The Tuesday statement warned that the rule of law was under serious threat, and that the speaker has compromised the doctrine of separation of powers, a key tenet of democracy, by acting as an accomplice of the security forces who invaded parliament.
“We thought through whatever we wrote since we cannot just write without looking at the law. But most importantly we were cautious of the fact that we were writing for the public, and not for an academic journal, or writing submissions in a court of law,” Mbazira said, adding that their statement is backed by constitutional provisions and Supreme court decisions.
The law dons recommended that parliament rescinds the motion allowing the presentation of the Magyezi bill; that all organs of the state and private actors respect the freedom of expression of all including media freedoms; and the Uganda Human Rights Commission takes immediate action against violators of human rights in connection with the age limit debate.
They also recommended that the security forces refrain from indulging in partisan politics and political persecution of citizens opposed to the age limit amendment; and that all Ugandans exercise their right and duty to defend and protect the constitution.
Prof Frederick Jjuuko, a professor of law and one of the 22 signatories to the statement, said Uganda’s new constitutional charter binds all regardless of one’s position of authority.
“The constitution is the supreme law of the land. This is enshrined in Article 2 of the constitution and the Supreme court has had opportunity to discuss this principle… Rule of law espouses the doctrine of separation of powers, which is to the effect that organs of government must operate without interference by each other but work in harmony,” Jjuuko said.
A recent court case which tested this doctrine was the matter of Severino Twinobusingye v. Attorney General and Parliamentary Commission, wherein the Constitutional court observed that; “The constitution was structured in such a way that it gave the three organs of government, namely the Executive, Parliament and Judiciary, different roles and powers. Each organ is obliged to perform its role in accordance with the constitution and other enabling laws without interference from the others…the internal management of the organs of the state is a no-go area for the others.”
According to the law dons, the events at parliament on September 27, which saw soldiers from the Special Forces Command and the police invade the main House chamber to beat up and violently drag out mostly MPs opposed to the age limit amendment, was a violation of this hallowed doctrine.
Prof Jjuuko, who teaches jurisprudence (legal theory and philosophy of the law), observed that parliament has inbuilt mechanisms to deal with its members whenever found in breach of its rules. As such, there was no need to invite either the president’s guards or other external security.
“The rules of procedure envisage that the removal of a member from the chambers is done by the Sergeant-At-Arms [Rule 80]. The whole idea is to separate the legislature from the executive…the rules which are made in accordance with the constitution do not envisage that other security can come in to do it,” Jjuuko said.
The logic restraining the military from interfering with parliament business draws from the historical context within which parliamentary immunity grew and Uganda’s own very troubled history.
The statement showed how “the events at parliament on 26th and 27th…is a repeat of the 1966 overthrow of the 1962 constitution and replacement with the pigeonhole constitution. Effectively, Prime Minister Milton Obote usurped parliamentary powers using the military. The military in turn then overthrew the executive in the 1971 coup d’etat.
“A year later Chief Justice Benedicto Kiwanuka was murdered in cold blood. The trend of militarisation of politics is being re-enacted starting with the 2005 Black Mamba invasion of the High court and now the siege of parliament and invasion of its chambers.”
Mbazira said the ongoing scrutinisation of Magyezi’s bill by the legal and parliamentary affairs committee is illegal.
“Parliament is surrounded by the military…whatever it is doing, it is doing under fear. Members cannot freely express their will and the people they represent, something that has made whatever they are doing illegal,” Mbazira said.
But Chris Obore, the director of communication and public affairs at parliament, said on Wednesday that at no point has the speaker been under siege.
“There is nothing like members have been threatened,” he said.
Where Kadaga was accused of wilfully surrendering her powers and exposing parliament to the whims of the executive arm, and in particular to sections of the army and police, Obore said security is not the preserve of the speaker.
“There is nothing in the law that bars the speaker from doing what she did. She suspended members in accordance with the rules of procedure of parliament and she is the custodian of the rules… Whatever happened afterwards, she is not to blame because after suspending the MPs, she suspended the House for 30 minutes. When the Sergeant-At-Arms wanted to effect the orders, a staff of parliament was injured and that is how the security enforcement came about,” Obore said.
“Whatever we are doing is within the law. Parliament has the mandate to legislate…who should legislate? Do they want the courts to legislate?” Obore said.
On Wednesday, Kadaga said she will not apologise to anyone.
“I am the custodian of the rules…I did not invite any security organs to parliament…I did not command any security organ to take any action in parliament,” she said. “I am surprised that me a civilian is being accused of commanding a security agency. I don’t know how a civilian can command a security agency”.
Some commentators have suggested that Kadaga deliberately abandoned the House and retreated from the chamber, well knowing that the SFC troops were waiting to swoop on their unsuspecting victims, many of whom ended up in hospital on account of injuries suffered at the hands of soldiers.
Prof Joe Oloka-Onyango, a professor of constitutional law, told The Observer that what parliament is doing to amend the constitution amounts to a constitutional coup.
“We should not narrow the amendment to the amendments envisaged under the constitution [chapter 18 of the constitution, which sets out the procedure for amendment], but we should assess what it means and the likely consequences. This amendment if effected, will fuse power in one person,” Oloka-Onyango said.
“Whatever they are doing will destroy the structural foundation of the 1995 constitution…and every Ugandan must rise up in defence of it.”
Sources at the school of law told The Observer that the law dons are planning a court action to challenge the intended amendment.
“The planning for the case has been around since last year when the idea of the age limit went public…but this plan has been kept secret because it is majorly spearheaded by civil society organisations. Academia shall come in to boost the weight of the petition,” said one lecturer, who spoke on condition not to be named for fear of reprimand.
The involvement of Makerere’s law school in public interest litigation, especially on matters regarding human rights and democracy is well established.
For instance, they argued against the unfair provisions of the Divorce Act; participated in the suit which saw the Anti-Homosexuality Act struck down, and more recently filed an amicus curiae brief in the Supreme court during former presidential candidate Amama Mbabazi’s presidential election petition.
skakaire@observer.ug