Businge Police Fred v Attorney General and Another (Constitutional Petition No. 24 of 2012) [2015] UGCC 98 (28 September 2015)

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## THE REPUBLIC OF UGANDA

# IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA

## **CONSTITUTIONAL PETITION NO.24 OF 2012**

**BUSINGE POLICE FRED PETITONER**

# **VERSUS**

#### **RESPONDENTS 1. ATTORNEY GENERAL 2. HON. BIHANDE BWAMBALE YOKASI**

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**CORAM: HON. MR. JUSTICE S. B. K. KAVUMA, DCJ HON. MR. JUSTICE ELDAD MWANGUSYA, JCC HON. MR. JUSTICE RICHARD BUTEERA, JCC HON. LADY JUSTICE PROF. L. EKIRIKUBINZA TIBATEMWA, JCC HON. MR. JUSTICE F. M. S. EGONDA NTENDE, JCC**

## **25 JUDGMENT OF THE COURT:**

funds. The petitioner is a resident and a registered voter in Bukonzo East Constituency, Kasese District. He stated that he is an ardent activist in the fight against corruption, abuse of office, wastage and misuse of public resources and public

Constituency in which the petitioner is resident and a registered vote The second respondent is the elected Member of Parliament for the same

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The second respondent was charged in the Anti-Corruption Division of the High Court on 3rd April 2012. He was tried and convicted on his own plea of guilty on two counts of uttering of a false document c/s 351 and 347 ofthe Penal Code Act and Embezzlement c/s 19 ofthe Anti-Corruption Act 2009. He was sentenced **to** a fine of one million shillings (1,000,000/=) or to two years imprisonment on the first count and to a fine oftwo million Uganda shillings (2,000,000) or three years imprisonment on the second count. The prison terms were to run concurrently.

10 The petitioner brought this Petition under **Article 137** ofthe Constitution and prays that the court may:-

**"a) Grant declarations:**

- i. **That the seat of Member of Parliament Bukonzo County East Constituency fell vacant when the 2nd respondent who was representing the said Constituency was on the 3rd day of April 2012 convicted of offences involving dishonesty and moral turpitude; namely, uttering false documents contrary to Sections 31 and 347 of the Penal Code Act and Embezzlement contrary to Section 19 of the Anti Corruption Act.** - ii. **That from the 3rd day of April 2012 when the 2nd respondent was convicted of offences involving dishonesty and moral turpitude, the 2nd respondent ought to have ceased to receive any salaries, allowances and any other emoluments and privileges accorded to a Member of Parliament he having ceased to be a Member of Parliament.** - b) Grant orders of redress namely:

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- **i. The 2nd respondent vacates his seat in Parliament immediately.** - . iii. **The 2nd respondent refunds to the consolidated fund all the monies illegally and wrongfully paid to him in form of salaries, allowances, gratuities and any other emoluments he shall have been paid by virtue of holding out as a Member of Parliament from the 3rd** day **of April 2012.** - **10** iv. **An injunction restraining Government, its organs and agencies from making any such further payments to the 2nd respondent.** - **v. An order that the respondents pay the petitioner the costs of this petition."** - **15**

At the hearing ofthis Petition, learned counsel Mr. Boniface Ruhindi Ngaruye and Mr. Peter Kibirango, (counsel for the petitioner) appeared for the petitioner.

20 Learned counsel, Mr. David Mpanga and Mr. Kenneth Kalibala, (counsel for the second respondent) appeared for the second respondent.

Mr. Elisha Bafirawala, a Senior State Attorney from the Attorney General'<sup>s</sup> Chambers (counsel for the first respondent) appeared for the first respondent.

