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Presidential Immunity from Criminal Prosecution in the Ugandan Constitution: Drafting History and Emerging Jurisprudence

Document Cited authorities 1 Cited in Related
Vincent
DOI10.3366/ajicl.2014.0084
Date01 February 2014
Pages140-154
Published date01 February 2014
AuthorJamil Ddamulira Mujuzi
INTRODUCTION

The practice of the International Criminal Court (ICC) and the Special Court for Sierra Leone makes it clear that presidential immunity is not a defence for those alleged to have committed international crimes, such as war crimes and crimes against humanity.1

A warrant for the arrest of the president of Sudan was issued by the International Criminal Court although he was an incumbent president. The former president of Liberia, Charles Taylor, was also prosecuted before the Special Court for Sierra Leone. The current president of Kenya is also on trial before the International Criminal Court.

In many African countries a sitting head of state is immune from prosecution in the domestic courts not only for breaking the country's laws but also for breaking international law.2

See generally C. B. Murungu, Immunity of State Officials and Prosecution of International Crimes in Africa, unpublished PhD thesis, University of Pretoria (2011), pp. 194–278.

 Uganda has had a long history of presidential immunity from criminal prosecution. Article 34(2) of the 1966 Constitution of Uganda provided that ‘[t]he President shall […] take precedence over all persons in Uganda and shall not be liable to any proceedings whatsoever in any court.’3

The Constitution of Uganda, 15 April 1966.

 The same provision appeared in article 24(3) of the 1967 Constitution. When Ugandans enacted a new Constitution in 1995, articles 98(4)&(5) were included, and they provide that a president is immune from criminal prosecution but that that immunity expires when he ceases to be president. On 14 June 2002 Uganda ratified the Rome Statute of the International Criminal Court and in 2010 passed the International Criminal Court Act,4

International Criminal Court Act, No. 11 of 2010.

 which, amongst other things, provides under section 25 that the fact that someone is immune from prosecution under domestic law does not mean that he is immune from surrender to the ICC for prosecution for international crimes. There appears to be a direct tension between articles 98(4)&(5) of the Constitution and section 25 of the International Criminal Court Act. This article looks at the drafting history of articles 98(4)&(5) and how they have been interpreted by the Constitutional Court. It thereafter analyses the Constitutional Court's judgments in the light of the drafting history of articles 98(4)&(5). The article argues that the issue of whether a Ugandan president could be arrested in Uganda on the basis of the International Criminal Court Act is contentious. The issue of presidential immunity in Uganda is a live one. In the wake of an allegation in early 2013 that the president could have been bribed by a foreign oil company to secure oil exploration rights, one Member of Parliament said that the president should not invoke presidential immunity to avoid explaining to Ugandans whether or not the said allegations were founded: ‘[i]t is not enough to say the President enjoys immunity. In the court of public opinion, President Museveni now has to explain himself to Ugandans.’5

N. Wesonga, ‘MPs Want Museveni Defence on Oil Deal’, Daily Monitor, 19 March 2013, available at http://www.monitor.co.ug/News/National/MPs-want-Museveni-defence-on-oil-deal/-/688334/1723808/-/1nv347z/-/index.html (accessed 25 May 2013).

 It has also been reported that a Member of Parliament from the ruling party, the National Resistance Movement, Mr Martin Andi Drito, proposed a constitutional amendment draft Bill called the Constitutional Amendment (Immunity for the Outgoing President) Bill 2012, which seeks to amend article 98 of the Constitution to ensure that even after office the president is immune from prosecution because it is ‘necessary at this time in the interest of the country to make changes for a smooth transition in future’.6

See S. Naturinda, ‘NRM Legislator to Table Bill on Extending Presidential Immunity’, Daily Monitor, 22 September 2012, available at http://www.monitor.co.ug/News/National/ NRM-legislator-to-table-Bill-on-extending-presidential-immunity/-/688334/1492602/-/5o8jnyz/ -/index.html (accessed 25 May 2013).

