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First two judges of Supreme Court differ on presidential age removal

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Two judges of the Supreme Court of the seven justices meant to deliver the individual ruling on consolidated Constitution petition on Amendment Bill, 2017, removing the upper age limit of 75 years which barred anybody above to run for president in Uganda, have so far given different rulings as regards the Constitutional Court ruling which in July last year stated that it doesn’t violate the constitution in any way as claimed by petitioners.

“On the issue of amending article 102(b), I am in agreement with my learned friends that amending article 102(b) does not destroy the basic features of the constitution since the people still have the power to choose who they want to rule them,” said Justice Stella Arach-Amoko.

While concluding her ruling she said: “I will, therefore, dismiss the consolidated appeal and the parties shall bear their cost.”

Article 102 (b) of the Constitution does not form the basic structure doctrine. The article is, not among the entrenched provisions of the Constitution, she said.

Justice Arach-Amoko also dismissed petitioner Male Mabirizi Kiwanuka’s preliminary objections regarding claims he was unfairly treated by being asked not to sit at the bar with practicing counsel.

She further ruled said: It is a notorious fact that Mr Mabirizi is not a practicing advocate and has not been called to the bar, therefore he couldn’t have sat with advocates.”

She also ruled that Parliament acted within its powers by amending article 102(b) saying it does not violate the basic structure doctrine and is within the mandate conferred upon it by the Constitution & as representatives of the people.

However, she agreed with the consolidated petition which said that the extension of the term of the current Parliament and Local Councils is null and void from the onset, saying a Private Member’s Bill cannot introduce charges on the Consolidated Fund, by way of the referendum it imposes.

She said that it violated article 93 of the Constitution which restricts Private Member’s Bill on introducing Bills or amendment Bills that will impose charges on the Consolidated Fund otherwise than by reduction.

She also said Speaker Rebecca Kadaga had authority to amend the order paper to allow MP Raphael Magyezi’s private members bill that thought the removal of the presidential age limit. She said the speaker is in charge of the House and its order of business

Justice Arach-Amoko could also not agree with petitioners, saying the MPs ejected from the House during debate on upper age limit removal were so ejected on the basis of their own lack of decorum. She added that whereas the security services were justified in removing the MPs from Parliament, the force used was not justified.

On the other Justice while looking giving the different merits of the petition said: ‘Prayer for nullification is allowed, I order that each party meets its own costs.’

Justice Mwanguhya upheld the Constitutional Court’s decision to decline to summon and cross examine Speaker Kadaga, saying since there was sufficient material on record to deduce an informed decision.

He ruled that the actions by Police to restrict MPs’ consultation was unconstitutional, and also quashes the extension of the terms of Parliament and Local Councils including an amendment proposed by MP Nathan Nandala Mafabi to introduce presidential term limits.

Mwangusya on suspension of MPs; he said, the rules of procedure clearly show procedure to challenge the suspension. The members should have taken the procedures because the court cannot intervene.

If all majority of the judges on the bench in Supreme Court uphold the Constitutional Court ruling, it means President Yoweri Museveni who has already been endorsed by his NRM party members as the party’s sole candidate, will be able to run for the position in 2021 when the country goes for polls.

Museveni will be above the current constitutional 75-year age-limit for one to run for presidency in 2021. The timing and vibes around the amendment(s) could be interpreted as attempts to remove any legal hurdles that would deter Mr Museveni (as an individual who will be above 75 years) from running for presidency in 2021.

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