On November 9, Leader of Opposition in Parliament Winnie Kiiza, accompanied by colleagues Roland Mugume (Rukungiri Municipality), William Nzoghu (Busongora North), Atkins Katusabe (Bukonzo West) and Joseph Ssewungu (Kalungu West), appeared before the committee on legal and parliamentary affairs where they made a presentation on the 'age limit bill'.
The Observer's JOSEPHINE NAMULOKI brings you an abridged account of the written submission by Kiiza:-
The Constitution of a nation is not simply a statute, which can be amended any time, anyhow, to fit the interests of few individuals.
It is considered to be a blind document that knows no face and voice nor height or size, rather it’s a mirror reflecting the national soul; the identification of the ideals and aspirations of a nation, the articulation of the values bonding its people and disciplining its government.
The spirit and the tenor of the constitution recognizes Uganda’s struggle against tyranny, oppression and exploitation. It is a codex which demands respect, and against which those with political power have to be measured and judged.
In any democracy, a constitution is treated as a document codifying essential values and norms; it should be respected as a guiding formula, which should survive opportunist temptations. It is sacred and inviolable. That’s why legal frameworks normally protect a constitution from being changed merely because the government of the day would like to enact new rules of the game according to its preferences.
Constitutions are for the long term benefit of society and not short-term goals of a ruler. The trends since 2005 seem to imply that some members would have loved to write the name “Yoweri Kaguta Museveni” in the Constitution as they did in the Uganda People’s Defence Forces Act. This is very unfortunate. Constitutions are never personalised.
Repealing Article 102(b) at the moment is very dangerous as it is being done for only one possible beneficiary, the current president, and possibly his political party, although both seem to be identical. Constitutional amendments are never made for an individual or for political parties. Article 102(b) has not yet been tested and we find ourselves in no stalemate with it. The
1995 Constitution was promulgated against a history of conflict and human rights violations from colonial times where extensive measures of oppression were used to suppress discontent and deny Ugandans their fundamental human rights.
The new constitution expressed commitment of the people of Uganda to building a better future based on the principles of unity, peace, equality, democracy, freedom, social justice and progress. We oppose the removal of the age cap. We believe that Uganda has capable citizens who can succeed President Museveni.
African states are fond of having constitutions for regimes and presidents. All countries that have amended their constitutions in reference to age and term limits favour the sitting presidents. Kenya in 2004 amended the presidential age limit both the upper age at 70 and lower at 35 for purposes of letting Hon. Mwai Kibaki contest in 2007.
Cameroon amended its constitution in 2008 to allow Mr. Paul Biya extend his 25-year rule past 2011. Gambia on July 25, 2017 removed age limits by amending section 62 of its 1997 Constitution purposely to benefit Mr Ousarmon Darbue, leader of the United Democratic Party to become the vice president. Rwanda, in 2016 changed its constitution to enable Mr Paul Kagame to contest again.
We need to emulate countries like Burkina Faso with a lower cap at 35 and upper cap at 75 in its 2010 Constitution. Ivory Coast’s Constitution of 2000 (as amended on October 11, 2016) has two term limits and the lower age capped at 40 while the upper capped at 75 years. Djibouti’s Constitution of 2010 puts the age limit at 40 and 65 years.
We have a leader who came in 1986 and asked for only four years to return leadership to civilians. In 1989, the president extended his appetite for power on the pretext of writing the constitution. In 2005, we removed the term limits and Ugandans waited patiently, hoping that the age limit will apply.
Ugandans have been deceived enough. It is not that they hate Museveni, rather, they love Uganda more. We register our displeasure and discomfort in the way government and parliament mistreated those with divergent opinion in multiparty politics.
The entire week within which the bill was introduced into parliament saw this August House surrounded by gunships, all sorts of military hardware and personnel.
Members of parliament were assaulted in the parking yard before the session and the speaker allowed parliament to proceed unbothered by the absence of the other side of the House. Two of our colleagues are still hospitalised and have undergone surgery. These are the outcomes of this brutal attack on parliament.
This reminds us of the 1966 Constitution scenario. The difference is that in the 1966 scenario, there was no brutal attack on members of Parliament in the chamber.
It is sad that soldiers from the Special Forces Command beat members of parliament and forcefully evicted even those who had not been named by the speaker, that the speaker denied the Leader of Opposition a right to be heard and rudely ordered her to sit down or be forced out of the chamber.
Now commonly known as the ‘Magyezi Bill’, this proposal is premised on the Supreme Court decisions in Amama Mbabazi V Yoweri Kaguta Museveni, Electoral Commission and the Attorney General in Presidential Election Petition No. 01 of 2016. Unfortunately, it is misconstrued.
The court ruling gave instructions to only one party, the Attorney General, to take action. The ruling was not in rem (against the whole world); it was in persona (directed to a specific person).
Magyezi has no locus to bring his amendment basing on the instructions of the Supreme Court as they were never issued to him. The person to bring these amendments is the minister of Justice and Constitutional Affairs, assisted by the Attorney General. The judgement is dated August 26, 2016 which means the Attorney General has more than nine months to go.
The court in the Amama Mbabazi’s presidential petition ruled that: “Before we take leave of this matter, we would like to point out a number of areas of concern.
We must note that in the past two presidential election petitions, this court made some important observations and recommendations with regard to the need for reform in the area of elections generally and presidential elections in particular. Many of these calls have remained unanswered by the Executive and the Legislature.”
Both the government and the sponsor of this bill are instead touching on matters that were never before court.
The court further ruled that: “Arising from the above, we recommend as follows:
1. The time for filing and determination of the petition: In the course of hearing this petition, the issue of the inadequacy of the time provided in Article 104(2) and (3) of the Constitution for filing and determining of presidential election petitions came up.
