18 April 2019

Uganda: What Is At Stake in Age Limit Judgment

Kampala — The Supreme Court will today decide President Museveni's fate on whether he will be eligible or not to run for presidency again in 2021 and also make decisions that may determine the conduct of the next elections.

The three appellants in this appeal are challenging the decision of the Constitutional Court which upheld the amendment of the Constitution by Parliament to remove the 75-year upper age limit on the presidency.

Article 102(b), which was amended by 317 Members of Parliament (MPs)in the House about two years ago amidst stiff resistance from the minority Opposition MPs and moderates from the ruling National Resistance Movement (NRM) party following fist-fights on the floor of Parliament, barred anyone aged above 75 years or below 35 from contesting for presidency.

President Museveni will be above 75 years in 2021.

If the Supreme Court overturns the Constitutional Court decision, he will not be eligible to contest for presidency despite his NRM top organ and MPs having endorsed him as the party's sole candidate.

On the contrary, should the Supreme Court uphold the lower Constitutional Court's ruling, President Museveni will be free to contest for presidency in 2021 and indefinitely thereafter.

The justices heard this appeal in January and said they would deliver the judgment on notice.

They are Chief Justice Bart Katureebe, Stella Arach Amoko, Eldad Mwangusya, Prof Lillian Tibatemwa-Ekirikubinza, Jotham Tumwesigye, Rubby Opio Aweri, and Paul Mugamba.

At stake in today's judgment

The Supreme Court judgment today will determine eight key issues.

Issue No. 1

Whether the Constitutional Court erred on the application of the basic structure doctrine.

Issue No. 2

Whether the majority justices of the Constitutional Court erred in holding that the entire process of conceptualising, debating and enactment of Constitution (Amendment) Act 2018 that removed the presidential age limit from the Constitution did not contravene the 1995 Constitution and Rules of Procedure of Parliament.

Issue No. 3

Whether majority justices of the Constitutional Court erred when they held that the violence/scuffle inside and outside Parliament during the enactment of the Constitution (Amendment) Act 2018 did not contravene the Constitution.

Issue No. 4

Whether the Justices of the Constitutional Court erred in law when they applied the substantiality test in determining the petition.

Issue No. 5

Whether the learned Justices of the Constitutional Court erred when they held that the removal of the age limit for the President was not inconsistent with the Constitution.

Issue No. 6 .

Whether the Constitutional Court was wrong in holding that the president elected in 2016 is not liable to vacate office upon attaining the age of 75.

Issue No. 7

(a): Whether the justices of the Constitutional Court derogated the appellants' right to a fair hearing, un-judiciously exercised their discretion and committed the alleged procedural irregularities.

(b): If so, what is the effect on the decision of the court?

Issue No. 8

What remedies are available to the parties?

Chief Justice Bart Katureebe

He was state attorney between 1975 and 1983. Joined private practice until 1988 when he joined politics.

From 1988 to 1991, he served as the deputy minister for regional cooperation, then deputy minister for industry and technology (1991 to 1992), and State Minister for Health and a member of the National Resistance Council, the country's interim legislative body at that time (1992 to 1996).

From 1994 to 1995, he was member of the Constituent Assembly representing Bunyaruguru County, in present day Rubirizi District.

Between 1996 and 2001, he served as Minister of Justice, Constitutional Affairs and Attorney General. In 2001 he started his own law firm; Kampala Associated Advocates.

Katureebe represented Uganda at the International Court of Justice in The Hague, where DR Congo had accused Uganda of plundering her resources.

He also appeared in the Supreme Court 1999 on behalf of the government to successfully challenge Gen David Tinyefuza's victory in the Constitutional Court.

In 2005, Katureebe was appointed chairman of board of directors for New Vision Printing and Publishing Company.

He also served as a director at Standard Chartered Bank and National Insurance Corporation. He was appointed a Justice of the Supreme Court in 2005. On March 5, 2015, he was appointed Chief Justice and holds the position to-date

Justice Prof Lillian Tibatemwa Ekirikubinza

Prof Lillian Tibatemwa-Ekirikubinza holds a PhD from University of Copenhagen, Denmark, a Master of Law in Commercial Law from Bristol, UK and an Honours Degree in Law from Makerere University. She previously served as a faculty member and administrator at Makerere University.

