilitate members of Parliament to monitor government programmes and that this did not amount to contravention of Article 1(1)(2) and (3) of the Constitution. It was not an infringement of Article 79 either. The money paid out to the members of Parliament was part of emoluments or allowance covered by Article 85 of the Constitution. Counsel contended, further, that the payment of Shs 20m to each member of the 8th Parliament was consistent with all the articles of the Constitution set out in issue one and was neither a contravention of the Administration of Parliament, the Public Finance and Accountability and the Appropriation2010/2011 Acts as well as the Regulations made under the Public Accountability Act.
He prayed Court to find in favour of the respondents on issue one.


Issue 2
With regard to issue two, counsel for the 1st Respondent submitted that the payment of Shs. 20m to each member of the 8th Parliament to monitor government programmes was neither inconsistent with nor in contravention of Articles 79 and 85 of the Constitution or any of the Rules of Procedure of Parliament. He contended that as elected representatives of the people, members of Parliament are the agents of development for those very people they represent and as such, had the interest and duty to monitor government programmes in their constituencies.
 
Counsel contended that the oversight function of Parliamentary Committees over the Executive neither prohibits nor replaces the individual member of Parliament’s function and duty to monitor government programmes. Emphasizing that the people have a right to development, counsel submitted that provisions relating thereto in the Constitution must be expansively interpreted looking at the Constitution as a whole. He prayed court to find that the payment of the Shs 20m to each member of the 8th Parliament was consistent with Articles 79 and 85 of the Constitution.


Issue 3:
On this issue, counsel submitted that the payments made to the members of Parliament totaling to Shs. 6.2bn were embodied in the estimates of allowances of members of Parliament as per annexture “A2” to the affidavit in rebuttal of the 2nd petitioner. Counsel contended that his submissions on issues 1 and 2 showed that the actions of the Speaker, Clerk to Parliament, Secretary to the Treasury and the Minister of Finance were all consistent with the Constitution and the relevant enabling laws and, therefore, they did not breach the duty to prevent wastage of public resources.

Issue 4:
Regarding issue four, counsel submitted that the petitioners are not entitled to any of the remedies, reliefs declarations and orders they sought and that their petition had no merit. He prayed court to disallow the issue and dismiss the petition with costs.
 
Arguing the case for the 2nd respondent, her counsel fully associated herself with the submissions of counsel for the 1st respondent and added that members of Parliament are elected individually in their constituencies and are, therefore, answerable to their constituents individually. She contended that it was a misconception for the petitioners to argue that the function of monitoring government programmes was limited to Committees of Parliament only since Article 90 does not state anywhere that members of Parliament have no role, individually or otherwise, to monitor government programmes.
 
She further submitted that the doctrine of the Separation Of Powers enshrined in the Constitution is intended to avoid unnecessary interference by one arm of government in the functions of the others. He referred court to the case of Attorney General vs Maj. Gen. David Tinyefunza Supreme Court Constitutional Appeal No.1 of 1997.
 
Counsel contended that MPs were elected by the people as their representatives and therefore any decision of Parliament is the decision of the People. She pointed out that Parliament enacted the Appropriation Act, 2010/2011, which incorporated the budget estimates of the Parliamentary Commission. She emphasized that payments made under that Act are legal and not unconstitutional and that those payments needed no further Parliamentary approval. Counsel concluded by praying that the petition be dismissed with costs.



Reply by the petitioners
Counsel for the petitioners submitted, by way of reply, that it was the case of the petitioners that everything done was wrongly done.
 
On the separation of powers, counsel submitted that there were procedures that were not followed and court can inquire into this under Article 137 (3)(b) of the Constitution. Counsel invited Court to consider the case of Patricia McKenna vs An Taoiseach and Others (No. 2) [SC Nos. 361 and 366 of 1995] Ireland.

Principles of constitutional interpretation:
We consider the following to be the relevant principles of constitutional interpretation on the matter before Court.

