By Mukalazi Deus Mubiru
Research Associate-Democracy and Rule of Law
Great Lakes Institute for Strategic Studies (GLISS).
On February 10th 2021, the Chairman of the Parliamentary Legal Affairs Committee made a report to parliament recommending extension of tenure of parliament to seven years and called upon government to commence the process of effecting the same. This was a rather extraordinary recommendation because the Private member’s bill by Ndorwa West Member of Parliament Wilfred Niwagaba to which the committee was responding did not propose so.
Secondly, the Constitutional Court had in 2018 extensively discussed the matter and ruled that extension of tenure beyond what is provide for under emergencies in Article 77(4) required a referendum as parliament did not have the powers to just amend it. One wonders, why would parliament want to subject us to a referendum over something that has not been asked by the people? In whose interest is this move?
In 2017, Hon Raphael Magyezi, a member of the 10th Parliament, 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 Constitutional (Amendment) Bill No. 2 of 2017; seeking to amend Article 102 of the Constitution by lifting the Presidential age limit provision from there.
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.Extension of the tenure of parliament from 5 to 7 years was one of them, the other being reintroduction of term limits. These were both passed by parliament as part of the 2018 Constitution Amendment Act.
In Constitutional Petition No 3 of 2018, otherwise known as the age limit case, Uganda law Society, challenged the Act and contended that in extending the term of 10th parliament and local government councils, parliament had gone against the Constitution. The learned Solicitor General and the Deputy Attorney General argued then that there was nothing wrong with Parliament extending its own term as long as they did it in compliance with the Constitution and even argued for its retrospective application.
In resolving the issue, Court noted that although on the face of it, the extension of the tenure fell within the general power conferred upon parliament under Article 79 of the Constitution to make laws, it is questionable, whether the amendment met the test for validity; namely, that it was so done for the peace, order, development, and good governance, of Uganda. Court in disagreeing with the law makers reasoned that the reasons given in Parliament for the two–year extension, such as the need to afford Members of Parliament time within which to acclimatise themselves with the procedure in Parliament; and yet the law sets a high academic qualification for being elected to Parliament, betray the true intentions behind the amendment.
By recommending that government commences the process of increasing the term of all political offices from 5 to 7 years, the Chairman of the Committee suggests that the Court struck out the proposal purely on technical grounds, namely, that it was not included in the certificate of compliance submitted by the Speaker. This is not true. Their Lordships held that whereas Article 77(4) which provides for circumstances under which parliament can extend its tenure, is not entrenched, it was implicit from the object of such provisions, the general power of Parliament to amend them are as much curtailed as if they were expressly provided for under Articles 260 or 261 of the Constitution which requires a referendum.
The spirit of the judgement in the case of Mabirizi and Others v Attorney General, both at constitutional petition and appeal level is that a Committee of parliament or even a Member of Parliament cannot introduce an amendment into a Constitutional Amendment Bill. Parliament can only pass or reject the proposals in the original Bill but not new proposals from the committee or by MPs on the floor.
Resurrecting the recommendation, well aware that the Constitutional and Supreme Courts had extensively discussed this and ruled against it, vindicates the suspicion of the Constitutional Court when it observed that the amendment to extend tenure of parliament fell short on convincing that it would be in public interest of protection of guaranteed rights but rather for the benefit or satisfaction of narrow interests of a section of the people only. And by the look of things, the committee has a huge task to convince Ugandans why we should spend money in a referendum on an issue Ugandans don’t consider so pressing. We hope our members of parliament reject this.