Judges stress "sanctity" of constitution as tension mounts over rule of law

AT 814 pages, this critically important constitutional court decision was never going to be easy to digest. Five judges, headed by the deputy chief justice, Alfonse Chigamoy Owiny-Dollo, contributed to its length and they all had a lot to say.

AT 814 pages, this critically important constitutional court decision was never going to be easy to digest. Five judges, headed by the deputy chief justice, Alfonse Chigamoy Owiny-Dollo, contributed to its length and they all had a lot to say.

Like the deputy chief justice, the other four who heard the matter, Judges Cheborion Barishaki, Elizabeth Musoke, Kenneth Kakuru and Remmy Kasule, were concerned to explain precisely where they stood on each of the many, difficult matters before them. This is understandable. The petitions had proved more than usually divisive in parliament and in the larger community. While some MPs backed the idea of a seven year term rather than the constitutionally-mandated five years, others rejected it strongly. While some supported scrapping presidential age restrictions to allow the president, Yoweri Museveni, to continue in office despite his age, others argued this was contrary to essential elements of the constitution. Arguments over these issues and how they were handled led to violent confrontations in parliament and the involvement of security forces. Violence related to the proposed constitutional changed was not limited to the parliamentary floor however, with violence in the streets, and students and others arrested.

Against this background, the deputy chief justice spoke solemnly about the “sanctity” of the constitution and that it should be given “utmost deference and veneration”. It should have a proper degree of “permanence and stability”, he added.

Its adoption marked a clear break with the politics of the past, he said. But while the 1995 constitution was still in its infancy, “most unfortunately” it had already been “subjected to as many as five amendments”.

The frequency with which it had been amended was “disturbing” and a cause for “serious and genuine concern”. “The people” were concerned by this trend since they wanted a durable constitution that would ensure a just social and political order.

But while he and others among the judges were prepared to find some of the changes proposed by MPs were constitutional, their colleague, Judge Kenneth Kakuru, was having none of it. In a lengthy decision – it runs to 244 pages – he considered in great detail Uganda’s constitutional history, at each appropriate point noting how the changes now being considered contradicted what the people of the country said they wanted when they had a chance to express their views fully in the period before the current constitution was finalized.

By the end of his judgment it came as no surprise that he rejected all the proposed constitutional changes. But he went further, recommending that the attorney general propose a constitutional review commission that would consider all the proposals for amendment that were apparently waiting in the wings pending the outcome of this case.

He said that in line with Uganda’s constitutional history, this commission should seek the views of the people of Uganda on all the proposed amendments and then translate those views into proposals that parliament could consider.

He also proposed a government-funded commission of inquiry to investigate “the apparent brutality of the police against the citizens of this country”. In his judgment he found that MPs had accepted money from parliament to spend on consulting widely with ordinary people about the proposed constitutional amendment, but had failed to do so. He therefore said the money should be repaid and, in his recommendations, urged a forensic audit of parliament’s accounts with a copy to be given to the court and to the minister of justice and constitutional affairs.

Predictably, the complex group of judgments has caused widely varying reactions, from those who felt the five judges did not go far enough in protecting the constitution, to those, like Museveni, who say the judges had no right to prevent any of the amendments from becoming law.

But the entire judgment might soon be irrelevant to the country’s political classes: various parties have indicated they will be taking it on appeal to the supreme court, the last forum available. Meanwhile, however, the judgment as a whole, and the different elements that make it up, have already begun to provide a great deal of interest to academics.

For example, in a recent article on the outcome, Gabrielle Lynch of the University of Warwick and Justin Willis of Durham University, outline what they believe lies behind the push to increase parliamentary terms from five to seven years.

Supporters of extension had motivated it on the grounds that five years was too short since “a lot of time is spent on electioneering and less time on development”. Musveni himself, in his official reaction to the five-part judgment, said that his “freedom fighter’s sense of justice” told him that seven years was more convenient than five. He warned that “in the end, the judges are not the ones in charge of the country”, and added that the “necessary constitutional reforms” could be made, “judges or no judges”.

Why was Museveni so keen to extend parliament’s terms, the two academic asked, and suggested the answer lay in an “obvious truth” that he did not mention: elections cost a great deal of money.

He had managed to stay in power since 1986, and had done so based “partly on the memory, and the practice of violence”. But in addition to the threat of violence and instability, he was also adept in the “expensive politics of reward and promise”. In their view, so great was the demand of voters and influential blocs for gifts and rewards that elections campaigns had become extremely expensive.

One way to reduce those rapidly increasing costs was simply to reduce the number of opportunities for election, they argue.

“The cost of campaigns means that most members of parliament come into office already heavily in debt. That was why Uganda’s members of parliament were to keen to extend their term: they want time to recoup their losses and to build up resources for the next campaign.”

For these and other commentators, however, the real news will be the ultimate supreme court decision, and the reaction of the president, MPs – and the people – to that outcome. Given that in the wake of the constitutional court decision, battle-lines are already being drawn by the president against the judiciary, this is a tense and exceptionally difficult time for judicial independence and the rule of law in Uganda.

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Read the full judgment:

Mabirizi & Ors v Attorney General (Consolidated Constitutional Petitions Nos. 49 of 2017, 3 of 2018, 5 of 2018, 10 of 2018, and 13 of 2018.) [2018] UGCC 4 (26 July 2018);