I will start by quoting Article 1 (3) of Uganda’s constitution: “All power and authority of Government and its organs derive from this Constitution, which in turn derives its authority from the people who consent to be governed in accordance with this Constitution.”
Clause 4 of the same article provides: “The people shall express their will and consent on who shall govern them and how they should be governed, through regular, free and fair elections of their representatives or through referenda.”
In the recent Constitution Amendment (No 2) Bill 2017 (awaiting presidential assent to become a constitutional amendment), members of parliament have, among others, extended their term of office from five to seven years.
This provision benefits the current parliament as well and, as such, elections for parliamentary representatives will not be held in 2021, but in 2023.
Such a move is not only immoral but also illegal and unconstitutional. First, pursuant to article 1 of the Constitution, people are to be governed by their consent and they express their will and consent on who shall govern them through regular, free and fair elections.
In 2016, the citizens of Uganda from each constituency voted their respective members of parliament and consented to be governed for only five years. Like a contract of employment, this five-year mandate can only be extended by voters who have the authority to do so.
Secondly, while parliament has the power to amend the Constitution and extend the term of office for which MPs serve, the purported extension of this mandate from five to seven years cannot and should not benefit the current parliament, but subsequent parliaments.
But what the MPs did implies that it is no longer the people who have power to consent, but that those in power can, as and when they deem fit, consent/choose themselves to be leaders without the need to seek the consent/votes of the governed.
This undermines the whole essence of the social contract theory upon which constitutional rule is premised. It goes against the whole essence of a democracy and it is a clear act of distortion of a constitutional order.
Third, the decision will open the floodgates. If this parliament can choose to extend their term in office for two more years, what will prevent the next parliament from extending it for five more years and avoid the expenses of campaigning or, put differently, “eat at once and go”?
It also undermines the essence of regular elections as a tool for citizens to hold their leaders accountable by either voting them out if they are not satisfied by their performance or by renewing their mandate if they have performed to their expectations.
If the impugned provision goes unchallenged, it means people have been disenfranchised. This is tantamount to an act of power grab by the rulers from the governed.
It means that for the extra two years, people will be ruled against their will and that the ruler, not the people or the constitution, is supreme.
To restore this distortion, Article 137 of the Constitution mandates every citizen to petition the Constitutional court whenever any act, law, custom or omission contravenes the provisions of the constitution.
I have no doubt that patriotic Ugandans will not wait to petition the Constitutional court and that our courts will not waver to declare this illegality unconstitutional.
Even where this finally succeeds by presidential assent as a constitutional amendment, it is still challengeable as one provision of the constitution being inconsistent with the other and the principle of harmonization will be invoked to correct this anomaly.
The author is a lawyer and sociopolitical commentator.