Ugandans-At-Heart

KCCA Executive Director Jennifer Musisi and Mayor Lukwago are at loggerheads(Newvision newspaper)

The people of Kampala City entrusted Lukwago with the power to act on their behalf. They voted his manifesto. All Musisi, the Executive Director, has to do is to implement Lukwago’s manifesto.

Lukwago does not need to go to the constitutional court for that. Where did common sense go? Why did they introduce a law which openly contravenes article 1 of the constitution?

It is bad that most people in NRM are dense and those with the brains are corrupt sell-outs. None of them could come out and tell Kaguta off. They leave the man to dwell in ignorance yet he is in a position of leadership. They simply sing praises for the dictator, organise military parades and gun salutes, but no advice.

When discussing or providing advise on legal matters, you must use the principles of law. In countries where the law is the king of the land, there is a principle of law called the principle of compatibility with the supreme law of the land. Therefore, before a bill is presented to the house, a statement of compatibility must be read. In law it is called “causing the statement of compatibility”

If the law is incompatible with the constitution then that law is a wrong law. Lukwago was elected by the people of Uganda to act on their behalf. The constitution provides the people of Uganda with the power to elect political leaders to act on their behalf. These leaders are at all levels. M7 had no authority, not even parliament to take away power from the people and hand it over to the C.E.O. It is unconstitutional and it tantamount to a moral turpitude.

A Chief Executive Officer implements the wishes of the directors of the city. And these directors are the people of Kampala who are represented by Elias Lukwago.

The C.E.O must be accountable to Lukwago and Lukwago must in turn be accountable to the people of Kampala. But how can you have a C.E.O who is not even accountable to Parliament?

M7 is consolidating powers around himself through making draconian laws. And nobody in NRM can even see this. The whole thing is hogwash. Why must Lukwago have to cooperate with Musisi? Musisi must be the one to implement Lukwago’s manifesto and not the other way round.

But the situation is obvious. The courts of law must be left to deal with legal dilemmas and issues which common people cannot resolve. Surely, is the Attorney General, IGG, the lawyers in the president’s office and the NRM secretariat too dense not to see how wrong M7 is on this issue?.

There are certain things which are obvious for Christ’s sake. I understand that they came from the jungles of Luwero after doing worse things against the people of Uganda but there has been enough time for them to learn some civilised values.

Civil servants are not employed by the president. They are employed by the public service commission because he/she is a public servant who is permanent and pensionable. M7 is only supposed to elect the people who the constitution allows him to and these must not be in permanent positions. The position of the CEO is permanent and pensionable by the Public Service Commission. That is what I’m saying. M7 has no right to recruit permanent and pensionable employees. He can appoint RDCs, Ministers, Head of the Army and Police etc. But these positions are not held on a permanent capacity.

What was the justification for this? M7 is not supposed to recruit a civil servant in permanent positions. What happens to that individual if another government takes over power?

The Kampala city Bill is a disaster. Whoever designed it must be mad. The differences between the role of the C.E.O and that of the Lord Mayor are vague. The hierarchy in management is also dangerous.This law is not compatible with the constitution and it is not compatible with its own provisions. It was designed maliciously in evil faith.

Some people claim that because the majority of MPs voted in that manner so it is legal and perfect. Well critical thinking doesn’t agree with that. Actually, it argues that the majority are not necesarily right. Talk about the fallacy of the majority belief. Have you ever heard of argumentum ad populum?

I’m not a lawyer but at least, I studied law. And I can assure you that the process that makes the law does not determin the legality of that law although it is very important that the due process is followed. The concept that informs the process of law making is more important than the process itself . In law, the major concept /fundamental principles is that of natural justice. This is the origin/ foundation of law regardless of what process you use to make the law.

The principles of natural justice require you to hold the truths that; all men are created equal, that they are endowed by their creator with certain unalienable rights. Aristotle adds that “it is of man’s essence to be a free, rational social being; that acts corresponding to man’s essential nature are good, the opposite is bad,. Not because the law makes them so, but because nature does and that law is therefore essentially ‘reason’, ‘a rule of reason for rational beings’.

Cicero also writes that of all things, respecting which learned men dispute, there is none more important that clearly to understand that we are born of justice, and that right is founded not in opinion but in nature.

St Thomas Aquinas wrote that law is an ordinance of reason made for the common good. That natural law is divine law revealed through natural reason and the need of man to conform to natural law is merely that he conforms to his own nature as a rational being.

For M7 made a law that all people who are caught with arms including knives, arrows spears, guns etc must be court-martialled. But the process through which this law was made does meet the principles of natural justice such as; ‘reason’ ‘equality’, ‘common good’ etc. As such, the court martial is stuck with cases where people were arrested with knives.

Another example is the Enabling law which allowed Hitler to pass laws for four years without having the permission of the Reichstag. This meant that he ruled more or less how he wanted. It gave him a legal basis for doing what he did and this was important. It allowed him to ban all other political parties for example, making him a legal dictator. But it does not mean that what Hitler did was right in terms of natural justice despite what the written law stipulated. It was wrong because it did not follow the principles of natural justice.

In law, judges always make reference to “common sense”. Do you know why? Because natural justice which overrides, requires you to “reason rationally”. Even if you are following the written law, you are expected to reason.

In UK, we study law but hand in hand with Ethics and Policy. And where the law contradicts with the ethics and policy, we are required to seek advice from our professional bodies. The written law is not always right. But natural law is always right.

When you read the principle of legal realism which is the third theory of jurisprudence. You will realise that written law is basically not what it dictates but what the legislators, judges, and the public do with it. That is why natural justice prevails all the time.

Another example of bad law and bad law making process is when M7 wanted to remove the principle of innocence until proven guilty. This is a principle of natural justice as well. It doesn’t matter whether this law goes through the process or not, it is a bad law and the courts must not follow it.

RICHARD MUKASA
LONDON