 This move was opposed by opposition Members of Parliament and it is not clear what the status of the Bill is now. However, the reasoning behind the Bill is that without immunity from prosecution it would be difficult for some people to leave the office of the president in a country where there are no presidential term limits. There have also been reports that presidential immunity was invoked to absolve the president from wrongdoing in a case where he was allegedly personally involved in a scandal in which the government lost billions of shillings in compensating businessmen.7

Y. Mugerwa, ‘Museveni Cleared of Basajja Refund Claims’, Daily Monitor, 9 March 2012, available at http://www.monitor.co.ug/News/National/-/688334/1323118/-/b0tjb5z/-/index.html (accessed 25 May 2013).

 It is against that background that the issue of presidential immunity in Uganda must be examined THE UGANDA CONSTITUTIONAL COMMISSION

In 1988 the Ugandan government established the Uganda Constitutional Commission, popularly known as the Odoki Commission because it was chaired by Mr Benjamin Odoki, to travel throughout the whole country and gather people's views on what they thought should be included in the new constitution. The Odoki Commission presented this information in a report that was to be debated by the Constituent Assembly in the process of making the new constitution. Presidential immunity was one of the issues on which people made submissions. The Odoki Commission wrote:

Many people have questioned the rationale of the President's immunity from prosecution [under the Constitution]. The President is immune from any proceedings whatsoever in any court. People argue that such a provision has been misused by past presidents. The majority views submitted on this issue were opposed to the immunity. They argued that the President is like any other person and if he or she does commit a crime he or she should face the courts of law like anyone else.8

The Report of the Uganda Constitutional Commission: Analysis and Recommendations, Uganda Printing and Publishing Corporation (1992), para. 12.81.

The above quotation shows that most Ugandans were opposed to the inclusion of a provision in the constitution that guaranteed the president immunity from prosecution. Their submissions were based on, amongst other things, the history of Uganda, which was characterised by gross human rights violations.9

See Commission of Inquiry into Violations of Human Rights, The Report of the Commission of Inquiry into the Violations of Human Rights: Findings, Conclusions and Recommendations (1994).

 Their hope was that subjecting the president to the same law that governs all Ugandans would be one of the ways of ensuring that the president acted in accordance with the law for fear of prosecution. The above quotation also does not reveal whether there were any Ugandans who made submissions supporting the inclusion of a provision in the constitution on presidential immunity; however, in its report on the issue of presidential immunity, the Odoki Commission wrote:

The immunity is meant to preserve the dignity of the office of the president. Although the consensus is that the President should not be above the court proceedings, it is our considered view that the President should be above prosecution in any court of law. It would be absurd if the President who takes precedence over all people in that country is liable to court proceedings. The office of the president should have dignity, honour and respect from the people. However, the President who has committed serious mistakes could be removed from office by either a vote of no confidence or impeachment by Parliament. He could be taken to court when he is no longer the President. However, while the President should not be taken to court, in case of an offence committed by the office of the president (e.g. vehicle accident involving a presidential convoy), the victim should be in position to sue the Attorney-General. The immunity of the President refers to the President as a person and not government property and institutions.10

The Report of the Uganda Constitutional Commission, supra note 8, para. 12.82.

Against that background the Odoki Commission recommended that

The Constitution should provide for immunity of the President from suit and prosecution in any court of law while still President. When, however, the President leaves office he or she shall be personally liable for civil and criminal acts committed while in office and the time of limitation should not begin to run until the President has vacated office.11

The Report of the Uganda Constitutional Commission, supra note 8, para. 12.83.

The above quotations show that at least most Ugandans were opposed to the inclusion of a provision in the constitution which granted the incumbent President immunity from prosecution. However, the Odoki Commission was of the view that it was necessary for the new constitution to include a provision to the effect that the president should be immune from prosecution while still holding office.

 THE CONSTITUENT ASSEMBLY

During the Constituent Assembly debates, some delegates argued that the people they were representing supported the provision granting the president immunity from prosecution or any court proceedings. One delegate submitted that the people he represented were of the ‘view that the president should, while in office be immune from ordinary prosecutions’ but added that his people were ‘in agreement that it is a necessity to impinge [sic] the President when he fails to perform, disregard the Constitution or abuses office’.12

Proceedings of the Constituent Assembly (Official Report), Uganda Printing and Publishing Corporation (1994–5) submissions by Mr Omute, 22 July 1994, p. 1105.

Another delegate argued that although the people he...

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