Deputy Chief Justice Alphonse Owiny-Dollo on Thursday said the Constitutional Court was right to maintain the decision of Parliament to remove the age limit for presidential candidates and that the issue of lack of public participation which the petitioners raised was taken out of context.
Mr Owiny-Dollo added that although the constitutional petition they were presented with earlier this year had a number of issues, the media wrongly frames it the “age limit’ case.
He was delivering closing remarks at a public symposium organised as part of events in celebration of the Makerere University School of Law golden jubilee.
“It is all in black and white. There were many issues raised in Mbale but because in people’s minds the incumbent must leave [power], they now termed the Mbale petition the ‘age limit petition’ and the body of criticism was about that,” Justice Owiny-Dollo said.
He led the five-member panel that determined the issues that were presented by the petitioners, including whether Parliament had rightly extended their term from five to seven years.
The five-member panel was in agreement on all the issues raised and reversed the extension of Parliament’s term and re-introduction of the two-term limit for the presidency, but Justice Kenneth Kakuru disagreed with his colleagues on whether Parliament rightly removed the 75-year age limit for the presidency.
He rejected the removal of age limits and awarded costs to the petitioners. The other judges on the panel, who agreed with Mr Owiny-Dollo on all the issues, were Remmy Kasule, Elizabeth Musoke, and Cheborion Barishaki
The petitioners, who include Uganda Law Society, a group of change-seeking MPs and Mr Male Mabirizi, an individual, have since appealed the decision of the Constitutional Court to maintain the removal of age limits.
Continuing with his defence, Mr Owiny-Dollo said: “The Mbale constitutional petition wasn’t about the age limit. If you read the judgements you will know. Out of five only one person raised the issue of the age limit in a very timorous manner, to use the words of Lord Denning, but even in the submissions he was trying to indirectly link it to the practical world.”
Give credit where its due
The deputy chief justice also accused Ugandans of being ungrateful to the court saying: “No one talks about the court stopping Parliament from extending their term. No one even thanks the court for its intervention.”
He added: “If you read the judgement you will find that all the five Justices agreed on every issue. There was no dissent. What were the issues? Parliament couldn’t extend its term, we all agreed. On violence we all agreed and condemned it, there was an attempt to reintroduce term limits but the Speaker of Parliament had not put that on the list of motions approved by Parliament in her communication to the President for the final Act. We all agreed that Parliament had a right to amend Article 102, which lifts the age limit, and would do it very easily. It didn’t require special consideration and is not entrenched and didn’t offend Article One of the Constitution in any way.”
Mr Owiny-Dollo, who urged the School of Law to strengthen public debates and quarterly publications, then launched another offensive on the aspect of public participation.
“One of us (Mr Kakuru) nullified the Act in its entirety on the ground of people’s participation. That is where he disagreed; on the adjectival issue of participation, but the Constitution is clear on people’s participation. Power belongs to the people but Uganda isn’t a Greek city state and because of that the Constitution provided that people hand over power to Parliament whose power is clearly spelt out.”
He argued that Parliament’s power was only limited in respect of entrenched provisions, which articles of the Constitution which Parliament can only amend after a referendum.
“It is my considered view that those who say people must participate [in amendments like removing age limits] miss the point. Yes they must, but what is the meaning of people’s participation according to the Constitution? Is it mere consultation? If I consult you, you give me your view, and I act to the contrary, would you recall me from Parliament? I couldn’t be a witness in the Mbale petition but I knew the lady MP from my district and the main MP from the constituency where I vote from consulted the same people and came with different results about the age limit. There was public participation,” Mr Owiny-Dollo said.
Next to Mr Owiony-Dollo was a panel that included Justice Lillian Tibatemwa of the Supreme Court, where the decision of the Constitutional Court has since been appealed.
Also on the panel was Prof Joe Oloka-Onyango, who penned a critical article on the decision, especially what he called the court’s inability to comprehensively traverse the philosophical Basic Structure Doctrine and apply it to the facts of the case.
In the front row was Justice Kasule who on Thursday turned 70 years.
As Justice Owiny-Dollo defended his court’s decision, Prof Oloka-Onyango, who had sat cross-legged clasping his fingers, stepped from the high table, bowed and took a three-minute break. Justice Tibatemwa, who could be called upon to hear the appeal in the Supreme Court, sat in with a body language that radiated no emotions.
She had earlier earned herself a standing ovation for a paper on the School of Law’s role in advancing rule of law, human rights and good governance. She beseeched the public to avoid ‘unfair and unfounded’ attacks on judges over their decisions, but Prof Oloka-Onyango in a rejoinder argued that judges must have thick skins and be ready for criticism.