What you need to know:
- The irony. It is ironical that with the amendment of Article 105, the only retirement age limit still in force in the Constitution, is that pertaining to the Judiciary. Judges still have to retire from the High Court and superior courts at 65 or 70 years respectively. This hard and fast rule was challenged by former Chief Justice Benjamin Odoki and now deceased Attorney General Peter Nyombi in 2014 with devastating effect.
On April 18, judgment will be delivered in the Supreme Court age-limit appeal challenging the removal of the age limit in Article 105 of the Constitution by Parliament in December 2017. Uganda’s next general election cycle will then enter full swing ahead of the likely February 2021 polls.
A constitutional review commission headed by Dr Edward Khiddu Makubuya, a former Attorney General, is yet to officially start its work. Interestingly, Dr Makubuya shepherded the 2006 amendments that returned Uganda officially to multiparty rule, but also breached the “iron-clad guarantee of political transition” in the same Article 105(2) by removing the two-term limit.
Article 105 on which the country rested its entire hopes has been obliterated of any viable content. The 2006 change was a major change because it removed a fail-safe mechanism which is very popular and still remains the default position in Kenya and Tanzania. Both Rwanda and Burundi jettisoned theirs in the last five years.
The same Article 105 had a secondary safety, prescription of the presidential age limit, stating that for one to be a candidate for president, he had to be less than 75 years old at the time of election. In fact, President Museveni in 2012 affirmed this position in an international television interview worried that physical frailty and strain were a major problem in high office.
But President Museveni always caveats his responses to sensitive issues of national power with a standard disclaimer, we will follow what the Constitution says.
It is ironical that with the amendment of Article 105, the only retirement age limit still in force in the Constitution, is that pertaining to the Judiciary. Judges still have to retire from the High Court and superior courts at 65 or 70 years respectively. This hard and fast rule was challenged by former Chief Justice Benjamin Odoki and now deceased Attorney General Peter Nyombi in 2014 with devastating effect.
Stories of Judges “stuck” in their chambers after attaining age 70, and others being commandeered panda gari style on the street with “acting contracts” soured ties between the younger judges and their elders. A unanimous decision of the Court of Appeal at the time struck down the tenure of Odoki, leaving him for a while rudderless, with his reputation in ruins.
But the joke has since been on Odoki’s opponents. By approving the removal of the age limit in the Constitution in the recent age limit last year in record length rulings by the Court of Appeal, the judges have skipped the Constitution twice. How could such a strong precedent sacking Odoki from the Supreme Court be so “limited” yet it set a very high national standard. What does this mean for the rule of law?
This isn’t a simple issue for Chief Justice Bart Katureebe and his colleagues who will read their judgments next week. Half the court is almost 70 years old. Two have exceeded retirement age. Because if the logic behind the 2018 ruling of the Constitutional Court is upheld uniformly, the retiring Justices should also be clothed in the same limitless tenure.
After all, democratic constitutionalism dictates under separation of powers that the branches are co-equal and complementary.
Older people cannot be the exclusive preserve of two branches of government and younger people in one branch. In fact a controversial MP from Nakifuma County Robert Sekitoleko already threw a spanner in the works in 2016 by proposing the lifting of “age limit” for judges prompting angry Speaker Kadaga to “rubbish” the motion forever.
It is ironical that Ms Kadaga presided over the Parliament that expensively amended the last remaining vestiges of the constitution. Ms Kadaga like her boss is not bound by age limit. She has been running hard in her rural Kamuli District since 1989 as Woman MP. For parity, will she remove age limits in the Judiciary? Will the justices simply wave the President on for 2021?
Mr Ssemogerere is an Attorney-at-Law and an Advocate. [email protected]