Supreme Court sidesteps political question in narrow 4-3 decision

Monday April 29 2019

Judgment. Supreme Court judges during the

Judgment. Supreme Court judges during the ruling on the age limit on April 18. FILE PHOTO 

By Karoli Ssemogerere

Kampala. On Holy Thursday April 18, shortly before Ugandans broke off for Easter, the Supreme Court led by Chief Justice Bart Katureebe issued the age limit decision.
The 4-3 decision upheld the Constitutional Court decision which saved key provisions of the age limit law and struck out several others. Four justices voted to uphold the remaining provisions of the Constitutional (Amendment) Act, No. 1 of 2018.

The majority were Chief Justice Katureebe in concurrence with justices Stella Arach Amoko, Rubby Aweri Opio and Jotham Tumwesigye.
In the dissent were justices Prof Lillian Tibatemwa Ekirikubinza, Eldad Mwangusya and Paul Mugamba Amooti. Constitutional Appeals 2, 3 and 4 were consolidated in one decision.

The appellants were Mr Male Mabirizi, a lawyer, and a group of MPs led by Mr Gerald Karuhanga (Ntungamo Municipality).
Last year, the Constitutional Court allowed the age limit petition at trial. By a majority of 4-1, the Court of Appeal led by Deputy Chief Justice Alphonse Owiny Dollo struck down three major provisions of the Act, namely, the extension of the term of the president, MPs, local governments from five to seven years, a motion brought by Mr Michael Tusiime (Mbarara Municipality) and the return of term limits, a motion brought by Mr Nandala Mafabi (Budadiri West).
None of these proposals had been subject to consultation that the original sections of the Bill had undergone.

At the onset of the hearing of the age limit petition, the Constitutional Court, without prejudice, dismissed Constitutional Petition No. 34 of 2017 which challenged the removal of term limits.
However, this partial victory in a well-rounded decision did not attract universal acceptance. First, the removal of the age limit for candidates for president and local government chairs is construed as specifically to incumbent President Museveni, who officially turns 75 years this August, and would be ineligible to run for re-election in 2021.
Second, even though for good reasons the Constitutional Court found incurable defects with the procedure of tabling the stricken provisions of the Bill, restoring term limits was deemed by the opposition to come out of the Magyezi Bill.

Little is said of the curious support it received from an overwhelming number of NRM MPs, and nothing is said about the fact that the term limits would only apply after the re-election of the incumbent for a further two terms starting in 2021.

President Museveni. FILE PHOTO

President Museveni. FILE PHOTO

Justice Kenneth Kakuru’s sharp dissent, which kept the nation on its toes last summer, primarily focused on the litany of conceptual and procedural defects he found in the law least of all the total loss of decorum in Parliament as Speaker Rebecca Kadaga battled to assert her authority that led to ugly scenes, forcible ejectment of MPs and the Speaker, Clerk and ceremonial train in tow to flee the parliamentary chamber.

Scenes from this day in October 2017 still regularly play on social media a butt of jokes by comedians, including South African Trevor Noah, a comedian in New York whose scriptwriter is Ugandan.
So in a major sense, the appeal was to argue over the finer points. But a lingering question will remain, was this the best appeal to argue? In the Constitutional Court and the Supreme Court, the litigants and all the judges all agreed that the basic structure doctrine that separates certain fundamental aspects of the constitutional order in Uganda, separation of powers, democratic constitutionalism, and fundamental human rights cannot be amended from the Constitution.
All judges in the two courts agreed that there was some basic structure theory, even though they ignored the most important reflection of this fact, the absence of peaceful and orderly succession to political power.

This was the principal objective of the Uganda Constitutional Commission Statute, No. 1 of 1987, and most important observation of the Odoki Report.
In fact, Chief Justice Katureebe wryly noted in his judgment on page 23, perhaps this would have been a better use of the petitioner’s efforts challenging term limits.
With this decision, the basic structure doctrine observation starts to become an absurdity. First, the current constitutional order has swung back to British style constitutional order showing that most parts of the Constitution except the Bill of Rights can easily be amended in Parliament.

This point was made by Justice Opio, who calmly noted that Article 102 was not one of the articles “entrenched” in Article 260 of the Constitution, even though the application of the basic structure only comes to life when all the other articles are read together.
For example, it could hardly have been the intent of the framers of the Constitution that one incumbent President would have appointed all Judges of the Courts of Judicature a major dent on independence of the Judiciary provided for in Article 128(1) of the Constitution.
There were many other little points in the appeal. First the Bill arrived on the floor of Parliament for its first reading without a comprehensive certificate of financial implications a requirement of Article 93 of the Constitution and the Public Finance Management Act, 2015.

