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Age limit ruling: Why the justices spent much time on history

The honourable justices of the Constitutional court, while reading their judgment regarding the consolidated constitutional petition, which challenged the constitutionality of the Constitutional(Amendment) No. 2 Act of 2017, spent considerable time laying down the history of Uganda before delving deeper in the judgment.

Many people, especially non-lawyers, almost lost patience listening /watching and wondered why their lordships spent much time on the history of Uganda before stating the resolution of the issues.

This article explains why history in such constitutional interpretation is not only necessary but a requirement.

CONSTITUTIONAL INTERPRETATION

The interpretation of the constitution is different from the interpretation of ordinary laws or statutes.

There are special principles of constitutional interpretation which include, among others, “sui generis” which emphasizes the uniqueness of the constitution; the living instrument rule which ensures that the constitution is viewed not only in the perspective of the present but also the future; where words are clear and unambiguous they should be given their primary meaning; interpretation as a whole which requires that each provision of the constitution be construed in light of the others; the generous and purposive rule, which requires that the constitution be construed broadly, especially regarding fundamental human rights; the preamble and history; and the national objective and directive principles of state policy, which requires that these are also put in contemplation while interpreting the constitution.

I will dwell mainly on the preamble to answer the question in issue. But before delving deeper on that, it is imperative to show where the constitution derives its uniqueness, special interpretation rules and considerations.

SUI GENERIS

This principle asserts that the constitution is in a class of its own. It is couched in a different language from that of ordinary statutes.

The constitution uses words of generality, different from those of ordinary statutes. Its uniqueness is also shown in article 2 of the 1995 Constitution as amended, which states that the constitution is the supreme law of the land and shall have a binding force on all authorities and persons throughout Uganda.

This principle has been reiterated in many cases, one of which is Charles Onyango-Obbo & Andrew Mwenda V Attorney General (Constitutional Petition No 2 of 2002) in which it was stated: “We have made emphatic pronouncements that the Ugandan Constitution is the supreme law of the land. We have also made a clear distinction between constitutional provisions and those of ordinary law. No law, rule or regulation, let alone decision of any authority which are in conflict with the provision of our constitution can stand in opposition of constitutional provisions.”

The need for a peculiar approach in constitutional interpretation was also well-stated in the case of Minister of Home Affairs V Fisher (1980) AC 219 where their lordships state that “a constitution should be treated as sui generis calling for principles of interpretation of its own.”

It is because of such uniqueness that principles such as requiring reliance on the preamble are used in constitutional interpretation.

PREAMBLE AND HISTORY

The preamble of the 1995 Constitution as amended, reminds us of the turbulent times that Uganda as a nation has experienced over the years.

It states: “We the people of Uganda recalling our history which has been characterized by political and constitutional instability. Recognizing our struggle against the forces of tyranny, oppression and exploitation, committed to building a better future……through a constitution based on principles of unity, peace, equality, democracy……”

Reading from the excerpt above, one realizes that while interpreting the constitution, one should remember the history behind the constitution’s enactment as well as the nation’s core principles and values.

This is intended to ensure that whatever interpretation the justices come up with does not take us back to the perilous times that this country faced.

The requirement to rely on history was fortified in the case of Okello John Livingstone & 6 others V Attorney General & another (Constitutional Petition No 4 of 2005).

It is for these reasons that Justice Kenneth Kakuru first of all took us through our country’s history, making reference to the colonial, Obote and Amin eras while highlighting the turbulence and bad governance in each of those regimes and relating their causes to the question of interpretation he dealt with. 

For example, he stated on page 411 of the judgement, while refereeing to the basic structure: “Suffice to state that our constitutional history serves as a guide as to whether or not the current constitution incorporates in it the Basic Structure doctrine.”

On page 418, his lordship states that parliament extending its term is similar to what Amin did when he declared himself life president.

Justice Remmy Kasule on page 240 compares the extension of term for members of parliament and says it is similar to what parliament did in 1966-1971, which he names as a prominent factor in the “unconstitutionalism” the country has faced in the past.

Such reference to history is key to constitutional interpretation especially when the issues called into question have political connotations such as those dealt with in the consolidated petition. It was, therefore, necessary to takes us through such history as their lordships did for our own appreciation.

awabwezi@gmail.com

The author is a lawyer

Comments   

+2 #1 Ronald Nantamu 2018-08-08 14:00
I think the history the Justices wanted us to remember was what happened to Ben Kiwanuka for standing up for the truth.

So after the lengthy history, they shied away from the truth.
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0 #2 ainembabazi 2018-08-08 17:55
Quoting Ronald Nantamu:
I think the history the Justices wanted us to remember was what happened to Ben Kiwanuka for standing up for the truth.

So after the lengthy history, they shied away from the truth.


The learned Professor stated that the judgement took us back the turbulence we had before.

So, their history lesson was totally useless, stupid.
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0 #3 Kiraya 2018-08-10 23:56
The justices pocketed their envelopes and came to a pre- determined outcome with no sensible legal analysis..They live in Uganda see the mess the dictator has created by overstayed.

They have relatives who live
in corners of the world but cannot figure out the best way forward . A fellow old washed up dictator intimidates well educated men!! Cowards on the beach!!
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0 #4 Jama 2018-08-12 01:38
These unjust men are not worth calling judges. They joined those greedy individuals who raped the constitution in Parliament.

Apart from justice Kakuru who remained in himself.The other 4 proved that they had their bank account beefed with bribery cash.
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0 #5 Remase 2018-08-13 15:23
"Why the justices spent much time on history?" Greed! Period. What else? The PREAMBLE is clear as night and day.

However, unless you, Wambewe, remind me, the justices never read it. It is clear that if they read it, there judgement didn't make any sense.

They went through the history to lead us to believe that they cared. Hell no. they never did and never will. Some of those judges have their children abroad.

Why? Because they clearly know that there is no hope in Uganda, They only care about who appoints them, M7.

The entire system of the judiciary is full of corrupt judges because all of them have been appointed by the corrupt in chief, M7.

The entire system is rooten to the core. I hate to be a prophet, however, I stated that they will site the Katureebe ruling that "indeed there were irregularities, however they didn't affect the outcome!" Yes, indeed, they didn't affect the outcome M7 and those judges wanted!
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0 #6 Caxton 2018-08-14 07:15
There's a reason for why cases are judged by a person having hairhair that symbolizes age (wisdom).

Public law lawsuits in country that has an oligarchy form of government, judges are conscious of their limits and choose to preserve and protect the order of the day.

The state of affairs could slip to totalitarian. Half a loaf of bread is better than none at all. There exist as well political parasitic Judges that are not neutral players.
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