On Thursday 26th July 2018, the Constitutional Court delivered its long-awaited judgment in a petition filed by Mr. Male K. Mabirizi and others challenging the removal of presidential age limits from Uganda’s Constitution. 4 out of the 5 Judges upheld the removal of the age limits in their ruling that spans 814 pages.
If you had, as I did, the opportunity to follow the ruling without interruption from 10:43AM when Justice Cheborion Barishaki commenced reading his judgment until 11:37PM when Justice Alphonse Owiny-Dollo read the last dot in his judgment, you may agree with me that the 4 Judges who upheld the age limit amendment as valid did so on the strength of two main issues:
(1) Whether MPs adequately consulted the public before passing the amendment; and
(2) Whether the invasion and occupation of Parliament by armed forces influenced the outcome of the MPs’ vote?
In what was perhaps the most brazen example of unabashed dishonesty, 4 of the 5 Judges answered issue 1 in the affirmative, and issue 2 in the negative. It is at this point that the rather celebrated Judges conveniently metamorphosed into pale shadows of their former selves. This is why I say so:
(a) Save for the sagacious Justice Kenneth Kakuru, the rest of the Judges severally concluded that either there was adequate consultation before the amendment was passed, or that “no evidence was adduced to show that adequate consultations were not done”. With all due respect this was an insult to the intelligence of an ordinary reasonable man, whom Justice Kakuru defined at pg 519 of the ruling to be the “one who has a national ID, a mobile phone, listens regularly to radio, attends LC1 meetings [and] rides on a Boda Boda to town”. What any reasonable man expected Court to rely on was incontrovertible evidence proving that adequate consultations infact took place, BUT NO SUCH EVIDENCE WAS ADDUCED BY THE ATTORNEY GENERAL – OR ANY OF THE MPs WHO VOTED “YES – TO JUSTIFY THE AMENDMENT.
Before reaching their dishonest conclusion, 3 of the 5 Judges – at pgs 193, 527 & 807 of the ruling – sarcastically referenced Hon. Robert Kyagulanyi (Bobi Wine)’s statement on the floor of Parliament that he had traversed the whole country “from the north to the south, from the east to the west” and therefore relied on that statement to conclude that ALL MPs had adequately consulted the public, which was untrue.
The Judges conveniently ignored the fact that Bobi Wine, who by evidence is the the only MP who consulted “the entire country,” emphatically concluded his statement by asserting that the citizens had roundly rejected the amendment.
Apart from Bobi Wine, the Judges did not mention any other MP who claimed to have traversed the entire country, let alone who stated that citizens all over the country had overwhelmingly supported the amendment. This therefore belies the Judge’s finding that ALL or a SUBSTANTIAL number of the MPs adequately consulted their constituents before voting “yes”.
(b) At Pg 259 of the ruling, Justice Remmy Kasule held that “in the absence of any rules and/or guidelines setting out what must be done [by] the individual Members of Parliament to facilitate and ensure effective public participation of the people, there is no basis for holding that the steps taken by Parliament [and individual MPs] to obtain the participation of the people were inadequate”. With all due respect this was an unfortunate finding, and an unstable stilt leaned on to justify the age limit amendment.
A reasonable man expected that in the absence of consultation Guidelines, ALL MPs SHOULD HAVE CONSULTED THEIR CONSTITUENTS THE SAME WAY THEY SOUGHT THE ELECTORATE’S MANDATE: by holding public, free-to-access and open-air consultative rallies in each village of their constituencies.
MPs were also reasonably expected to put in place common-sense mechanisms, at each rally, of recording their constituents’ feedback regarding the amendment, which feedback would then have been securely relayed back to Parliament to inform the subsequent debates. Indeed, most of the opposition MPs followed this train of thought. They held open-air public rallies and ingeniously advised their constituents to indicate their respective positions on the amendment by show of hands.
