Behind the joyous and bullish celebrations within NRM for the passage of Igara West MP Raphael Magyezi’s private member’s bill lies anxious anticipation of an opposition-led court challenge to the law which scrapped the 75-year age cap for presidential hopefuls.
The controversial bill, passed on December 20, and assented to by President Museveni on December 27, also proposed a term extension for elected leaders from five to seven years – a similarly polarising provision which has attracted widespread denunciation as an illegality.
“Our lawyers are ready to battle in court, but since it was passed by parliament, the attorney general will have to take the lead,” Usuk MP Peter Ogwang said over the weekend.
Well-placed sources have told The Observer that shortly after the bill sailed through on December 20, President Museveni called a strategy meeting at State House Entebbe.
At this meeting, Attorney General William Byaruhanga and his deputy Mwesigwa Rukutana were appointed to lead lawyers within the NRM in laying down a plan of action.
MPs Guster Kyawa Mugoya (Bukooli North), Aston Kajara (Mwenge South), Veronica Bichetero (Kaberamaido), Sam Bitangaro (Bufumbira South) and Robinah Rwakoojo (Gomba West) were drafted onto this team.
The Entebbe meeting was attended by a coordination committee constituted in early October with Prime Minister Ruhakana Rugunda as chairman. Before leaving for State House, the team met in Rugunda’s office to review what had happened.
The executive Director of Uganda Media Centre, Ofwono Opondo, described the meeting as a follow-up get-together.
“Once cabinet was brought on board, the committee has been meeting daily until the passing of the bill,” Opondo said on December 28.
Opondo added that Museveni wanted to be briefed on certain issues in the bill. Other sources said Museveni “wanted to be sure that there wasn’t any breach of procedures because the opposition would use such a breach to discredit the bill.”
On December 28, the attorney general was seen frantically looking for copies of the Hansard, parliament’s official recording of the controversial age limit debate, largely to prepare himself and his team for the legal showdown.
In the State House meeting, Defence minister Adolf Mwesige is reported to have told Museveni that the opposition cannot disown the bill.
“They sat in the Legal [and Parliamentary Affairs] committee that scrutinised the bill, wrote a minority report that was tabled and debated on the floor of parliament, and even took part in the voting when the bill was read for the second and third time,” Mwesige is quoted as having said.
Mwesige also reportedly said that in consulting their constituents, the opposition endorsed the process, which deleted Article 102(b).
The president reportedly also raised questions about the implications of Mbarara Municipality MP Michael Tusiime’s introduction of the clause, which stretched the tenure of MPs and local government leaders to seven years.
Tusiime’s clause changed Article 77(3) of the Constitution. For now, Museveni’s term remains fixed at five years since Article 105(1), which prescribes the five-year presidential period, is entrenched under Article 260. It can only be amended through a referendum.
“We are all going to campaign for the referendum so that we align the presidential term with those of other elected leaders,” Ogwang said on December 29.
Museveni’s concerns probably stemmed from Article 61(3) of the Constitution, which provides that the Electoral Commission (EC) holds elections for parliament, the president and certain local government leaders on the same day.
“The justices of the Constitutional court can either quash the entire bill or give a ruling approving it but can’t give a ruling that allows sections of the bill and cancels the others,” Museveni was told, sources said.
Only last week, shadow minister of Justice and Constitutional Affairs Medard Lubega Sseggona said the opposition will go to court. Sseggona said the term extension can neither apply to the current MPs nor to local governments because parliament has never amended Chapter 11 of the Constitution.
Chapter 11, Article 181(4) fixes terms of local governments at five years. Museveni is said to have also decided to host NRM’s 317 MPs who voted in favour, and to reach out to the 28 who voted against.
But the suggestion of reaching out to the ‘rebels’ reportedly did not please government chief whip Ruth Nankabirwa. Sources say Nankabirwa told Museveni that his private meetings with ‘rebel’ MPs encourage ‘rebellion’.
Opondo said Museveni suggested that the ‘rebels’ be profiled in different categories of indiscipline.
