I was appalled by a statement allegedly written by the president signed as “Sabalwanyi”, in which he claimed that judges in Uganda spend more time on form or procedure and not substance and reminded them that they are not in charge of the country.
This was the president’s reaction to the “age-limit judgement”, recently passed by the constitutional court siting in Mbale, in which among others held that the 7-year term extension for Members of Parliament was unconstitutional but upheld the age-limit removal.
The president referred to the petition as “the un democratic age limit nonsense”. He further stated that the NRM will make more constitutional reforms “judges or no judges”.
The statement tantamounts to an attack on the judiciary which is one of the three arms of government.
It is even more shocking for the president to react this way after the Justices ruled in his favour as a person by removing the only cap that the constitution was left with to avoid life presidency after the removal of presidential term limits in 2005.
But even if the judgement wasn’t in accordance with his desires, the statement the president issued undermined the separation of powers envisioned by our Constitution.
Separation of powers
Government is made up of three major arms: the Legislature, the Executive and the Judiciary. All these are provided for by the 1995 constitution as amended, in Chapters; six, seven and eight respectively.
The doctrine of separation of powers urges that state power should be divided amongst the three arms of government and that these should operate independently but can complement each other.
Each of these arms have their roles well laid out. In Uganda, the Constitution is supreme and not Parliament as stated under Article 2 of the 1995 Constitution.
In the Supreme court case of Paul Kawanga Ssemwogerere and Another V Attorney General, Constitutional Appeal No. 1 of 2000, Justice Kanyeihamba JSC ( as he then was), stated that “Unlike the unwritten British Constitution which operates under a sovereign Parliament, in Uganda its not the Parliament but the Constitution that is Supreme”.
This means Parliament’s role to make or amend law can be a subject of litigation. The Learned Chief Justice John D. Richard of the Federal Court of Canada, in an article entitled “The Role of the Judiciary in Canada stated “our declaration that the constitution is the supreme law of Canada has altered one of the fundamental principles of our Parliamentary democracy.
It has conferred upon the courts the responsibility to decide whether legislation is consistent with or offends against the Constitution.
The supervisory jurisdiction of the court is now grounded in the rule of law in the constitution and the charter” This authority, though only persuasive, shades light on the supervisory role of the Courts in a democracy where the constitution is supreme.
It therefore follows that the Constitutional court by entertaining a petition challenging the manner in which the constitution had been amended was acting within its supervisory jurisdiction but not interfering with Parliamentary work.
It is against the tenets of Rule of Law, for the president to refer to the petition as age-limit nonsense or undemocratic.
Article 126 of the Constitution states that judicial power is derived from the people and shall be exercised by the courts established under the constitution.
Courts act as arbiters over all disputes that may arise and by so doing maintain harmony, ensure rule of law and protect the people’s rights.
In the case of Okello Okello Livingstone V Attorney General and Another, Constitutional Petition No. 4 of 2005 b it was stated “We must make it categorically clear that the doctrine of separation of powers does not bar this Court from investigating the contravention by the Legislature or the Executive in instances of clear excesses or abuse of their powers”.
This implies that the courts provide a system of checks and balances on the powers of the Executive as well as that of the Legislature.
Independence of the Judiciary is provided for under Article 128 (1) which states that in the exercise of judicial power the courts shall be independent and shall not be subjected to the control or direction of any person or authority.
All organs and agencies of the state including the presidency are required by law to accord the courts support and ensure their effectiveness. No one is above the law not even the President.
Although the 1995 Constitution grants Immunity to a sitting president against being liable to proceedings in court, the same constitution requires that the president carries out his duties within the confines of the law.
Article 99(1-5) of the constitution states that the executive authority of Uganda is vested in the President who shall exercise it in accordance with constitution and laws of Uganda.
In order to uphold the Rule of Law the President should have instructed the Attorney General to appeal the decision to the supreme court
The author is a lawyer