13th November 2017.
The Chairperson,
Legal and Parliamentary Affairs Committee,
Parliament of Uganda.
Dear Sir,
RE: STATEMENT ON PROPOSED REMOVAL OF THE UPPER PRESIDENTIAL AGE LIMIT IN THE CONSTITUTION OF UGANDA BY THE SOCIETY FOR JUSTICE AND NATIONAL UNITY (SoJNU)
1. Introduction
A. About SoJNU
SoJNU is an independent, national think-tank that seeks to bring together scholars and intellectuals that are interested in contributing to and shaping public debate on key socioeconomic and political issues in Uganda and beyond. It seeks to harness Uganda’s intellectual resources through creating a forum for critical and objective intellectual intervention on issues of social justice and national unity.
B. About the Constitution Amendment Bill
In September 2017, Igara West MP, Hon. Raphael Magyezi, introduced in parliament, a controversial Bill to amend various provisions of the Constitution, including Art. 102(b) on presidential age limits. The Bill proposes to amend this article by scrapping the age limits from 35 years to 18 years, and from 75 years to infinity. It potentially proposes life presidency.
2. Historical and Political Context for the Proposed Amendments
We make this statement, based on the following basic premises:
A. Abuse and Misuse of Parliament by Sitting President or Prime Minister
In our constitutional history, Parliament has been used and abused by a sitting president or prime minister to undermine constitutionalism, the rule of law, and the common good, notably in 1966, 1967, and 2005. We are witnessing a repeat of this abuse scenario.
B. Utmost Respect for the Constitution
The Constitution should not be amended for selfish reasons, or to merely benefit an individual. A Constitution is an important national document, and should be treated with the utmost respect it deserves. It should supersede individual interests, but not individual interests superseding it.
C. Violation of the Sanctity of Parliament
On the day that Hon. Magyezi wanted to present the Bill for removal of the presidential age limit, Parliament was invaded by strangers and men and women, who the Inspector General of Police claimed to have authorized, and who also appeared to have been from the Special Forces Command, but whom the Speaker later claimed to be unaware of. MPs opposed to the proposed amendment were tortured, harassed, and imprisoned without any reason, or charges, except for exercising their freedom of conscience, thought, association, and assembly.
D. Consultative Process and Representation for All
Government, police, RDCs, and others, have subverted the consultative process, by only consulting from select NRM party leaders, instead of consulting all constituents, irrespective of their political affiliation. A Member of Parliament, once elected, is a representative of all, and therefore, should serve and be accountable to all. All people in particular constituencies should have been consulted for their views. It is therefore, clear that the regime has set up manipulated and controlled, but not genuine consultations. The opposition to the lifting of the presidential limits has been obstructed and not allowed to campaign for their position to consult freely. The likely result from this manipulated process is a manufactured and not genuine consensus.
3. Why the Constitution Should Not be Amended for Museveni to be Life President
A. Longevity in Leadership is Detrimental and Costly to Development
One man rule beyond 35 years is not acceptable. Longevity impedes free flow of progressive ideas, and hinders equitable distribution and circulation of resources and other opportunities, because these tend to be concentrated in a few hands and circles, with information on their availability and access to them limited. This widens the gap between the rich and the poor, by creating a minority highly privileged class, and a majority disempowered citizenry. Consequently, the whole society is doomed.
B. Poor Education Standards and Rampant Unemployment for the Youth
Mr. Museveni’s personal and neo-patrimonial rule has created a danger to society, by allowing a huge pool of young people to be uneducated, unskilled, and jobless. This is a natural consequence of overstay in power, which rewards a few, but marginalizes the majority. So, we are seated on a time bomb of many unemployed young people, if we do not change.
C. Meaningful Constitutional Reforms Can Only Happen in Post-Museveni Era
Given Mr. Museveni’s character and history, the only changes in the constitution have been and will be those in his favor. Free debate, freedom of association and assembly cannot be enjoyed now.
