The petition counsel argued further is not about the

Commander-in-Chief. The petition, counsel argued further, is not about the person of the
President, it seeks for orders aimed at observance of the Constitution by seeking the observance of
fundamental human rights and freedoms of the petitioner and this court has jurisdiction to hear
the petition. He further argued that the petition was brought against the Attorney General and not
the Commander-in-Chief/President. It was Mr. Kambona’s contention that in the petition and
under article 137 (1) of the Constitution, the Court is to determine questions, among which are,
whether certain actions of the Commander-in-Chief/President and UPDF officers were
unconstitutional.
Mr. Tibaruha, for the respondent did not agree. The learned Solicitor General contended, the acts
of the Commander-in-Chief/President cannot be challenged in court. He relied on article 98
clauses 1 and 4 of the Constitution.
According to Mr. Tibaruha, the inport of article 98 (1) is that each of the four attributes
mentioned in the clause namely, Head of State, Head of Government, Commander-in-Chief of the
UPDF and Fountain of Honour, constitutes the person and office of the President. By virtue of
article 98 (1), counsel contended, the President cannot be sued or made liable to any proceedings
in any court, whether in his official or personal capacity whether as Head of State, Head of
Government or Commander-in-Chief of the UPDF. By challenging the actions of the Commander-
in-Chief/President, counsel asserted, the petitioner is subjecting the President to proceedings in
court which is clearly prohibited by the Constitution. The Solicitor General pointed out that in the
Constitution there was one exception which is contained in article 104 (8) which deals with
challenging a Presidential election.
In the present petition, Mr. Tibaruha argued, the bedrock of the case is the alleged act of the
Commander-in-Chief/President in directing the petitioner to resign from his position as an army
representative in Parliament. The petitioner, the Solicitor General pointed out, seeks a declaration
that the act of the Commander-in-Chief/President and the army command, in directing the
petitioner to resign, is inconsistent with and contravenes Articles 80, 83, and 84 of the
Constitution. The whole of the petitioner’s case hinges on that action of the Commander-in-
Chief/President and the other reliefs sought are secondary to and dependent on it. Mr. Tibaruha
19

B.B Bakampa’s Notes: [email protected]
argued further that according to the unchallenged affidavit deponed to by Major General Joshua
Masaba, the UPDF Chief of Staff in support of the answer to the petition, it is clear that the
President and Commander-in-Chief advised the petitioner to resign his position as an army
representative in Parliament on the 27 th May 2005. The petitioner, according to Mr. Tibaruha,
accepted the advice of the Commander-in-Chief/President. This act of the Commander-in-Chief is
not unconstitutional.