The Sub-judice rule and how it hinders Parliament’s Investigations
As per the Parliament rules of procedure, a matter that is before court cannot be discussed on the floor of Parliament for it would prejudice the courts ruling.
(Rule 64: Sub-judice Rule , 2) A matter shall be considered sub-juice if it refers to active criminal or civil proceedings and in the opinion of the Speaker, the discussion of such a matter is likely to prejudice its’ fair determination)
On several occasions for example in 2013, the Public accounts committee (PAC) that was then chaired by MP Kassiano Wadri had scheduled to begin a probe into financial impropriety involving Ugx 10 billion under the Presidential Initiative on Markets. However, the Police was also investigating the same matter meaning that was a no-go area for Parliament.
When you look at Article 164 (1) of the Constitution, which I imagine is superior to any other law including our Rules of Procedure, it says, “The Permanent Secretary or the accounting officer in charge of a Ministry or department shall be accountable to Parliament for the funds in that Ministry or department.” This is a constitutional mandate.
The Auditor-General’s reports are reports to Parliament but what is happens is that the Police use the Auditor-General’s report, which is a report of Parliament before Parliament disposes it off, it use it as its material for investigation.
Key question is, do the Police have powers to use Parliament material which in turn hinders its’ constitutional mandate when we are performing duties under the Constitution? The debate on when matters before court can be considered sub-judice or not continues to bother many members of parliament, as Winnie Kiiza is quoted in the Hansard of Feb 12th 2013.
“Now, in view of your position and guidance, Madam Speaker, since whatever is before the court now and in police the Defence lawyers of the accused person can access custody, what prejudice would it cause to have proceedings in PAC parallel with the proceedings in court in view of that position?”
Speaker Kadaga responded as follows:
“Honorable members, if you can amend the rules and remove the sub-judice rule, I would be happy. That is the rule we have. What do you want me to do about it? These are our rules. It says that if people have been charged and proceedings have begun, that is sub judice; it is in black and white.”
This also brings about another query as to what takes precedence – parliamentary procedure or criminal procedure? If somebody is involved in a crime, must the crime investigators wait for Parliament to do its business?
When Parliament was discussing the Constitution Amendment Bill 2015, MP Ssekikubo Theodore moved a motion, asking the Minister for Justice to withdraw clause 4 of the bill, the clause proposed an amendment that suggests that one ceases to be a member of Parliament if they leave a political party that they stood for as a candidate to join Parliament. Ssekikubo’s reason for the withdrawal was based on the sub-judice rule under Parliament’s rules of Procedure.
Parliament needs to put a few heads together – may be the legal minds and others – to see how it can sort out this problem. If it continues as a trend, while Parliament is trying to perform under the Constitution and then those in question run to court, and then it will be sub judice and Parliament will not do any work.