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YEAR ENDER: When age limit ruling provided a litmus test for the Judiciary

The Constitutional Court give its final age limit judgement July 26. (FILE PHOTO)

KAMPALA/MBALE – In 2017, the approval by Parliament of the constitutional amendment bill that removed the presidential age limit from the constitution was one of the most divisive moments in Uganda’s history.

After three days of debate, MPs voted overwhelmingly to remove the age limit of 75 for presidential candidates, granting President Yoweri Museveni leeway to run again in 2021 when he would have been ineligible.

Nevertheless, a two-term limit earlier scrapped in 2005 was reinstated following criticism that Mr Museveni could now become president for life

Opposition MPs walked out of the debate on more than one occasion, and six were suspended for protesting against the bill.

The constitutional amendment, which was spearheaded by Mr Museveni’s governing National Resistance Movement (NRM), was presented to MPs in September and led to chaotic scenes in parliament.

Tempers flared and lawmakers were filmed brawling after it was alleged an MP had brought a gun into the chamber. It took 20 minutes for the commotion to calm down.

Consequently, several opposition MPs and private citizens, among them Male Mabirizi, filed a petition in the Constitutional Court, challenging the new Constitution Amendment Act.

At this moment, all eyes were on the five judges of the Constitutional Court on whether they could deliver an objective ruling on an issue that was to determine the country’s political future.

They are Justice Alfred Owiny Dollo, also deputy Chief Justice, Judges Kenneth Kakuru, Remmy Kasule, Cheborion Barishaki and Elizabeth Musoke.

The Justices had three critical choices: they could dismiss the petition on the basis that it lacked merit or fail it on technical grounds.

They could accept the petition and quash the law in its entirety or they could opt to accept some aspects of the petition and dismiss others.

For the government, an initial win would provide the critical window to push through critical activities aimed at defeating any final verdict.

A similar situation was witnessed in the early 2000s when the law that cleared a referendum on political parties was nullified for lack of quorum, but the final verdict was determined after a new law had been crafted and the referendum held.
Another potential conundrum was the ruling lacking a unanimous decision or split decision on all or parts of the petition.

Of the five, until then, only Justice Kasule had dealt with a contentious constitutional matter when he gave a minority opinion in a petition involving the ruling National Resistance Movement party and four of its members famously known as “rebel” MPs.

His dissenting opinion in the 2014 case — where NRM had expelled MPs Wilfred Niwagaba, Barnabas Tinkasimire, Theodore Sekikubo and Mohammad Nsereko and wanted them thrown out of parliament — was later to carry the day on appeal to the Supreme Court.

Judge Kasule ruled that the MPs could not be expelled because their disagreement with their party and their subsequent expulsion by NRM on whose ticket they were elected to parliament made them involuntary independents. This, therefore, did not amount to a crossing of the aisle, which would have led to them automatically losing their seats.

The D-day came in July 2018. In a 13- hour judgment, 4 justices of the Constitutional Court upheld the presidential age -limit amendments nullifying the extension of MPs term from 5 to 7 years.

The four out of five justices including Owiny-Dollo, Remmy Kasule, Elizabeth Musoke and Cheborion Barishaki ruled that there was nothing inconsistent with the constitution for MPs to lift the restriction of years against one aspiring to be elected to the highest office of ‘the land.

Left – Right: Deputy Chief Justice. Alfonse Owiny-Dollo, Justice Cheborion Barishaki, Justice Elizabeth Musoke, Justice Kenneth Kakuru and Justice Remmy Kasule read their age limit petition rulings Thursday July 27 at Mbale High Court (FILE PHOTO)

In their ruling, the justices noted that the fact that there is no mandatory requirement to subject the said amendment to a public approval through a referendum.

“People vested their power into Parliament to formulate laws and therefore it would be unreasonable to fault parliament for exercising this power in coming up with the recent Constitutional amendment,” the justices argued.

The justices also backed their judgment with the recent recommendation by the Supreme Court in the presidential petition of John Amama Mbabazi against president Museveni which called for constitutional amendments regarding the presidential minimum and maximum age.

However, in a descanting judgment of a single judge Kenneth Kakuru, he rubbished the entire constitutional amendments saying they never represented the true will and sovereignty of the Ugandans.

Kakuru who started his judgment with a preamble giving the political history and constitutional background of this country contended that unless we respect the bloodshed by our forefathers in 1966 when president Muteesa was overthrown, we may forget the origin of our Constitutional amendments.

Kakuru also reproduced in his minority judgment the maiden speech of President Museveni of January 1986 as he was being sworn -in at the stairs of parliament in which he said that “It was not a mere change of guns but a fundamental change that sovereign power of the land lies in the people and not government.

The keen and shrewd Justice Kakuru Kenneth (FILE PHOTO)

He further quoted Museveni then who had successfully waged a rebellion against Obote saying that government is a servant and not master of the people also concluding that people should die of natural causes and not at the hands of their master.

“Public participation is key to any constitutional amendments and short of it, causes the whole amendment to be a nullity,” said Justice Kakuru.

The judge also noted that the way MPs claimed to have conducted consultation meetings with their electorate was by unfortunate using social media and Ipads which the Deputy Attorney General Mwesigwa Rukuntana also submitted.

However, all the 5 justices had a unanimous view when it came to the enlargement of MPs and LCV chairpersons tenures of office from 5 -7 years.

They called this selfishness and a move intended to deny other people an opportunity to be elected as MPs.

Justice Kakuru concluded even the Shs 29 million that the MPs received to carry out the said consultations was a gratification and that all MPs who never returned it should account for it while as the ex-officials who don’t have a constituency to consult should return the same. Kakuru then called for a financial audit of the 10th Parliament.

However, his 3 brothers and sister judge saw no need for the MPs to refund the Shs29 million saying it did not dawn from the consolidated fund.

In a nutshell, the entire petition partially succeeded and the court awarded Shs20 million as legal fees in the petition except for Male Mabirizi who represented himself and never incurred costs of a lawyer.

City lawyer Mabirizi arrives at the Supreme Court on August 13, 2018, in dramatic style with his 154 Age books challenging the Constitutional Court ruling on age limit (FILE PHOTO)

Court also awarded 2/3 of the total costs to each petitioner including Mabirizi who straight away notified the justices that he was dissatisfied with their judgement that retained the presidential age -limit amendments that he was to appeal to the Supreme Court.

As expected, the lead petitioner, Mabirizi has since appealed it and returned to the Supreme Court where the country is in 2019 expected to witness another marathon hearing.



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