The first Ugandan woman to qualify for an award of a PhD in Law, she also was the first woman to be appointed an associate professor and a full professor of law in East Africa. She was the first female deputy Dean of Makerere's Faculty of Law and the first woman to be named deputy vice-chancellor at that university.

She is also a fellow of the Uganda National Academy of Sciences and an Alumnus of the International Women's Leadership Forum.

She also served as the Acting Vice Chancellor of Makerere University from April to October, 2009. Justice Ekirikubinza was last year elected to the International Commission of Jurists for a five-year term.

The ICJ is composed of 60 eminent judges and lawyers from all regions of the world. The International Commission of Jurists promotes and protects human rights through the Rule of Law, by using its unique legal expertise to develop and strengthen national and international justice systems.

Justice Eldad Mwangusya

He was elevated to the Supreme Court in 2015 from the Court of Appeal/ Constitutional Court. He previously worked as High Court judge and head of the court's Civil Division.

He started as a state attorney in 1976 and rose through the ranks to become principal state attorney.

In 1997, he joined private practice only to be called to the bench the following year.

He started as a resident judge in Fort Portal and Masaka circuits. Thereafter became the deputy head of the International Crimes Division of the High Court. He was promoted to head the Civil Division of the High Court.

In 2014, Justice Mwangusya was among the seven justices that ruled that it was unconstitutional to reappoint Benjamin Odoki to post of Chief Justice upon retirement.

In 2013, he was appointed to the Court of Appeal/Constitutional Court. At the Constitutional Court, Mwangusya wrote the court's judgment that struck out the Anti-homosexuality Act on grounds that it was passed by Parliament without quorum.

Justice Rubby Opio Aweri

Born in 1953, Justice Opio's career began in Soroti District where he was a legal assistant in 1982.

The following year, he joined the Judiciary as a Grade One Magistrate and rose through the ranks to become judge of the High Court in 1998.

He was elevated to Court of Appeal Justice in 2013 and to the Supreme Court in September 2015.

He has a Master of Laws from Makerere University. Holds a Postgraduate Diploma from the Law Development Centre and Bachelor of Laws from Makerere University.

Justice Stella Arach Amoko

Justice Arach Amoko has handled many election petitions. In 2006 she dismissed the petition in which NRM's Francis Babu had challenged Erias Lukwago's victory as Kampala Central MP.

Once at the Court of Appeal, in 2012, Arach Amoko wrote the lead judgment that nullified NRM's Faisal Kikulukunyu's victory as the MP for Butambala County. The ruling benefited DP's Muhammad Muwanga Kivumbi.

Justice Arach Amoko served in the Attorney General's chambers from 1979 to 1997 and rose from a state attorney to commissioner for civil litigation. She joined the bench in 1997 as a High Court judge before being promoted to Court of Appeal in 2010.

She was among the nominees recommended by the Judicial Service Commission for appointment as Chief Justice.

She was appointed Judge of EACJ in June 2006 and as a Deputy Principal Judge of the First Instance Division in November 2008. She served for seven years at the East African Court of Justice.

Justice Jotham Tumwesigye

He joined the Judiciary in 2009 as a Justice of the Supreme Court. He previously served as Inspector General of Government (IGG) and Chairperson of the Uganda Human Rights Commission.

While at the Supreme Court, Tumwesigye has been party to many progressive judgments. For instance, in the case of former Lubaga South MP John Ken Lukyamuzi, he decided that it was unconstitutional for the then IGG, Faith Mwondha, to throw him out of Parliament.

He also represents the Judiciary at the Judicial Service Commission.

Justice Paul Kahaibale Mugamba

He was elevated to the Supreme Court in 2017. Prior to that he was Justice of the Court of Appeal. He also served as Judge of the High Court and head of the Anti-Corruption Division.

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