On the other hand, NRM MPs – who overwhelmingly voted in favor of the amendment while on the floor of Parliament – simply held secret, closed-door, ‘entrance-by-invite’ meetings, whose attendance was strictly supervised by menacing police and military officers. If you care to, you will recall that what prompted these secret indoor meetings was the open hostility that most of the NRM MPs who attempted to sell the amendment through open-air rallies received from constituents. A reasonable man would have interpreted this to be an indicator of the citizens’ revulsion at and rejection of attempts by NRM MPs to remove the age limit. But the Honourable Justice conveniently looked the other side, and chose to not even take judicial notice of the overwhelming public rejection of the amendment, despite the said rejection literally being in his face throughout the time of Parliament discussing the amendment as evidenced by sustained radio, television and online news reports at the time.
(c) At Pg 259 Paragraph 15 of the Ruling, Justice Remmy Kasule justified his finding that MPs had adequately consulted by stating that “on the whole, circumstances permitted [MPs] to consult”. What the good Judge forgot to explain, though, is whether in his opinion the presumed presence of “circumstances permitting adequate consultation” was incontrovertible proof that MPs had in fact adequately consulted their constituents before voting “yes”.
The Judges conveniently ignored the notorious fact that none of the MPs who voted “Yes” swore an affidavit in opposition to the petition with evidence proving that they had adequately consulted their constituents before the vote.
In light of the foregoing, it beggars belief that the Honourable Justice Remmy Kasule saw no problem with reaching a finding that literally gives NRMs MPs – whose number Justice Barishaki alluded to at Pg 776 of the ruling as being tantamount to “the tyranny of an absolute Parliamentary majority” – an absurd carte blanche to not carry out a single consultative meeting in the future. This, despite the Honourable Justice having been fully seized with judicial power to stipulate the bare minimum that MPs should have done to pass the “adequate consultation” test.
2. INVASION OF PARLIAMENT BY ARMED FORCES.
Regardless of the justifications given, it is shocking that 4 of the 5 Judges found the invasion and continued occupation of the sacred Parliamentary premises by the armed forces justifiable and allegedly of no consequence to how the amendment was enacted.
(a) At the beginning of their respective rulings, most of the judges took note of the checkered constitutional and political history of Uganda since independence. Justice Kakuru noted in his ruling that this history was characterized by, among others, the late Apollo Milton Obote besieging Parliament with the army which intimidated MPs into involuntarily passing the Pidgeon hole Constitution.
Owing to that history, isn’t it shameful and indeed dishonest that the Constitutional Court Judges found the invasion of Parliament by motley armed forces during the age limit amendment discussions justifiable? Why, in the first place, did the Judges bother referring to Uganda’s past history if they had no intention of drawing the correct lessons from it and applying them to the Petition at hand?
(b) It is shocking that some of the Judges had the audacity to find that the minor violence which erupted inside Parliament between unarmed MPs constituted a state of emergency, which in their opinion therefore justified the army’s invasion of the chambers of Parliament.
In 2005, a terrifying incident played out inside the temple of justice when armed members of the infamous “Black Mamba” security outfit forcefully invaded the headquarters of the judiciary in Uganda at the High Court and re-arrested suspected terrorists.
In the wake of this invasion, the Judiciary severely protested this most unfortunate incident as well as the re-arrest of terrorism suspects who, if we gave the army the benefit of doubt that Justice Barishaki invites us to give the armed forces at Pg 750 of the Ruling, were more likely to justify a state of emergency. Why then did the Judges find it proper to hold that a minor altercation between un-armed MPs engaged in a brawl in the heat of a deeply divisive political debate was tantamount to a state of emergency necessitating the invasion by armed forces? If this is not naked dishonesty, what is it?
(c) It is obvious to any reasonable person that the presence of menacing armed forces all over premises of Parliament militated against free, frank and objective deliberations by MPs inside Parliament. It is clear that this Obote-style invasion was not only meant to intimidate MPs into doing Gen. Y. Museveni’s bidding, but also be a testament of Gen. Museveni’s determination to clear – by hook or crook – the only hurdle remaining in the way of his life presidency: age limits. Otherwise, how come other amendments which do not directly affect Gen. Museveni’s continuity in power are never discussed under this sort of occupation by the army?
In conclusion, it appears that the Honourable Judges of the Court were fearful of unknown repercussions should they have dared to annul the age limit amendment. If this was indeed the case, the Judges should have expressly stated so, rather than insulting the intelligence of ordinary Ugandan citizens when they arrived at the manifestly dishonest finding that the Amendment is valid. At least that would have earned them some respect.