The much lauded national consultation was nearly universally derided in the appeals court by even the most pro-government justices such as Cheborion Barishaki, who decried the signature use of police brutality that saw Opposition MPs dehumanised by police using tear gas, etc.
To this group led by Mukono Municipality MP Betty Nambooze, Aweri Opio offered an olive branch, to scrub Article 50 to its core and bring actions for enforcement for violation of their human rights. Second, MPs were accused of having been bribed with Shs29 million. Ms Nambooze was found to have “returned” the money by cheque before not actually returning it.
Third, the Speaker was accused of having turned Parliament into a one party chamber a quarrelsome complaint as NRM already has more than 300 MPs in the chamber.

Petition side. Lawyers of the petitioners in

Petition side. Lawyers of the petitioners in consultation during the Constitutional Court appeal hearing in Mbale District last year. FILE PHOTO

Security forces were accused of invading the precincts of Parliament. Parliament’s key witness, Ms Jane Kibirige, the Clerk, led the Constitutional Court into a round of self- pity describing how one youthful MP “jumped” in front of her on the table where parliamentary business is conducted.
The dissent mostly capitalised on process, and what they found an incredulous upholding of the amendments by the Constitutional Court.
The supremacy clause in Article 2, a dominant feature of Prof G.W. Kanyeihamba’s lead judgment in Paulo Ssemogerere vs Attorney General Constitutional Appeal No. 1 of 2002 noted that in the Constitution, no one clause was supreme over all others and all provisions had to be respected.

That judgment found that once a finding was made by a competent tribunal that any law or custom as inconsistent with any of the provisions of the Constitution, the Constitution would prevail. This is a very high level of judicial review.
Justices Tibatemwa, Mwangusya and Mugamba Amooti found in the same manner as Justice Kakuru had found in the lower court that a defective certificate of compliance issued under Article 263 signed by the Speaker, and absence of consultation was enough to strike down the entire Bill.

The majority chose severance even though parliamentary tradition, and to a certain extent, the Constitution consider an entire Bill as an amendment bill rather than individual clauses.
Articles 259(2), 260-262 of the Constitution refer to a Bill in singular rather than “Bills.”
It is for this reason that the Tusiime and Nandala-Mafabi’s legislative proposals were for amendments to the ‘singular’ Bill rather than separate Bills.
Parliament convenes specially to consider amendments to the Constitution.

What is the future of Uganda’s constitutional order?
Uganda’s Constitution in 1995 started off with two major structural defects. First was the incomplete compromise to adopt a democratic-federalist state with two co-equal centres of power.
Uganda’s failed 1962 federal, semi-federal and unitary model was rejected in favour of a unitary state with a variable number of districts. The Constitution did not put a limit on the number of districts diluting their influence on the centre.

The second defect was the choice to have a strong executive president without any co-equal. Power is concentrated in the executive branch. Parliament has few prerogatives, approval of presidential appointments, declaration of a state of emergency beyond six months and removal of the President from office.
Parliament has limited independent financial prerogatives as the instant case scrutinising Article 93 shows.
This compromise was predicated on the two term limit of the President balanced with security of tenure for judges and Parliament’s unlimited powers of oversight.

Once the two-term limit went through the window, Uganda’s constitution became ordinary. The courts keep on emphasising its remaining key provisions, Article 1 vesting sovereignty with the people, Article 2 mentioning that the Constitution is supreme and its implications on judicial review of state action, but absent Article 105(2), the Constitution is very ordinary.
The fields of constitutional and administrative law are now fused, as the basic law has become a cumbersome organisation of administrative details. The 2018 law has attempted to state the obvious, Uganda’s return to its 1967 Republican roots.

If coupled with a proposed return to a parliamentary system likely to be dominated by the ruling party, the two constitutions 1967 and 1995 will start to look exactly the same.
One of the major victories by President Museveni as a successful incumbent comes from a popular tactic outside of the Commonwealth.
The predominant use of parliamentary rules to obtain a pre-ordained outcome. In the United States Congress, the rule about passage of a law is as important as the law itself. In other legislatures, complete suspension of the rules is a popular tool by the majority to subdue the few procedural protections the minority enjoys.

