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Judges’ take on key issues in age limit ruling

Justice Elizabeth Musoke On MPs term. She struggled to read her judgment. At least, she was clear MPs were elected to serve for five years and adding an extra two, without reference to voters, amounted to the legislators choosing to represent themselves and not the people who elected them.

Justice Musoke ruled: “I find that the extension of the life of Parliament and Local Council leaders took away the social contract and rights they had with the electorate of five years, and not seven years.” Held justice Musoke.

On age limit. Scrapping of the age limit clause from the Constitution may see a leader entrench themselves in power, the judge held, but added that a leader in a democratic society can only keep in office when voted by the people.

Justice Kenneth Kakuru
MPs tenure. “In my humble view, the principle of holding elections after every five years, to hold otherwise, is to hold absurdity. It could declare the current Members of Parliament for life just like [President Idi] Amin did,” he ruled.

Justice Kakuru criticised MP Michael Tusiime, who introduced the motion to extend MPs’ tenure by two extra years and that of the Local Council leaders, saying these were not in the original Constitution (Amendment) (No.2) Bill, 2017 that MP Raphael Magyezi tabled.

He discounted the justification by MP Tusiime that an extension is necessary because MPs spend the first two years of their term either battling election petitions in court or acclimatising themselves with the Rules of Procedure of Parliament.

“This explanation has no connection with the extention of term in Parliament. It appears MP Tusiime was saying that Members of Parliament are unknowledgeable and do not know what they do in the first two years.

This is not true because some have been in the House for long and there is no need to study the parliamentary rules [since] some are highly educated,” Justice Kakuru ruled.

On age limit . Justice Kakuru observed that there was no public participation before carrying out amendment of the

Constitution. The process of the amendment, he noted, was a planned ambush since the Bill was introduced in Parliament, debated and passed on the same day.
Overall, the judge declared that the process of the amending the Constitution “unconstitutional and a nullity.

Justice Alfonse Owiny-Dollo 
MPs’ term. Justice Owiny-Dollo, who as the Deputy Chief Justice doubles as the head of the Constitutional Court, was the last to deliver judgment on the ‘age limit’ case. He decided that the two-year extension of the mandate of MPs was unconstitutional as the purported reasons given were unfortunately self-serving.

He added that the reasons advanced by the mover of the motion could not pass the test of reason or public interest. The Constitution provides for such an extension for only six months and only in a circumstance when the country is facing war or in a state of emergency.

“Before Parliament extends its life, there must be a war of an external aggression and there must be a state of emergency and there has to be a pronouncement to that effect which was not the case here,” he ruled.

Justice Owiny-Dollo further held that: “The extension of their term of office was in breach and undermined the express powers of the social contract they had with the people who gave each MP to represent them in Parliament for five years..”

The legislators, he noted, had instead chosen to usurp the powers of the people.

Justice Cheborion Barishaki
MPs’ tenure. He was the first judge on the panel of five to read his individual judgment that lasted more than three hours.

While analysing the issue, Justice Barishaki reasoned that Parliament assigned itself power meant for the electorate to extend its life in office and that of local government leaders.

He said lawmakers can extend the life of Parliament only during a state of war or an emergency. That extension as provided in the Constitution, he noted, can only last for six months.

“The people of Uganda went to the polls knowing they were voting their leaders for five years; so, extending their stay in Parliament was flagrantly done. I am persuaded by the petitioners’ submissions that the extension of their tenure was unconstitutional as they didn’t have powers to do so,” the judge held.

On age limit. Justice Barishaki argued that there is no evidence in the region that a President subverts the will of the people when there is no presidential age limit in the Constitution.

Justice Remmy Kasule
MPs’ tenure. Justice Kasule concurred with the petitioners that the framers of 1995 Constitution rightly decided that Parliament can extend its life for a maximum of only six months but only in an emergency or war situation.

If the framers of the supreme law had wanted MPs to have an express way to extend their stay in Parliament for any period of their choice, the makers of the Constitution would have expressly stated so, he said. This, he observed, was not the case.

On age limit. Justice Kasule said the Constituent Assembly delegates who promulgated the 1995 Constitution in their wisdom saw it fit to set 75 years as the upper presidential age cap, but left Article 102 (b) as one of those provisions that lawmakers could amend from time to time without subjecting the decision to a referendum.

He further cited the Justice Benjamin Odoki (Constitutional Review Commission) report that he said did not impose a maximum age limit for one to contest for election as President. That choice was left for the electorate to decide, he argued.

“Article 102 (b) does not constitute a fundamental structure of the Constitution; so, there is no need to require a referendum to amend it. I am, however, noting that imposition on any other office is discriminatory and in contravention of Article 21 (3),” he ruled.

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