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.
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- Spring '19
- President of the United States, Member of Parliament, Head of state