Age Limit: LOP Asks Committee to Defer Constitutional Amendment Bill

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In short
She said the bill that is before parliament is premised on the erroneous interpretation of the court ruling, adding that Magyezi has no mandate to bring the amendments basing on the instructions of the Supreme Court because they were never directed at him.

Winnie Kiiza, the Leader of the Opposition wants the Constitutional (Amendment) (No.2) Bill, 2017 deferred to the widespread consultations under the Constitutional Review Commission.

Kiiza stated this on Thursday afternoon while appearing before the Legal and Parliament Affairs Committee together with the Deputy Opposition Chief Whip, Roland Mugume, the Democratic Party Whip, Joseph Ssewungu, the Busongora North MP, William Nzoghu and Bukonzo West MP, Atkins Katusabe.

The Committee, which is chaired by the West Budama South MP, Jacob Oboth-Oboth is conducting public hearings on the Constitutional (Amendment) (No.2) Bill, 2017, which was tabled before parliament by the Igara West MP, Raphael Magyezi.

The bill seeks to scrap Article 102 (b), which restricts the presidential age at between 35 and 75 years. The Bill also seeks to scrap the 30-year-old lower cap and the 75 year upper limit for those seeking to contest for the position of Local council V chairperson as provided for under Article 183 (2) (b) of the Constitution.

It also seeks to amend Article 61 (2) of the Constitution to provide that the Electoral Commission shall conduct a general election within the first 30 days of the last 120 days before the expiry of the term of the office of the President. Currently, Article 61 (2) requires EC to conduct general elections within the first 30 days of the last 90 days before the expiry of the term of the office of the President.

The Bill proposes an amendment to Article 104 (2), (3) and (6) to provide that a petition challenging a presidential election shall be lodged in the Supreme Court registry within 15 days up from 10, and that the Supreme Court will inquire into the matter not later than 45 days up from 30.

While appearing before the Committee, Winnie Kiiza, the Leader of the Opposition, said they are opposed to the bill, saying it wasn't brought in good faith. "We believe the bill was not brought in good faith and is intended to undermine the democratic path of the country," she said.

Drawing from the recommendations of the Supreme Court judgment in the Amama Mbabazi Vs Yoweri Kaguta Museveni and Others Presidential Election Petition No.1 of 2016, Kiiza said court specifically instructions to the Attorney General to take action and not any other person.

"This Bill is also premised on the Supreme Court decisions but save for two recommendations carried in this Bill, the rest remain unattended to yet they are so crucial in democracy. The Government has remained silent yet claiming to support Raphael Magyezi's Bill. The Government is acting in bad faith," she said.

She said the bill that is before parliament is premised on the erroneous interpretation of the court ruling, adding that Magyezi has no mandate to bring the amendments basing on the instructions of the Supreme Court because they were never directed at him.

"The person responsible to bring these amendments is the Minister of Justice and Constitutional Affairs assisted by the Attorney General. The judgment is dated 26th August 2016, which means the Attorney General has more than nine months to bring all the necessary amendments," Kiiza added. She accused the Attorney General of acting in contempt by failing to comply with the judgment. 

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The Bukooli County MP, Gaster Mugoya asked Kiiza to explain whether Article 102(b) is entrenched in the Constitution and whether or not there are any legal obstacles to the bill. In her response, Kiiza cited the removal of presidential term limits in 2005, which she said only benefited president, Yoweri Museveni as in individual.

She argued that even the proposed scrapping of the presidential age limit is coming when Museveni is about to clock 75 years of age. Aston Kajara, the Mwenge South MP, asked Kiiza whether a Constitutional Review Commission is required in order to amend the constitution.
However, the Busiro East MP, Medard Lubega Ssegoona interjected reminding the legislator that the Constitutional Review Commission was proposed by government and cabinet in which, Kajara served as the State Minister for Privatization.

"You participated in hoodwinking this country that government will constitute a Constitutional Review Commission. Are you in order?" Ssegoona asked. Kiiza also explained that even President Museveni knew that the Review Commission was necessary that is why he made a commitment.

