Mabirizi to petition Arusha court over age limit judgment

When the Supreme Court on Thursday dismissed the consolidated petition seeking to nullify the Constitution Amendment Act No.1 of 2018 4:3, it seemed like the petitioners had hit a dead end.

But it seems city lawyer Male Mabirizi has some fight left in him as he sets in motion the process of petitioning the judgment in the East African Court of Justice (EACJ) in Arusha for a declaration that Uganda is not respecting the rule of law in contravention of the treaty for establishment of East African Community (EAC).

The contentious Act removed the 75-year age cap on those seeking to contest for president by expunging Article 102(b) from Uganda's 1995 constitution.

Initially a private member's Bill by Raphael Magyezi (Igara West), the Act further   amended the constitution to provide for the time within which to hold presidential, Parliamentary and local government council elections; increase the number of days within which the Electoral Commission is required to hold fresh elections where a presidential election has been nullified and other related matters.

Mabirizi is also quoted as saying by an online publication that his decision to the EACJ over the Supreme Court judgment is aimed at fostering good governance and the sacrosanct nature of Uganda's supreme law.

"Therefore, to me, the struggle continues," Mabirizi said.

The reason Mabirizi is petitioning rather than appealing is because the EACJ is not an appellate court with jurisdiction to overturn judgments made by an apex court of a partner state.

Mabirizi revealed that he intends to invoke rule 2(2) of the judicature Supreme Court rule that allows justices of the Supreme Court to set aside their own judgments that are proved null and void after they have been passed.  

"If I proceed straight to EACJ, the Attorney General might raise a preliminary objection to the effect that I never exhausted ways of getting a remedy here," Mabirizi said.

The main ground for moving the Supreme Court to set aside its judgment is failure to adhere to the sacrosanct principle of precedent that obliges courts in common law jurisdictions to follow earlier decisions when deciding cases with similar facts.

Mabirizi avers that court failed to follow the principle set in Dr Paul Ssemwogere and in Prof. Joe Oloka-Onyango cases to the effect that failure by Parliament to adhere to its rules of procedure renders the subsequent Act a nullity.

Attempts to get a comment from Attorney General, William Byaruhanga or his deputy Mwesigwa Rukutana proved futile.

According to Article 30 of the Treaty for the Establishment of the East African Community which established the EACJ, Mabarizi has 50 days within which to lodge his petition.

The EACJ is a treaty-based judicial body of the EAC tasked to ensure adherence to law in the interpretation and application of and compliance with the East African Community Treaty of 1999. The Court is made up of two divisions: a First Instance Division and an Appellate Division.

According to Article 27 of the treaty, the Court has jurisdiction over the interpretation and application of the Treaty and may have other original, appellate, human rights.

Among the fundamental principles of the EAC is good governance and adherence to the rule of law.

 Reference to the court may be by Legal and Natural Persons, the Partner States and the Secretary-General of the community.

However, even if Mabirizi succeeds in securing the declaration, the Supreme Court judgment will not be overturned. Ends.