As the Legal and Parliamentary Affairs committee enters its second week of scrutinizing Igara West MP Raphael Magyezi’s private member’s bill that seeks to remove presidential age limits, leader of the opposition People’s Development Party (PDP) Abed Bwanika wants the highly divisive issue put to a referendum vote.
From across the country, reports are pouring in that a significant proportion of the population is telling members of parliament, who are presently consulting them, that they oppose the amendment of Article 102(b) of the Constitution.
The article says that a presidential aspirant must be between 35 and 75 years of age. The general view is that, if amended, nothing would stop the incumbent at State House from bidding to extend his 35 years in office – which many feel is enough.
The sitting president is 73 years of age and would be locked out of re-election in 2021 by the constitutional 75-year upper age cap if the article is not scrapped by the proposed amendment.
Two weeks ago, Bwanika’s petition to have the question taken to Ugandans was approved by Electoral Commission chairman Justice Simon Byabakama. He now has to collect 1.5 million signatures to satisfy the requirements necessary to cause a referendum vote on whether or not the presidential age limits should be lifted.
Section 11 of the Referendum and Other Provisions Act 2005 stipulates that a referendum shall be held if a petition is made in writing, in the case of a national referendum, by a registered voter and in the case of a referendum in a particular part of Uganda, by a voter registered in that part of Uganda.
Part (b) of this section says that the petition has to be supported, in the case of a national referendum, by at least one tenth of the total registered voters from at least one third of the districts of Uganda; and in sub-clause (ii) in the case of a referendum in a particular part of Uganda, by at least one third of the total registered voters in that part of Uganda.
The referendum law operationalised Article 225(1) of the constitution, which directed that parliament shall by law make provisions for the right of citizens to demand the holding by the Electoral Commission of a referendum, whether national or in any particular part of Uganda, on any issue.
It adds in sub-article (3) that where a referendum is held, the result shall be binding on all organs and agencies of the state and on all persons and organisations in Uganda.
A national referendum was last held in 2005 in which Ugandans were asked whether the country should revert to a multi-party political system of government after years of being under the unwieldy, some say oppressive, ‘broad-based Movement’.
Although the opposition flatly refused to participate in the plebiscite, arguing that you cannot ask people to vote on their inherent human right to freely associate, Ugandans overwhelmingly voted for political pluralism, kicking out the dubious Article 269 from the constitution that had proscribed political party activity.
But opinion is divided. Some political observers think Bwanika’s cause is a nonstarter. Those opposed say the three-time losing presidential candidate is either playing into President Museveni’s hands, or could actually be the unwitting tool of Museveni himself in what they consider to be a suspicious undertaking.
“I don’t know why Abed Bwanika’s proposal is similar to one that Museveni has not put on the table,” Ibrahim Ssemujju Nganda, opposition chief whip and FDC spokesperson, said in a weekend interview.
Those in the know say that Museveni has looked at three options on how to lift the age limits. The first option was to go through parliament where his National Resistance Movement party enjoys an overwhelming majority.
But with several of its MPs speaking against the amendment of Article 102(b), the idea of a referendum has reportedly been thought about as a fall-back choice.
And if that does not look like an appealing enough prospect, somebody could go to court seeking a declaration that the provision is discriminatory, inconsistent with the constitution and, therefore, null and void.
However, Bwanika told this newspaper on November 4 that although he has also heard that Museveni had considered the referendum as an alternative, he nevertheless feared to see it through because the population is vehemently opposed to his moves.
“I have heard that notion but he didn’t do it. He looked at all the options and saw that it was parliament where he had the best go. The fact that he feared to go to the referendum as his first priority means that it is our best bet to have the people express themselves,” Bwanika said.
The complication for Bwanika, though, is whether elections can be a means through which the people can freely and fairly express themselves.
His critics point at the recent history of elections held under the NRM, which they say have never been free or fair. How then can one guarantee that the referendum result will not be tinkered with?
Indeed, opposition kingpin Dr Kizza Besigye said as much a few weeks ago when religious leaders also proposed a referendum. He said all elections in Uganda, for as long as Museveni’s future is on the line, will be skewed in his favour and a referendum wouldn’t be different.
Ssemujju agreed with Besigye’s assessment, saying if Ugandans were allowed to choose in a truly free and fair environment, a referendum would have been the best way to decide the age limits question. Unfortunately, the reality is anything but.
“You go into an election well knowing that it is going to be rigged. It’s not that we fear elections, but we fear rigged elections and that’s why we keep demanding for [electoral and political] reforms and I hope one day they will happen,” Ssemujju said.
Asuman Basalirwa, leader of the Justice Forum party, goes further to add that in the current setup, there is no guarantee that what people will decide is what will prevail.
“You cannot fight a crocodile in water because that is its territory. Museveni’s territory at the moment is the electoral process; he will deliberately manipulate the results,” Basalirwa said.
“Museveni is dying to be president of this country for life. I don’t want in any way to undermine Bwanika’s efforts but I want to engage him on how he intends to deal with the historical challenges that we contend with; a biased Electoral Commission, biased security system and generally an unlevelled playing field and related challenges,” Basalirwa said.
Forever the optimist, Bwanika wonders how Kampala Lord Mayor Erias Lukwago and other opposition MPs managed to beat the biased system to win.
He said the opposition should consolidate the small gains they have made and the support they enjoy to go full blast in the referendum.
“I have similar reservations on the way the Electoral Commission conducts elections in this country. But we are not going to live in fear forever because of these reservations. Out of the same electoral management we have also had a few successful cases. We are going to rely on those best practices to ensure that we win amidst a bad election,” Bwanika said.
Who has the power?
The other one million dollar question is whether actually Article 102(b) which is not an entrenched provision can be subjected to a referendum.
In a recent interview, Prof George Wilson Kanyeihamba, a retired Supreme court judge and constitutional expert, said Ugandans have the constitutional right to hold a referendum on anything. But Basalirwa, who is an accomplished lawyer in his own right, has a contrary view.
“The results of a referendum only serve propaganda value; they will not be binding because that responsibility constitutionally was vested in MPs,” Basalirwa said.
“What we should be doing is to engage our MPs in all manner and form to persuade them to vote against this bill.”
Bwanika is not sure the current crop of MPs can be trusted to do the right thing even with evidence that their constituents have rejected the bill.
“We have fears that even in parliament there are few genuine members who will reject the bill. We have heard voices which are determined to disregard the voices of the people. The best way is to go for a referendum so that the voices of Ugandans will be expressed individually,” Bwanika said.
Like Kanyeihamba, Bwanika believes that articles 1 and 255 of the constitution allow Ugandans to have a say on how they should be governed.
“People of Uganda can demand for a referendum on any issue important to them. We are reaching out to friends; to civil society and everybody who wishes the people of Uganda well and I hope we shall succeed.”
For now, the government deputy spokesman, Col Shaban Bantariza, was non-committal when asked to comment, saying the PDP leader is free to exercise his rights.
“Government has no say because that is Bwanika’s democratic right. This matter is between him and the Electoral Commission,” Bantariza said.
Speaking to The Observer, Rogers Mulindwa, a spokesman for the NRM, said as a party they are law-abiding and will support whatever the people of Uganda decide.
“We are going through the consultation exercise even when we are so much aware that we have the numbers in parliament to do the work as regards the age limit bill,” he said when interviewed for this piece.
“So, if that [referendum] is the wish of parliament and majority of our people, we can’t object to that. If anything, we have even more numbers on the ground to achieve our victory,” Mulindwa said.
Thing is those numbers Mulindwa refers to seem to be speaking a completely different language.