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ANALYSIS: Courts of fear

Behind Constitutional Court decision to remove age limit, annul 7 year term

Kampala, Uganda | AGATHER ATUHAIRE | Two days before the July 26 decision of the Constitutional Court to uphold the constitutional amendment by parliament to remove the Presidential age limit and quash the amendment for a seven-year term for MPs and return of presidential term limits, word circulated that President Yoweri Museveni was calling some of the judges on the coram – to ensure a favourable decision. Nothing unusual there.

As far back as 2012, one of Uganda’s top justices, George Kanyeihamba who has been involved in similar decisions had, in his book `The Blessings and Joy of Being who You Are’, written about President Museveni calling judges just before important rulings are made.

Kanyeihamba, who was on the coram that heard the election petition by opposition candidate Kizza Besigye against President Yoweri Museveni’s win in 2006 writes that similar rumours of the President calling judges circulated.

Kanyeihamba writes: “It was said that the Chief Justice had been summoned by the highest political authority, which controlled the then prevailing constitutional order of governance, and told in no uncertain terms that the authority could not be trusted to contain possible actions by the Uganda Defence Forces when rejecting any orders allowing the petition.”

Kanyeihamba writes that all seven judges on the coram, including then-Chief Justice Benjamin Odoki, denied they had been called. But he reveals on page 386, that a year or two later, Odoki –in a judicial slip of tongue – revealed that the President had summoned him and warned him of the possible consequences of their 2006 verdict.

He says it was later confirmed by several soldiers on the army high command. But the word that circulated two days to the Mbale Constitutional Court decision had an unusual twist; it alleged that one of the judges on the coram had told off Museveni. This twist added more anticipation of a judgment tough on Museveni. But it was proved wrong. The day’s grapevine had another tale; that the coram of five justices would allow the removal of age limits but disallow the extension of the term of members of parliament from five years to seven.

This was proved right. But even this had another twist; that the court would rule that a referendum be conducted to determine whether to change the length of terms.  The court discussed the referendum issue but did not rule on it. Finally the word had it that the justices would rule 3:2 in favour of lifting the age limit and retaining the five year terms and return of presidential term limits. This was also proved wrong.

The justices ruled 4:1 on the former and 5:0 on the latter two. Sitting on a time bomb Those happy with this decision celebrated. But many others said the judges exhibited double standards in finding that some parts of the same law are null and void while others are legitimate.

They appeared unconvinced by the argument of the justices that, under the severability doctrine, some sections of a law that are unconstitutional can be severed and those that are not are saved. The analysts say the justices had a perfect opportunity to forestall a looming political crisis surrounding Museveni’s continued clinging to power and missed it.

“What their decision means is life presidency and that means no peaceful transfer of power which means we are sitting on a time bomb,” said Wandera Ogalo, the lawyer for the petitioners, in an interview with the Independent.  The Citizens Coalition for Electoral Democracy in Uganda (CCEDU) Coordinator, Crispin Kaheru, also says the decision of the court spells doom for democracy.

“The judgment may have substantially and inadvertently reversed the country from a multi-party political dispensation to an individual-based political system,” he said, “The fear to hurt the interests of President Museveni could have compromised the objectivity of the judges.”

For the purveyors of the grapevine drivel, all the detail was of little consequence, it is the substance that mattered.

To them it was enough confirmation of the rumours that four out of the five justices of the court held that the constitutional amendment Act, which was passed amid controversy and police and army brutality; including the invasion of parliament and battery and detention of some MPs in December last year, was valid. Clearly, the justices were determined to allow Museveni to run for presidency for the sixth time in 2021 when he will have been 35 years in power.

So how did it happen? The turning point appears to have been reached at Justice Remmy Kasule’s verdict. He ruled that the framers of the 1995 Constitution did not put the article on presidential age limits among articles that require a referendum to change.

They left that to Parliament which, in his view, was within its powers to amend them together with those of District Chairpersons.

Kasule cited the Odoki Constitutional Commission Report proposing that only proposed minimum age limit of 40 years for one standing for the office of President and never put a maximum age limit of the President, reasoning that: “Since we have proposed the minimum age, we are of the view that there is no need to fix the maximum age; the electorate will decide on the appropriate candidate.”

So why were many surprised by Kasule’s decision? Partly, it must have been because Kasule, as a once renowned member of the opposition Democratic Party (DP) was expected to “fear” to challenge Museveni. 70-year old Kasule’s views carry weight as he is also the current Chairman of the Uganda Law Council and, as he is due to retire this year; he was expected to want to go out with a bang. Kasule and Museveni also have a checkered history.

When he ascended to the Court of Appeal in 2011 many recalled that his name had been first nominated in 2002 but rejected by Museveni who preferred the outgoing Deputy Chief Justice Steven Kavuma.

Even when Museveni accepted Kasule in 2011, many of his advisors said he was misadvised. And they appeared vindicated when Kasule was only one of the five justices of the Court that ruled in favor of the rebel MPs when NRM sought to throw them out of Parliament after their expulsion from the party. In an elaborate dissenting judgment, Kasule said that expulsion from a party does not mean an MP automatically loses the seat in Parliament.

The rebel MPs based on his ruling to challenge the decision of the majority in the Supreme Court which confirmed Kasule’s judgment. Many of those that sought dissenting voices in the Mbale ruling based on such rulings and his pedigree in the opposition DP to bet on him. They lost.

Counting on Kakuru

That left Justice Kenneth Kakuru as the lone demolisher of the amendment removing the presidential age limit from the constitution.

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