The petitioner and the second respondent were in court. <sup>25</sup>

At the scheduling conference, the parties agreed determination by Court: on the following issues for

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- "1. Whether or not the petition raises any questions for Constitutional interpretation. - 2. If issue No.l is answered in the affirmative what are those questions? - (a)Whether or not embezzlement c/s 19 of the Anti Corruption Act and uttering false documents c/s 351 and 347 of the Penal Code are crimes involving dishonesty or moral turpitude within the meaning of Article 80(2) (f) of the Constitution. - (b)What amounts to a crime involving dishonesty or moral turpitude within the meaning of Article 80(2) (f) of the Constitution? - (c) Whether or not convictions that occur when one is already a Member of Parliament are contemplated under Articles 80(2) (1) read together with Article 83(1) (b) of the Constitution as a basis for vacation from Parliament by a Member of Parliament.

(d)Whether or not the omission by the 2nd respondent to vacate Parliament and his act of continuing to participate in Parliamentary business as an MP and of continuing to draw salaries, allowances and other emoluments after being convicted of embezzlement and uttering false documents are not inconsistent with and in contravention of Articles 83(1) (b), 80(2)

i. C. Cto

(f) and 85(1) of the Constitution and National Objective and Directive Principle XXVI (iii) read together with Article 8A.

(e) Whether or not the act of the Government of Uganda, its organs and agencies allowing the 2nd respondent to continue sitting and participating in the proceedings of Parliament and continuing to pay the 2nd respondent and omitting to stop paying him salaries, allowances and other emoluments are not inconsistent with National Objective and Directive Principle XXVI read together with Article 8A." (sic)

## Submissions of counsel for the petitioner.

15 Counsel for the petitioner submitted that the second respondent having been convicted, must have vacated his seat in the House immediately, as he no longer qualified to be a Member ofParliament

According to counsel, the second respondent was asked by the petitioner and other voters to vacate his seat in Parliament in view ofthe cited constitutional provisions but he failed to do so and by this conduct, the second respondent contravened Article 80(2)(f) read together with Article 83(l)(a) ofthe Constitution.

The other voters and the petitioner then asked the Speaker to take action and remove the second respondent from Parliament but no action was taken by her. The Inspector General of Government also asked the Speaker of Parliament and the Attorney General to give effect to the provisions ofthe Constitution but neither

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of them took any action. According to counsel, that is why the Attorney General was brought as a co-respondent.

5 As a result ofthe said refusal to vacate Parliament, the second respondent remains in the House after conviction and sentence. He continues to draw salaries and emoluments from the taxpayer when he should have vacated Parliament and this, according to counsel, is contrary to and in contravention ofthe cited constitutional provisions.

- 10 15 Counsel for the petitioner invited this Court to determine whether embezzlement under the Anti Corruption Act and uttering a false document contrary to Section 351 and 347 of the Penal Code Act are crimes involving dishonesty or moral turpitude within the meaning of Article 80 (2)(f) of the Constitution. Counsel invited the Court to help interpret whether or not convictions that occur when one is a Member of Parliament, (MP), are comptemplated under Article 80(2)(f) read - together with Article 83(l)(b) ofthe Constitution and are a basis for vacation from Parliament by a sitting MP

20 Counsel for the petitioner contended that the failure by the second respondent to vacate Parliament and his act of continuing to participate in parliamentary business as an MP and of continuing to draw salaries, allowances and emoluments after being convicted, is conduct that is contrary to and in contravention of the constitutional articles cited by the petitioner.

25 Counsel for the petitioner contended further that the act of the Government of Uganda and its organs and agents, allowing the second respondent to continue sitting and participating in the proceedings of Parliament and continuing to be paid

was inconsistent with the National Objective and Directive Principles of State Policy No.26 ofthe Constitution read together with Article 80(a).

Counsel submitted that since the petitioner had stated the actions and omissions of the respondents that contravene and are inconsistent with the cited provisions of the Constitutions, he had properly raised before Court a case for constitutional interpretation. The Court has the duty under Article 37 of the Constitution to interpret the cited provisions of the Constitution as against the cited conduct and omissions ofthe respondents.

He prayed for the Court to grant the Petition with the declarations and orders sought and the costs ofthe Petition.

### Submissions by counsel for the respondents.

15 Counsel for the second respondent submitted that the instant Petition did not raise any issue for constitutional interpretation.

