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Age Limit Judgment Mbale 2018

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Age Limit Judgment Mbale 2018 5 THE REPUBLIC OF UGANDA IN THE CONSTITUTIONAL COURT OF UGANDA AT MBALE CONSTITUTIONAL PETITIONS Nos. 49 of 2017, 3 of 2018, 5 of 2018, 10 of 2018, and 13 of 2018. 10 CORAM: Hon Mr. Justice Alfonse C. Owiny – Dollo, D.C.J./PCC Hon Mr. Justice Remmy Kasule, J.A./JCC Hon Mr. Justice Kenneth Kakuru, J.A./JCC Hon Lady Justice Elisabeth Musoke, J.A./JCC 15 Hon Mr. Justice Barishaki Cheborion, J.A./JCC 1. CONSTITUTIONAL PETITION NO. 49/ 2017 MALE H. MABIRIZI …………………............................................... PETITIONER 20 VERSUS ATTORNEY GENERAL …………………......................................... RESPONDENT 2. CONSTITUTIONAL PETITION NO. 03/ 2018 25 UGANDA LAW SOCIETY ……………….......................................... PETITIONER VERSUS 30 ATTORNEY GENERAL ………………........................................... RESPONDENT 3. CONSTITUTIONAL PETITION NO. 05/2018 35 1. HON GERALD KAFUREEKA KARUHANGA } 2. HON JONATHAN ODUR } 3. HON. MUNYAGWA S. MUBARAK }} :::::::::::::::::::::::: PETITIONERS 4. HON. ALLAN SSEWANYANA } 5. HON. SSEMUJJU IBRAHIM NGANDA } 1 | P a g e 5 6. HON. WINIFRED KIIZA } VERSUS ATTORNEY GENERAL .............................................................. RESPONDENT 10 4. CONSTITUTIONAL PETITION NO. 10/ 2018 1. PROSPER BUSINGE } 2. HERBERT MUGISA }} :::::::::::::::::::::::::::::::::::::::::::::::: PETITIONERS 3. THOMAS MUGARA GUMA } 15 4. PASTOR VINCENT SANDE } VERSUS ATTORNEY GENERAL …………………………............................... RESPONDENT 20 5. CONSTITUTIONAL PETITION NO. 13/ 2018 ABAINE JONATHAN BUREGYEYA ………….................................. PETITIONER VERSUS 25 ATTORNEY GENERAL …………………........................................ RESPONDENT JUDGMENT OF HON. JUSTICE ALFONSE C. OWINY – DOLLO; DCJ/PCC Introduction: 30 The five Constitutional Petitions captioned herein above were severally lodged in this Court pursuant to the provisions of Article 137 (1) & (3) of the 1995 Constitution of the Republic of Uganda; and, as well, Rules 3, 4, 5, and 12 of the Constitutional Court 2 | P a g e 5 (Petitions and References) Rules. The Petitions each seek, and plead for, various reliefs from this Court by way of orders and declarations; and these reliefs prayed for, are set out in full detail here below. Background: 10 In 2017, Hon Raphael Magyezi, a member of the 10th Parliament of the Republic of Uganda, representing Igara County West Constituency, Bushenyi District, moved a motion in Parliament seeking leave to table a private member’s Bill to amend the Constitution. Leave was granted as prayed; and so, he introduced 15 Constitutional (Amendment) Bill No. 2 of 2017 in accordance with the provisions of Articles 259 and 262 of the Constitution of the Republic of Uganda; seeking to amend Article 102 of the Constitution by lifting the Presidential age limit provision there from. The stated objectives of the Bill were: 20 (i) To provide for the time within which to hold Presidential, Parliamentary and Local government council elections under Article 61, 3 | P a g e 5 (ii) To provide for eligibility requirements for a person to be elected as President or District Chairperson under Articles 102 (b) and 183 (2) (b), (iii) To increase the number of days within which to file and determine a presidential election petition under Article 104 10 (2) and (3). (iv) To increase the number of days within which the Electoral Commission is required to hold a fresh election where a Presidential election is annulled under Article 104 (6); and, (v) For related matters. 15 In the course of the passage of the Bill in Parliament, more specifically at the stage of the second reading of the Bill, when the House was sitting as a Committee of the whole House, two separate motions were moved to amend the Bill. The first motion sought to amend the Constitution by extending the tenure of Parliament and 20 Local Government Councils from five to seven years; with a rider provision that the amendment would be effective from 2016 when each of the two legislative organs assumed office. The other motion sought to reinstate the Presidential term limit, which a previous Parliament had lifted from the Constitution. Parliament passed the 4 | P a g e 5 Bill as amended by the aforestated motions; and it was sent to the President for his constitutionally required assent, which he did. The Bill then became the Constitution (Amendment) Act (No. 1) of 2018. Aggrieved by the passing of the Bill by Parliament, which became Constitution (Amendment) Act (No. 1) of 2018 upon the Presidential 10 assent thereto, the five consolidated Constitutional Petitions named herein were severally lodged in this Court; each challenging the validity of specific provisions of the Constitution (Amendment) Act (No. 1) of 2018. However, when