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The recommendation of the Supreme Court

In their ruling, the justice of the Supreme Court led by the Chief Justice, Bart Katureebe made 10 recommendations aimed at creating reforms that would guarantee free and fair presidential elections in 2021 and beyond. Court directed the Attorney General (AG), who is the chief government legal adviser to follow up the recommendations and report back to court the progress within two years.

 "We note that most of the recommendations for reform made by this court in the previous presidential election petitions have remained largely unimplemented. It may well be that no authority was identified to follow up. We have further noted that the AG may object to withdrawal of proceedings. Therefore the AG is the authority that must be served with the recommendations of this court for necessary follow up," said the Supreme Court Judges.

Period to File Petitions

Core to these recommendations was that the 10-day period within, which to file a presidential election petition and gather evidence to support it and the 30-days period within, which the Supreme Court is to determine the petition, which court found unrealistic.   "We recommend that the period be reviewed and necessary amendments be made to the law to increase it to at least 60 days to give the parties and the court sufficient time to prepare, present, hear and determine the petition, while at the same time being mindful of the time within which the new president must be sworn in," they recommended.

Role of Public Officials

Court also recommended the enactment of a law barring civil servants from meddling in elections. In his petition, Mbabazi accused the KCCA ED, Jennifer Musisi and UNRA ED, Allen Kagina for campaigning for President Yoweri Museveni.

"The law should make it explicit that public servants are prohibited from involvement in political campaigns," said the judges.  The court also recommended that there should be no more fundraising or donations by presidential candidates, including the president, during the presidential campaign period.

"Section 64 of the President Elections Act-PEA deals with bribery. We note that Section 64(7) forbids candidates or their agents from carrying out fundraising or giving donations during the period of campaigns. Under Section 64(8), it is an offence to violate section 64(7). However, we note that under Section 64(9), a candidate may solicit for funds to organise for elections during the campaign period. Furthermore, a president may, in the ordinary course of his/her duties, give donations even during the campaign period," observed the justices.

Adding: "this section in the law should be amended to prohibit the giving of donations by all candidates, including a president who is also a candidate in order to create a level playing field for all." They also recommended the enactment of laws to support the use of technology in the polls such as the  biometric voter machines used by Electoral Commission in the February 18 general election.
Media Space

On the issue of state media outlets not giving equal airtime to opposition candidates to market themselves to the electorate during the campaigns, the justices recommended amendment to the law to provide for punishment for the media managers and houses that deny opposition candidates air space.
"Both the Constitution in Article 67(3) and the PEA in Section 24 (1), provide that all presidential candidates shall be given equal time and space on State-owned media to present their programmes to the people. We found that UBC had failed in this duty. We recommend that the electoral law should be amended to provide for sanctions against any State organ or officer who violates this constitutional duty," the justices recommended.
Electoral Amendments

Court addressed itself to the amendments that were made just a few weeks to the start of the presidential campaigns. The justices recommended that in case there is need to amend electoral laws, the same should be done two years prior to the campaigns.

 "We observed that the Electoral Commission Act-ECA and the PEA were amended as late as November, 2015. Indeed, the chairman of the commission gave the late amendment of the law as the reason for extending the nomination date. We recommend that any election related law reform be undertaken within two years of the establishment of the new Parliament in order to avoid last minute hastily enacted legislation on elections," 
the judges ruled.

AG to Be Party 

The justices also recommended that the law should be amended to make it permissible for the Attorney General to be one of the respondents in the presidential election petitions on grounds that there are certain issues that need the response of the Attorney General.

As it is now, the electoral laws don't provide for the inclusion of the Attorney General as one of the respondents in the election petitions. Mbabazi had in his poll petition included the Attorney General as one of the respondents.


About the author

Olive Nakatudde
Olive Nakatudde is a URN journalist based in Kampala. Nakatudde has been a URN staff member since 2013.

Nakatudde started out in journalism in 2009 with Dembe FM radio in Kampala. In 2012, Nakatudde joined Voice of Africa as a political reporter. She has been a photographer since her journalism school days at Makerere University.

Nakatudde is interested in good governance and public policy, which she reports on intensively from the Uganda Parliament. She is a keen follower of cultural affairs in Buganda Kingdom and covers the kingdom's Lukiiko (parliament). Nakatudde also reports on education and health.