According to counsel, what the petitioner is seeking from this Court is a declaration and orders on whether the seat for Bukonjo East Constituency became vacant when the second respondent pleaded guilty and was convicted by court.

Counsel contended, that was not a matter for constitutional interpretation but it was one for determination by the High Court under Article 86 ofthe Constitution.

25 Counsel submitted that the instant Petition was wrongly before this Constitutional Court as it seeks enforcement of the cited constitutional provisions and there is no issue for constitutional interpretation.

He submitted that the Petition should be dismissed and the petitioner may proceed before the High Court under Article 86, the specific article ofthe Constitution. He prayed for the dismissal ofthe Petition with costs.

**5** The first respondent, in his pleadings conceded that the continued presence ofthe second respondent in Parliament is a violation of **Article 83(1) (b)** and **Article 80(2) (f)** of the Constitution. The Attorney General, according to their answer to the Petition, contended that the seat of the second respondent should be declared vacant in accordance with those articles ofthe Constitution.

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Counsel for the <sup>1</sup>st respondent in his submissions associated himself with those of counsel for the second respondent.

**15 20** He submitted that all provisions ofthe Constitution concerning an issue should be considered together to give effect to the instrument or to the challenge before Court. He submitted that to lead to vacation of the second respondent's seat, the conviction would have to relate to a period within 7 years immediately preceding the election. According to counsel, the facts ofthis case do not relate to a period of 7 years preceding the elections and, therefore, the second respondent would not vacate his seat.

Counsel further submitted that **Article 86** is the article that deals with Members of Parliament vacating their seats. That in the instant case, the second respondent was already in Parliament when the crime was committed and, therefore, the vacation of his seat would only be handled by the High Court which has the jurisdiction under **Article** 86 of the Constitution. Mr. Bafirawala submitted that the instant

<sup>V</sup> v. \*V>r' v "3: Petition was improperly before this Court and is misconceived. He prayed this Court to dismiss it with costs.

We find that the submissions of counsel for the 1st respondent are a total departure from the filed pleadings of the Attorney General whom he represented. This is strange and unsustainable. A party is bound by his pleadings. This position ofthe law was stated by the Supreme Court in **Interfreight Forwarders (U) Ltd v East African Development Bank [1990-1994] EA 117** when it held:-

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**succeed on a case not so set up by him and be allowed at the trial to change his case or set up a case inconsistent with which he alleged in the pleadings except by way of amendment of the pleadings." "The system of pleadings is necessary in litigation. It operates to define 'ancTdeliver it with clarity and precision the real matters in controversy '"betweenTthe parties upon which they can prepare and present their 'respective cases and upon which the Court will be called upon to <sup>&</sup>lt;~adjudicate between them. It thus serves the double purposes of —infornring^ach^party what is the case of the opposite party which will c govern the interlocutory proceedings before the trial and which tUe' ' Court will have to determine at the trial.** See **Bullen and Leacke~aTrd~ Jacob's Precedent (12ed) at 3. Thus, issues are formed on thecase~of fbe^arties so disclosed in the pleadings and evidencelAdirectedat-the trial to the proof of the case so set and covered by the issues framecT therein. A party is expected and is bound to prove the caseas~aH€ged-byhim and as covered in the issues framed. He will not be allowed "ttr**

Counsel for the 1st respondent did not get leave ofCourt to amend his pleadings'.

The Supreme Court in a later case of Uganda Breweries Limited vs. Uganda Railways Corporation Civil appeal No.6 of 2001 Ug. SC I (24<sup>th</sup> April 2002) quoted with approval its earlier decision in Interfreight Forwarders (U) Ltd (supra). Where Oder, (JSC as he then was) stated:

"In my own judgment in the case of Interfreight Forwarders (U) Ltd. (supra), I explained in detail the purpose which pleadings serve in litigation. It operates, inter alia, to define and delineate with clarity and precision the real mattes in controversy between the parties upon which they can prepare and present their respective cases, and upon which the court will be called upon to adjudge between them.