The President always emphasises the rule of law and has enhanced the stature of the Government Law Office, to include a full minister, two attorney generals, two solicitor generals etc., so in case one opinion rendered is unfavorable, there is a deputy or the reverse to render a “streamlined” legal opinion.
But there is one card he keeps close to his chest, he knows which exact rules will be in force at the time of reckoning. Lawyers dominate presidential appointments, numerous commissions of inquiry, advisers etc. Yet these have no capacity to brake on the ultimate exercise of power in a “muscular form.”
Justice Amoko in her lead judgment cites a litany of the muscular excesses that clouded the Constitution amendment process at pages 38-40 of her 189 page judgment.

Co-optation of the Opposition
Appeals in the strictest sense are meant to overturn the most unusual, abuses, or errors of the trial court. The Mbale trial was replicate with scenes of a major courtroom battle, complete with witnesses, the army commander, Clerk to Parliament, Secretary to the Treasury, MPs, etc.

At no other time had this happened in such numbers since the referendum cases, Paul Ssemogerere v Attorney General Constitutional Case No. 1 of 2000. In that case, the key witnesses were Mr Henry Kajura, Ms Kadaga and Ms Hope Mwesigye, who miraculously flunked all questions in the courtroom.
One witness testified that “she was familiar with the precincts of Parliament and quorum was abundant on that day.”

That quorum rule that required a minimum number of members to transact any business in Parliament belongs to the list of amendments that have altered the essential character of the Constitution.
In the majority judgments, the justices painstakingly note that the final vote tally on the Bill was 317 to 97. The view held by Justice Tumwesigye was that it would be a futile exercise to throw back the decision on the Bill to Parliament for the same result.
That is an important lesson from the referendum cases. Second, the court declined to dance around an issue which is political rather than jurisprudential.

The passage of the amendments was done with covert Opposition support even though a number of Opposition MPs boycotted proceedings. One of the impugned amendments on restoration of term limits was moved by a member of the Opposition rather than the ruling party, Mr Nandala.
NRM has gone to great lengths to institutionalise the Opposition by offering them a proforma voice at the table while retaining near total control of the state.
One of the complaints in the petition was the tabling of the Bill in the absence of the Leader of the Opposition in Parliament and her chief whip. Even with their relatively small numbers, some MPs on the opposite side have become reliable votes for government demonstrating the full impact of patronage. This hurt the petitioner’s case as it suffered from perception problems.

The Male Mabirizi factor

Lawyer Male Mabirizi

Lawyer Male Mabirizi

The age limit petition cooled off another major matter that has kept Mr Mabirizi in the courts and in the news, his case against the Kabaka.
Mr Mabirizi was probably responsible for most of the 112 grounds of appeal (by the count of Justice Tumwesigye) and (84 grounds by the count of Justice Amoko).

Most advocates, who regularly appear in the Civil Division of the High Court (the equivalent of a federal trial court as most actions involve government and its agencies), have run into him, coming from court or in the Registry.
Shortly before judgment was delivered, Mr Mabirizi filed another application in the Supreme Court, Application No. 5 of 2019 complaining of a delay by the justices to render judgment. His enormous industry in writing legal briefs has ruffled many feathers.
Mr Mabirizi has lasted long at this because very little is known about him publicly. But as the justices uniformly observed, Mr Mabirizi’s future lies in attending the Law Development Centre (See Amoko at page 82). In his landmark appeal, some of the complaints did not belong to an appeal to the Supreme Court, not being allowed to sit at the Bar, etc.

Speaker Rebecca Kadaga
In the 2011-2016 term, Speaker Kadaga was mentioned often as a possible successor to President Museveni causing a lot of friction with the then heir apparent, Prime Minister Amama Mbabazi, who bitterly lost out in 2014 with a sack and later loss to his mentor President Museveni.
Ms Kadaga, in her second term is firmly in charge. This may be her last term as Speaker. She has surprisingly attempted to institutionalise processes at Parliament.

But Parliament, like the Judiciary, remain a mere shadow of their full capacity. Parliament’s budget has languished at Shs500 billion for years while the Judiciary collects one third of this. Her top civil servant, the Clerk is a presidential appointment.
Ms Kadaga must be grateful to her clerk, Ms Kibirige, who calmly narrated to the Justices a more realistic picture of events in Parliament on October 17, 2017.