The same issue was also pointed out by this court in the two previous petitions. The 10-day period within which to file a presidential election petition and to gather evidence, and the 30 days within which the court must make a decision as provided under Article 104(2) and (3) of the Constitution and section 59 (2) and (3) of the Presidential Elections Act (PEA) is inadequate. We recommend that the period be reviewed to increase it to at least 60 days.
2. The nature of evidence: Whilst the use of affidavit evidence is necessary due to the limited time, it nevertheless has serious drawbacks mainly because the veracity of affidavit evidence cannot be tested through examination by court or cross-examination by the other party.
Affidavit evidence on its own may be unreliable as many witnesses tend to be partisan. We recommend that oral evidence be used in addition.
3. The time for holding fresh elections: Article 104(7) provides that where a presidential election is annulled, a fresh election must be held within 20 days. We believe this is unrealistic, given the problems that have come to light in the course of hearing all the three petitions that this court has dealt with.
The Electoral Commission has been found wanting. Importation of election materials has sometimes been a problem. Securing funds has also often provided challenges. Therefore, to require the Commission to hold a free and fair election within 20 days after another has been nullified is being overly optimistic. A longer and more realistic time frame should be put in place.
4. The use of technology: While the introduction of technology in the election process should be encouraged, we nevertheless recommend that a law to regulate the use of technology in the conduct and management of elections should be enacted. It should be introduced well within time to train the officials and sensitise voters and other stakeholders.
5. Unequal use of state owned media: Both the Constitution in Article 67(3) and the PEA in section 24(1), provide that all presidential candidates shall be given equal space on state-owned media. We recommend that the electoral law should be amended to provide for sanctions against any state organ or officer who violates this constitutional duty.
6. The late enactment of relevant legislation: We observed that the ECA and the PEA were amended as late as November 2015. We recommend that any election-related law reform be undertaken within two years of a new Parliament.
7. Donations during election period: Section 64 of the PEA deals with bribery. We note that Section 64(7) forbids candidates or their agents from carrying out fundraising or giving donations during campaigns.
However, we note that under Section 64(9) a candidate may solicit for funds to organise for elections during the campaign period. Furthermore, a president may in the ordinary course of his/her duties give donations even during the campaign period. This should be amended to prohibit the giving of donations by all candidates including a president who is also a candidate.
8. Involvement of public officers in political campaigns: The law should prohibit public servants from involvement in political campaigns.
9. The role of the Attorney General in election petitions: The Attorney General is the principal legal advisor of government as per Article 119 of the constitution.
Rule 5 of the PEAs also requires the Attorney General to be served with the petition. We found that several complaints were raised against some public officers and security personnel during the election process. However, the definition of “respondent” in Rule 3 of the PEA Rules as it currently is does not include the Attorney General as a possible respondent.
Further, Rule 20(6) of the PEA Rules provides that even when a petitioner wants to withdraw a petition, the Attorney General can object to the withdrawal. The law should be amended to make it permissible for the Attorney General to be made respondent where necessary.
10. Implementation of recommendations by the Supreme Court: We note that most of the recommendations for reform made by this court in the previous presidential election petitions have remained largely unimplemented.
It may well be that no authority was identified to follow up their implementation. We have nevertheless observed in this petition that the rules require that the Attorney General be served with all the documents in the petition. Therefore, the Attorney General is the authority that must be served with the recommendations of this court for necessary follow up.
We accordingly order as follows:
1) The Attorney General must follow up the recommendations made by this court with the other organs of State, namely Parliament and the Executive.
2) The Attorney General shall report to the court within two years from the date of this judgement the measures that have been taken to implement these recommendations.
3) The court may thereafter make further orders and recommendations as it sees fit.
The government has remained silent yet claiming to support Magyezi’s bill. The government is acting in bad faith.
We further contend that the 9th Parliament adopted the minority report presented by Hon Mwiru Paul and saved it for the next Parliament. It is the duty of this Parliament to rejuvenate the saved report and conclude it.
Since the promulgation of the 1995 Constitution, it has been amended four times and now with two more proposed amendments lying before Parliament, aware that the first amendment of 1st September 2000 was successfully challenged in the Supreme Court; Ssemogerere and Others – vs – Attorney General, Constitutional Appeal No.1 of 2002, and court observed that the amendment was inconsistent with Article 88 of the Constitution, which provides for the quorum of Parliament when voting on any question.
The second amendment was the Constitutional (Amendment) Act, 2005, Act No.11 of 2005, which led to the removal of term limits on the tenure of the President.
The third was the Constitutional (Amendment) (No.2) Act, 2005, No.21 of 2005, to create Kampala Capital City Authority; regional governments, and to provide for new districts.
The fourth amendment was the Constitutional (Amendment) No.11, 2015 was to change the name of the Electoral Commission and give room for MPs to cross the floor one year to the end of terms.
The 1995 constitution has suffered six amendments within 23 years. This trend deeply erodes the struggle for constitutionalism in Uganda. This bill should be referred to government for eventual presentation to a Constitution Review Commission.
The bill was not brought in good faith and is intended to undermine Uganda’s democratic path.
Government should establish a Constitution Review Commission to spearhead the development of comprehensive constitutional amendments desired by the entire country. The proposals in Magyezi’s bill should form part of information that will help the commission to gather people’s views.
Government undertook on the floor of parliament to put in place such a commission to extensively study many proposals that were brought to the attention of the House and many others that were still out there.
Since the court also noted that the Attorney General should effect electoral reforms within two years -- a matter that will entail amending the constitution -- then it’s incumbent upon this parliament to compel the Attorney General to respect the court orders.