Lawmakers seeking to prolong their stay in Parliament for two more years when their current five-year term expires in 2021, have been thrown into panic after constitutional lawyers and senior politicians poured cold water on the proposed constitutional amendments.
Sunday Monitor understands that Speaker Rebecca Kadaga has also contacted selected legal brains in the House, seeking their counsel on the proposed seven-year term as the House prepares to debate the contentious project rooted in a ‘give- and- take’ deal on age limit removal. Ms Kadaga, according to sources, is expected to guide the MPs on the legitimacy of the proposal when the matter comes up in the House next week.
Attempts by the ruling party legislators to amend Article 77 (3) of the Constitution to extend the current five-year term of Parliament to seven years have polarised the country and united the Opposition against the proposed amendments. Some experts in constitutional law, including John-Jean Barya, Wandera Ogalo, Peter Walubiri, Frederick Jjuuko and George Kanyeihamba, have called the move by the MPs “a flagrant abuse of the constitutional order” and talked of dire consequences if the politicians they described as “a bunch of selfish and greedy people” ignored “wise counsel”.
Prof Frederick Jjuuko, a former dean of School of Law at Makerere University and Mr Dan Wandera Ogalo, a renowned city lawyer, argued that the decision to lengthen term of MPs and the president from five to seven was based on “greed for power and money,” and insisted that the current Parliament cannot benefit from the amendment without going back to the people.
“These are just a bunch of selfish and greedy people… If a Constitution has to be changed, there must be an issue with it. We have never heard that the five years is a short time, so why would you change it now? They are just greedy for power and money,” Prof Jjuuko said.
“They [MPs] must know that history is unforgiving and they will not be judged fairly when they tamper with the Constitution. In 1967, the legislators adopted a new Constitution when there was supposed to be an elections and extended their term. You know what later on happened in 1971,” he added in reference to the 1971 coup that brought the former army commander, Idi Amin Dada to power.
Basing on a favourable legal opinion of the deputy Attorney General Mwesigwa Rukutana’s five-member committee on the matter, the ruling party caucus members had hoped for an easy sail through Parliament. Sunday Monitor understands that some of the lawyers Ms Kadaga consulted have strongly advised against amending Article 77 (3) to extend the term of 10th Parliament for two more years. They have called the move unconstitutional and an abuse of office.
“We have moved from being a nation of laws to a nation of man…it’s not what the law says, it’s what they want and this borders on impunity and abuse of the constitution,” Mr Ogalo said.
“The MPs are pushing for these strange amendments because they don’t care about what the law says. They cannot just increase the term to seven years yet they were elected under Article 77 (3). They have a contract of five years and any amendments to Article 77 (3) cannot benefit the current parliament unless the law means nothing to them.”
Geroge Kanyeihamba, former Supreme Court judge
Sunday Monitor has seen a copy of the December 15 legal opinion which according to sources was given to Speaker through the Office of the Leader of Opposition, warming that the proposed amendment to Article 77 (3) is a recipe for “constitutional instability,” and that the targeted article “cannot be read in isolation of articles 61 (2) and 105 (1)” since Parliamentary elections are clearly tagged on the term of the President.
I his legal opinion, Shadow Attorney General, Mr Alfred Niwagaba wonders: “In the event a term of office of Parliament is extended and that of the president is not, what government shall that be? And who would lead in such disharmony and distortion? Wouldn’t this be recipe for political disorder and could fundamentally affect governance and stability of the country?
The Shadow Attorney General argues that amending Article 77(3) would infringe on Article 1 of the Constitution which provides for sovereignty of the people. He insists that the reading together of Articles 61(2), 77 (3), 105 (1) and 260 (1) and 2 (f) render the term of Parliament indirectly/by infection entrenched.
