Prior to, and in the middle of writing the Mbale Age Limit Judgment, Deputy Chief Justice and Chairman of the Constitutional Court, Alphonse Owing-Dollo, appealed to the people to pray for him. This was undoubtedly because of the burdensome, risks and the un-thankfulness of the assignment. One of the Coram justices, Cheborion Bashiraki, had to exit and avoid his office because of a death threat note sneaked into it.
Significantly, the other judges of the Coram: Kenneth Kakuru, Remmy Kasule and Elizabeth Musoke, did not report any impropriety on their persons before the court process.
Perhaps because of this, Owiny-Dollo was tetchy in the courtroom when he detected the characteristic noisy indiscipline shown by a Ugandan audience. He reacted sternly, with a breath of fresh-air integrity. “Do not tempt me to humiliate you in this court house, because I will,” he warned. The audience duly took notice as he instructed the Police detail to throw out anybody who would be unruly.
This was a job that spelt being in the middle of a rock and a hard place. It was a task of: damned if you do; and, damned if you don’t! On the opposing hands were the petitioners and respondents representing forces that were quietly wielding devices of life destruction.
It is therefore no surprise that the judgment is contested. There were nine petitioners to the Raphael Magyezi Age Limit Law of 2018 that removed the age limit of the persons contesting for the LC District chairmanship of not-less-than 35 years; and the presidential age limit of not-above 75 years. So far one petitioner, Hassan Male Kiwanuka Mabirizi, has appealed the Owiny Dollo Mbale Constitutional Court ruling to the Supreme Court.
He said that Coram of the five judges ignored many of the depositions they made during the hearing of the case. In his filing he observed that, the enlarged Supreme court Coram of nine judges may be in a position to consider the 80 issues-or-so that he raised and the Owiny-Dollo court had ignored in his ruling
The judgment arose out of the Raphael Magyezi Private Member’s Bill of 2017 that sought to amend certain articles of the 1995 Constitution that the National Resistance Movement (NRM) ratified on its accession to ;power. He sought to remove the constitutional term limit of holding office for two five-years as in Article 105(2). Magezi had also wanted to remove the limit on the President’s age of 75 by amending Article 102(b). He further asked Parliament to amend Article 77(3), extending the life of Parliament by two years to seven.
That culminated into what became the Amendment Law 1 of 2018 which granted those provisions. The petitioners challenged that law as signed by President Yoweri Museveni.
In giving their judgments the five judges strenuously referred to the past tumultuous history of Uganda which was succinctly summed up by both Remmy Kasule and Owiny-Dollo. Kasule pleaded that constitutional independence was important to avert the past historical mistakes. “This is brought out by the preamble to the 1995 Constitution.”
It refers to the political instability; forces of tyranny, oppression and exploitation; commits to durable and popular principles of unity, peace, equality, democracy, freedom, social justice and progress; and, promises an inclusive governance of the country. In coming to their ruling therefore, the justices, laboured to attest the amended law to these principles.
By a ruling of five to one, they thus unanimously agreed with the petitioners that the extension of Parliament to seven years was unconstitutional and should therefore be struck off from the Amendment Law 1, 2018. They also said that the powers given to Parliament were sufficient to amend and remove the term limits of below 35 years for the district councils and above 75 years for the President. Thus the judgment came heavily on the side of the Members of Parliament (MPs) than on the side of the President.
Nevertheless, this is what the Deputy Attorney General and the main respondent to the suit, Mwesigwa Rukutana, considered a “win-win” situation, despite the Law 1, 2018, missing out on the parliamentary extension tenure. It is notable that he got the removal of the term limits on two crucial issues, knocking off the two-term presidential limit and the imposition of a limit to which Museveni will seek office as numerously as possible.
What emerged in the ruling was that in debating, passing and sending the Magyezi Bill 1, 2018, for the presidential signature and assent, there were discrepancies that belied the legal procedures that were supposed to be followed.
Firstly, the MPs either ignored or forgot the principle of the Basic Structure Doctrine which allots “constituent power to the people” who elected them to Parliament. As such they went ahead to pass the Bill without referring the matter back to the people in a referendum. And despite having been “facilitated” to do so, the consultation with the people was neither mandated, nor was it an exercise of seeking their “political will”.
Secondly, the manner in which the amendment referring to Article 77, for the extension of their term by two years appears to have been inappropriately included in the Certificate of Compliance that is mandatory for the Speaker of Parliament to make out to the President on the Bills.
According to Owiny-Dollo, in exercising their oversight role over the Executive arm of Government, the MPs did not take into account the interests of the general public over their private interests. It amounted to MPs being “self-serving against the interests of the general public and it was therefore in reckless abandon.”