D. Mr. Museveni is Out of Touch with Ugandans, and Reality
Longevity has led President Yoweri Museveni to get out of touch with the people and reality. That is why he says that he is not a servant of anybody. The presidency of Uganda is obtained after elections. A person elected president by Ugandans has a social contract with the people of Uganda, chosen to serve them. So, he is supposed to be a servant of all the people of Uganda. Indeed, in earlier times, Mr. Museveni acknowledged this reality. But after 31 years in power, as president, Mr. Museveni has clearly forgotten this. He has gradually lost relevancy to his position.
E. Senility
Mr. Museveni is now at an advanced age, of about 73 years. If the way is cleared for him to cling to power, he will most likely become senile, while in office. The country will be the ultimate loser, if it ends up being led by a senile person.
F. Fear of Uganda Without Museveni by Some Ugandans
There are some ethnic groups especially from western Uganda and particularly those ethnically related to the President, who think that if Mr. Museveni leaves power, they will also literally cease being Ugandans and stop existing in Uganda. This fear is unfounded. Since change is inevitable, they should rather work for a peaceful and just change of regime in the interests of all Ugandans. In any event, what will happen when Mr. Museveni is no more? Will they cease to work and live?
G. Peaceful Transfer of Power
Uganda has, since independence, never witnessed any peaceful transfer of power from one regime to another, and from one president to another. The presidential age limit in the Constitution, is for now, the only safeguard and assurance for peaceful transfer of power. It is therefore, inconceivable that any right thinking Ugandan would wish to remove this safety valve.
4. Why a Person above 75 Years Should Not Stand for President
A. Rise of Populism and Fascism
Without limitations on power, popular fascists will emerge, giving false hope and cheap, quick solutions, to otherwise very serious social, economic and political problems. We should therefore, avoid opening the constitutional space to populism, since overstaying in power inevitably leads to exhaustion and diminishing returns, leading a long serving leader or regime to resort to cheap politics and solutions.
B. Do Not Legislate Against the Opposition
Uganda’s history is full of examples where laws are made by a regime assuming that they will only harm or disadvantage those opposed to it. This has proved fallacious and counterproductive, affecting even those that have made the laws. The laws on detention without trial, made by Grace Ibingira in the 1960s, and those on public order management and phone tapping championed by former Premier Amama Mbabazi, are notable examples. This behavior should be avoided.
C. Abuse of Open Ended Power
Open ended power is liable to be abused. Removing plausible limitations on the presidency is tantamount to a license to commit wrongs without restraint especially, in a situation where a president is immune from civil and criminal liability, like in Uganda. We should therefore avoid giving an open ended cheque to any president.
D. Legal Qualifications are not Discriminatory
The proponents of the Bill argue that restricting people who are above 75 years of age from standing for president amounts to discrimination. We think that nothing can be further from the truth. According to the Oxford Dictionary of Law (2003), discrimination means, ‘Treating one or more members of a specified group unfairly as compared with other people.’ From this definition, we understand that to discriminate is to treat less favourably.
It is our considered opinion that qualifications primarily imposed by law, being prerequisites for attainment of office does not amount to discrimination. If that were so, then it may as well be said that even all other qualifications like citizenship and education qualifications for the president are also discriminatory. And indeed, that qualifications for all other constitutional offices are also discriminatory, such as offices of judges, constitutional bodies, public servants, and MPs. This interpretation, if accepted, would be a most superfluous and absurd.
Tampering with the lower and upper age limits will therefore undermine the fundamental logic and structure of the Constitution. The Constitution should therefore not be undermined because of the interests of one individual. Accordingly, we strongly discourage the proposed amendment.
5. Conclusion
For reasons stated above, we recommend that the proposed amendments to the Constitution, to remove presidential age limits, be dropped immediately.
Parliament should instead concentrate on providing meaningful amendments like reforming the electoral laws, and reforming the structure and composition of the Electoral Commission and other areas of the Constitution and laws as proposed by different political parties, civil society organizations, and citizens.
SIGNED:
Prof. John-Jean Barya Dr. Moses Khisa
Interim Chair Interim Secretary
Dr. Phiona Muhwezi-Mpanga Brian Bakampa Baryaguma
Member Member
Mwambutsya Ndebesa Assoc. Prof. Godfrey Asiimwe
Member Member
Dr. Ronald Kakungulu-Mayambala Assoc. Prof. A. Byaruhanga Rukooko
Member Interim Treasurer
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