The deputy attorney general Mwesigwa Rukutana and the solicitor general Francis Atoke, faced tough times and tough questions from the five judges of the Constitutional court as they began their submissions during the age limit petition hearing in Mbale today.
The election petition hearing commenced this week on Monday at the Mbale High court with seven different parties challenging the legality of constitutional amendments passed by parliament on December 20, 2017. Among the amendments, parliament lifted presidential age limits and also extended the term of parliament by two more years.
In the last three days, the petitioners led by Kampala mayor Erias Lukwago made their submissions before justices Alfonse Owiny-Dollo, Remmy Kasule, Elizabeth Musoke, Cheborion Barishaki and Kenneth Kakuru in an attempt to convince court to declare the amendments null and void. The petitioners claim several rules and procedures were flouted during the debate and amendment processes last year.
Today, Thursday, the respondents led by the attorney general started their submissions, defending the amendments. Rukutana asked court to dismiss the petition with costs but midway through his submissions, Justice Kakuru accused him of shifting goals posts when he said general principles of law don't apply when amending the Constitution. Rukutana was quoting principles of how the Tanzanian Constitution can be amended.
In fact, Justice Owiny-Dollo figuratively said Rukutana had not only changed goal posts, he had in fact shifted the entire football field.
Justice Kakuru reminded him that the Supreme court has ruled before that, irregularly amending the Constitution can amount to a coup. Rukutana said that was the opinion of the judges but Justice Owiny-Dollo reminded him that Supreme court rulings are binding and set precedence for future cases even when he [Rukutana] doesn't agree with them.
TERM EXTENSION OR NEW TERM
Rukutana said parliament, after consultations, and in its wisdom, decided to extent its term of office by another two years. He said the Constitution grants parliament powers to enact laws for peace and good governance of the country.
Rukutana was reminded by the judges that a lot of background effort was done by the Constitutional Review Commission to arrive at the five year term for members of parliament. He was also reminded that the only time given to parliament to extend its mandate beyond five years is under Article 77 (4) and is for not more than six months.
And this is provided for under special circumstances during the state of war or state of emergency that would prevent a normal general election from being held.
"Parliament was elected for five years by the people, how can MPs elect themselves for another two years?" asked Justice Kakuru.
"It now comes down to whether [MPs] was wise to elect themselves", said Justice Owiny-Dollo.
Justice Kakuru said amending the Constitution is not a casual process that should be done as and when one wishes, otherwise there would not have been creation of the 1996 Constitution because there was already an existing one. All that would have been done would have been to amend the various clauses.
Rukutana was also asked by Justice Owiny-Dollo why government shied away from bill and let a private member present the bill yet the law had financial implications for the state in terms of facilitating the MPs with Shs 29 million each and in terms of salaries for the extended term.
Rukutana said cabinet was not shy at all and did not see the necessity of taking on the bill and that facilitation money was already charged on the constitutional fund.
To be continued....