they came up for hearing, and owing to the fact that in many respects the five Petitions address 15 common issues, this Court consolidated them to enable a joint hearing; which, as it turned out, was quite prudent since this afforded both convenient and expeditious hearing of the Petitions. THE RELIEFS THE PETITIONERS HAVE SOUGHT: 1. Constitutional Petition No. 49 of 2017 20 This petition sought the following reliefs; namely that: (i) The action of the respondent and his agents to claim that the term of office of the current president expires in the year 2021, after expiration of 5 years is inconsistent with and in contravention of Articles 102 (b) and 102 (c) of the 5 | P a g e 5 Constitution as they were in the year 2016, when the current President was elected into office, which peg the qualification of the President to those of a Member of Parliament and hence when s/ he ceases to possess the qualification of being below 75 years, such president ceases to be eligible to be so and new 10 elections must be conducted. (ii) The actions of Parliament to prevent members of the public, with proper identification documents to access the Parliament’s gallery during the seeking of leave and presentation of the Constitutional Amendment Bill No. 2 of 15 2017 was inconsistent with and in contravention of Articles 1, 8A and 79 of the Constitution which require Parliament to only act in the name of the people, in conformity with the Constitution, laws and the rules of Parliament. (iii) The actions of the combined forces of the Uganda Police Force 20 and the Uganda People’s Defence Forces to invade Parliament and beat up, torture and arrest members of Parliament on 26th September 2017 was inconsistent with and in contravention of Articles 1, 8A, 79, 208 (2), 209, 211 (3) and 212 of the Constitution which require Parliament to only act in the name 6 | P a g e 5 of the people, in conformity with the Constitution, laws and the rules of Parliament and require the said forces to be non- partisan. (iv) The actions of Parliament to reconvene on the same day and in the same place where the combined forces had beaten up, 10 tortured and arrested Members of Parliament was inconsistent with and in contravention of Articles 1, 2, 8A and 79 of the Constitution which require Parliament to only act in the name of the people, in conformity with the Constitution, laws and the rules of Parliament. 15 (v) The actions of Parliament to consider and grant leave to Hon. Raphael Magyezi to table a Private Member’s Bill entitled The Constitutional (Amendment) Bill, No. 2 of 2017, when the Leader of Opposition, Opposition Chief Whip and other Opposition Members of Parliament were not in Parliament was 20 inconsistent with and in contravention of Articles 1, 8A, 69 (1), 69 (2) (b), 71, 74, 75, 79, 82A, and 108A of the Constitution which guarantee a multi-party dispensation and creates two sides for government and opposition in Parliament. 7 | P a g e 5 (vi) The actions of the Speaker of Parliament to allow ruling party members of Parliament to cross the floor and sit at the opposition side during the presentation of the Bill was inconsistent with and in contravention of Articles 1, 8A, 69 (1), 69 (2) (b), 71, 74, 75, 79, 82A, 83 (1)(g), 83 (3) and 108A of 10 the Constitution which guarantee a multi- party dispensation and creates two sides for government and opposition in Parliament. (vii) The action of Parliament to entertain presentation and grant of leave of a Private Member’s Bill which had the effect of 15 charging money from the Consolidated Fund was inconsistent with and in contravention of Article 93 (a) (ii), 93 (a)(iii) and 93 (b) of the Constitution which restricts Parliament not to make such legislations from private members. (viii) The action of Parliament to entertain and allow 8 new 20 members on the Legal and Parliamentary Affairs Committee of Parliament almost when the same Committee had finished hearings from the public about the Bill and allowed them to sign the Committee Report as if they had attended the Committee Sessions was inconsistent with and in 8 | P a g e 5 contravention of Articles 44 (c), 90 (1) and 90 (2) of the Constitution which makes fair hearing a must and requires Committees of Parliament to work subject to the Constitution. (ix) The action of Parliament to entertain the Chairperson of the 10 Legal Affairs Committee, Hon. Oboth–Oboth, on 18th December 2017 to present the majority Committee Report on the Bill when the Leader of Opposition, Opposition Chief Whip and other opposition Members of Parliament were not in Parliament was inconsistent with and in contravention of 15 Articles 1, 8A, 69 (1), 69 (2) (b), 71, 74, 75, 79, 82A and 108A of the Constitution; each of which guarantees a multi-party dispensation and creates two sides in Parliament; one for government and
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