Sunday April 15 2018

Age limit petition hearing:Govt team puts up defence

Government lawyers during the court

Government lawyers during the court hearing in Mbale Town this week. 

By Anthony Wesaka & Fred Wambede

Court resumes after lunch

Adrole: My lords, my name is Richard Adrole, a Senior State Attorney and I will be presenting issue 6 A. My lords, the issue framed is whether the entire process of conceptualising, consulting, debating and enacting the Act was inconsistent with and/or in contravention of Articles of the Constitution as hereunder. My lords, this issue was split up.
My lords, it’s the contention of the petitioner in constitutional petition No. 3, that is Uganda Law Society Vs the Attorney General in paragraphs 1 (e) that the act of Parliament in proceeding on a Private Member’s Bill whose effect is to authorise payment to the 10th Parliament after the expiry of their initial constitutional five-year term is inconsistent with Article 93 (b) of the Constitution.
My lords, the respondent denies the contentions in paragraph 6 of the answer to the petition of the Uganda Law Society. My lords, our response is supported by the additional affidavit of Keith Muhakanizi. My lords, it’s a contention in the petition of Hon Karuhanga and five others that the decision of the government of Uganda to impose an illegal charge on the consolidated fund was inconsistent with Article 93 of the Constitution and that the payment of Shs29m was in contravention with Article 93.
(a) My lords indeed the same petition, that is petition No.5, its contended by the petitioner that by drawing money from the consolidated fund to facilitate the constitutional amendment No. 2 Bill that was tabled by a private member, is in contravention of Article 93.
That the purported decision of government to issue a certificate of compliance in the constitutional Bill amendment of 2017, was inconsistent with the entire Article 93.
My lords, it is contended in Prosper Busingye and three others vs the Attorney General in paragraph 7 (b) of the petition that Section 2, 6, 8 of the impugned Act, which amended articles 73 (3) 181 (4), 29 and 291 of the Constitution to retrospectively enlarge the term of the current Members of Parliament, local government council from five to seven years in the middle of the existing term of office that was smuggled into the Bill without a certificate of financial implication, is in contravention of Article 93 of the Constitution read together with Section 10 of the Budget Act.
My lords, the respondent (AG) denies the contentions of the petitioners in petition No. 10 and the answer to the petition is further supported by the affidavit of Keith Muhakanizi.
My lords, it’s the contention of the petition of Mr Male Mabirizi vs the Attorney General that it is constitutional petition No. 49 of 2017 in paragraph 7 that the action of Parliament in entertaining the presentation and the grant of the Private Member’s Bill entitled amendment Bill No. 2 of 2017 had effect of charging money on the consolidated fund, was inconsistent with and in contravention of Articles 93 (a) (I)I and( III) and Article 93 (b) of the Constitution which restricts Parliament not to make such extension.
The respondent denies paragraph 6 of the answer to the petition and in the subsequent affidavit of Mr Keith Muhakanizi and we shall bring those details later.
My lords, from the onset, and the record will bare me right on this that there were two certificates of financial implication, one of which is attached of Mr Keith Muhakanizi as annexure C, and my lords I should say that Muhakanizi also deponed affidavits in constitutional petition No. 5 of Hon Karuhanga and five others in the constitutional No. 49, that of Mr Mabirizi and that of Busingye. So my lords, the contention of the petitioners didn’t demonstrate that actually these things existed without a financial certificate.
Justice Kasule: Sorry counsel, you said there are two certificates and both of them are on court record?
Adrole: From my submissions, I said one of them is attached and that is of Mr Keith Muhakanizi as annexure C. The other is seen in the answers not necessary in physical form and my lords we already made orders that they should be produced at the next schedule.
Justice Kakuru: Who attached this one certificate?
Adrole: My lords, it was our office.
Justice Dollo: Proceed.
Adrole: Most obliged my lords. My lords if I may proceed to Article 93, it has a short title and it reads, “Parliament shall not unless a Bill or motion is introduced on behalf of government.”
Justice Dollo: Is presenting a Bill on behalf of government, will it also require…..?
Adrole: My lords, from the chronology of my submissions but I will address it. My lords, at the beginning of our case, the Solicitor General highlighted some principles of constitutional interpretation. My lords, I would like to borrow some of those. However, I am going to restrict myself to the constitutional petitions. My lords, we have a bundle, so volume 4, my lords, I am looking at the list of authority at page 24 which is tagged ‘W’ that is Hon Lt (Rtd) Saleh Kamba vs the Attorney General. For specifics, I will refer you to page 9. Paragraph 5 where words and phrases are unclear and ambiguous are given their ordinary natural beginning.
Justice Dollo: Whose position is this?

