By Joe Lomongin
June 23, 2004
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Just how far can President Yoweri Museveni go with his plan to hold a referendum to amend Article 105 (2) of the Constitution that limits Presidential terms to two? How sharp are his teeth and how deep can they bite? These are the cardinal questions facing the nation as the debate rages on how to amend Article 105(2) � one small clause that means so much to the country. While the President and his supporters insist that they will amend it through a referendum, the opposition, church leaders and most lawyers disagree, saying the referendum would be costly, subject to manipulation by the state and is unconstitutional.
Various lawyers have vowed to use the courts of law to thwart the President�s plans. Their argument is that Article 105 (2) is not an entrenched provision (comparatively sacrosanct; of high value and fundamentality such that every citizen in the country ought to have a say in it), so it does not require a referendum. Its manner of amendment is simply through Parliament. �We are assembling a legal team because we have been let down by our own people, the Uganda Law Society (ULS). They have not come out boldly to lead the debate and guide the people on the way forward because the President is holding a position that is not tenable in law,� says Democratic Party (DP) lawyer Erias Lukwago. �We are planning a workshop to come up with a common legal position; include lawyers from the government, opposition and independents.� Lukwago says that even though the President�s supporters argue that a referendum can be held on any issue under Article 255; their argument is defeated by Article 261 which stipulates that the results of any such referendum would not be binding, unless approved by two-thirds of all Members of Parliament. This defeats the whole argument about the people being sovereign, because the decision of the people would have to be ratified by Parliament, which may or may not agree - if the referendum happens at all. That means the only way the President would hold a referendum on the term limits and have it legally binding, would be to amend the provisions (chapter 18) that govern amendment of the Constitution. Peter Walubiri, a constitutional lawyers who also represents the Uganda Peoples Congress (UPC) is going one better. �We shall challenge the attempt once it becomes clear that they are planning the referendum,� he says. �That would constitute a violation of the constitutional order and we shall seek a court order to stop the violation of the constitutional order.� The Constitutional Court - mandated by the Constitution to handle all litigation relating to interpretation of the Constitution - would be the main arena of action, barring an appeal by an aggrieved party, which would send the matter to the Supreme Court. Walubiri says they would seek a court declaration that Article 105 (2) can only be amended through Parliament after attaining a two thirds majority of MPs in total (not just those present at the time of voting); rather than through a referendum. Walubiri says this injunction could also feature: Orders to the Treasury not to release funds to the government for purposes of the referendum. lOrders to the Electoral Commission not to conduct the Referendum. Officials who dare do so would be charged with contempt of court and jailed. If the government appointed others, they too would be arrested. Suppose government went ahead and held a referendum? Walubiri who has been party to several successful court battles against government says court could:
That, says Walubiri, would provide excellent ground for impeachment. Under Article 107, the President may be impeached for, inter alia, abuse of office or willful violation of the oath of allegiance. Parliament may in such circumstances initiate the process of removal from office. Highly instructive in case of a court duel would be Civil Appeal no. 1 of 2002 in the Supreme Court in which DP President Dr. Paul Ssemogerere sought to have declared unconstitutional the very first amendment to the 1995 Constitution to the effect that records of Parliament cannot be used in court without leave of Parliament. Court held that the procedure of amendment had not been adhered to � in this case voting was not separated by 14 days. The gist of the holding was that one must always follow the procedure for amendment rigidly, without taking shortcuts, for the amendment to be lawful. The Constitutional Court is bound to follow that decision since it was passed by a superior Court, and the highest one at that. Why referendum and not Parliament? Analysts think that had Museveni been sure of getting a majority in Parliament, the President would not have bothered with a tedious and highly involving referendum. They suggest that in Parliament the President is not sure of getting the required two-thirds majority. Voters may be easier to deal with than cocky MPs who always want to prove a point when they cross paths with the President. �The President does not trust MPs and his own cabinet,� says a lawyer in government. �We think the perception is that there are some members of cabinet who are anti-third term. That is why so many secrets � proceedings of cabinet that should never get out - have been leaked to the media. President won�t listen Would the President respect a contrary court order? �The President has been known to take strong positions on certain matters, but time comes when the light dawns on him and he sees the reality of the situation. He is the type who will not hesitate to make an about-turn.� Walubiri says people have a right to resist any unlawful amendment of the Constitution and they would receive cover of legality under Article 3 (4). They have special leave even to take up arms for the sole purpose of restoring the constitutional order. That would not amount to an offence, since they would be merely fulfilling a patriotic duty that enjoys absolute constitutional protection. There would also be no need for amnesty for them. Bidandi says while he does �not believe in armed struggle to sort out any possible crisis, it is unfortunate that the situation could lend credence to that approach, with people (God forbid) hiding behind that article�. This seems to be one of the times when democracy and rule of law are run parallel, and evidence that the two concepts are more synonymous than similar. Unless the President is talked out of his current position, the stage is surely set for some entertaining legal gymnastics. The people who hold the key to this saga are a small group of people: the justices of the Constitutional Court. |
� 2004 The Monitor Publications
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