By Duncan Abigaba
On Thursday 18th April, 2019, the Supreme Court upheld the decision of the Constitutional Court that the passing of Sections 1, 3, 4 and 7 that provided among others for removal of the age limit for the President and Local Council V Chairpersons were passed in full compliance with the Constitution and thus are valid provisions of Constitution (Amendment) Act No. 1 of 2018.
The Justices ruled 4 against 3 in favour of the amendment. Those for were: Chief Justice Bart Katureebe, Justice Jotham Tumwesigye, Justice Rubby Opio Aweri, and Justice Stella Arach Amoko. Those against were: Justice Eldad Mwangusya, Justice Paul Mugamba and Justice Lillian Tibatemwa Ekirikubinza.
The Constitutional Amendment Bill number 2 of 2017 popularly known as the “Magyezi Bill” was introduced by Hon. Rapahel Magyezi (Igara West) to amend the constitution in accordance with articles 259 and 262 which provide for amendment of the constitution and amendment by parliament respectively. The bill sought to amend: article 102 (b) in order to remove age limits on the office of the President and make it open for all Ugandans in order to widen the scope of candidates who can run for the position of President; article 61(2) to provide for holding of Presidential, Parliamentary and Local Council general elections within the last 120 days before the expiration of the office of the President. Before, the constitution was providing for holding of general elections within the last 90 days before the expiration of the office of the President; article 104 by substituting clauses (2), (3) (6); clause 2 sought to increase the number of days required to lodge a petition against Presidential Election results in the Supreme Court Registry after declaration of results from 10 to 15 days; clause 3 sought to increase the number of days under which the Supreme Court should determine and declare its findings and reasons in a Presidential Election Petition from the date the petition is filed from the current 30 to 45 days; clause 6 sought to increase the number of days under which a fresh election should be held in case of annulment of a Presidential Election from 20 to 60 days; and finally, the bill sought to amend article 183 (2) (b) by repealing paragraph (b) which discriminates against Ugandans seeking to run for the office of the District Chairperson on the account of age.
Upon presentation of the Constitutional Amendment Bill No. 2 of 2017, it only addressed the above articles for amendment. However, during its first reading and second reading, Hon. Nandala Mafabi (Budadiri West-FDC) on the floor of parliament before the 3rd reading of the bill, proposed reinstatement of Presidential term limits under article 105 and the entrenchment of the same. Hon. Tusiime Michael (Mbarara Municipality-NRM) proposed extension of term of the President and Parliament from the current 5 to 7 years. This prompted the Constitutional Court in its ruling to sever the two amendments from the Act for not following the laid down procedure. For these amendments to obtain a certificate of compliance from the Speaker, they ought to have appeared in the first, second and third readings which are separated by 14 parliamentary sitting days.
Also, the two amendments were severed because they couldn’t obtain a zero certificate of financial implication. Extension of the term of the President and Parliament had a financial implication because money is required to implement them. If you extend a Presidential and a parliamentary term by 2 years, you must pay emoluments of the office bearers. That is a financial cost. Article 105 (i) is an entrenched article that required a referendum to amend it. In this case a referendum costs money. A private member’s bill can only pass if it has zero financial implication on the consolidated fund. All the judges agree that the Magyezi bill as it was originally, had no charge on the consolidated fund.
Many politicians have been arguing that amendment article 102 formed the basic structure of our constitution, and was among the few safeguards in the same constitution. Legally, the six justices of the Supreme Court with exception of Lillian Tibatemwa Ekirikubinza contend that article 102 wasn’t a key pillar of our constitution. What forms the key pillars are articles 1-sovereignity of the people, 2-supremacy of the constitution and chapter 4-bill of rights.
In a nutshell, all the seven Justices of the Supreme Court agreed that there was nothing wrong with the original Magyezi Bill; that the MPs had powers to change the age limit for Presidential Candidates and LCV Chairpersons; that the provisions of the Magyezi’s original Bill were passed in accordance with the Constitution; that there were mistakes made by Parliament when they added new amendments to Magyezi’s Bill. The additions were unconstitutional. By a majority of four justices of the Supreme Court, it was decided that the additions to the Constitutional Amendment Act could be removed from the rest of the Law which all the Justices had agreed had been passed in accordance with the Constitution.
Therefore, upholding of the constitutional amendments by the Supreme Court is a big win for our democracy. More Ugandans have a democratic right to stand for electoral positions regardless of age, aggrieved electoral candidates have more time to file petitions in the courts of laws, and the electoral commission has more time to organize more credible, free and fair Presidential and Parliamentary elections.
The writer is Manager, Government Citizen Interaction Centre
Ministry of ICT and National Guidance