On August 1 2014, the Constitutional Court of Uganda ruled that the Anti-Homosexuality Act (commonly referred to as AHA) which had been branded as draconian and “abominable” by rights groups, was illegal saying it was wrongly passed by parliament. The ruling was received with mixed reactions from both anti-gay groups and gay rights advocates.
According to the court’s ruling, the law had been passed in December 2013 without the necessary quorum required by the Constitution and parliamentary rules of procedure. Article 88(1) of the Constitution, states that the quoram when voting in Parliament, shall be one-third of the members entitled to vote.
The Speaker of Parliament (The Chairperson), Rt. Hon. Rebecca Kadaga paid little heed to Constitutional requirements for voting on bills in parliament and ignored warnings from the Prime Minister that there was not a quorum at the time of the vote.
When the Bill was accented to by the president (thereby becoming a law), to those who knew how the law operates, expected an avalanche of constitutional petitions by legal and rights activists but to those who had gone into early celebrations thanking the president for “the Christmas gift”, got the shocker of their lives way too earlier than preparations for the following year’s Christmas carols .
To the individuals who see homosexuality as a threat to family and society in general, the court’s overturn of the law, provoked anger and as of January 2015, there had been a renewed campaign by anti-gay Members of Parliament (MPs) to get the law passed again, this time in line with the rules governing the functioning of the parliament.
Any person who follows activities going on in our parliament, would tell you that this was not the first time a bill went through it without the minimum number of legislators required and later signed into law. Anti-Pornography Act (2014), Press and Journalist Regulations (2014), Non-Governmental Organization Registration (Amendment) Bill (2013) and The Public Order Management Act (2013) are some of the laws which have gone through the same.
Missing parliamentary sessions is also something not new to Uganda’s MPs. It is common to find more than 60% of the MPs skipping sessions when debating Bills in parliament because they are busy engaged with personal business outside the August House. It is also common on the other hand, to find the house full when it is only time for voting which in itself, has consequences.
Low attendance is a chronic problem for the National Parliament of Uganda. For example, data from the Uganda Parliamentary Scorecard Project developed by the African Leadership Institute (AfLI) and Columbia University, shows that for the 8th Parliament of Uganda (2006-2011), attendance rates averaged less than 44%. The current 9th Parliament is almost also not different.
This raises the issue of whether quorum is that important anyway. Responding to critics in Sunday Vision of August 17 2014, Rt. Hon. Kadaga stated that quorum is not an issue and went ahead to question if she should do nothing because a few members are not in the house yet she has a duty to this country. According to her, the court should also have thrown away the UNESCO Law, Finance Law, VAT Law and the Income Tax Law– perhaps everything should have been thrown out if quorum was(is) that important implying that the question of quorum has been a very big issue in parliament.
Lets look at the issue of quorum elsewhere. The quorum in the British House of Commons in the event of a division (i.e. voting) is 40 MPs, out of a total of 650 MPs. It appears that a quorum is not required during debates, although it is not clear whether such interpretation is consistent with the Standing Orders or simply a gentlemen’s agreement. In Canada’s House of Commons, it is 20 MPs for a meeting of the House (out of a total of 308), which number has remained unchanged since 1867 and in Australia’s Lower House, it is one-fifth of the total number of MPs and was reduced from one-third of the total number of MPs in 1989.
However, the significance of quorum is simple. Under common parliamentary law, you always have to have a quorum. After all, it is the minimum number of members who must be present at a meeting to carry on parliamentary business. While there might be some exceptions, no motion or votes should occur unless there is quorum. As a result, if quorum is lost during the plenary without a statute or rule to the contrary, business in the house must stop.
Therefore, passing laws without the required quorum has adverse consequences both legal and financial of which, its the tax payers who pay the prize. Such a law as stated above, can never escape a constitutional challenge and secondly, when the law bounces back, it means more debates and facilitation of the MPs whose annual budget which is over UGX 10 Billion shillings. Already, it is hard to sustain such a big number of MPs in this poor economic climate of Uganda and thus that means no work done leading to wastage of resources and time.
More so, questions still arise asking why quite a big number of MPs would decide to be absent the day a bill is due to be passed in the parliament. The role of MPs under article 79 of the 1995 Constitution of the Republic of Uganda is to make laws for the good governance of our country. It is them who have the only mandate to draft and legislate laws which places them in an important position than the rest in the country.
So such instances leave tax payers and analysts wondering if the absent members of parliament deliberately staying away to ensure that such laws do not pass, or they are away for other reasons. It is very possible that some due to the sensitivity of the bill being debated, seek to avoid the wrath of their constituents by not being seen to block any such a law or my default and implication being seen to support what members of the public consider to be immorality or not relevant to them.
consequently, in ignoring the common-sense objections of those who see risks in passing a law without quorum, the Rt. Hon. Speakers must be guided by past practice and comforted by accumulated experience. If past illegalities could not stand, the current cannot also stand and thus reasoning of the law should be applied rather than public perception of the masses who are not aware of how parliamentary business is conducted.
There is little reason for any Member to be absent from Parliamentary proceedings. Unless where he or she has been excused on medical grounds or is attending to urgent matters of the state, members have both the moral and procedural responsibility to make sure that they are present in the August House when plenary debates are happening.
Nevertheless, the people want, and expect, every Member whom they elected to represent them in Parliament, to participate in debates even though the outcomes of divisions are foregone conclusions. Every Member has been elected to be a Member of Parliament first and foremost. It is now them to win the confidence of the electorate through showing their competence in parliament other than doing the contrary.