What next for Uganda after court upholds age limit law?

Saturday July 28 2018

Uganda's Constitutional Court judges (from right) Elizabeth Musoke, Kenneth Kakuru, deputy CJ Alfonse Owiny-Dollo, Remmy Kasule and Cheborion Barishaki during the ruling on presidential age limit petition on July 26, 2018. PHOTO | MORGAN MBABAZI | NMG


It is early days yet to know the next course of action for the parties in the consolidated petition on which the Constitutional Court ruled Thursday, giving President Yoweri Museveni the all clear to run in 2021, even as it annulled the amendment by parliament to extend its term and that of district chairpersons by two years from the current five.

Some petitioners have already indicated that the Constitutional Court ruling gave ammunition to the parties for the next battleground — the Supreme Court. However, whether the Supreme Court will overturn the decisions of the lower court “is very unlikely.”

In a 4:1 majority decision, the Court ruled that the amendment of Article 102(b) of the Constitution to remove the age limit of the president and chairpersons of district local councils was constitutional, but all the justices agreed and annulled as unconstitutional the extension of parliament by two years (Article 77 (3).

The lone dissenting judgment that found that the removal of the age limit was unconstitutional was delivered by Justice Kenneth Kakuru, while the four who ruled in favour of the amendment were the Deputy Chief Justice who is also Head of the Constitutional Court Justice Alfonse Owiny-Dollo, Justice Remy Kasule, Justice Barishaki Cheborion and Lady Justice Elizabeth Musoke.

Uganda Law Society (ULS) – one of the petitioners – will hold a meeting next week to decide its next move, according to Prof Fredrick Ssempebwa, a constitutional lawyer.

Prof Ssempebwa, who is a member of ULS, says the petitioners “got what we expected, and more” in what he described as the “give and take” judgment of the court.


But other petitioners are not persuaded. After 12 hours of a marathon judgement by the five-member Court sitting in the eastern Uganda town of Mbale, maverick lawyer Male Mabirizi —one of the petitioners who chose to represent himself — took the floor and announced that he was rearing to go to the country’s topmost court, where he hopes to get justice.

“My lords, you promised us to give reasons in the final judgment as to why the Speaker of Parliament, Rebecca Kadaga, was not summoned to court. My lords I don’t know whether you can invoke your powers and give those reasons,” he addressed court, before going for the jugular.

“I am informing you of my right to appeal my Lords. On May 14, I applied for proceedings but up to now, nothing has come through,” he said.

Fears of Supreme Court

Some petitioners’ fears of going to the Supreme Court are borne of the recent history of the Court and its bench. First, they argue that the highest appellate court in the land as currently constituted, “is weaker” [than the Constitutional Court].

The other fear is that judgements of the Supreme Court especially in the presidential elections petitions of 2001, 2006 and 2016, have tended to be more political than legal; in all petitions the Court preserved the regime and maintained the political status quo by failing to annul the election of President Museveni, even after the justices observed in their judgements that there was evidence of rigging, noncompliance with electoral laws and voter intimidation.

“It could even knock off the other one,” one source said, referring to the annulment of the extension of the term of parliament, which many commentators agree the Constitutional Court got entirely right.

Prof Ssempebwa told The EastAfrican that having found that the extension of parliament’s term was unconstitutional, the Constitutional Court should have equally found that the removal of the age limit which was part of the same amendment, was also unlawful.

“Personally I would have argued, like one judge observed, that there wasn’t adequate consultation of the people on both matters, and I would have annulled the removal of the age limit,” he said.

Tradeoff loss

While President Museveni stands to gain, the court’s decision to annul the extension of parliament’s term is a blow to ruling party legislators who overwhelmingly supported the age limit removal as a tradeoff for their own tenure to expire in 2023.

In his judgment, DCJ Owiny Dollo said “MPs put their narrow personal interests above the public good when they pushed for their term in office to be extended,” he said.

“I want to salute the 317 MPs who defied intimidation, malignment and blackmail and opted for a flexible constitution to deal with the destiny issues of Africa instead of maintaining Uganda on a path of unimaginative, non-ideological, neo-colonial status quo. By so doing, they enabled us to avoid the more complicated paths that would have been required,” President Museveni said at a party to celebrate the amendment earlier this year.

But analysts argue, in light of the ruling, that the legislators now feel shortchanged and this could compel the Attorney General to also appeal the annulment of the extension of Parliament’s term.

Deputy Attorney General Mwesigwa Rukutana who was the lead counsel for the respondent says there are some areas on which the government side may be dissatisfied, even though he thanked the court that the rule of law had been maintained.

Public participation

Constitutional lawyers say that overall, the Constitutional Court’s pronouncements and jurisprudence made set the standards high for parliament in future legislation and amendment of the supreme law.

Some of the pronouncements made include ensuring wide consultations of the people on constitutional amendments, adherence to rules of procedure and that there should be no violence for these consultations to be legal.

For instance, while giving his illuminating verdict, Justice Kakuru said public participation in the review of the Constitution Amendment Act was inadequate.

“The views of 22 individuals, eight government agencies and ministries were represented before the [parliament] committee. The rest appear to be a group of obscure Ugandans. With all due respect, for the members of the committee to suggest the above people represent the views of Ugandans is absurd,” he said.

On indignity and violence against legislators meted out to politicians by the regime-leaning police, Justice Kakuru said: “Police in Uganda has no right to frogmarch Ugandans, which we routinely see them doing. The Attorney-General must ensure that this stops,” he said.