“It is not a disciplinary action per se that is going to be taken, [we also] want them to explain why they maligned their friends that they had received bribes to vote for the bill,” Opondo said.
In 2013, the NRM tried and failed to eject rebels; Ssekikubo, Barnabas Tinkasiimire (Buyaga West), Muhammad Nsereko (Kampala Central) and Wilfred Niwagaba (Ndorwa East) out of parliament for defying party lines.
The matter ended in a Supreme court judgement in favour of the MPs. Commenting, Ssekikubo said: “Whatever questions they may have, we have the answers but there is nothing new they are going to raise because everything is out there,” he said.
“They should not tempt us by bringing up the bribery issues because we shall reveal everything. For now, propaganda is the least matter we want to engage in, we are focussed on serious national issues.”
Several sources have suggested that the president was against the seven-year term extension for MPs. He argued that such a proposal lacked legitimacy and would draw a strong backlash from a public already angered by the Magyezi bill.
But several MPs led by Deputy Prime Minister Gen Moses Ali warned that if the president refused to support the term extension, they would also ditch the Magyezi age limit proposal. Cornered, the president reportedly bowed.
A petition has already been lodged in the Constitutional court not only to challenge the entire process that led to the bill’s passage but also the constitutionality of parliament extending its own term.
Male Mabirizi Kiwanuka, a lawyer who filed the petition, argues that, “The decision of the current parliament to extend its own term by two more years, under the Constitution was inconsistent with and in contravention of articles 1, 2, 77(3) and 77(4) of the constitution, which are clear that the current parliament was elected for five years and its term can only be extended by only six months at a time and only when there is a state of war.”
Medard Lubega Sseggona, a lawyer and Busiro East MP, said, “It’s absolutely illegal and it shouldn’t stand. I think those who brought that proposal were self-seekers. We have a fixed contract under article 77 for five years and it can only be extended by the person who gave you that mandate.”
The Observer understands that as NRM MPs muscled through the bill, the Uganda Law Society assigned a few of its elite lawyers to find loopholes in its passage with the sole intention of challenging its constitutionality.
The team of ULS lawyers working on the petition are led by Peter Walubiri, Kampala lord mayor Erias Lukwago, Caleb Alaka and his partner Samuel Muyizzi Mulindwa, who doubles as DP’s chief legal adviser.
Worth noting is that between 2013 and 2015, all the above lawyers were key members of the legal team that represented the so-called NRM rebel MPs. Interviewed last Friday, Walubiri said, “We have been looking at the entire process of the amendment of the constitution. How legal is it?”
He said their primary review found that the amendments “tear the rock of the constitution” and that “the results of amendments are clearly unconstitutional.
“We are closely monitoring each and everything; and once Museveni assents to the bill you will hear from us,” he said.
Alaka added: “We are questioning the constitutionally of the constitution being amended through a private member’s bill.”
About the MPs’ term extension, Alaka said under the constitution, parliament was elected for five years and its term can only be extended by only six months and only when there is a state of war.
“We are going to pose several questions,” Alaka offered. “Does the law work prospectively or retrospectively; it’s our view that the law works prospectively, not retrospectively and that means the current MPs cannot benefit from these amendments.”
Interviewed, retired Supreme court justice George Wilson Kanyeihamba said in order to amend article 102(b), NRM needed to get two thirds of “all members of parliament.”
“Were all members of parliament available…We watched while the bill was being passed but we all know that not all members were there,” he said.
The former Supreme court judge’s argument is crucial since by the time the bill was passed, Speaker Rebecca Kadaga had suspended six MPs; Ibrahim Ssemujju Nganda (Kira municipality), Allan Ssewanyana (Makindye West), Gerald Karuhanga (Ntungamo municipality), Jonathan Odur (Erute South), Anthony Akol (Kilak North) and Mubarak Munyagwa (Kawempe South).
ULS President Francis Gimara confirmed the society’s legal team is ready to challenge the bill.
“Our view is that we have to let the whole legislative process be completed…You cannot file before the president signs the bill into law. What if he doesn’t assent to it and sends it back to parliament? What would you do?” he asked.
Additional reporting by Derrick Kiyonga.