- In Captain Harry Fandy vs. Caspair Air Charter (Supra), SIR **RONALD SINCLAIR said:** - "the object of pleadings is of course, to ensure that both parties shall know what are the points in issue between them, so that each may have full information of the case he has to meet and prepare his evidence tosupport his own case or to meet that of his opponent.'

I agree with that view.

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That must be the reason for the legal requirement that a party should not depart from its pleadings."

Applying the legal principle as stated above to the instant situation therefore, counsel for the 1<sup>st</sup> respondent would not be allowed to depart from his filed pleadings without the leave of Court and without amendment of the said pleadings.

Counsel for the petitioner submitted in rejoinder that the High Court does not exercise jurisdiction regarding vacation of seats of Members of Parliament exclusively. He contended that in the course of interpreting of articles of **the** Constitution, this Court has jurisdiction to grant remedies. Where the appropriate remedies include declaring seats ofMembers ofParliament to be vacant, this Court has the power and jurisdiction to grant such a remedy. Counsel contended therefore that the petitioner would be entitled to get any appropriate remedy after the Constitutional Court had done the interpretation and found that there it was appropriate to do so.

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## **The resolution by Court:**

- **Issue I** - **1.** Whether or not the petition raises any question for constitutional interpretation. - 15 The Supreme Court has had occasion to state the law on when there is a case or a question for constitutional interpretation in various cases.

In **Baku Raphael Obudra and Obiga Kania vs. The Attorney General Constitutional Appeal No.l of 2003,**\_the Court quoted with approval its earlier holdings in **Major General Tinyefunza v The Attorney General Constitutional Appeal No.l of 1997(SP)** and held:-

**"that a petition brought under Article 137(3) of the Constitution sufficiently discloses a cause of action if it describes the act or omission complained of and shows the provision of the Constitution with which the act or omission is alleged to be inconsistent or which is alleged to have been contravened by the.**

See the act or omission and pray for a declaration to that effect." judgment ofChiefJustice Odoki as he then was.

5 The applicant in this petition stated that the respondent was convicted of the offences of embezzlement c/s 19 of the Anti Corruption Act and uttering false documents c/s 351 and 347 ofthe Penal Code Act. He contended these are crimes involving dishonesty or moral turpitude. He adduced the court record as evidence ofthe conviction.

- 10 He alleged that after the conviction, the respondent continued to stay in Parliament when he should have vacated his seat therein. That conduct of failure to vacate Parliament, according to the petitioner, violates Article 80(2)(f) read together with Article 83(l)(b) ofthe Constitution. - 15 The petitioner further alleges that the 2nd respondent's continued participation in parliamentary business as an MP drawing salaries, allowances and other emoluments after his conviction, violates the cited articles ofthe Constitution.

**20** Mr. David Mpanga for the second respondent contended that the right forum for the petitioner would have been to proceed in the High Court under Article 86 of the Constitution. According to counsel, this Court would not be right to entertain the Petition under a General Provision ofthe Constitution (Article 137) when there is a specific article (Article 86) of the same, under which article the petitioner should have proceeded.

We do not accept the above contention of counsel for the second respondent. Our understanding of Article 137 of the Constitution is that a party whojggtitions for

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constitutional interpretation would have the right to ask the Court for redress and the Constitutional Court has the power and duty to attend to both the constitutional interpretation and the redress applied for ifit deems it appropriate to do so.

5 This Court and the High Court, therefore, in our considered opinion, have concurrent jurisdiction when it comes to the question of a sitting Member of Parliament vacating his/her seat. The Constitution must be looked at as a whole and the rule of harmony in interpreting provisions of the Constitution comes into play.

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We find therefore, that the instant Petition raises matters for Constitutional interpretation and this Court has jurisdiction in the matter. We find that the petitioner in the instant Petition has quite clearly stated the conduct of the respondent which he considers to contravene or to be inconsistent with the articles ofthe Constitution he has cited in his Petition.

We, therefore, find that under **Article 137(3)(b) and (4)** (a) of the Constitution this Court has the duty to consider, determine and then declare whether the alleged conduct of the respondents is indeed inconsistent with or in contravention of the cited articles ofthe Constitution and grant redress ifit considers there is need for it to do so.