Justice Kakuru: Just mention the case and the citation.
Adrole: My lords, when dealing with Article 93 I will treat it in two legs, there is 93 (a) and 93 (b) of the Constitution. My lords 93 (a) Parliament shall not unless a Bill or motion is introduced on behalf of government (a) proceed upon a Bill including amendment Bill that makes provisions for development, my lords. The pivot of Article 93 (a) is that Parliament cannot proceed unless a Bill of motion is introduced on behalf of government.

Justice Barishaki: Can a private member move a Bill?
Adrole: A private member can move a Bill and it should not be restricted by any of the following which I have mentioned above.
My lords, Hon Raphael Magyezi presented a Bill in the House. My lords, I will refer you to the constitutional petition of the Uganda Law Society vs the Attorney General. It’s says that the Bill did not make provisions of a charge on the consolidated fund that was introduced by Hon Magyezi, did not contain the provisions that impose a charge, taxation, withdraw of monies from the consolidated fund. My lords, the facilitation for the Bill did not contravene the provisions of Article 93 (a) 1 to 4.

My lords, allow me to go to the second leg, which is (b) that is the issue of the referendum. My lords, the second leg that Parliament shall not unless the Bill or a motion is introduced on behalf of government consider a motion including an amendment is made provision for any of the purposes. So my lords, my understanding of the Article is that it is dealing with motions or amendments of motions and my lords, what we had in Parliament was a Bill.

My lords, this is where I disagree with the petitioners because the motion we are dealing with here is not of Shs29m alone. From my recollection as I read, I didn’t come across a motion or an amendment which had the effect of which to make provision of any of the omnibus purposes.
My lords, it’s our submission that the motion by Hon Magyezi when it was introduced on the floor of Parliament on September 27 was to introduce a Private Members Bill.
My lords, at that moment in time until the motion is allowed to proceed, until the mover of the motion is allowed to table on the floor of Parliament, my lords, this is not a motion envisaged under Article 93 (b) and it’s the respondent’s submission.
My lords, in section 76 of the Public Finance Management Act, it provides for costs estimates for Bills, it’s a requirement of the law that before the Bill is introduced in Parliament, it shall be accompanied with a certificate of financial implication.
The submission introduced in the House had to comply with the provisions of Article 93.

13 issues court must determine

1. Whether sections 2 and 8 of the age limit Act extending or enlarging the term of Parliament from 5 years to 7 are unconstitutional.
2. If so, whether applying it retroactively is unconstitutional.
3. Sections 6 and 10 of the Act extending the current term local government councils from 5 years to 7 unconstitutional.
4. If so, whether applying it retroactively is unconstitutional.
5.Whether the alleged violence/scuffle inside and outside Parliament during the enactment of the Act was unconstitutional.
6. The entire process of conceptualising, consulting, debating and enacting the Act was unconstitutional.
7. The alleged failure by Parliament to observe its own Rules of Procedure during the enactment of the Act is true and if so, whether it was unconstitutional.
8. Passing the Act without observing 14 sitting days of Parliament between the 2nd and 3rd reading was unconstitutional.
9. The president’s assent to the Bill allegedly in absence of a certificate of compliance from the Speaker and a certificate from the Electoral Commission was unconstitutional
10. Section 5 of the Act, which reintroduces term limits and entrenches them as subject to a referendum is unconstitutional.
11. Section 9 of the Act, which seeks to harmonise the seven year term of Parliament with the President’s term is unconstitutional.
12. Sections 3 and 7 of the Act, lifting the presidential age limit are unconstitutional.
13. Remedies are available to the parties

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