(1) The principles which govern the construction of statutes also apply to the construction of constitutional provisions. (The Republic vs EL Mann (1969) E.A 357.)
(i)     
The widest construction possible in its context should be given according to the ordinary meaning of the words used, and each general word should be held to extend to all ancillary and subsidiary matters. In certain context, a liberal interpretation of the constitutional provision may be called for.
(ii)    
A constitutional provision containing a fundamental right is a permanent provision intended to cater for all times to come and therefore, should be given a dynamic progressive and liberal flexible interpretation, keeping in mind the ideals of the people and their social economic and political-cultural values so as to extend fully the benefit of the right to those it is intended for. (South Dakota vs. North Carolina, 192, US 268 1940 LED 448.)
(iii)    The entire Constitution has to be read together as an integrated whole and with no one particular provision destroying the other, but rather each sustaining the other. This is the rule of harmony, completeness and exhaustiveness and the rule of paramouncy of the written Constitution. (Paul K. Ssemogerere and 2 others vs. AG Supreme Court Constitutional Appeal No. 1 of 2002)
(iv)    
No one provision of the Constitution is to be segregated from the others and be considered alone, but, all provisions bearing upon a particular subject are to be brought into view and be interpreted as to effectuate the greater purpose of the instrument.
(v)     
Judicial power is derived from the people and shall be exercised by courts established under the Constitution in the name of the people and in conformity with the law and with the values, norms and aspirations of the people and courts shall administer substantive justice without undue regard to technicalities (Article 126(1) and (2) (e) of the Constitution of Uganda, 1995.)
(vi)    
The Constitution is the Supreme law of the land and forms the standard upon which all other laws are judged. Any law that is inconsistent or in contravention of the Constitution is null and void to the extent of the inconsistency. (Article 2(1) and (2) of the Uganda Constitution, 1995)
(vii)   
Fundamental rights and freedoms guaranteed under the Constitution are to be interpreted having general regard to evolving standards of human dignity. See also the case of Uganda Law Society vs. Attorney General Constitutional Petition No. 18 of 2005.

Court’s consideration of the issues
Keeping in mind the above principles, we shall now proceed to consider the framed issues.



Issue 1:
The gist of issue one is the Petitioner’s complaint that the acts of authorization, withdrawal and payment of Shs. 20m to each member of the 8th Parliament was unconstitutional by reason of being inconsistent with and in contravention of Articles 1(1), (2) and (3), 79, 85(1) and (2), 154 (1), (2) and (3) and 164 (2) of the Constitution.
Article 1 provides:
Article (1)     All power belongs to the people who shall exercise their sovereignty in accordance with this Constitution.
(2)      Without limiting the effect of clause (1) of this article, all authority in the State emanates from the people of Uganda; and the people shall be governed through their will and consent.
(3)      All power and authority of Government and its organs derive from this Constitution, which in turn derives its authority from the people who consent to be governed in accordance with this Constitution.
(4)      ………………………………………………………………………………………...”
 
Article 79 provides:
Article 79 (1)  Subject to the provisions of this Constitution, Parliament shall have power to make laws on any matter for the peace, order, development and good governance of Uganda.
(2)      Except as provided in this Constitution, no person or body other than Parliament shall have power to make provisions having the force of law in Uganda except under authority conferred by an Act of Parliament.
(3)      Parliament shall protect this Constitution and promote the democratic governance of Uganda.”

Article 85 provides:
Article 85 (1)  A member of Parliament shall be paid such emoluments, such gratuity and pension, and shall be provided with such facilities, as may be determined by Parliament.
(2)      A member of Parliament shall not hold any office of profit or emolument likely to compromise his or her office.”
 
Article 154 provides:
Article 154 (1) No monies shall be withdrawn from the Consolidated Fund except—
(a)     
         to meet expenditure charged on the fund by this Constitution or          by an Act of Parliament; or
(b)      where the issue of those monies has been authorized by an Appropriation Act, a Supplementary Appropriation Act or as provided under clause (4) of this Article.
(2) No monies shall be withdrawn from any public fund of Uganda other than the Consolidated Fund, unless the issue of those monies has been authorised by law.
(3) No monies shall be withdrawn from the Consolidated Fund unless the withdrawal has been approved by the Auditor General and in the manner prescribed by Parliament.
(1)     
……………………………………………………………………………..
(2)     
………………………………………………………………………………………..
(a)     
         ……………………………………………………
(b)      …………………………………………………..”
 
