7 August 2018

Uganda: Looking Back At Constitutional Court Ruling On Age Limit

opinion

When the 1995 Constitution was promulgated, President Museveni termed it, "the best Constitution in the world" and promised to protect it and ensure that Uganda does not again descend into its dark post-independence history, characterised by anarchy and misrule.

It was no doubt a much more inclusive constitution than its predecessors - the 1962 and 1967 constitutions - in that it took nearly four years of extensive nationwide consultations by the Odoki Commission and a year of debate by an elected Constituent Assembly.

In my humble view, I don't think it was the best Constitution in the world, but probably one of the best in Africa, that is before it started being amended 'left and right'.

The framers of the Constitution certainly had good intentions, but failed to close the loopholes, which risked to lead Uganda on the path to the bad old days. The founding fathers (and mothers), for instance, made it easy to amend the Constitution.

They also failed to entrench the two-term limit provision for one to serve as president trusting that nobody would temper with it. Before the 10th anniversary of its promulgation, the Constitution suffered its first major assault, the removal of the two term limit in 2005. Once this was done, it was a matter of time that other safeguards would go as soon as they were found inconvenient and so the age limit removal followed in 2017.

The framers of the Constitution also gave excessive powers to the Chief Executive and inadvertently created an 'imperial presidency'. The President has the power to appoint all high level public servants, including members of the Judiciary and the Electoral Commission.

When it comes to the Legislature, the framers of the Constitution may not have foreseen that with a powerful Executive, the Legislature would tend to gravitate towards the ruling party, making a mockery of the multiparty dispensation.

With the Opposition rendered inconsequential in Parliament, the ruling party gets a free hand to amend the Constitution at will. Parliament is reduced to a 'rubber stamp'.

It is against this background that we should look at the Mbale Constitutional Court ruling as well as the previous Supreme Court rulings on presidential elections.

All the five judges of the Constitutional Court gave lengthy rulings, quoting heavily from the preamble to the Constitution and spoke passionately about Uganda's turbulent history and the need to ensure it is not repeated.

They also quoted other authorities to back up their arguments. But their final rulings seemed at variance with the rhetoric. In the end, they chose the "path of least resistance" that is the unconstitutional seven-year term for Members of Parliament. Only one judge out of five, Justice Kenneth Kakuru, dissented and ruled against the removal of age limit.

As Prof J. Oloka Onyango, a highly respected constitutional law expert, rightly put it in his recent piece in the Daily Monitor, 'Court has sanctioned the return of violent constitutionalism to Uganda'.

The majority of the Bench only "gave lip-service" to the Preamble of the Constitution and to the Basic structure Doctrine (BSD); (or in a layman's language, the mission and objectives of the Constitution). The sheer length of the judgement, in my view, hardly enriched constitutionalism or rule of law in Uganda. It was a diversionary exercise in semantics.

Retired Justice James Ogoola's Elders Forum sometime back came up with a noble idea of holding "National Dialogue" at which all people of Uganda regardless of party affiliations, and tribes, among others, would come together and discuss the future of our country.

Ugandans need to live in harmony regardless of political or religious differences and to bequeath a better country to their children and grandchildren. For this, we need to dialogue and arrive at a new political dispensation and without doubt, a new constitution.

Mr Naggaga is an economist, administrator and retired ambassador. gnaggaga@yahoo.com

Uganda

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