The Sub-ju­dice rule and how it hin­ders Par­lia­men­t’s In­ves­ti­ga­tions

By: Jacky Kemigisa

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.