Article 164 (2) provides:
“Article 164(1)  ………………………………………………………………………
(2)      Any person holding a political or public office who directs or concurs in the use of public funds contrary to existing instructions shall be accountable for any loss arising from that use and shall be required to make good the loss even if he or she has ceased to hold that office.”
 
We note that Parliament, duly elected by the people of Uganda, enacted the Administration of Parliament Act, Cap 257 of the Laws of Uganda, the Appropriation Act 2010/2011 and the Public Finance and Accountability Act, Act 6 of 2003, all of them pursuant to Article 79 of the Constitution.
 
A need for additional funds for members of the 8th Parliament to monitor government programmes was identified. The Speaker of Parliament, as Chairperson of the Parliamentary Commission and acting together with the other authorized officers of the Commission, who included the Commission Secretary, initiated the process of procuring the needed funds from the Ministry of Finance. Prior to that, the Parliamentary Commission, according to the evidence on record, had considered the money it needed for its operations in the Financial Year (FY), 2010/2011 and submitted it to Parliament. Parliament approved the same as part of the Appropriation Act 2010 – 2011 under programme 2 with a total of Shs. 59 bn. See Annexture “A2” to the affidavit in rebuttal of Hon Atim Anywar Odwongo Beatrice, the 2nd Petitioner. This annexture clearly shows at page 24 the said approved amount of Shs. 59bn which amount included, among other funds, money for members of Parliament’s salaries and allowances. It is thus an established fact that the money, the subject of this petition had already been approved and voted by Parliament to be used as salaries and allowances by members of Parliament in the FY 2010/2011. What happened was that this already voted for and allocated amount of Shs. 6.2 bn, was accessed by Parliament by frontloading the same from the 4th to the 2nd quarter of the FY 2010/2011. This was done after obtaining the approval of the relevant authority in the Ministry of Finance Planning and Economic Development.
 
The Ministry of Finance gave its approval acting under the powers conferred on it under Regulation (Reg.) 39 of the Public Finance and Accountability Regulations, which provides:
Regulation 39    Virements or re-allocations within a vote.
“39 (1) The Minister has discretionary powers to vary the amount allocated within a vote, provided that—
a)      
the total amount authorized by Parliament for that vote in an Appropriation Act is not exceeded;
b)       the variation is not so large or important as to represent a change in policy;
c)       the changes made are not novel or contentious; and
d)       any virements made will from the outset not involve heavy liabilities in future years.
(1)     
The power of the Minister to vary the amount allocated within a vote may be delegated in writing to the Secretary to the Treasury or accounting officer.
(2)      All virements within a vote shall be the subject of an application for virement addressed to the Secretary to the Treasury and copied to the Accountant General and the Auditor General—
a)      
showing the amounts involved;
b)       identifying the items where extra provision is required;
c)       identifying, where appropriate, any delegated authority for the re-allocation;
d)       giving appropriate explanation for the shortfall in the original provision;
e)       clearly identifying the items with the anticipated savings; and
f)       giving appropriate explanations and the reasons for the savings being available.
(3)     
In order to ensure that the savings identified are genuine, items from which funds have been transferred will no longer be eligible for the provision of additional funds by a Supplementary Appropriation Act or subsequent virements.
(4)      In the absence of delegated authority, applications for virement shall be submitted by the Secretary to the Treasury for consideration by the Minister, and no such application will be approved by the Secretary to the Treasury without the specific authority of the Minister.
(5)      On approval of an application under sub regulation (5) of this Regulation, a warrant for virement within a vote shall be issued to the accounting officer concerned and copied to the Accountant General; and on receipt of his or her copy of the warrant, the Accountant General may, where necessary, issue an amended accounting warrant to the accounting officer reducing the amount authorized on the item which has had its available funds reduced.
(6)      Expenditure on the item which has had its available funds increased by the accounting warrant shall at all times remain within the limits of any accounting warrant currently in force.

