Thursday September 14 2017

Age Limit amendment ends the life of the 1995 Constitution as we know it

The noises about amending the 1995 Constitution to remove the last constitutional restraint on the tenure of the President made a major move when the NRM Parliamentary Caucus resolved to back a Private Member’s Bill by Raphael Magyezi to amend Article 102(b) of the Constitution.
How did we arrive here? We arrived here mostly by the sheer will and force of the incumbent president who relies on what the Constitution says. Very few people actually have been able to predict what the Constitution says at the time he refers to in the future. We have also arrived here due to the steady dilution and usurp of the powers of the other branches of government - the Judiciary and the Legislature. In the current Parliament, NRM enjoys the support of nearly 75 per cent of its membership. In 2016, the Opposition managed competitive races for Parliament in just 80 constituencies.

The courts of judicature are now entirely manned by appointees of the incumbent. The Electoral Commission and all public office holders are direct appointees of the President. This power of appointment is a personal preserve as powers under Article 99(1) of the Constitution are vested in the person of the President. Neither the Vice President, Speaker nor Chief Justice share in these powers. In fact, on the contrary, this power extends to the principal administrative enforcers in the other branches of government. Under Article 87(1), the President appoints the Clerk of Parliament on advice of the Public Service Commission. Under Article 145(2) the President appoints the Chief Registrar of the courts of judicature and also appoints members of the Judicial Service Commission under Article 146(2).
It is a well-kept secret that all branches of government are subject to government standing orders, which include the oath of secrecy under the Official Secrets Act. A court order cannot stand without official implementation imprimatur of the President under Article 99(1). Parliament cannot initiate a Bill on financial matters under Article 93 without consent of the objective. These prerogatives exist in very few jurisdictions. Even where Parliament or the courts have powers, these are mostly advisory or nugatory.
Parliament’s Bills only come into law with presidential assent. Parliament’s vetting powers have come to naught as the parliamentary rules of procedure provide that vetting is done in private, the total opposite of speech protection that Members of Parliament should enjoy as a right of prerogative.

As the number of elections under the 1995 Constitution continues to accumulate, there is a naïve view that it is possible for the Supreme Court, for example, to annul a presidential election. In light of all that has been said above, in case the Supreme Court took the highly unusual step to annul the presidential election under Article 104(5), a new election must be held by the same machinery, ie the Electoral Commission within 20 days.

It is this collection of well-intentioned but ultimately abused clauses in our constitution that have made it impossible for the President to consider leaving power. Once the first constraint was removed with the deletion of Article 105(2), it became very easy to remove the others. At the time, the powers that be made all sorts of grandstanding stating that the President would leave at age 75, and that term limits was a small issue now that political party had been allowed to resume. Very soon it will be necessary to legally restrict what can be said about the president’s age and tenure.
This makes a new constitution urgent as the current one after being continuously amended is becoming a farce. The executive powers given to the president to act independently of Parliament to allow him to be effective under Article 99(1) have swamped the entire constitutional order. The NRM MPs mostly elected in areas where government’s word is law have for valuable consideration endorsed the obvious to back the age amendment.

Mr Ssemogerere is an Attorney-at-Law and
an Advocate. kssemoge@gmail.com