How Unconstitutional is Uganda’s 2018 Constitution Amendment?

In late 2017, Uganda’s age limit bill was a major source of controversy, debate and physical altercations. The bill, which received assent early January, allows persons above the age of 75 to contest for presidency. This was seen by many as President Museveni indirect move to secure power in the next presidential elections in 2021.  Opposition members termed the amendment ‘unconstitutional’ while rioting youths called out President Museveni and the ruling National Resistance Movement for ‘indirect dictatorship’ over the years. It doesn’t help that recent events are eerily similar to that of 2005, when the two-term presidency limit was removed, allowing President Museveni to contest and win the 2006 elections.

In response, President Museveni, an expert wordsmith, stated “I salute the 317 MPs who defied intimidation, alignment, and blackmail and opted for a flexible Constitution to deal with destiny issues of Africa” leaving us wondering how exactly 97 opposing minority members of parliament tried to accomplish such feat, considering the obvious numerical strength of members of the ruling party. More so, reports revealed the unconstitutional use of the police and military to remove, arrest and detain opposing members of parliament while opposing youths and human rights organisations where fired tear gas.

The amendment in light of these bothersome reports and questionable parliamentary process leading up to enactment begs the question; how constitutional is Uganda’s recent Constitution amendment? Article 102 (b) provides for the age limit while the procedure for any amendment of the Constitution is given in Chapter 18, Article 259(1) as ‘subject to the provisions of this Constitution, Parliament may amend by way of addition, variation or repeal any provision in this Constitution in accordance with procedure laid down in this Chapter’. The same Chapter further states that the Constitution shall not be amended except the Act has been passed according to Chapter 18. However, the bill was moved according to the provisions of Chapter 6, Article 94(4) which dictates procedure in parliament and allows a private member to move a bill but, reasonably, not one seeking to amend the constitution. Considering the specific application of Article 259 to amendment of the Constitution, it seems the procedures laid down in 94 will not apply. The right action was for parliament to first, lay down specific procedure for amendment of the Constitution under Chapter 18 before proceeding to so amend.

An argument may also be made for the gross violation of the rights, freedoms and general democracy a Constitution provides a country and its people. Yaniv Roznai, in the book, Unconstitutional Constitutional Amendments. The Limits of Amendment Powers, Roznai discusses indepthly the difference between the primary power of the Constitution and the secondary delegated legislative power by the Constitution. Unequivocally, he points out that the Constitution reflects the will of the people and unamendability or limitations on amendment power is the “ultimate expression of democracy”. The recent amendment certainly diminishes the spirit of the Ugandan Constitution and to that extent can be viewed as unconstitutional.

 

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