Documents filed in the Constitutional court on February 18, provide some of the strongest legal arguments yet for and against the appointment of General Aronda Nyakairima, a serving military officer, as minister for Internal Affairs.
The case stems from a petition filed by Kampala Lawyer Eron Kiiza in June 2013, challenging Nyakairima’s appointment in May.
The petitioner says the appointment is a gross abuse of the Constitution for an army officer, to serve in a politically-partisan position.
Before his appointment, Nyakairima was the chief of defence forces but didn’t resign from the army before joining cabinet.
According to his conference notes, Kiiza intends to argue that Nyakairima’s appointment offends Article 2 of the Constitution, which makes the Constitution Uganda’s supreme law.
He also alleges breach of sections 37 and 99 of the Uganda People’s Defence Forces Act 2005. These sections bar soldiers from civil employment. By extension, Kiiza argues, an officer would have to retire from the army before taking up civil employment.
During submissions, Kiiza’s lawyers will argue that the office of the minister is a political office hence Nyakairima’s appointment contravenes section 16 of the Political Parties and Organizations Act, 2005, which prohibits soldiers from participating in partisan politics.
According to Kiiza, by Museveni appointing Nyakairima to the said ministerial position, he offended Article 99 (1), 2 and 3 of the Constitution which enjoin him as the president to respect, abide, uphold and safeguard the constitution and other laws.
He argues that Nyakairima’s appointment contravened Article 208(2) which stipulates that every member of the UPDF must be non-partisan and subordinate to civilian authority. Accordingly, he insists that the cabinet Nyakairima joined as a minister is a partisan institution since Uganda is under a multiparty dispensation.
“Uganda is currently ruled by the NRM government and all members of cabinet are partisan owing to Article 117 and common law doctrine of collective responsibility. It is not constitutionally or practically possible for a person who is part of cabinet to be non-partisan,” Kiiza’s notes read.
Conversely, he maintains that under constitutional Article 208 (2), civilian authority includes cabinet, hence Nyakairima, a military person cannot be part of civilian authority.
“One cannot be part of civilian authority and at the same time be subordinate to it. For a senior army officer to join cabinet, the effect is for the military to be fused with civilian authority to which it is supposed to be subordinate. Can a person be subordinate to himself?” Kiiza asks in the notes.
Kiiza asserts that Nyakairima’s appointment went against the preamble of the constitution. He says the preamble states that the constitution was inspired by Uganda’s turbulent history which its framers had sought to cure.
“The military had been central to the political instability in Uganda. Hence the constitution sought a constitutional order in which the army had no role in politics and was subordinate to civilian authority,” he says.
“The preamble reflects the desire of framers of the constitution to shift power from guns to the people hence the president’s appointment of the second respondent [Nyakairima] to a ministerial position is therefore insensitive to, inconsistent with and in contravention of the preamble of the constitution,” Kiiza’s notes state.
In reply, Attorney General (AG) Peter Nyombi, says the petition is misconceived and an abuse of the court process. In his conference notes seen by The Observer, Nyombi states that Nyakairima’s appointment does not contravene Articles 2, 208(2), 99(1), (2) and (3) 210, 209.
On the contrary, the AG will argue that Nyakairima’s appointment is in conformity with Article 113 of the Constitution. The article stipulates: “Cabinet ministers shall be appointed by the president with the approval of Parliament or persons qualified to be elected Members of parliament.”
That article, he will argue, does not preclude a serving army officer. The AG will also claim that Nyakairima did not become a politician by joining Cabinet, as one can serve the government without doing politics.
The Constitutional court is yet to give the day for final submissions.