We find fortification for this in the Supreme Court decision in **Constitutional Appeal No.2 of 1998, Ismail Serugo vs. Kampala City Council and the Attorney General.** In the lead judgment, Justice Mulenga held:-

**" Such application for redress can be made to the Constitutional Court, only in the context of a petition under Article 137 brought**

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5 **on** principally for interpretation of the Constitution. It is the provisions in clauses (3) and (4) of Article 137 that empower the Constitutional Court, when adjudicating on a petition for interpretation of the Constitution, to grant redress where appropriate. Clause (3) provides in effect, that when a person petitions for a declaration interpretation of the Constitution, he may also petition for redress where appropriate. Clause (4) then provides:

<sup>10</sup> the Constitutional Court may - '(4) where upon determination of the petition under clause (3) of this Article the Constitutional Court considers that there is need for redress in addition to the declaration sought,

(a) Grant an order of redress; or

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(b)Refer the matter to the High Court

It follows that a person who seeks to enforce a right or freedom guaranteed under the Constitution, by claiming redress for its infringement or threatened infringement, but whose claim does not call for an interpretation of the Constitution has to apply to any other competent Court. The Constitutional Court is competent for that purpose only upon determination of a petition under Article 137(3)."

This Court has had the opportunity to express itself on the same issue in Constitutional Petition No.16 of 2013, Hon. Ltd (rtd) Saleh. M. W. Kamba vs. the Attorney General and 4 Others and Constitutional Petition No.21 of 2013, The National Resistance Movement vs. The Attorney General and 4 Others. When it held:-

**not "A matter necessitating the interpretation of Article 86(l)(a) could appropriately be placed before the Constitutional Court. During the resolution of the controversy between the parties, the Constitutional Court may find it appropriate to grant <sup>a</sup> remedy under Article 137(4) of the Constitution. The remedy or remedies this Court may grant might include declaring the seats of the concerned MPs vacant. The Jurisdiction in Article 86 of the Constitution, therefore, is exclusively the preserve of the High Court."**

<sup>10</sup> The above is the correct position ofthe law.

Since we have found that there is a case for constitutional interpretation in this Petition, then on the application of the principle above stated, we find that this Court has the jurisdiction to award appropriate remedies.

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We shall proceed to examine the allegations and analyse the evidence to determine whether the alleged conduct ofthe respondent contravenes or is inconsistent with the cited articles ofthe Constitution.

20 The fact that the respondent was convicted by Court is quite clearly proved. The Anti Corruption Court record of his conviction has been availed to court and it is not contested. The respondent made an effort to explain why he pleaded guilty but this does not, in any way, alter the fact of his conviction.

Under **Article 80(2)(f)**

**"(2) A person is not qualified for election as a Member of Parliament if that person**

**(a)**..............

- **(b) (c)** ................. **(d) -** - **(e)**

**(I) has within the seven years immediately preceding the election been convicted by a competent court of a crime involving dishonesty or moral turpitude; or ".**

Is embezzlement an offence involving dishonesty or moral turpitude?

10 15 Embezzlement is defined in Black's Law Dictionary 6th Edition at page 527 as:- "The fraudulent appropriation of property by one lawfully entrusted with its possession. To *'embezzle<sup>1</sup>* **means wilfully to take, or convert to one's own use, another's money or property, of which the wrongdoer acquired possession lawfully, by reason ofsome office or employment or position of trust."**

Is embezzlement an offence of dishonesty? Dishonesty is defined by the same Dictionary at pate 468 as:

- 20 **"Disposition to lie, cheat, deceive, or defraud, untrustworthiness, lack of integrity. Lack of honesty, probity or integrity in principle, lack of fairness and straightforwardness; disposition to defraud, deceive or betray."** - 25 On conviction for embezzlement the respondent was found to have converted public funds to his own use unlawfully. This clearly fits the definition of being dishonest as given above. To convert public funds to personal u^zis clearly disposition to cheat, deceive and defraud the public. The offender who is the second respondent is, therefore, untrustworthy. We find that the offence of embezzlement involves dishonesty.

