1 August 2018

Uganda: Court Has Sanctioned Return of Violent Constitutionalism

At over 800 pages, the recent age limit judgment by the Constitutional court stands nearly at the top of the pile in terms of its length.

Unfortunately, in arriving at their decision, the majority of the bench only paid lip-service to the extensive history they quoted and clearly mis-applied the basic Structure Doctrine (BSD) which they claimed to rely on in concluding the matter.

Furthermore, the court failed to accord the Constitution the necessary respect and reverence to which it is entitled, often treating the instrument in the same way it would ordinary legislation.

As a consequence, the court has plunged our constitutional regime into a quagmire not seen since the infamous decision in the case of ex parte Matovu.

Decided in 1966, Matovu's decision affirmed that the judiciary would look aside when the executive arm of government (in that case the government of President Apollo Milton Obote) used force to change the constitution.

Despite courageous attempts since that time--for example when the Black Mamba squad invaded the High court and the judges went on strike for the first time in the history of the judiciary of our country -- Matovu's ghost has always lurked behind decisions of our courts whenever confronted with the excessive use of violence by the executive.

Indeed, in brushing aside the UPDF deployment at parliament as a simple "irregularity" and downplaying the levels of intimidation, coercion and outright violence, which accompanied the amendment exercise both within and outside parliament, the Constitutional court has in effect declared that state-sanctioned terror and violence in order to effect constitutional change is not only acceptable, it is legal; cry the beloved country!

On the critical issue of lifting the age limit, the majority of the bench failed to appreciate two central features of the preamble to the Constitution and the democratic principles enshrined in the National Objectives and Directive Principles of State Policy.

These are the history of political and constitutional instability which the Constitution is at pains to ensure is not repeated, and the democratic principles that are supposed to guide the state and its agencies.

In the first instance, the issue of the age limit cannot be divorced from that of term limits which were a central feature of the 1995 Constitution when initially enacted.

With term limits enshrined in the Constitution, it did not matter at what age one became president, or indeed when they left the presidency, as there was a finite period within which one could hold the office.

This explains why the provision was not entrenched. With term limits removed, the only safeguard becomes a limitation on the age at which one can cease to be president, short of which we are left with a president-for-life.

It is strange that the court could declare itself alive to the dangers of life-parliamentarians and at the same time be silent about the very real danger of life-presidency.

Furthermore, for the court to state that the cure to life-presidency is elections is to ignore the several Supreme court decisions which have amply demonstrated that elections in Uganda are far from free and fair and consequently do not actually represent the "will of the people."

In sum, the Constitutional court has not only sanctioned the "tyranny, oppression and exploitation" that the preamble to the Constitution decries, it has also approved the use of force in achieving these objectives.

The author is a professor of law at Makerere University.

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