Tuesday July 31 2018

How Court of Appeal fell short of its responsibility in age limit petition

 Constitutional Court judges Cheborion Barishaki,

Left to Right: Constitutional Court judges Cheborion Barishaki, Remmy Kasule, Deputy Chief Justice Alphonse Owiny-Dollo, Kenneth Kakuru and Elizabeth Musoke during the age limit petition in Mbale District in April. FILE PHOTO 

By Karoli Ssemogerere

On Thursday, the Court of Appeal sitting as a Constitutional Court unanimously struck down key provisions of the Constitution Amendment Bill, No. 1 of 2018 which extended the term of the President, Parliament and Local Governments from five to seven years.

The court further struck down a proposal to re-enact the repealed Article 105(2) of the Constitution, which set a two five-year term limit on the occupants of the office of President.

Lastly, the court upheld a host of other amendments, the highlight of which was amendment of Article 102(b) of the Constitution removing age restrictions on the President.

The central thrust of the petition before the court was to extinguish the fresh lifeline President Museveni, through Parliament, received allowing him to run for a further five-year term in 2021 after attaining the age of 75 years.

The court unanimously found that proposals to amend Article 102(b) had all gone through the relevant stages of being introduced as a Bill, being subjected to committee hearings, being debated, passed and enacted into law. In finality, they noted 321 MPs had voted for the Bill in its final stages.

The court again by a 4-1 majority upheld the larger Bill applying severally the doctrine of severance to save the repeal of the age limit even though all the justices unanimously found unconstitutional means that were used to stifle the MPs’ access to their constituents through the police, which until March 2018, was headed by Gen Kale Kayihura.

Gen Kayihura was a central figure in the tumult that surrounded Parliament in September and October prior to and during debate of the constitutional amendments.

Breath of fresh air

A sharp dissent by Justice Kenneth Kakuru, a relatively fresh face at the Court of Appeal appointed in 2014 found the entire Act unconstitutional.
Hardly done, Justice Kakuru had some unsavory words for Parliament proposing that Parliament’s finances be subjected to an audit by the Auditor General.

In another ping, Justice Kakuru found Mukono Municipality MP Betty Nambooze (DP) “untruthful” on the corollary issue of returning the Shs29 million consultation assistance rendered by Parliament.

The judge found that just 14 MPs out of the alleged 45 MPs had actually returned the money. Justice Kakuru’s Calvinist truth telling is a breath of fresh air. A veteran of environmental battles as Greenwatch Counsel, Kakuru is a conscientious jurist.

Appointment of judges, have the standards been abused? Are we seeing a bastardisation of the Judiciary?

All sitting judges in Uganda have been appointed by the incumbent. They enjoy independence even though a recent Supreme Court decision has set limits on the immunities they enjoy. In the higher courts, their ranks are dominated by former civil servants, politicians or political apparatchiks. There are a couple of senior female jurists.

In 2014, the Court of Appeal had three card-carrying founder members of NRM, the ruling party.

In 2018, the Supreme Court has a former Attorney General, Director of Public Prosecutions, Deputy Director of Public Prosecutions, two Inspector Generals of Government, Minister of State of Foreign Affairs, a configuration that goes a long way in explaining the routine lopsided rulings in favour of the State.

Between 2010 and 2018, the two superior courts have rendered a number of landmark rulings.

In 2014, after the High Court nullified the impeachment of Kampala Lord Mayor Erias Lukwago, government responded by promoting the judge who had headed the impeachment inquiry, and was active in stalling the case in the Court of Appeal headed by former Chief Justice Steven Kavuma.
In the same year, the same court ruled against the reappointment of Chief Justice Benjamin Odoki, who had attained the retirement age of 70 years a year earlier and had been named an acting justice of the Supreme Court.

It is an odd bit of surprise that this case was not mentioned at all in Thursday’s judgment! In 2015, the Court of Appeal dismissed a constitutional challenge to provisions of the law governing presidential elections.

This ruling against Dr Kizza Besigye was rendered after a hearing where his lawyer Wandera Ogalo was summoned for a hearing with 48 hours’ notice to hear a case that had been filed six years earlier.

Shortly after, four of the five justices on the panel were promoted to the Supreme Court.

In 2016, the Supreme Court upheld the re-election of President Museveni even though both domestic and international observers had condemned the misuse of state organs, especially the police and the way his leading opponent, Dr Besigye, was physically barred from preparing any post-election challenge.

The actual result is believed to have been much closer than the eventual 56-32 per cent tally. The Supreme Court in a 9-0 judgment demurred from conducting an “inquiry” into a number of hot button issues, including a potential over-vote which keep on creeping up in Uganda’s elections.

Court struck down the term extension on technical grounds without looking into major flaws, cause and effect of the entire process.

Selfish act

Justice Barishaki set the stage for the minor victories by the petitioner by finding in a highly reasoned way that there was a failure to consult on the term extension for the President, Parliament and Local government; and the return of presidential term limits which were repealed in 2005.

The justices universally condemned the “loading up” of the Magyezi Bill with extraneous matters by MPs. No views were canvassed in committee on the above subject.

The actions by the MPs attracted the wrath of the court. Court also found fault with Parliament’s failure to follow its rules of procedure intended to assure some degree of fairness and propriety in passing Bills.
There were some minor points of impropriety typical in Ugandan public service, backdated correspondence surrounding the issue of a certificate of financial compliance.

The judges before retreating, attacked MPs for the selfish act of amending their term outside the parameters of the Constitution. But they simultaneously fell flat on their faces with respect to the following major matters.