<sup>5</sup> Is embezzlement a crime involving moral turpitude?

Moral turpitude is defined in the 6th Edition of Black's Law Dictionary at page 1008 as:-

- **10 "The act of baseness, vileness, or the depravity in private and social duties which man owes to his fellow man, or the society in general, contrary to accepted or customary rule of right and duty between rnan and** man." - <sup>15</sup> Embezzlement ofpublic funds is done unlawfully.

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Under **Article 79** of the Constitution, it is the duty of Parliament to make laws on any matter for the peace, order development and good governance. The second respondent as an M. P. was charged with that duty. An embezzler is one who wilfully takes or converts public funds to ones own use. That is the offence the second respondent committed. He was convicted for breach of the laws he was elected, to make. National Objective and Directive Principle of State Policy number 26(iii) provides:

**"All lawful measures shall be taken to expose, combat and eradicate corruption and abuse or misuse of power by those holding political and other public offices."**

The respondent in the instant Petition was convicted of embezzlement which clearly is in breach of his duty as a legislator. He had a duty to fight corruption. He was found corrupt.

5 The conviction for corruption, especially for an MP, is certainly a breach of his duties to the constituency he represents and to the whole Country. The crime involves moral turpitude. We so find.

**10** 15 How about uttering a false document? One who utters a false document has the intention to lie, to cheat and to deceive. The offence, is therefore, one involving dishonesty as defined above. His obligations as an MP that we stated when considering embezzlement above are the same as those of this offence. We find, therefore, that both embezzlement and uttering a false document are crimes involving dishonesty and moral turpitude as envisage by Article 80(2)(f) of the Constitution.

Is a conviction of one which occurs when one is already a Member of Parliament contemplated under Articles 80(2)(f) read together with Article 83(l)(b) of the Constitution as a basis for vacation of one's seat in Parliament by such a Member?

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Before we proceed to answer the above question, we find it pertinent to state a principle of constitutional interpretation that we consider relevant.

gerere The said principle is that in the interpretation of the Constitution, the entire Constitution has to be read together as an integral whole and no particular provision destroying the other but each sustaining the other. This is the rule of harmony, the rule of completeness and exhaustiveness. See P. K. Sse

**and Another** vs **Attorney General Constitutional Appeal No.1/2002 (SC) and the Attorney General of Tanzania vs Ref. Christopher Mtikila [2010] EA13.**

We shall now apply the principle to the instant Petition:

**5** We have already reproduced **Article** 80(2) (f) above.

It **is** clear from that article that a person is not qualified for election as a Member of Parliament if he has within the seven years immediately preceding an election, been convicted by a competent Court of a crime involving dishonesty or moral turpitude.

The second respondent was convicted of embezzlement and uttering a false document and we have found that both crimes involve dishonesty and moral turpitude.

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The second respondent would therefore be disqualified to be elected a Member of Parliament under **Article 80(2)(f)** if that conviction occurred seven years immediately preceding his election to Parliament. His conviction occurred when he was already elected to Parliament.

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The question that arises then is whether or not a serving Member of Parliament who is convicted ofsuch an offence must vacate his/her seat.

**25 Article 80(2)(4)** has to be read together with **Article 83(l)(b). Article 83(l)(b)** provides:

"83. **Tenure of office of members of Parliament**.

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**(1) A member of Parliament shall vacate his or her seat in Parliament** -

**(a)** ...................................

**disqualified for election as a Article 80 of this Constitution;" (b) if such circumstances arise that if that person were not <sup>a</sup> Member of Parliament would cause that person to be Member of Parliament under**

**10** Clearly, when circumstances arise which would cause a person to be disqualified for election as a Member of Parliament under **Article 80** ofthe Constitution occur to a serving Member of Parliament, that Member of Parliament must vacate his or her seat.

**15** The circumstances that arose with respect to the 2nd respondent are that he was convicted of crimes that would disqualify him to contest for elections under **Article 80 (2)(f).** When **Article 80((2)(f)** is read together with **Article 83(l)(b)** of the Constitution, the effect is that the second respondent should have vacated his seat in Parliament upon conviction.