The Ministry did not go by way of approval of a supplementary under Reg. 38 for, this was not necessary since there was enough money to cover the item of the expenditure sought from the already approved amount. Regulation 38 was, therefore irrelevant to the procurement of the money the subject of this Petition.
 
In his affidavit, the Secretary to the Treasury elaborately explained the whole process in the following terms:
 
On the 23rd of November 2010, the Clerk to Parliament wrote to the Hon. Minister of Finance requesting for a supplementary funding of Ug.Sh. 6.54 billion to enable him pay members of Parliament allowances for purposes of monitoring government programmes. The Clerk to Parliament was reacting to the Rt. Hon. Speaker’s letter dated 23rd November 2010 on the same subject. On the 24th November 2010 the Hon. Minister of Finance replied to the Clerk to Parliament informing him that due to pressures being exerted on the budget at that time, it was not possible to issue a supplementary as requested. Consequently, the Minister advised the Clerk to reallocate within the available Parliamentary annual balances for the FY 2010/2011 to meet the required expenditure. Pursuant to that advice, the Clerk to Parliament wrote to the Secretary to the Treasury confirming that the allowances for Members of Parliament on which supplementary funds were required had enough balances to cover the necessary expenditure required subject to such funds being frontloaded from the forth to the second quarter of the financial year and that all he had to do was to adjust the recurrent cash limit for the second quarter by the amount required and frontload the budgeted fund by the same amount. This meant that there was no need for a supplementary budget or approval of Parliament for those funds since the item, allowances for Members of Parliament, had already been approved in 2010/2011 FY. It only required the permission of the Secretary to the Treasury to allow Parliament to spend amounts in allowances budgeted for in the second quarter, which they would have spent, under normal circumstances, in the 4th quarter of the FY 2010/2011.
 
This Court received further uncontroverted evidence of the Secretary to the Treasury that in compliance with Regulation 39, he authorized the frontloading of the money from the fourth to the second quarter.
 
We are satisfied, on the evidenced before us that the Minister of Finance and Economic Development, who is mandated by the Constitution and the law to supervise and monitor the public finances of Uganda under S.3 (b) of the Public Finance and Accountability Act, the Speaker of Parliament who, under S.2(4) of the Administration of Parliament Act, is the Chairperson of the Parliamentary Commission, the Secretary to the Treasury and the Clerk to Parliament, all acted in accordance with the law in the process that led to the authorization, withdrawal and payment of Shs. 20m to each member of the 8th Parliament.

In as far as the payments in issue were made in accordance with laws duly enacted by Parliament, we are not persuaded that the acts complained of by the Petitioners in this Petition in any way contravened Article 79 of the Constitution. By enacting the Appropriation Act 2010/2011, Parliament approved the payments in issue in the Petition in strict compliance with Article 85 of the Constitution. There was, therefore, no need for further Parliamentary approval by resolution or otherwise.
 
Similarly, we find that the payment was done in compliance with Article 154 of the Constitution since the same was effected under laws duly enacted by Parliament and with all the requisite approvals. Therefore, no money relevant to this petition was withdrawn from the Consolidated Fund without Parliamentary approval.
 
Article 164 deals with Accountability regarding public funds and 164 (2) specifically provides for accountability by any person holding a political or public office who, unlawfully, causes loss of public funds by requiring him/her to make good such loss. The Shs. 20m paid out to and received by each of the members of the 8th Parliament was part of the funds approved for use by Parliament under programme 2 as indicated above. We are convinced that the Accounting Officers acted within the mandate emanating from Regulation 39 (supra).

We, therefore, find that the acts of authorizing, withdrawal and payment of Shs. 20m to each of the member of the 8th Parliament were neither inconsistent nor in contravention of Articles 1(1), (2) and (3), 79, 85 (1) and (2), 154 (1) (2) and (3) and 164(2) of the Constitution. We, therefore, find in the negative on this issue.

