Four out of five parties that petitioned against the removal of the age limit from Uganda’s Constitution are headed to the Supreme Court, in what promises to be a showdown with President Yoweri Museveni.
The head of state is already up in arms after Constitutional Court saved the clause benefiting him while annulling the part that would have shielded MPs from angry voters.
The contentious amendment to lift the age cap of 75 years for presidential candidates and chairpersons of local councils — which would have barred 73-year-old President Museveni from contesting in the next election — was passed in December last year, prompting several petitions in the Constitutional Court.
On July 26, the Court allowed the removal of the age limit to stand, giving the incumbent the greenlight to vie for the top job in 2021. Now both sides are looking to the last appellate court to annul or uphold last week’s 4:1 ruling.
First out of the blocks was Male Mabirizi who filed his notice of appeal a day after the verdict was announced on July 26, and gave 80 reasons why the four justices of the Constitutional Court erred in their majority decision that allowed the amendment of Article 102 (b) to stand.
But after Mr Mabirizi, more notices of appeals have come in thick and fast.
On August 1, Uganda Law Society – one of the other petitioners – held a meeting during which a decision to appeal was made, and by close of business, six legislators who filed constitutional petition No.05/2018 also gave their lawyers the nod to appeal.
“A meeting was held on Wednesday. We agreed that in line with the law we needed to put in a notice of appeal to safeguard our interest,” said the Uganda Law Society president.
Up until last week, ULS was guarded about its next course.
“Our biggest fear is that the Attorney-General will also appeal, and if we have not, we won’t have the opportunity to cross-examine witnesses and counter their arguments,” he said.
This position is informed by the fact that while the main contention of petitioners was the removal of age limit, the government also suffered a loss with all five justices of the Constitutional Court ruling that the extension of the term of government from five to seven years was unconstitutional.
Yet even as they head to highest court, the petitioners are divided on the main issues to appeal.
For example Mr Mabirizi — who represents himself — and the six law makers go to the Supreme Court in the hope that it will concur with the lone dissenting judgment of Justice Kenneth Kakuru, and annul the entire amendment, not just sections of it.
On the other hand, ULS which said it would file its notice of appeal on Friday is keen to appear mainly to counter the Attorney General’s arguments — should the latter opt to counter-appeal — to keep the term of Parliament at five years as well as for other pronouncements of the Constitutional Court to remain part of Uganda’s jurisprudence.
ULS is keen on the Constitutional Court pronouncements on the doctrine of basic structures of the Constitution that should not be amended or altered by Parliament as they were set up after wide consultations of the people. In other words, that whatever Parliament does with such structures of the Constitution, it should be progressive and in line with the aspirations of the people.
Officials of ULS predict that it is unlikely that the Supreme Court will annul the most contentious aspect of the petition — the lifting of the age limit.
Apart from President Museveni’s recent criticism, government remains cagey over its next course of action on the annulled seven-year tenure for legislators and chairpersons of local councils.
Deputy Attorney General Mwesigwa Rukutana — who was the respondents lead council in the petitions — said that president Museveni has not given directives on the matter, while Cabinet is yet to decide whether to appeal the annulment of the seven-year tenure.
“I saw [the President’s statement] it in the press but he has not told us about his dissatisfaction. It is true I briefed Cabinet, but right now, I cannot tell you that we have made a decision [whether to appeal or not],” said Mr Rukutana. “Next week we shall go back to Cabinet and decide what to do”.
A statement on the ruling against the extension of parliament’s term from five to seven years that President Museveni released from South Africa while attending the recent BRICS Summit reads:
“Unfortunately, our judges in Uganda spend more time on form and not substance, on procedure and not substance. My freedom fighter’s sense of justice, in this matter (the age limit ruling) focuses more on the convenience of seven years rather than five years. 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.”
He added: “In the end, however, the judges are not the ones in charge of the country. If the [National Resistance Movement] NRM MPs follow my guidelines and bond closely with the people, through wealth and job creation, we can, together with the people, make the necessary Constitutional reforms, judges or no judges.”
On August 2, ULS president issued a statement to defend the judiciary saying that the court should be allowed to uphold the rule of law without fear or favour, adding that President Museveni’s remarks undermine the independence of the judiciary, reduce public confidence in courts of law and ultimately the efficacy of the rule of law in Uganda.
The Deputy Attorney General was also not happy with the court ruling.
“This was unfortunate because we had our reasons which we communicated to the court — that we need longer period to implement our developmental programme,” he said.
Mr Rukutana said Cabinet will soon make a decision on whether to appeal the ruling.