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Age limit ruling a litmus test for Uganda courts

The fate of the five-month Constitution Amendment Act, which removed age limits on the presidency and sought to extend the term of parliament and government by another two years awaits a decision by the Constitutional Court, which spent two weeks hearing the petition.

The petitioners challenged the constitutionality of the Act passed last December amid drama that included a raid by security operatives who evicted mainly opposition MPs from parliament.

The Act extended the mandate of parliament by another two years, removed an age cap that would have barred President Yoweri Museveni from seeking re-election after his current term expires in 2021 and extended the time for filing and disposing of a petition challenging the outcome of a presidential election among other things.

But, the verdict, whichever way it goes, will be a test not just on the law but on the five judges of the Constitutional Court.

They are Justice Alfred Owiny Dollo, who was appointed deputy Chief Justice only last year, judges Kenneth Kakuru, Remmy Kasule, Cheborion Barishaki and Elizabeth Musoke.

All, but one of the five judges, are facing their first major constitutional case and their decision will determine whether President Museveni, who has been in power for over 30 years, can seek re-election in 2021.

Critical choices

The Justices have three critical choices and each will come with its own issues: They could dismiss the petition on the basis that it lacks merit or fail it on technical grounds.

They could accept the petition and quash the law in its entirety or they could opt to accept some aspects of the petition and dismiss others.

Whatever the decision, the losing party is expected to appeal it. And why not, given that an appeal would have an impact on other scheduled constitutional activities like the referendum, which would affirm the term extension for the presidency and the general election in 2021.

For the government, an initial win would provide the critical window to push through critical activities aimed at defeating any final verdict.

A similar situation was witnessed in the early 2000s when the law that cleared a referendum on political parties was nullified for lack of quorum, but the final verdict was determined after a new law had been crafted and the referendum held.

Another potential conundrum is the ruling lacking a unanimous decision or split decision on all or parts of the petition.
Whatever the decision, the judges will face criticism and praise in equal measure.

Of the five, only Justice Kasule has dealt with a contentious constitutional matter when he gave a minority opinion in a petition involving the ruling National Resistance Movement party and four of its members famously known as “rebel” MPs.

His dissenting opinion in the 2014 case — where NRM had expelled MPs Wilfred Niwagaba, Barnabas Tinkasimire, Theodore Sekikubo and Mohammad Nsereko and wanted them thrown out of parliament — was later to carry the day on appeal to the Supreme Court.

Judge Kasule ruled that the MPs could not be expelled because their disagreement with their party and their subsequent expulsion by NRM on whose ticket they were elected to parliament made them involuntary independents. This therefore did not amount to a crossing of the isle, which would have led to them automatically losing their seats.

The decision by the Constitutional Court will re-set the political dynamics of the country no matter the final outcome.

“The court itself is as much a hostage as the case, the petitioners and the citizens,” said Busingye Kabumba, a constitutional lawyer and lecturer at Makerere University School of law.

“In my view, the fundamental challenge is the resolution of the deep political crisis in the country. The ultimate liberation of the court itself can only be realised in the context of the resolution of that broader crisis,” he said.

Elison Karuhanga, a lawyer who was also part of President Museveni’s legal team in the 2016 Supreme Court challenge to his re-election by rival Amama Mbabazi, described the Mbale Constitutional Court hearing as a “laboratory for constitutional jurisprudence,” which provides an opportunity “to deepen and broaden” the role of courts in settling political disputes.

While avoiding to speculate on the outcome, Mr Karuhanga said that whatever the verdict, it will have a huge impact on the nexus between courts and politics.

He said that even though this case is important, Ugandan courts have already come a long way in building constitutional jurisprudence, which has contributed significantly to political dispute resolution as the country moves away from violence as the decider of political winners and losers.

According to Crispin Kaheru, the co-ordinator for Citizens Coalition for Electoral Democracy in Uganda, the environment rather than the verdict is the most critical matter for Ugandans as they await the judgment.

“I think our democracy is being slowly chipped away and that is why the Mbale judgment is very important, whichever way it goes,” said Mr Kaheru.

“The decision is going to be made in an environment where there is little public confidence in public institutions including courts of law; in a context of an overbearing executive; and in a setting where courts have ruled in a given pattern with respect to cases of high political interest such as this one.

The bench has good objective minds, but is the environment permissive for them to invoke their wisdom and judgment independently?” he said adding, “I do not expect anything ‘out of the ordinary” from Mbale.”

After closing arguments two weeks ago, the Constitutional Court promised to deliver its verdict on notice.

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