Justice Kenneth Kakuru
Parliament may every five years or seven years as set out in the impugned Act, extend its term without having to go for elections, perpetually!
Even worse, it could abolish elections and declare its current members to be members for life! Parliament could even abolish the Judiciary and vest judicial powers in itself! It could repeal the whole Bill of Rights from the Constitution, as long as it has a majority to do so. It could even abolish the Republic of Uganda and in its stead create a monarchy.
Powers of Parliament
The argument by the learned Deputy Attorney General that Parliament can at will amend any Article of the Constitution provided the set procedure if followed appears to me to be fiction based on a legal misconception.
This misconception of our history and jurisprudence appears to emanate from an apparent right of entitlement held by a majority of the Members of Parliament and the Executive.
Oversight role of court
Once the principle is set that Parliament has a right to amend any Article of the Constitution, simply by voting “yes” there would be no limit to their demands. Nothing would stop them from amending the Constitution to provide that they would be Members of Parliament for life and upon death, their Parliamentary seats be inherited by their children.
They cannot do so because the Constitution put in place this Court to stop them. This Court shall not stand by and let our Country’s democracy and hard-worn values set out in the Constitution wither on the vine. It will not happen on our watch.
On MP consultations
Mr Mwesigwa Rukutana, the learned Deputy Attorney General, suggested tongue in cheek from the bar, that the Members of Parliament had been able to consult the people through social and electronic media using their newly acquired “tablets” (computer devices).
This was evidence from the bar, which has no value. This statement just helps to confirm the level of unseriousness and cynicism of Members of Parliament and the Executive attached to the constitutional duty to consult the people of Uganda upon whom the supreme authority vests, under Article 1 of the Constitution.
Quality of MPs
More than 50 years ago in 1962, Members of Parliament were able to debate intricate issues and pass legislation without precedents. From the reading of the Hansard of 1962 to 1967 and 1967 to 1971, excerpts of which I have reproduced earlier in this judgment, the level of debate, the language, the ethics and etiquette was only comparable to that of British House of Commons. I am hesitant to say the same of the current Parliament.
Perhaps it was for this very reason that Mr Tusiime moved the motion that he did. If that be the case, probably a Parliamentary pre-entry aptitude examination would have remedied the mischief.
The 1995 Constitution is still in its infancy; it being just a couple of decades old. However, and most unfortunately, before it has sufficiently been tested, or put differently, before the ink with which the promulgation was signed has dried, the Constitution has already been subjected to as many as five amendments.
Given the effort, time and other resources that were invested in the making of the 1995 Constitution, it is not gainsaid that the frequency with which it has been subjected to amendments is disturbing; and is cause for serious and genuine concern.
Owing to the peoples’ desire to have a popular and durable Constitution for themselves and posterity, it is justified for them to seek to know the compelling change that has occurred in our aspiration and values, so soon after the promulgation of the Constitution, to merit the extravagant alterations to the Constitution at the infant stage of its life span.
The people harbour legitimate concern over the apparent deviation from our earlier desire and chosen direction declared in the Constitution itself; namely to have a durable Constitution that would ensure a just socio and political order. We are justified in being apprehensive of what the future holds with regard to the nature and substance of our Constitution by the time we celebrate the silver jubilee of its historic promulgation.
Future generations will justifiably hold us complicit, either by our explicit or implicit action, in letting our country again sink into the chaos, turbulence, and mayhem, we have had a nasty experience of; and swore to ourselves never to go through again when we made this Constitution.
They will be furious and extremely harsh in their judgement over us, for having bequeathed unto them a tragedy, which we had the power and means to avert or avoid; but failed to do it due to the lack of will and courage to do so.
Term limits for president
Parliament scrapped the presidential term limit; but even when the conditions that purportedly necessitated the scrapping of that provision have not changed, Parliament has overwhelmingly voted to reverse this decision, and have the provision restored in the Constitution.
This is evidently a sharp rebuke and indictment of Parliament for having scrapped the provision from the Constitution in the first place, apparently without any justifiable reason; as is manifested by its immediate reinstatement. This vindicates the voices of reason, which had concertedly objected to, and expostulated against, the lifting of the provision from the Constitution.
Violence in House
The evidence adduced in court shows that what was happening in Parliament was akin to the type of brawls and fracas one would expect to happen in a bar or a malwa (local potent brew) joint. For this, the sergeant at arms did not consider it such a security threat as would require outside intervention.
It was when certain members of the House had shown defiance to the orders of the Speaker that he sought police reinforcement. There was absolutely no reason for the intervention of the UPDF. Proof of this is in the fact that the members of the UPDF who intervened went barehanded in civilian attire; something they would not have done had the situation been such as to warrant their intervention.
Justice Remmy Kasule
While, in my considered view, on the basis of the evidence availed to this court, there was no justification at all for the army and other security forces to join in this scuffle, which should have been handled by the normal police personnel and within the normal security systems of Parliament, I regretfully find that a number of the honourable Members of Parliament acted, on some of these occasions, without the necessary restraint, decorum, responsibility and respect to the chair of the Speaker expected of them as honourable Members of Parliament.
Separation of powers
The Court’s constitutional duty is to strike down legislation inconsistent with the Constitution and leave the legislature to amend or repeal where the Court has struck down the offending legislation. The lesser the Judicial branch of government intrudes into the domain of Parliament, the better for the functioning of democracy.
Justice Cheborion Barishaki
I do not agree with the contention that the involvement of the army was unjustified; the national army is mandated to assist in cases of emergencies. Given the charged environment that Members of Parliaments were using all items in the chamber to harm each other, I give the sergeant at arms and the Forces the benefit of doubt and hold that an emergency was averted.
The involvement of the army was, therefore, justified. However, I must add that this finding is not intended to grant a carte blanche to the army and the sergeant at arms in Parliament to intervene in matters of Parliament without reasonable cause, each incident should always have to be evaluated on its own merits and findings made accordingly.
I must state here that I find the obnoxious directive issued by AIGP Asumani Mugenyi appalling. It does not make any legal or logical sense. The directive restricted freedom of association and movement of Members of Parliament without any justification whatsoever.
Justice Elizabeth Musoke
It is clear from the available evidence that public interest was curtailed when a group of Members of Parliament by their conduct made it impossible for the debate process of the Bill to proceed peacefully. There was need for reasonable force to be used to ensure that order was restored within the precincts of Parliament.
The deployment of the army, albeit from the permanent establishment at Parliament/President’s Office, was in my view not justified. This is more so when the sergeant at arms did not request for the back-up from the UPDF even when he knew they had a permanent establishment at the Parliament. The allegation that the IGP called the UPDF for assistance could not justify their presence when the civil authority concerned (Parliament) did not require their back-up.
Limitations to freedom
Equality and freedom from discrimination is not absolute or boundless, even in the most democratic societies. Instead limitations may be imposed on the freedom from discrimination, which strike a balance. The general standard set for testing the permissible limitations is contained in Article 43. From the reading of the above article, I note that age is not one of the attributes that constitute discrimination in Uganda.
It is possible, as I indicated earlier, that removal of term limits, especially in the circumstances of Uganda, may encourage the incumbent President to want to stay on in power, but the power to decide who governs/rules them, shall remain with the people who exercise it through regular general elections.
The people’s power to elect a President or district chairperson of their choice is not taken away, by lifting the respective age limits. If anything, citizens would in my view be encouraged to aspire to elect leaders of their choice and to actively participate in politics and elections.