Mabirizi says he wants to cross examine Kadaga over her roles in the passing of the Constitutional Amendment Act, 2018 which uplifted the presidential age limit.
PIC: Lawyer Male Mabirizi after his petition to have the Speaker of Parliament Rebecca Kadaga summoned over the Age Limit Act, at the Supreme Court in Kampala on December 12, 2018. (Kennedy Oryema)
AGE LIMIT CASE
The Supreme Court will on Friday rule on an application in which lawyer Hassan Male Mabirizi wants the Speaker of Parliament Rebecca Kadaga summoned as a witness in the age limit case.
On Wednesday, hearing of the merits of the application hit a snag after a panel of seven justices of the court led by Chief Justice Bart Katureebe queried the legality of the affidavits filed by Mabirizi and the Solicitor General, Francis Atoke in regard to the matter.
An affidavit is a formal written statement setting out the facts of the case.
Katureebe observed that affidavits in support of the case by both parties seem to offend order 19 rule 3 of the Civil Procedures Rules and are not tenable under the law.
"I have looked at the affidavit of both the applicant and the Solicitor General but they all appear to offend the civil procedure rules because they are argumentative yet they are supposed to be based on facts," Katureebe said.
Order 19 rule 3 (1) of the civil procedure rules provides that all affidavits shall be confined to such facts as the deponent is able of his or her knowledge to prove, except on interlocutory applications on which statements of his/her belief may be admitted provided the grounds are stated.
In reply, Mabirizi submitted that his application is an interlocutory matter that is not governed by order 19 Rule 3 of the Civil Procedure Rules.
"I am a lawyer by professional, the appellant in the matter and I know whatever is contained in my affidavit. This is an interlocutory matter where anything can be introduced unlike in normal suits where people only state factual matters in their affidavits," Mabirizi submitted.
On whether it is relevant to summon Kadaga after all the appellant have already made their submissions in the case, Mabirizi argued that cross examining Kadaga is intended to help the court to give a fair judgment in the case unlike the Constitutional Court which declined to summon her.
In reply, Atoke conceded that their affidavits contained argumentative submissions contrary to the law but implored court to exercise its discretion in regard to the matter.
"My Lords, what you have observed is what we had intended to submit. However if all affidavits are defective are they incurable?" Atoke submitted.
This prompted the Chief Justice to adjourn the matter until Friday for a ruling on the same.
If court finds the affidavits incurable, the application could be dismissed.
Mabirizi says he wants to cross examine Kadaga over her roles in the passing of the Constitutional amendment Act, 2018 which uplifted the presidential age limit.
Hearing of the main case is slated to kick off on January 15 next year.
Meanwhile Mabirizi also wants the clerk to parliament Jane Kibirige's affidavit opposing his application struck out saying it is not dated making it incurable, full of falsehoods, hearsay and contradictions.
However, Atoke who conceded to the anomaly said they have since substituted it with another one.
On December 20, 2017, the Parliament amended the constitution which uplifted the presidential age limit and also the term of parliament to seven years which prompted Mabirizi and four others to petition the constitutional court.
On July 26, 2018, the Constitutional Court in a majority decision of 4:1 Okayed the removal of Presidential age Limit and unanimously declared the extension of the term of members of parliament and local government as unconstitutional.
The Deputy Chief Justice Alfonse Owiny-Dollo, Remmy Kasule, Elizabeth Musoke and Cheborion Barishaki Okayed the removal of the Presidential age Limit while Justice Kenneth Kakuru dissented.
Following the judgment, the petitioners appealed to the Supreme Court seeking to declare the entire Constitutional amendment Act no.1 of 2018 null and void.
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