After the Uganda Law Society filed a petition on Monday challenging the scrapping of presidential age limits, and the extension of the MPs’ term by two years, NRM top officials have intensified efforts to frustrate the gathering legal challenge.
The ruling party is also focusing attention on another petition filed this week on Thursday by Leader of Opposition in Parliament Winfred Kiiza, Chief Opposition Whip Ssemujju Ibrahim Nganda and Gerald Karuhanga.
“You’ll be a stupid government not to take as serious any threats against a decision you have made,” the executive director of the government media centre, Ofwono Opondo, told The Observer on January 13 in reference to NRM’s hushed meetings convened to plot to frustrate opposition petitions .
The Observer has learnt that several closed-door meetings have been held in the Attorney General’s chambers to sew up a plan of action by NRM lawyers.
“We [have] been consulting widely because the best way we will handle our opponents is by making adequate preparations,” a source said.
Sources say part of the government strategy is to sponsor multiple petitions and overwhelm the Constitutional Court. About 17 petitions are anticipated to be filed of which 10 could be NRM-sponsored.
On December 20, 317 MPs voted for the constitutional amendment removing the age limit for presidential contenders under Article 102(b). They also extended their tenure to seven years. Amendment of Article 102(b) meant that President Museveni is now free to extend his more than three-decade hold onto power.
After the vote, Attorney General William Byaruhanga and his deputy Mwesigwa Rukutana, Defence minister Adolf Mwesige, MPs Guster Kyawa Mugoya (Bukooli North), Aston Kajara (Mwenge South), Veronica Bichetero (Kaberamaido), Sam Bitangaro (Bufumbira South) and Robinah Rwakoojo (Gomba West) were instructed to prepare for court at a State House gathering.
According to knowledgeable sources, their most recent meeting was also attended by Solicitor General Francis Atoke, Justice and Constitutional Affairs minister Maj Gen Kahinda Otafire and private lawyers. The meetings follow media reports that 10 separate petitions were being prepared.
The ruling party NRM hopes that the Deputy Chief Justice Alphonse Chigamoi Owiny-Dollo will wait to constitute his Coram (panel of five judges) until all petitions have been filed and then consolidate them into one. In consolidating the petitions, NRM believes it will be easier to defeat the opposition challenge.
This is a fear that many opposition politicians have held for some time, The Observer confirmed. Opondo, however, maintained that the NRM is only gathering intelligence information.
“The team is studying every aspect relating to the anticipated petition… they are looking at the likely loopholes that the litigants are likely to use,” Opondo said.
Meanwhile, some Opposition leaders have also been comparing notes with other political players, democracy-seeking civil society organisations and constitutional lawyers to prepare their petition.
“Part of the discussion [was] to consolidate the petitions from all like-minded organisations and individuals into one because we don’t want to file a multiplicity of petitions, all seeking to address the same thing,” Ssemujju said.
“We want to make sure that the case is expeditiously heard, and, we will not allow anyone to merge our case with any other. I can’t accept my case being joined with an NRM petition,” Ssemujju said.
There has been a lot of back and forth for the architects of what could become a landmark constitutional petition in Uganda’s jurisprudence.
Peter Walubiri, a senior constitutional lawyer engaged in the process, said, “We need more time to gather the evidence; we have to agree on who is to depone the affidavits and who are the parties,” Walubiri said.
“My view is that if you need evidence it will be the individual MPs who will give evidence as to the circumstances of how the bill was tabled, how parliament considered it, how the consultations were carried out and the procedure of passing the bill,” he said.
After a week-long engagement on strategy and evidence gathering it had been anticipated that by Monday, January 8, a first draft would be ready.
Last week, some of the most seasoned constitutional law litigators and experts, have disagreed even on the basics. For instance, Richard Mulema-Mukasa and his partner, David Kigozi-Ssempala almost withdrew, split over who should be the parties to the petition.
“Their argument was that the petition should not be filed in the names of MPs because if we do so the petition would be made partisan, something that also compromises the situation of the court bearing in mind that most of the Justices have previously served in senior positions within the NRM government,” said the source.
Mulema-Mukasa has told The Observer that: “… Our argument was that MPs have a right to petition but the petition should be representative enough. We need more members of civil society and the general public”.
Chapter Four executive director, Nicholas Opiyo, one of the lawyers involved, said “our current participation is voluntary.
Even the MPs; Winfred Kiiza, Ibrahim Ssemujju and Gerald Karuhanga, who are purporting to be petitioners, it is not clear whether they are suing as individuals or not. In essence, it is not clear who is giving instructions.”
The impression is that these uncertainties are delaying commitment of counsel.
“I am a professional lawyer. I can only participate wholly if I know who is giving instructions; what is the nature of the case and what evidence is available,” Walubiri said.
What questions should be put before the court is also exercising minds.For example: Should the petition argue from the perspective of the basic structure doctrine? This antecedent, which is common in the courts of India and South Africa, is favoured by law don, by Prof Joe Oloka-Onyango and colleagues in academia.
The law dons say that the amendment can be challenged on the ground that it destroyed the basic structural foundation of the Constitution.
Also, in their view, amendments that purport to entrench President Museveni’s rule go against the historical context within which the 1995 Ugandan constitution was written – a constitution which recalled the damage caused to the country by past tyrants, hence the denunciation of any life presidency wishes.
So far, Prof Fredrick Ssempebwa has sat down with learned colleagues from the law school at Makerere, including Prof Oloka-Onyango Prof John Jean Barya and Dr Ronald Kakungulu-Mayambala. Their meeting was held at the beginning of the week and was attended by city Lord Mayor Erias Lukwago, Walubiri, Opiyo, Rwakafuzi and John Baptist Kakooza