**20** We note the wording of**Article 83(1)** ofthe Constitution.

> "A **Member of Parliament shall vacate his or her seat in Parliament-"** The underlining is ours for emphasis. The wording of that article of Constitution is mandatory and instructive. The Member shall vacate if the circumstances arise. He does not have to be told by anybody. He has **a** duty to vacate upon conviction.

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We so find.

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*We,* therefore, find in the affirmative with regard to issue one.

#### **Issue** No.2:

- 5 Issue 2 is whether or not the act of the second respondent continuing to draw salaries, allowances and other emoluments when he is not entitled to being in Parliament is inconsistent with or in contravention of **Article 85(1)** of the Constitution of Uganda. - 10 **Article 85(1)** ofthe Constitution provides as follows:-

#### **"85. Emoluments of members of Parliament.**

**(1)A Member of Parliament shall be paid such emoluments, such gratuity and pension, and shall be provided with such facilities as may be determined by Parliament.**

# **(2)A member of Parliament shall not hold any office of profit or emolument likely to compromise his or her office."**

**20** April 2012. 25 The emoluments are paid to a Member of Parliament. The second respondent had ceased to be a member of Parliament and should have vacated his seat in Parliament upon conviction on 3rd April2012. His continued drawing of emoluments after that date was therefore contrary to and in contravention of **Article 85(1)** of the Constitution. It was earned illegally and Court cannot sanction such an illegality. (See **Makula International Ltd vs His Emmnence Cardinal Nsubuga & Anor Civil Appeal No.4 of 1981 Court of Appeal) [1982] HCB 11.** We therefore find in the affirmative to Issue 2.

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### **Issue No.3**

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Having found, as we did on Issue No.l that the second respondent has **a** duty to vacate Parliament under **Article 83 (1) (b)** upon conviction, we find it redundant to consider issue 3 which is in respect of the Speaker and the Attorney General forcing the second respondent to vacate Parliament upon his conviction since our resolution ofissue No.l disposes ofthe Petition.

**10** In view of our findings above, we allow the Petition and as a result the petitioner is entitled to the following declarations and orders.

#### **Declarations.**

15 20 **(l)The seat of Member of Parliament for Bukonzo County East Constituency fell vacant when the Hon. Bihande Bwambale Yokasi (second respondent) who was representing the said Constituency was convicted on the 3rd day of April 2012 of offences involving dishonesty and moral turpitude, to wit uttering false documents contrary to Sections 351 and 347 of the Penal Code Act and embezzlement contrary to Section 19 of the Anti Corruption Act.**

**(2) From the 3rd day of April 2012 when the 2nd respondent was convicted of offences involving dishonesty and moral turpitude, he ought to have ceased to receive any salary, allowances and any other emoluments and privileges accorded to a Member of Parliament having ceased to be a Member of Parliament.**

### Orders:

- (i) The second respondent shall vacate his seat in Parliament immediately. His seat in Parliament is declared vacated. - (ii)The second respondent shall refund to the Consolidated Fund all the monies he received illegally from Parliament as remuneration after 3rd of April 2012 till the last date of receipt ofsuch remuneration. - (iii)According to the pleadings and the evidence on record (affidavit)the first respondent did not contest the Petition. The second respondent had the duty to vacate Parliament which he did not do. He shall bear the costs of the Petition hereby awarded to the petitioner.

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We so order. Dated at Kamp; this ici? **(Z** Hon. Justice SJSrfc' depuWctief^ Hon. Justice Eldad Mwangusya JUSTICE CONSTITUTIONAL COURT day of.. . N, *)* 2015.

*t-*Hon. Justice Richard Buteera

## **JUSTICE CONSTITUTIONAL COURT**

10 Hon. Justice Prof. L. Ekirikubinza Tibatemwa **JUSTICE CONSTITUTIONAL COURT**

**20** Hon. Justice F. M. S. Egonda Ntende **. JUSTICE CONSTITUTIONAL COURT**