Their attempt to drive the judgment away from the now 32-year-old tenure of President Museveni was an exercise in disingenuity. In 1988, the National Resistance Council (the defunct Parliament) created the Uganda Constitutional Commission to collect people’s views and draft a constitution to address Uganda’s need to have peaceful and orderly succession to state power.

This central theme of good governance runs throughout the Odoki report in big and small installments; separation of powers, enhancing the powers of the Judiciary and the Legislature and lastly numbing presidential over-incumbency.

The Deputy Chief Justice noted correctly in his ruling that the Constitution had many good provisions which had been amended without being tested but ended more than 100 pages without addressing the elephant in the room.

The Article 102(b) amendment for all its flourish and liberal sounding language was all about President Museveni and whether just one constitutional provision would be allowed to take effect, requiring his compliance.

In this regard, the court failed the much younger generation of Ugandans most of whom are less than 30 years old, who feel excluded from the political process, and of whom the less fortunate wait for election time to drink illicit booze and carry handouts of about $1 (about Shs3,700) to influence their vote. This has become a major threat to political stability in Uganda.

Justice Kakuru declared the entire Act a nullity. Sounding frustrated and in a pensive mood, the judge vilified President Museveni for breaking the central promise of the Constitution of 1995.

Justice Cheborion gave a tighter analysis of the law applicable before turning sharply right and upholding the age limit.

Justices Kasule and Owiny-Dollo gave due cause to history but the greater the emphasis they made, the more farfetched their final conclusions to retain the age limit will sound with history.

The court simply avoided addressing the issue of over-incumbency. In Kenya, last year, harping on a systematic abuse of established procedures by the Electoral Commission, the Supreme Court simply struck down the result of the presidential election as improbable and devoid of credibility.

Not every defect is curable and severance could not apply to a process which has nearly bankrupted the country.

As a human rights court, the court hid in the sand by remaining silent on the non-derogation provisions of Articles 28, 44(a) and 44(c) of the Constitution.

Criminal conduct

The justices were unanimous in condemning police brutality. Unlike the Supreme Court which in 2016 completely missed the bus on the growing criminality inside police at the behest of its former boss giving a false imprimatur on adhoc forces like crime preventers established outside the law, the Court of Appeal noted the various abhorrent acts by police inside and outside of Parliament.

Two Opposition MPs have required extensive treatment abroad, while a number were physically manhandled inside the chamber.

There are two other instances of criminal conduct, by one minister carrying a firearm inside the chamber, and another minister delivering hard knuckle blows that blew the fuse of another legislator.

Still, there was another universally condemned incident of Cecilia Ogwal, 72, the FDC member from Dokolo District, who along her even older husband Joshua, were thoroughly tear gassed in Lira District while consulting on the age limit amendment.

Court also found fault with police arbitrariness and illegal orders singling out ASP Mugenyi, a Kayihura blue-eyed boy, but failed to cast a decisive voice against the outcome.

This partial pandering to the gallery has left the status of clear constitutional language branding certain violations of human rights protected by the Constitution non-derogable in unclear status.

Role of the Speaker is contradicted by the audio-visual narrative of events in Parliament.

Lastly, the court’s credibility was affected by two issues: First was the extensive effort by the 4-1 panel to whitewash the Speaker and absolve her of any fault in the passing of the amendment, a view in direct contravention of public opinion which saw her conduct herself in a manner that betrayed bias in citing and enforcing the rules to expel MPs for errant conduct.

Her actions, which nauseated the country, escalated an already tense situation. The little point of amending rules of procedure in the middle of the constitutional amendment debate attracted passing incoherent notes by the bench. This tactic is often used in the US Congress where a rules package is used by the party in control to ensure passage of controversial legislation.

Was the judge reading notes prepared for her? Why did she appear to stumble on her own text?

The reading of the judgment was itself not without incident. Justice Musoke seemed to have trouble hitting all her notes in reading her judgment. Later in the session, she was seen fiddling with her smart phone until Justice Kakuru told her to stop.
The Judiciary has been fiddling with the subject of “manufactured” judgments. In one matter, I recall with fondness a Supreme Court justice, a former office colleague of Justice Musoke, doing something similar in 2016 reading a unanimous ruling of an en-banc court after a hearing where she did not take any notes at all.

Seeing Justice Musoke struggle with reading her judgment left a sense of de-ja vu – although of course there is no evidence of any form of impropriety on her part in this matter.

This abhorrent practice, where it occurs, ruins the public’s confidence in the courts and a sense of fair play. It dilutes the industriousness of the hardworking judges who work under difficult conditions. It is hard to imagine how the judges would have kept their commissions in the days of ex-Chief Justice Wako Wambuzi who famously got rid of two High Court judges Absolom Oteng and Moses Kalanda off the bench for falling short of standards of integrity expected of judges.

Former Chief Justice Benjamin Odoki did the same, jettisoning Okumu Wengi and Anup Singh Choudry from the bench.

Government for its part sounded relieved. They accepted the ruling of the court. This will ease up matters for them, as they will be defending the Court of Appeal in the Supreme Court without having to sort the good from the bad apples in the judgment.

And it will go thus; “Mr Attorney General, do you agree that MPs were selfish?” to which he will respond, “Yes my Lord the Chief Justice. I agree with the conclusions of Barishaki Cheborion at pages 144, Musoke at 300, and Kasule at 565…..” and the train will continue.

editorial@ug.nationmedia.com

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