28 September 2017

Uganda: Age Limit - Legislation Through Corruption, At Gun Point Is Overthrow of Constitution

Photo: Alex Esagala/Daily Monitor
A scene in Parliament after Speaker Rebecca Kadaga suspended 25 MPs including the State Minister for Water Ronald Kibuule.

When all is said and done, the debate on the proposed lifting of the age limit in the 1995 Constitution boils down to a referendum like question: Do you want President Museveni to continue ruling Uganda or not? Better still: Are you for or against a Museveni life presidency? The urgings from NRM clothed in such slapdash excuses as discrimination make good lyrics for amateur comedy.

Why they are shy to admit this is about fielding their best bet on the ballot paper so we debate Uganda's second life presidency after Idi Amin on its merits leaves them malodorously stained. Like Oliver Twist in Charles Dicken's Oliver Twist, Mr Museveni should concede, "Sir (Ugandans), I want more."

The question proponents of the lifting of age limit ask is, "what is unconstitutional or immoral with amending the Constitution?" In my humblest view, there is everything illegitimate about the ongoing process to the extent that it amounts to an overthrow of the Constitution by the military and financial wing of the ruling party.

Let's revisit the 1967 Constitution that has become the emblem of criticism of Milton Obote's approach to legislation. To what extent legislation arrived at through blackmail, fraud, fear, intimidation and coercion can stand is contentious. Wardens of the doctrine of state necessity or a revolution in law as propagated by legal scholar Hans Kelsen may find nothing wrong with it. Courts across history have lent credence to military processes that offend constitutions. Whether that is a function of ideology and legal philosophy or a deficit of judicial independence or the thinness of the line between law and politics is unsettled. There are, however, irreducible minimums, which if not observed, can arguably tantamount to an overthrow of the Constitution as happened in 1967, 2005 and is about to happen. Article 1 of the Constitution states: "All power belongs to the people who shall exercise their sovereignty in accordance with this Constitution" and more importantly, "the people shall be governed through their will and consent."

The words (will and consent) aren't for just literary value. The framers of the Constitution were deliberate as captured in the preamble that took cognisance of Uganda's constitutional instability history.

The numerical strength in Parliament argument, therefore, becomes as important as how that strength is deployed during legislation. Even in company law, where courts prefer to keep a distance, injustices can be arrested if shareholders' numerical power is abused against the minority. Therefore, it is important to ask whether Parliament actually legislated in 1967, 2005 within the constitutional ambit of "will and consent".

Once MPs are stripped of their will and consent, then the people from whom they derive representative power and authority, will also have been usurped of the same and the Constitution whose supremacy is asserted in Article 2, is effectively overthrown.

The reason Obote's mark sheet is blotted because of the 1967 Pigeon Hall Constitution is because parliamentarians' will and consent were defiled, and in so doing, Ugandans were left out of the equation as their power was grabbed by the military who from colonial time, have acted as regime protectors.

In 2005 when Parliament debated the lifting of term limits amid intimidation, blackmail, fear, Shs5 million bribe which amounted to legislating on the premise of criminality (because bribery is illegal), the military and financial muscle of NRM stripped MPs of will and consent and their people too were deprived of the same. Hence the constitution was overthrown through fraud and manipulation.

To look at this through the lens of contract law is to appreciate the importance of will and consent in the place of legislation and the significance of the legitimacy of process. A contract marred by undue influence and duress is void. If a threat is one of the reasons a person enters an agreement, even if not the main reason, the agreement may be avoided as exemplified in the case of Barton vs Armstrong.

Amid undue influence from the security apparatus, intimidation and bribery (two ministers-Evelyn Anite and Chris Baryomunsi accused Museveni of bribery, claiming some Opposition politicians are picking bribes from him), can we then assert that Ugandans, through their MPs, are acting on their will and consent as required by the Constitution? For a few yes. The majority? Clear your throat!

A courageous judge of the impeccable status of Lord Denning or Lord Atkin and David Maraga would most likely audit the legislative process and agree that the supreme law of the land was defiled to the extent that Ugandans and their representatives' power was stripped hence the Constitution overthrown. Then the academic debate on the legitimacy of the constitutional overthrow would ensue. From dust (1967, 2005) to dust (2017)!

Mr Okuda is a lawyer, journalist and fellow with the Great Lakes Institute for Strategic Studies.

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