Ms Kadaga took a hit for presiding over yet another amendment to the Constitution. This criticism, however, ignores the main trump card the President has over her.
Speakers in commonwealth tradition serve at the pleasure of the Executive, which can bring an organisation motion to Parliament at any time under Article 82 by simply appointing her to another office, in fact, she need not accept that appointment.
James Wapakhabulo’s speakership ended with an appointment to Siberia, the defunct NRM Secretariat, where he was put out of the presidential succession queue.

Ms Kadaga has made up with the Opposition MPs. In line to receive her at Parliament after a her recent medical leave to Parliament, Mr Johnson Muyanja (Mukono South), a DP leaning independent. Her chief allies in Parliament are from the Opposition benches, Abdu Katuntu (Bugweri) and Elijah Okupa (Kasilo).

Speaker Rebecca Kadaga

Speaker Rebecca Kadaga

Profile of the Supreme Court
This decision will be contested for years to come. It comes 20 years after the promulgation of the Constitution during which time, the 1995 compromise Constitution has become a sharply republican one.
Many countries have gone through this metamorphosis Russia, Turkey, Sudan, Venezuela. Yet another equally profound contingent of countries led by Nigeria, Kenya, Tanzania have stuck with the two term limit a major curb on republican rule.

In fact, in these countries, the stable of ex-presidents is growing. In Nigeria, two ex-presidents Olusegun Obasanjo and Muhammad Buhari have successfully returned from retirement to run for president and even win re-election without upsetting the two-term limit.
In Namibia, a one-time exception for Sam Nujoma has not been abused to open up term limits. In Angola, long serving President Eduardo dos Santos voluntarily retired from office in 2018.
The referral of major questions to a referendum has not made major decisions easier. The referendum is praised as the ultimate arbiter.
In 2005, the minority of the Sempeebwa Commission recommended a referendum to lift term limits. Article 1(4) of the Constitution enshrines this choice as the direct voice of the people.

Yet it has not produced the required results. The UK in 2019 is still grappling with the aftermaths of two referenda, in Scotland in 2014 whose result has not been accepted by the nationalists and the 2016 Brexit referendum that ended David Cameron’s tenure as Prime Minister.
The Ugandan Supreme Court in the early years sought to uphold the idealism of the Constitution striking down several laws as unconstitutional even where it fully relied on procedural grounds.
That era has slowly come to a close, a probable reluctance or judicial restraint to avoid direct confrontation with the executive. Laws and politics are strange bedfellows, but the law focuses on what has happened in the past while politics concerns itself with present and future.

Overall, the profile of the court continues to rise as the final court to augment an understaffed Court of Appeal. In the early days of the Court of Appeal, it was an aggressive conservative one.
The Supreme Court with a higher profile membership, including three former Attorney Generals have gone on to serve on the court had a more national outlook.
The Supreme Court’s divided decision offers hope that in the future, government will take care not to ignore legal calamity through singular high handedness in ways a 7-0 decision would. Future appeals and applications to this court will be well advised to focus on human rights issues rather than purely political questions.

Chief Justice Katureebe

Chief Justice Bart Katureebe

Chief Justice Bart Katureebe

In June 2020, the Chief Justice retires after a short tenure as head of Judiciary. First considered for appointment in 2013, he took office two years later. He took office after attempts to extend Chief Justice Odoki’s tenure in office as an acting justice were struck down by the Court of Appeal.

This memory comes back to fore as two members of that coram, justices Tibatemwa and Mwangusya came back to strike down the entire law.
Chief Justice Katureebe has been a relatively moderate, amiable but conscientious justice. What is likely to come with his retirement is a sweeping change in the court’s composition.
Along with him, several justices are set to retire or have retired, justices Augustine Nshimye, Tumwesigye, Mwangusya, Mugamba-Amooti. The next group of retirees will be led by Faith Mwondha in 2022, but that is still three years away from now.

The Chief is always expected to vote in the majority. Both Odoki and Katureebe have in split decisions commanded narrower majorities in split decisions than for example Wambuzi, who led a 5-2 majority in AG v Tinyefuza, Constitutional Appeal No. 1 of 1998 to strike down a popular decision issued by the Constitutional Court.
Notes: The following justices did not participate in the age limit petition. Justices Dr Elizabeth Kisaakye, Faith Mwondha, Richard Buteera and Augustine Nshimye-Sebutulo.

Mr Ssemogerere is an Attorney-at-Law and an Advocate