Issue 2:
The gist of issue 2 is the petitioner’s complaint that the act of paying individual members of Parliament to monitor government programmes was inconsistent with Articles 79, 85 (1) and (2) of the Constitution and the Rules of Procedure of Parliament made pursuant to Article 90(3) of the Constitution. To the petitioners, the function of monitoring government programmes was the sole preserve of Parliamentary Committees.
 
We have already dealt with Articles 79 and 85 of the Constitution in so far as they related to the payments of the money the subject of this petition in our resolution of issue one. We need not repeat that here.
Article 90 provides:
Article 90                Committees of Parliament
(1)     
Parliament shall appoint committees necessary for the efficient discharge of its functions.
(2)      Parliament shall, by its rules of procedure, prescribe the powers, composition and functions of its committees.
(3)      …………………………………………………………………………….
(a)     
……………………………………………………………………………….;
(b)      ………………………………………………………………………….;
(c)      ……………………………………………………………………………..
(i)     
……………………………………………………………………..;
(ii)     ………………………………………………………………..and
(iii)    ……………………………………………………………………...”
Article 94, which we find relevant to the Rules of Procedure of Parliamentary Committee provides:
 
Article 94(1)   Subject to the provisions of this Constitution, Parliament may make rules to regulate its own procedure, including the procedure of its committees.
(2) …………………………………………………………………
(3)      ……………………………………………………………….
(4) …………………………………………………………………
(a)     
…………………………………….;
(b)      ………………………………..;
(c)      …………………………………….; and
(d)      …………………………………...
 
We have carefully considered Article 164 (3) of the Constitution, Rules 90, 94, 133 and 161 of the Rules of Procedure of Parliament. By virtue of Article 164 (3), Parliament is empowered to monitor all expenditure of public funds. In our view, monitoring government expenditure does not stop at examining papers at the Public Accounts Committee meetings only or indeed at any other Parliamentary Committee. It includes following the money to the ground where it is alleged to have been spent.
 
There is nothing in the Constitution or indeed in any other law or any of the said Rules of Procedure of Parliament that prohibits a member of Parliament, individually or otherwise, from monitoring government programmes in his/her constituency. In addition to this, we hold the view that the overall functions of Parliament under Article 79 of the Constitution of making laws on any matter for peace, order, development and good governance of Uganda, read together with Article 164(3) are inclusive, rather than exclusive, of the responsibility of an individual member of Parliament carrying out a monitoring role in addition to other bodies or persons in that member’s constituency.
 
Further, we accept as correct the submission by counsel for the respondents that the members of Parliament are individually agents of development in their respective constituencies with interest and duty to individually monitor government programmes. This is good sense. We also note from the evidence before us that the Shs. 20m paid to each member of the 8th Parliament was for monitoring government expenditure on all government programmes on the ground and not (NAADS) only.
 
We observe that the timing of the payment may appear unsuitable but, that notwithstanding, no constitutional provision was breached in our considered view. It may also be true that not all members of the 8th Parliament may have been experts in certain disciplines but they were the owners of those programmes together with their Constituents. It is then not farfetched to say that they could competently monitor, even if only politically, what was on the ground in their respective constituencies regarding government programmes.
 
We note the submission by counsel for the 2nd respondent to the effect that under the doctrine of the Separation of Powers this Court should not question the acts of approval, withdrawal and payment of the money, the subject of this petition, by the 1st and 2nd respondents and of the receipt and utilization of the same by the members of the 8th Parliament who received and used it. This Court is acutely alive to the operation of the said doctrine of the Separation of Powers as expounded by the Supreme Court in Attorney General vs. Maj. General David Tinyefunza (supra). We however, do not accept the said submission by counsel for the 2nd respondent. This Court has not exceeded the parameters set in the cited case in considering the matters raised in this petition. It has acted within its jurisdiction under Article 137 of the Constitution.
 