The Attorney General William Byaruhanga and his deputy were not readily available to give their views on the matter. The ruling party lawyer Kiryowa Kiwanuka, a partner at K&K Advocates at the weekend declined to comment on the matter because he had not read the Parliament’s Legal Committee report. However, NRM Caucus sub-committee chaired by Rukutana last week okayed the proposed extension Parliament for more two years. The ruling party members pushing for seven years have not justified the amendment.
However, the legal experts who talked to Sunday Monitor agree with Shadow Attorney General on the argument that the only time given to Parliament to extend their mandate beyond five years is under Article 77 (4) and is for not more than six months. This is provided for under special circumstances; state of war or state of emergency that would prevent a normal general election from being held.
“The proposal to extend the term of parliament is an act of constitutional instability and can only be supported by those promoting personal as opposed to national interest and is not for the common good of the people of Uganda,” Mr Niwagaba’s opinion reads.
In their push for a Constitution that would abolish age limit caps, give them more power to extend the life Parliament to seven years without recourse to a referendum, the MPs especially from the ruling party (NRM) hope to move the amendments when the Constitutional Amendments Bill, 2017 is tabled for Second Reading next week
To Mr Livingstone Okello Okello, one of the veteran legislators in 8th Parliament, the story of 10th Parliament seeking to live beyond their legal limit, defines what he called “the gloom in our politics” and shows how a pro-people house once considered “a harbinger of hope” and a progressive model has become an example of “cynicism and egotism.” on account of selfishness.
Attempting to mimic Senegal’s first President Leopold Sedar Senghor, the poet who, voluntarily resigned from politics in 1980 after more than 20 years in office, Senagalese President Macky Sall in 2012 promised to reduce the presidential term limits from seven to five years. The country’s constitutional council, however, said such a change would not be consistent with the spirit of the constitution even as the president insists that a referendum be held on whether to shorten the term or not. Mr Sall’s promise was welcomed in a continent with leaders seeking to amend constitutions to remove or extending term/ age limits.
Reactions from law experts
Clockwise: John-Jean Barya, Prof Frederick Jjuuko, Wandera Ogalo and Peter Walubiri
John-Jean Barya,Makerere University law don:“This thing of increasing the years to seven has no bearing to the presidency of Uganda. It is just greed between two ruling sides, the president and the MPs. You see there have never been any complaints within the population that the five years are less, in fact the ideal should be to reduce it to four years. In other countries like France and Rwanda, it is seven but it’s not any good thing to emulate. We should not change things that people sat and thought about in just one night.”
Peter Walubiri, Constitution lawyer:“Sovereignty is vested in the people under Articles 1 and 2. If the people give somebody a mandate of five years, Parliament cannot assume the sovereignty of the people under the guise of a constitutional amendment. That would not be an amendment per se but an indirect election of the President for another two years, which is not provided for in the Constitution. I think it is fairly contentious and President Museveni in his quest to sit in that office until he collapses dead is bordering on the rape of the constitution.”
Wandera Ogalo, constitutional lawyer:“I do not think they will amend Article 105(1). It is just diversionary because now instead of talking about Article 102(b), we are talking about Article 105(1).That provision requires a referendum and NRM MPs cannot just sit and amend it. Going for a referendum would be politically suicidal because judging by the reaction on Article 102(b), they cannot opt for referendum. In terms of constitutionalism, it is wrong because you should not make a law to benefit you as individuals but that does not matter in the regime anymore.”
Prof Frederick Jjuuko, Makerere University:“That is a deal between Museveni and his NRM MPs. These people must know that they are abusing the Constitution and history will follow them up. They just want to amend the Constitution in piecemeal to serve their own personal interests instead of carrying out comprehensive amendments which is the accepted norm. They must know that history is unforgiving and they will not be judged fairly when they tempter with the Constitution.”
Geroge Kanyeihamba, former Supreme Court judge: “Even if they said that the term should be extended for another two years, President Museveni would not be a beneficiary because he would have stopped being President in 2021. If it is passed, he will be barred by judicial oath from being President again.”