UHRC TRIBUNALS ILLEGAL

OPINION

UHRC TRIBUNALS ILLEGAL

By Peter Magomu Mashate,

At the heart of constitutionalism and rule of law is the doctrine of preservation and upholding of Human rights. For example, the right to Life is absolute and non- negotiable and every country worth of its salt legislates for this objective. In the UK its via the Human rights Act 1998 whereas in Uganda its via Article 51 of the Constitution of Uganda.

The role for the interpretation of the Constitution of Uganda is vested in the Constitutional Court when anomalies and contradictions become apparent. The doctrine of Separation of Powers is as non-negotiable as the application of the constitutional provisions themselves and Parliament in its wisdom provided mechanism within the constitution for resolving any contradictions. This is invariably the case in all universal democratic dispensations. Therefore, acting out of whim and/or outside the constitution may be arguably ultra vires (unlawful).

The Uganda Human Rights Commission is a Constitutional Organ pursuant to Article 51of the Constitution, hence, Article 51 (1) states thus;

“(1) There shall be a commission called the Uganda Human Rights Commission.

(2) The commission shall be composed of a chairperson and not less than three other persons appointed by the President with the approval of Parliament.

(3) The chairperson of the commission shall be a judge of the High Court or a person qualified to hold that office”.

Therefore, Article 51 (2) and (3) respectively prescribe sine qua non – (non negotiable constitutional essential conditions) that are absolutely necessary for a legitimately constituted and judicially viable Human Rights Commission.

Parliament must have intended and therefore vested judicial powers and the inherent judicial wisdom relating to such fundamental human rights issues in the hands of a qualified and competent Chairman heading and in concert with the other three members (Commissioners) regardless of their judicial qualification, save for, their moral uprightness enshrined in 51 (4)-therefore a facti, not juris to constitute the quorum besides the position of Chairman. This question of quorum is a constitutional provision and as the UHRC stands to date is inconsistent with the provision article 51 and therefore without lawful mandate to do business.

It should be clearly underlined, unless, constitutionally rebutted to the contrary that the function within the meaning of 51(2) relating to the functions of the Chairman are non delegable to the three Commissioners particularly if their competence and or indeed qualification are inconsistent with article 143 of the Constitution of Uganda relating to appointment of judges and judicial officers.

Parliament may have missed the opportunity to rectify this apparent contradiction in the Human Rights Commission during the passage of the operationising Human Rights Act and the only way forward is to normalise it by way of Statutory Instrument to the Human rights Act and better still amendment to Article 51of the Constitution. The role and functions of the Chairman is juris and sine qua non.

I would most respectfully submit that the Regional tribunals as previously constituted in absence of an enabling legal instrument may have not been in accordance with the letter and spirit of the Constitution and in particular article 51 and article 143 relating to qualifications for the appointment of Judges. Even if the regional tribunals headed by any of the Commissioners (besides the chairman) were assisted by an Advocate or State Attorney this would not be compliant with Article 51 as the decisions are of the Commissioner not the support staff by whatever name called. The way around it is to have Commissioners who are compliant with article 143 of Uganda’s Constitution. In any event, human rights are “Dead Serious non-negotiable matter”.

If so, all their adjudications and judgements to date may be ultra vires (Illegal). Even if they are deemed to have been legally constituted, which is vigorously disputed, they may have been constituted at variance with the letter and spirit of the Constitution which takes precedence in event of ambiguity or conflict of laws.

It would seem to me that while article 51 (3) specifically stipulates the attributes of a Chairman the rest of the article in relation to qualifications of the three Commissioners remains silent.

This is not unconstitutional after all it was the intention of Parliament which further prescribed the appointment of the membership of the Commission in general without specific attributes in 51 (2) but deemed it necessary to specify in 51 (3).

On this basis its arguable that the function and judicial obligation expressed and or implied in 51(3) cannot be delegated because had Parliament deemed it so, it would have specified as indeed it deemed necessary at article 51 (3).

The other pertinent question inevitably up for debate is as to whether or not the Regional Tribunals have had the Constitutional mandate to operate with a single Commissioner even in the light of the Human rights Act which is subject to the supremacy of the constitution in any event. My take is that they are illegal and negate the letter and spirit of the constitution in the light of such fundamental significance of the UHRC to a free and democratic people of Uganda. It is important and urgent to normalise quorum and constitutional compliance of the UHRC to avoid future litigation and hefty pay out in costs at the expense of the tax-payer.

In England and Wales, by statute, the Justices of the Peace do not require legal training qualifications. However, candidates must demonstrate six ‘key qualities’ – Good Character; Commitment and Reliability; Social Awareness; Sound Judgement; Understanding and Communication; Maturity and Sound Temperament. Once appointed, magistrates undertake mandatory training and are always supported in court by a trained legal advisor to guide them on points of law and procedure. The Clerk’s duty is non-delegable as its juris. It would probably be more difficult for the Chairman of the Uganda Human Rights Commission to delegate and or even derogate from Article 51 of the Constitution of Uganda.

The way out of this quagmire is for the Appointing Authority to do the needful and fully constitute the Commission in accordance with article 51 (2). Further and alternatively, for the Attorney General to come to Parliament and cause an amendment to Article 51 and or by way of statutory instrument revisit the Human Rights Act particularly in relation to regional tribunals as a matter of urgency because the human rights commodity is the most precious commodity for all citizens of our country Uganda.

The writer is a Barrister-at-Law, Lincolins Inn ( London).