The East African Court of Justice (EACJ) is this week expected to make a critical ruling on Uganda President Yoweri Museveni’s bid to extend his 34-year rule of the country by contesting in next year’s General Election.
In a petition filed by Kampala-based lawyer Male H. Mabirizi K. Kiwanuka, the EACJ has been asked to determine whether a decision by the Constitutional Court of Uganda to extend the presidential term and age limit is against the East African Community (EAC) Treaty on democracy and good governance.
Mr Mabirizi, who is representing himself at the Arusha-based court, is seeking “interim order of injunction restraining the Government of the Republic of Uganda, from implementing any of the provisions of the Uganda Constitution (Amendment) Act, 2018.”
The ruling on the application is set for Friday, February 6.
In its response, the Uganda government, represented by Principal State Attorney George Kallemera, has defended the decision to extend the presidential term and age limit, dismissing the application as “frivolous, vexatious and not demonstrating a prima facie case with a probability of success.”
“The applicant has not in any way demonstrated that he will suffer irreparable injury that cannot be compensated by an award of damages,” the AG argues.
One of Africa's longest-serving leaders, President Museveni signed a Bill into law that removed the presidential age limit of 75 from the country's Constitution following a vote by the Ugandan Parliament in 2017.
The Ugandan Constitution, enacted in 1995, previously prohibited anyone younger than 35 or older than 75 from serving as president.
The EACJ, whose decisions are binding on member states, has been viewed as an independent court whose recent decisions have rattled the EAC governments.
The Ugandan legal team will further be supported by more than 10 lawyers in the case, a pointer that the government is not taking the case lightly.
The constitutional amendment allows the 73-year-old president to run for a sixth term in next year’s polls, an outcome which Mr Mabirizi is opposed to.
In his application before a three-judge Bench, Mr Mabirizi, is contesting the manner in which the Ugandan Parliament amended the Constitution which saw, among others, the presidential age limit scrapped, presidential and parliamentary tenures extended from five to seven years.
Mr Mabirizi argues that the framers of the 1995 Constitution deemed it absolutely necessary to enshrine within the text of the Constitution, the two-term presidential cap, presidential age and abolition of the Kelsenian theory under Article 3 of the Ugandan Constitution.
“Such provision as would be necessary to give effect and operationalise the ideals encapsulated in the preamble as well the national objectives and directive principles of State Policy,” Mabirizi argues in his application.
These provisions, he argues, were designed and intended to guarantee orderly succession to power and political stability “which, to date, remains a mirage for Uganda.”
He argues that by amending Article 102(b) to remove the presidential age limit, after the earlier scrapping of term limits, Parliament rendered ineffective the preamble to the Constitution and also destroyed the basic features of the 1995 Constitution thereby rendering it “hollow and a mere paper tiger”.
He wants the East African Court of Justice (EACJ) to halt the implementation of the Uganda Electoral Commission Strategic Plan and Road Map for the 2020/2021 electoral period.
The case comes at a time when Uganda is preparing for next year’s presidential election, in which President Museveni is expected to vie.
Mr Mabirizi is concerned that the decision taken by the constitutional Court of Uganda raises serious issues for consideration on the rule of law, democratic governance and universally accepted standards of human rights.
“I am seeking the Court to halt all the processes and/or preparations for 2020/2021 general elections including but not limited to undertaking any step in pursuit of amendments to electoral laws to align with the Uganda Constitution (Amendment) Act 2018, recruitment of employees, calling for bids and/or entering contracts, gazetting and publishing of polling stations, display and updating of the National Voters Register, issuing of nomination documents, nomination of candidates, conducting of elections and declaration of election results until final determination of this matter pending before this Court.”
RULE OF LAW
Mr Mabirizi adds, “In Uganda, laws remain in doubt until all legal challenges against such proposed laws are resolved. That, there is imminent danger of implementing the challenged Act before determination of the Reference.”
He contends that he shall suffer irreparable damage if the challenged Act is implemented since subjecting him and Ugandans to a law “whose process is under challenge for having infringed on the core principles of the rule of law, democratic governance and universally accepted standards of human rights cannot be adequately compensated by damages”.
He adds that “damages arising out of matters of rule of law, democracy and good governance are matters that cannot be atoned to by way of damages. Further, the balance of convenience is in favour of granting the application.”
The application arose following a case in which he lost in the Constitution court at Mbale, Uganda.
Mabirizi has often argued that the entrenched articles of the Constitution cannot be amended by Parliament under the general powers conferred on it to make law as envisaged under the provisions of Articles 79 and 259 of the Constitution.
“Only the people can amend these Articles pursuant to the provision of (Article 1(4)) of the Constitution.”
The Ugandan AG, however, argues that a decision against the State would prevent the holding of elections resulting in “anarchy’.
“The grant of an interim order would halt the implementation of the Uganda’s general elections roadmap for 2020/2021 electoral period and all related plans with the effect of destabilising Uganda’s constitutional order which will lead to anarchy,” says Kallemera.
“We, therefore, pray for dismissal of the application with costs.”
ABOUT THE PLAINTIFF
Hassan Male Mabirizi Kiwanuka, a Kampala-based lawyer, is not new to controversy.
Mabirizi shot to fame when he sued Buganda’s Kabaka Ronald Muwenda Mutebi for illegally collecting land fees (Busuulu) and demanded, among other things, for a disclosure of his bank account details.
His well-articulated submission during the age limit case at the Constitutional Court in Mbale earned him even more attention.
Born in 1987 in Lugazi to Mohammed Mutumba and the late Ndwaddewazibwa Mastula, Mabirizi, whose mother died when he was only five years old, first went to court when he sued his father to pay his fees, a matter that the court granted.