From start to the closing arguments, it was clear government was determined to lean on the five Constitutional court justices to uphold the lifting of the presidential age limits and strike down any other lesser provision deemed unconstitutional from the Raphael Magyezi promoted Constitutional Amendment Act No 1 of 2018.
In his closing prayer in Mbale, deputy Attorney General Mwesigwa Rukutana dropped his strongest signal when he beseeched the justices thus; "In the unlikely event that court finds that some parts of the process contravene the constitution it should apply the principle of severance and save the lawful bits and nullify the unconstitutional provisions."
That veiled prayer brought into public view glaring divisions between the ruling party MPs and the government side. From the word go, MPs had been warned on the floor of parliament that a term extension was unconstitutional.
And days after the ruling, senior NRM officials one-by-one have begun to put some distance between government and ruling party MPs who they claim have themselves to blame after the Constitutional court on Thursday, July 26, declared the extension of their tenure of parliament and local councils unconstitutional.
In December 2017, the MPs unilaterally voted to stretch the House term from five to seven years. The term extension, many MPs believed, was a tradeoff for lifting the presidential age limits, the only remaining hurdle that stood in the way of President Museveni's re-election in 2021 after clocking the mandatory 75 year upper cap for a presidential candidate.
The bill's passage was a divisive process marred by blatant bribery, arm-twisting, blackmail and regrettable violence. The term extension was made against the counsel of President Museveni, government spokesman Ofwono Opondo said over the weekend.
The executive director of the government media centre observed that smuggling the proposal into the bill to scrap age limits despite Museveni's advice clears him of any subsequent failing.
"The findings of court have absolved the president. What was processed from the word go in the private member's bill to cabinet; to the caucus of NRM in parliament, was the original Magyezi bill which was attempting to address the directive of the Supreme Court in the Amama Mbabazi election petition and then Raphael Magyezi's own intuition of lifting the age limit for elective leadership in the country," Opondo said.
For those MPs now feeling exposed by the court ruling, Opondo reminded them that during debate, extending tenure of elective office was never part of the conversation.
"The president actually advised the people who were mooting the extension of parliament to drop the proposal in the caucus. However, when they went beyond the caucus, where the president doesn't sit, on the final day of the consideration; the second and third reading of the bill, they smuggled it back," Opondo said.
On Thursday, July 26, Deputy Chief Justice Alphonse Chigamoi Owiny-Dollo, president of the Constitutional Court, led a four-to-one majority decision in the petition challenging Constitutional Amendment Act No 1 of 2018.
The law enacted in December last year had amended Article 102(b) of the Constitution under which the 35-75 year presidential age limits had been provided. With the ruling, Museveni who will be 76 at the next election can now run for office for life.
Other judges on the panel were Remmy Kasule, Kenneth Kakuru, Elizabeth Musoke and Cheborion Barishaki. Kakuru was the only dissenting judge, determining that the entire law was null and void given the illegalities fraught in its enactment.
His colleagues, however, only agreed with him in striking down the term extension for MPs and local governments. They also threw out the clause which had reintroduced the two presidential term limits originally struck out of the Constitution in 2005, ostensibly to allow Museveni run for a third term.
The 2005 term limit amendment occurred in an environment just as chaotic and was also widely unpopular. But this did not stop MPs from the ruling National Resistance Movement party from receiving Shs 5 million in exchange for their vote.
Seven year extension
When the private member's bill tabled by Igara West MP Raphael Magyezi was read for the first time in September last year, it only included bits relating to the qualifications of a presidential candidate.
Other proposals related to change in days in which the Electoral Commission could organise fresh presidential elections following a successful petition challenging a result and period for filing and deciding in the Supreme Court.
As the government washes its hands of the matter, memories return of how West Budama North MP, Jacob Oboth Oboth's Legal and Parliamentary Affairs committee smuggled term extension and term limits into their controversial recommendations.
The committee's majority membership comprising NRM supporters issued an ultimatum; they would not pass amendment of Article 102(b) unless their interests were incorporated. They recongnised then that going against the wishes of the people in lifting age limits would see them punished in 2021, hence the extension was insurance.
Museveni had warned that the proposal was unconstitutional. But even his own deputy Prime Minister Moses Ali reportedly brushed him off in one meeting, saying that Ugandans had elected Museveni on the understanding that this was his last term.
But it would now seem that his reluctant acceptance was doubled-edged. In the euphoria which followed what some saw as a reluctant acceptance by Museveni, the MPs got carried away and passed the sections on term extension and term limits in flagrant disregard to procedures laid out in the constitution and other laws. This was pointed out by the Constitutional court in striking them down.
Also, speaking to CBS radio on Monday last week, Justice and Constitutional Affairs minister, Maj. Gen. (rtd) Kahinda Otafiire has said that extending the tenure was never agreed upon in cabinet where he sits. He said MPs introduced it and the government had no way of stopping them.
Enter Kadaga
There were other warning signs. When Oboth Oboth presented his committee report speaker of parliament Rebecca Kadaga cautioned against introducing extraneous matters foreign to the so-called Magyezi Bill.
She wanted to know how such proposals which were not part of the original Bill got to be considered by the committee. After she went on the record, she still allowed debate and adoption of the proposals.
