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Court has sanctioned return of violent constitutionalism

At over 800 pages, the recent age limit judgment by the Constitutional court stands nearly at the top of the pile in terms of its length. 

Unfortunately, in arriving at their decision, the majority of the bench only paid lip-service to the extensive history they quoted and clearly mis-applied the basic Structure Doctrine (BSD) which they claimed to rely on in concluding the matter. 

Furthermore, the court failed to accord the Constitution the necessary respect and reverence to which it is entitled, often treating the instrument in the same way it would ordinary legislation. 

As a consequence, the court has plunged our constitutional regime into a quagmire not seen since the infamous decision in the case of ex parte Matovu

Decided in 1966, Matovu’s decision affirmed that the judiciary would look aside when the executive arm of government (in that case the government of President Apollo Milton Obote) used force to change the constitution.

Despite courageous attempts since that time—for example when the Black Mamba squad invaded the High court and the judges went on strike for the first time in the history of the judiciary of our country — Matovu’s ghost has always lurked behind decisions of our courts whenever confronted with the excessive use of violence by the executive. 

Indeed, in brushing aside the UPDF deployment at parliament as a simple “irregularity” and downplaying the levels of intimidation, coercion and outright violence, which accompanied the amendment exercise both within and outside parliament, the Constitutional court has in effect declared that state-sanctioned terror and violence in order to effect constitutional change is not only acceptable, it is legal; cry the beloved country!

On the critical issue of lifting the age limit, the majority of the bench failed to appreciate two central features of the preamble to the Constitution and the democratic principles enshrined in the National Objectives and Directive Principles of State Policy. 

These are the history of political and constitutional instability which the Constitution is at pains to ensure is not repeated, and the democratic principles that are supposed to guide the state and its agencies. 

In the first instance, the issue of the age limit cannot be divorced from that of term limits which were a central feature of the 1995 Constitution when initially enacted.

With term limits enshrined in the Constitution, it did not matter at what age one became president, or indeed when they left the presidency, as there was a finite period within which one could hold the office. 

This explains why the provision was not entrenched.  With term limits removed, the only safeguard becomes a limitation on the age at which one can cease to be president, short of which we are left with a president-for-life.

It is strange that the court could declare itself alive to the dangers of life-parliamentarians and at the same time be silent about the very real danger of life-presidency. 

Furthermore, for the court to state that the cure to life-presidency is elections is to ignore the several Supreme court decisions which have amply demonstrated that elections in Uganda are far from free and fair and consequently do not actually represent the “will of the people.” 

In sum, the Constitutional court has not only sanctioned the “tyranny, oppression and exploitation” that the preamble to the Constitution decries, it has also approved the use of force in achieving these objectives.

The author is a professor of law at Makerere University.

Comments

0 #11 Akot 2018-08-03 20:09
PaLugore,

While we know God is there, we should also know we have to do the right things for ourselves before we ask His help!

Why do we pray & ask God's forgiveness otherwise?

God is not a dictator & never imposes anything on humans but He always helps if we do the right things, ask/pray for forgiveness...!

Will God not help Ugandans if they UNITE against Museveni & force him out?

Will God punish-set fire-kill tribal leaders if they stand down to give chance to UNITY against chief tribal leader Museveni?

Ugandans say their country is peaceful under Museveni & don't want touble; so how can God or any outsider, interfere & bring Museveni's rule to an end & to replace him with who when Ugandans don't have alternative common leader, but just Museveni they ensure tax money in peace for?
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0 #12 Akot 2018-08-03 20:16
Quoting Fuller:


The question stays the same, though (as it has for 32 years): What will it take for the people to take back their country?


It will take "UNITY of Ugandans" with 1 opposition leader, tribal leaders standing down from Museveni given posts because it's the entire tribalistic system the demon put in place that MUST be got rid of if Ugandans want Museveni out!

UNITY of Ugandans & tribal leaders becoming real citizens will determin the next step to be taken in peace, respect, knowing it's the future of children Ugandans will determin immediately Museveni is thrown out in UNITY!
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0 #13 Akot 2018-08-03 20:22
Henry Agaba, understood, but,

To whom does Uganda formed by tribal lands belong & which tribal land is Museveni's?
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0 #14 gwok 2018-08-05 16:06
Quoting Akot:
PaLugore,

While we know God is there, we should also know we have to do the right things for ourselves before we ask His help! ...


Well said, My Dear. Therefore, If I understood you well, you are saying that we should in ties like this, we should ignore God & consider rephrasing the third line in our National Anthem to " .... We lay our future in our own hands....." I agree, BUT dares to throw the first stone (Scripture, Luke 8:7)?
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