Kadaga’s proposed disciplinary action against media is unconstitutional – Law Professor

(This article was first published by Daily Monitor on 21 September 2016. It’s republished with permission from the paper)

By J.Oloka-Onyango

I have a great deal of respect for Rebecca Kadaga, the Speaker of Parliament, and on numerous occasions I have publicly defended her decisions on controversial matters concerning the operation of our Legislature especially in relation to the Executive.

However, her recent remarks about the media are both ill-advised and raise a great deal of concern about the depth of her commitment to the rule of law and democratic governance in the country.

In calling for editors and journalists to be charged with the colonial offence of “Contempt of Parliament,” the Speaker not only demonstrates that she has a very thin skin for legitimate criticism, but she is also acting much more executive-minded than the Executive itself. Her remarks are a classic case of blaming the messenger.

The fact is that the media is only reporting on what Parliament itself has decided: To reward themselves with numerous unjustified perks and allowances especially when teachers, health workers and ordinary Ugandans are all being told to tighten their belts.

Instead of listening to this message, the reaction of the Speaker and our honourable MPs is not only to hurl all blame and insults at those who are the carriers of the message, but to also attempt to humiliate and ultimately castrate the messenger.

But more importantly, the suggested disciplinary action against the media is patently unconstitutional. First of all, a word about the offence which is listed in the Rules of Procedure of Parliament. The offence originated from the Common Law of England where it was used in only three instances, viz., (i) where a person has deliberately misled Parliament or a parliamentary committee; (ii) where a person has refused to testify or produce documents to a committee of the House, or (iii) where a person has attempted to influence an MP by bribery or threats.

In sum, the offence has a very narrow focus, none of which apply in the instant case. Moreover, the charge of contempt has been invoked in very few instances with the power to fine a person found guilty last used in the English House of Commons in 1666, a whole 350 years ago! In the other Commonwealth countries where the offence is still in existence, it has hardly been used.

Aside from history, an offence such as “Contempt of Parliament” is clearly unconstitutional under the provisions of Uganda’s existing legal regime.

In the first instance, the offence is too vague, thereby violating Article 28(12) of the 1995 Constitution, which specifies that all criminal offences must be clearly defined.

Secondly, the penalty for such an offence must be prescribed by the law. Neither of these conditions are present with respect to the so-called offence of “Contempt of Parliament.”

Lastly, since Parliament in this case is the alleged aggrieved party, to try the media for this offence would amount to acting as judge in its own cause, a clear violation of one of the basic principles of natural justice.

As a last note of caution, the Speaker should recall the old saying, “once bitten, twice shy.” In the 2015 case of Sulaiman Kakaire vs. The Parliamentary Commission, Justice Yasin Nyanzi of the High Court overruled the Speaker’s attempt to violate the rights of parliamentary reporters by arbitrarily banning them from the House, finding the action of the Speaker to be high-handed and arbitrary.

To attempt to bring journalists before a disciplinary committee of the House for reportage that is clearly justified and factual would once again place the Speaker on the wrong side of the law.
Instead, given all the other critical issues facing the country at this time, the House needs to take a critical look at itself. Ms Kadaga: Stop blaming the messenger.

Oloka-Onyango is a professor of Law. oloka94@gmail.com.