Counsel for the petitioners also contended that it was erroneous for the Shs. 20m paid to each Member of the 8th Parliament to have been taxed. The Court is not in the instant petition concerned with how taxes are deducted and remitted to taxing authorities. This does not have a direct bearing on the principle under Courts’ consideration. We, therefore, find in the negative on issue two.
 
Issue 3:
The gist in issue 3 is the complaint by the petitioners that the acts of receiving and using Shs. 20m by each of the member of the 8th Parliament was an abuse of public trust bestowed upon them and a negation of their duties to prevent waste of public resources in contravention of Articles 1, 8A, 17(1) (i), 164(2) and (3) of the Constitution.
Article 17 provides:
Article 17                Duties of a Citizen.
(1)     
It is the duty of every citizen of Uganda—
(a)     
         ……………………………
(b)      ……………………………
(c)               …………………………..
(d)      …………………………..
(e)      ……………………………
(f)               ……………………………
(g)               ……………………………
(h)      ……………………………
(i)               to combat corruption and misuse or wastage of public     property;”
Article 8A provides:
         “Article 8 (A)   
(1)     
Uganda shall be governed based on principles of                           national interest and common good enshrined in the                         national objectives and directive principles of state                      policy.
(2)      Parliament shall make relevant laws for purposes of                       giving full effect to clause (1) of this Article.”
Objective No. (XXVI) of the National objectives of State Policy provides:

XXVI (i)        All public offices shall be held in trust for the people.
(ii)     All persons placed in positions of leadership and responsibility shall, in their work, be answerable to the people.
(iii)    All lawful measures shall be taken to expose, combat and eradicate corruption and abuse or misuse of power by those holding political and other public offices.”
 
We have already shown in this judgment in our resolution of issues one and two above how the payments made to the members of the 8th Parliament were lawfully made with all the required approvals. We have no evidence that any of that money was used by any of the recipients of the same in a way that amounted to abuse of public trust bestowed by the Constitution on those members of Parliament or indeed on any other public official. Similarly, no satisfactory evidence has been adduced to Court to show that that money was used by any of its recipients in a way that amounted to a negation of the duty of any of such a Member of Parliament to prevent wastage of public resources in contravention of any of the Constitutional Provisions cited. It is trite law that Courts of law act on credible evidence adduced before them and do not indulge in conjecture, speculation, attractive reasoning or fanciful theories. See Okale vs Republic 1965 EA 555, Kanalusasi vs Uganda [1998 – 1990] HCB and Silaagi Buroro Gordon vs Uganda Court of Appeal Criminal Appeal No. 122/2005, (unreported).

We, therefore, find that the act of receiving and using the Shs. 20m paid to each of the members of the 8th Parliament by those who chose to use it, was not an abuse of public trust bestowed upon those members of Parliament. It was not a negation of their duty to prevent waste of public resources or corruption either. It was, therefore, not in contravention of Articles 1, 17 (1) (i), 164 (2) and (3) and National Objectives and Direct Principles of State Policy Nos XXVI and XXVII of the Constitution.
 
We, consequently, find in the negative on this issue too.

Issue 4
Issue 4 is about the reliefs sought by the petitioners. Having held as we have, on issues 1 to 3, we find that the petitioners are not entitled to any of the remedies, reliefs and declarations sought and we decline to grant any.

In the result, this petition fails and is dismissed for lack of merit.
Each party shall bear their own costs.

Dated at Kampala this…16th …..day of …November....2011


 

………………………………………………………….
A.E.N.MPAGI-BAHIGEINE

DEPUTY CHIEF JUSTICE/PRESIDENT CONSTITUTIONAL COURT





……………………………………………….………
S.B.K.KAVUMA

JUSTICE OF APPEAL/CONSTITUTIONAL COURT





 

………………………………………………………
A.S.NSHIMYE

JUSTICE OF APPEAL/CONSTITUTIONAL COURT

 



 

………………………………………………………

M.S.ARACH AMOKO
JUSTICE OF APPEAL/CONSTITUTIONAL COURT



………………………………………………..
REMMY KASULE

JUSTICE OF APPEAL/CONSTITUTIONAL COURT