22 September 2017

Uganda: Proposed Amendment of Age Limit for President Is Contempt of Court

Photo: Daily Monitor
Police deploy in Kampala ahead of presidential age limit demonstrations.

To anybody with even a slight sense of history, the developments at Parliament over the last several days must bring back an acute sense of shock and grief. Our ancestors of constitutionalism like James Wapakhabulo (the chairperson of the Constituent Assembly) and the thousands of other martyrs who have passed on in the name of "liberation," must be turning in their graves.

Not since the enactment of the "Pigeon Hole" Constitution in 1966 have we seen government troops amassed at the Legislative Assembly in a bid to intimidate and force through a constitutional change such as that which is being proposed with respect to the removal of age limit from the Constitution.

While the young MPs behind the move may be forgiven because they were not alive at the time, for an old man like President Museveni, it is a damning indictment of every criticism he has ever made of previous governments and of all the principles he has claimed to stand for.

Milton Obote must be laughing his head off.

However, the proposed action by the MPs has serious implications for our constitutional jurisprudence and the Rule of Law. As a matter of fact, it amounts to contempt of court and of the 1995 Constitution. The proponents of the constitutional amendment claim that it is a response to the Supreme Court decision in the case of Amama Mbabazi vs YK Museveni and the Electoral Commission - the case, which considered the challenge to the 2016 presidential elections.

Among the holdings in that case was a direction to the Attorney General to propose amendments to the Constitution dealing, among others, with the time for filing and determination of a presidential petition; the nature of the evidence that can support such a petition, the time for holding fresh elections, the use of technology in an election and the unequal use of State-owned media.

Quite clearly, the issue of changing the age limit in the Constitution was never part of the recommendations.

For the MPs to claim that their motion is prompted by the failure on the part of the Attorney General to present these changes to Parliament (and hence the need for a Private Member's Bill) is a clear and obvious lie because the Notice of Motion presented to the Speaker says nothing about any of these issues.

There is another dimension to the proposed amendment, which the learned MPs should be made aware of, especially because they argue that the limitations imposed on the age of a presidential candidate are "discriminatory" against the elderly.

In the first instance, the Constitution is full of different limitations that are imposed on public officers relating to qualifications, capacity and age.

If the limits on the age of a presidential candidate are removed, it implies there is no other limitation, which can be imposed that will pass constitutional muster; thus, my eight-year-old nephew should be allowed to vote and a person without any academic qualifications whatsoever, should be eligible to run for a parliamentary seat.

In sum, the proposed amendment is opening up a veritable Pandora's Box. Finally, the 1995 Constitution was based on certain fundamental principles, including ensuring that our history of political and constitutional instability is not repeated.

What this amendment represents is the final nail in the coffin of not simply the letter of the document, but also of the spirit of democratic constitutionalism as we know it: Cry Beloved Uganda!

Prof Oloka-Onyango is a lecturer at Makerere University.


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