However, in the certificate of compliance accompanying the bill she sent to the president for assent, Kadaga made no mention of all the provisions that were foreign to the original Magyezi bill. This omission became one of the key grounds on which the court stood in scrapping tenure extension and term limits' reinstatement.
Was Kadaga acting knowingly? Was she under instructions of someone? These questions might never be answered considering that the court declined to summon her for cross examination.
So, why did the president not point out these omissions, or those elements he was unhappy about like he always does before assenting to the bill?
Opondo provides part of the answer and probably confirms that Museveni possibly noticed the Kadaga omissions.
"Looking at the controversy and acrimony that had surrounded the introduction and processing of that bill, and also the popularity of the term extension among MPs, the president chose not to take it back to parliament because that would be an effort in futility," he said.
"Thank God that somebody went to court and a judgement against it was made," Opondo said.
However, in the ensuing grumbling by regime MPs following last month's verdict, Museveni released statement on Monday, July 30.
"With the five years, a lot of time is spent on electioneering and less time on development; the first two years settling in, the third year some work in the constituency and then by the fourth year electioneering again," Museveni wrote in a message in which he criticized the judges for concentrating on form rather than substance.
What the judges said
All the five judges held that parliament acted with greed. In great length, they described the reasons given in parliament [the same Museveni is giving] for the two year extension, such as the need to afford MPs time to acclimatise.
They also, however, pointed out that the law sets a high academic qualification for one to be MP, suggesting that house members are expected to find their feet quickly and effortlessly.
"It is quite apparent therefrom that peace and development of Uganda, or any of the other permissible justifications for amending the Constitution, did not feature at all in Parliament's consideration of the motion for the amendment of the provision regarding the tenure of parliament. The purported reasons given for the extension were evidently personal to parliament; which was most unfortunately self–serving," Owinyi-Dollo's 201 page judgement reads.
Kakuru put it even more bluntly when he observed that parliament has no power to amend, alter or in any way abridge or remove some provisions of the constitution, as doing so would amount to its abrogation.
"The people made it clear that; parliament must not be permitted to usurp the sovereignty of the people by extending its term of office. It was also unanimously expressed that parliament should have a term of five years, with many saying it should not be possible to extend the term under any circumstances. To hold otherwise, would create an absurdity," Kakuru ruled.
If left with power to amend any provision of the constitution, Kakuru observed, parliament would every five years or seven, extend its term without having to go for elections!
"Even worse, it could abolish elections and declare its current members to be members for life. Parliament could even abolish the Judiciary and vest judicial powers in itself. Once the principle is set that parliament has a right to amend any Article of the Constitution, simply by voting "yes" there would be no limit to their demands," Kakuru said.
Like Owiny-Dollo, Kakuru observed that the people did not elect MPs for them to go and learn parliamentary rules and procedures for two years like Mbarara municipality MP Michael Tusiime said while introducing the tenure-stretching amendment.
"The law provides for minimum qualification for Members of Parliament. Mr Tusiime appeared to suggest that Members of Parliament are either unknowledgeable or unqualified," Kakuru added.
Judge Musoke said when MPs gave themselves two additional years without declaring their interests, they grossly violated the National Leadership Code of Conduct enshrined in Chapter 14 of the Constitution and Part III of the Leadership Code Act.
The above provisions prohibit leaders from having personal or conflict of interest in the execution of their official duties.
"It is clear from the available evidence that public interest was curtailed when a group of Members of Parliament by their conduct made it impossible for the debate process of the Bill to proceed peacefully," Musoke said.
Barishaki concluded that the impugned amendment sought to change the term of office of MPs and other leaders, an action too critical to be decided without the involvement of the very people.
Age limit
The crux of the consolidated petition was to challenge the validity of the lifting of presidential age limits. All other grounds were mainly geared towards finding the entire constitutional amendment bill unconstitutional and therefore null and void.
At a total 814 pages, the July 26 ruling is easily one of longest in Uganda's history. However, despite its considerable length, not more than 28 pages were dedicated to the central issue of presidential age limits.
Writing in an Op-Ed piece published by The Observer on August 1, Makerere University law professor, Joe Oloka-Onyango, witheringly described it as being rich in length but hollow in substance.
"On the critical issue of the lifting of the age limit, the majority of the bench failed to appreciate two central features of the preamble to the Constitution and the democratic principles enshrined in the National Objectives and Directive Principles of State Policy. These are the history of political and constitutional instability which the Constitution is at pains to ensure is not repeated, and the democratic principles that are supposed to guide the State and its agencies," Oloka-Onyango wrote.
"The issue of the age limit cannot be divorced from that of term limits which were a central feature of the 1995 Constitution when initially enacted. With term limits enshrined in the Constitution, it did not matter at what age one became president, or indeed when they left the Presidency, as there was a finite period within which one could hold the office.
This explains why the provision was not entrenched. With term limits removed, the only safe-guard becomes a limitation on the age at which one can cease to be president, short of which we are left with a president-for-life. It is strange that the court could declare itself alive to the dangers of life parliamentarians and at the same time be silent about the very real danger of life presidency."
Some of the petitioners like Kira Municipality MP Ibrahim Ssemuujju Nganda, Hassan Male Mabirizi Kiwanuka, Francis Gimara of the Uganda Law Society and others have already expressed their dissatisfaction with the ruling.
They seem inclined to appeal the matter in the Supreme court.
bakerbatte@observer.ug
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