11 October 2017

Uganda: Justice Dollo Starts Tenure With Tough Age-Limit Case

Newly appointed deputy Chief justice, Alfonse Chigamoi Owiny-Dollo, starts his tenure as leader of the Constitutional court with a petition on the politically charged matter of presidential age limits.

It is the sort of petition on which reputations are made: the president is ineligible to run for office in 2021 when his present term ends, but he appears to have given tacit approval to his supporters to scrap the constitutional age limits in the face of stiff and growing country-wide opposition.

By yesterday, parliament had not issued an official response to a letter from the petitioner's lawyers, which stated that MPs cannot continue debating the proposal to scrap age caps for presidential candidates until court rules on it.

Jacob Oboth-Oboth, chairman of the parliamentary committee now reviewing the so-called age limits bill, said on Tuesday: "I cannot comment on the matter because that letter wasn't addressed to me."

How Owiny-Dollo handles the matter scheduled for preliminary hearings today will test his promise to reform the Constitutional court whose reputation has been battered under Justice Steven Kavuma who retired last month.

Kavuma was criticized by the law fraternity, civil society and others for repeatedly handing down rulings which appeared to always protect the regime's interests.

The application before Owiny-Dollo is about enforcing a legal standard, which bars public discussion of matters in court.

His ruling will tell whether parliament can legally, continue considering the hotly contested Raphael Magyezi bill to remove Article 102(b) of the constitution. The provision sets out the 35 and 75-year age limits for persons intending to run for president.

Benjamin Alipanga's lawyers last week wrote to Speaker of Parliament Rebecca Kadaga complaininng that the ongoing debate in parliament about the intended amendment of Article 102(b) is in contempt of court.

"We are instructed to categorically state that parliament cannot and shouldn't debate a matter that is currently pending before the Constitutional court as it would be in contempt of court and offending rule 64 of the rules of procedure of parliament 2012," the lawyers wrote.

Three years ago, Alipanga filed a constitutional petition challenging a resolution of the ruling party's parliamentary caucus to endorse President Museveni as NRM's sole candidate in the 2016 presidential elections.

Alipanga said the National Resistance Movement party was plotting, among others, to amend articles 102, 105 and 107 of the Constitution and eliminate the presidential age cap for the sole benefit of Museveni, something he said is "unconstitutional".

His fears came true in the Raphael Magyezi bill, introduced against the backdrop of unprecedented parliamentary and countrywide protests.

The bill was read for the first time on September 27 after soldiers from the presidential guard, SFC, stormed the main chamber of parliament and violently removed opposition MPs. It is now before the Oboth-Oboth committee on Legal and Parliamentary Affairs.

Interviewed yesterday, parliament's principal information officer Kassim Nsimbe declined to comment because parliament is in recess. He referred this reporter to the office of the clerk, Jane Kibirige, who is reportedly abroad.

In his 2014 petition, Alipanga also argued that Museveni, who was 71 years then, didn't qualify to stand for the 2016 presidential elections because he wouldn't be able to serve out a full term of five years. He argued that by the next election in 2021 Museveni would have clocked 75 years.

"That I'm aware that the ... resolution [of the caucus] goes against the letter and spirit of the constitution of the republic of Uganda by denying other bona fide members of the first respondent [NRM] from competing for positions of leadership at the level of the highest office of the presidency of this country," Alipanga said.

Chief Opposition whip Ssemujju Ibrahim Nganda, who also sits on the Legal and Parliamentary Affairs committee, this week told The Observer that parliament's rules of procedure give the speaker of parliament jurisdiction to advise parliament on whether issues that are before court can be debated or not.

Ssemujju cited an August, 2017 incident when deputy speaker Jacob Oulanyah stopped a proposed parliamentary inquiry into Bank of Uganda in relation to the circumstances leading to the closure of Crane bank.

Oulanyah pointed out that the matter was in court, and that discussing it would go against the sub-judice rule.

Ssemujju wasn't pleased with Oboth-Oboth's explanation that the letter wasn't written to him.

He said that as a lawyer, the West Budama South legislator is well placed to guide other committee members on the way forward.

"The chairman cannot hide his head in the sand; he is not an ordinary person, he is a lawyer who should be in the know of what it means to discuss matters that are before court," Ssemujju said.

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