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ANALYSIS: Courts of fear

Kakuru, of all the justices, sought to contextualise his ruling on Uganda’s turbulent political history and the spirit and intent of the framers of the 1995 national constitution.

“The history of the country and the legislative history of the Constitution is also relevant and a useful guide in constitutional interpretation,” he said adding that, in the preamble to the constitutional, the people of Uganda emphasised the country’s history, acknowledging sadly that it has been characterised by political and constitutional instability.

“Lest we forget,” he said, “My attempts to recount the constitutional history was to re-echo the people’s cry, in the preamble to the Constitution. We must always recall our history. “Lest we forget.” He added, regarding the motive behind the lifting of the presidential age limit which the other justices fudged: “Born in 1944 President Museveni will not have been qualified for election as President under the Constitution as it stood in 2017, as he would have attained the age of 75 years in 2019, the next General Elections being due in 2021.” And Kakuru went a step further.

He invoked the Basic Structure Doctrine; a legal principle originating from India that says that national constitutions have fundamental features that go to the very root of the constitution and should never be altered through a parliamentary amendment because that would amount to destroying the foundation and structure of the constitution.

Kakuru stated that there are provisions of the Constitution which parliament does not have power to alter even if it followed all the required procedures of amendment.

“Parliament, in my view, has no power to amend alter or in any way abridge or remove any of the above pillars or structures of the Constitution, as doing so would amount to its abrogation,” he said.

He added: “In this regard therefore, I find that the basic structure doctrine applies to Uganda’s Constitutional order having been deliberately enshrined in the Constitution by the people themselves.” Kakuru ruled that MPs have no power, including legislating on extending their term from five to seven years.

“The power to legislate belongs to the people of Uganda, who every five years delegate it to some amongst themselves under Article 1 of the Constitution. This power therefore delegated as it is very limited in both in time and scope.”

He concluded that the contravention of several articles of the Constitution and omission defeated the whole amendment. He ruled: “The entire Constitution (Amendment) Act 1 of 2018 is unconstitutional and is therefore null and void.

All its provisions ought to be expunged from the Constitution of Uganda.” But Kakuru was outnumbered 4:1. In the end, several renowned constitutional lawyers say the judgment reached was technically unimpeachable not substantially unconvincing.

Shallow interpretation of constitutionalism Prof. Oloka Onyango of Makerere University Kampala whose latest book is `When Courts Do Politics’, says on the technical questions, it is hard to fault the judges because whether the age limit can be removed or not is not a legal issue.

“In the black letter of the law, there was no problem with the removal of age limit,” he told The Independent in an interview “Article 102 (b) is an article like any other which can be amended by parliament.” But, he added “You need to contextualise it.”

“The age limit is not an event,” he said, “it had to be put into context.” He says the Justices by their decision created a life presidency. “In a country where you have never had a free and fair election, where there has never been peaceful transfer of power, where there are no functional institutions, you cannot afford to create a life presidency.”

He says the Judges should have based their decision on the context within which Uganda finds itself and the implications of a life presidency. Instead, he says, the court’s decision depicted the justice’s shallow interpretation of constitutionalism.

“A constitution is not a statute,” he said, “You cannot interpret a constitution as just a legal document. It is a political document, a social document, a cultural document.” He says Judges needed to refer to Uganda’s history of coups and militarism, the flawed elections, and the malfunctioning institutions.

He says such a context renders the judges’ unanimous condemnation of the extension of terms for MPs and local government leaders while promoting a life presidency inconceivable. He attributes the decision of the justices to fear.

“What we are seeing in this country is structural fear,” he says. “People have lived in a context of a dictatorship and have gotten accustomed to not questioning anything. That is why the Judges can challenge life MPs but not life presidency.”

Oloka calls this a structural fear which, he says, is not only in politics but even in the social life of Ugandans. Lead lawyer for the petitioners, Wandera Ogalo, agrees with Oloka that the Judges needed to show what they understand will be the impact of their decision on a country that is yearning for a peaceful transfer of power and elections with meaning.

“The judges know very well that there is a problem with the election process,” he told The Independent in an interview and reeled off a list of recent flawed election. He cited the Rukungiri Municipality by-election where President Museveni sought to influence the vote by splashing over Shs5 billion worth of freebies to voters with a stern warning: you either vote the NRM candidate or you will not get government services.

“Term limits and age limit are a conscious process to ensure democracy in Uganda because these other institutions, for instance the Electoral Commission are too weak,” Ogalo said. He says the Judges should have pronounced themselves on the implications of the removal of age limit in Uganda’s context. But even Justice Kakuru, the lone remover of the age limit did so without pronouncing himself on the issues Ogalo and Oloka wanted addressed.

And it appears, Kakuru anticipated the Ogalo and Oloka challenge. He ruled: “I have found nothing to suggest, let alone prove that Parliament cannot, through the established constitutional process, vary the qualifications of the President or that of the District Chairperson.

The qualifications of the President and those of Chairpersons District local governments do not in my view form part of the basic structure of the Constitution which I set out earlier in this Judgment. “The people of Uganda, through their Constitution, should be able to freely, whenever it is absolutely necessary to do so, vary the qualification of their leaders.

These qualifications include but are not limited to citizenship, age, and 10 academic qualifications. The same ought to apply to the disqualifications of the same leaders. It may be, for example, found necessary in future to require every Presidential candidate to be computer literate, fluent in both English and Swahili and at least two local languages the list is endless”.

So, it appears Ogalo and Oloka might not have convinced Kakuru on that one. Still, Ogala says removing age limit is disastrous for democracy in Uganda. But he says the Mbale Judgment is good for the growth of constitutionalism and enrichment of jurisprudence.

“The Judgment, particularly of Justice Kakuru and Remmy Kasule which delved into our history was good,” he says. Ogalo is happy that the Basic structure Doctrine has been introduced in Uganda’s law. But Oloka says the reference to the Basic Structure doctrine by the justices was pointless if in the end they upheld an amendment that completely violates all the tenets of the doctrine.

Ogalo disagrees. He says if the Judges had applied the doctrine to the present dispute, there would be a risk of it being struck out by the Supreme Court on appeal. “That is why I didn’t even argue it,” he says, “I feared it because it was rubbished in Tanzania but Lukwago (Erias) argued it.

“Even though they did not apply it to the present facts”, he adds, “I am more than happy that it is now part of our law and that to me was a plus.” And the debate goes on.

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