The extension of the term of parliament from five to seven years was unconstitutional. This is the view of Justice Cheborion Barishaki, the first of five members of the bench to read a judgment on a consolidated petition challenging constitutional amendment bill no. 2 of 2017.
Through the amendment, parliament removed the cap on the presidential age, extended its term of office from five to seven years and reinstated presidential term limits. The bill passed by parliament in December 2017, originated from a private member’s bill tabled by Igara West MP Raphael Magyezi.
It was later challenged by several petitioners, among them six Members of Parliament, Uganda Law Society and Lawyer Male Mabiriizi. The petitioners asked the Constitutional Court to overturn the controversial amendment on grounds that the manner in which the amendments were passed, and that the violence during the discussion undermined the independence of the legislature.
Extension of terms of MP’s from 5 to 7 years
Justice Barishaki spoke at length on people’s power to participate in choosing how they should be governed and who should govern them. He opined that amendment of section 77(3) of the constitution that provides for a five-year term was an indirect further amendment of section 77(4) that stipulates that it can only be extended for 6 months, in case of emergency.
He observed that the absence of public participation is a strong ground for the invalidity of the amendment through which the term of the current parliament would be extended to 2023.
Justice Bashiraki added that by extending their stay in power, Members of Parliament breached a social contract signed with the electorate through the 2016 general election, to serve a term of five years which would end in 2021. He added that the Constitution should never be amended to meet demands of the moment but rather the enduring will of the people.
He described the amendment to extend the term of parliament as an attempt by parliament to “override people’s power.” The amendment of term extension, he said, was added into the bill after consultation of Ugandans and when it had gone past committee level of parliament.
The invasion of Parliament by UPDF
On the second ground of the petition, Justice Barishaki stated that the intervention of the Uganda People’s Defense Forces (UPDF) and the police both inside and outside the Parliamentary chambers was justified.
The petitioners in their application had argued that the police and UPDF acted illegally and in contravention of the constitution when they descended on Parliament to eject a group of legislators who had been suspended by the Speaker of Parliament for misconduct.
But Justice Barishaki in said that the Police acted within its mandate and called in the UPDF due to the nature of emergency arising from the chaos caused by MPs. He added that the embarrassing spectacle, and the subsequent forceful ejection, would not have taken place if legislators listened and respected the Speaker instead of turning microphone stands and chairs into weapons.
Reintroduction of the Term Limits
The judges were also tasked to determine whether the reintroduction of the Term Limits did not in any way violate Article 260 of the constitution, which categorizes this as a matter that should have been subjected to a referendum.
Justice Barishaki said the reinstatement of term limits was a welcome move considering the spirit under which the clause was adopted by the Constituent Assembly.
Removal of the Presidential age limit
The Judges were tasked to decide whether the removal of the presidential age isn’t in contravention of Article 21 of the Constitution, which specifies the circumstances under which a law is to be called “discriminatory.”
Justice Barishaki said he does not agree with the petitioners that removing age limit takes away the power of the people as described in Article 1 of the Constitution arguing that MPs d were given time to consult citizens and confirmed that their submissions were representing the will of the people.
Justice Barishaki added that parliament followed all the procedural requirements in the constitution and its procedures and hence the clause on removing age limit are constitutional valid and not inconsistent with any provision of the constitution.
Introduction of the Amendment Bill by a Private Member
The petitioners also wanted court to decide if the introduction of the amendment bill by a Private Member was in contravention of Article 93. The article states that such motions should be moved by and on behalf of government.
Justice Barishaki opined that the constitutional amendment bill was introduced, tabled and discussed in the right procedures of parliament.
The other judges on the panel are Deputy Chief Justice Alfonse Owiny-Dollo, Remy Kasule, Elizabeth Musoke, and Kenneth Kakuru. The other members of the panel are yet to pronounce themselves on the matter.