Age Limit case: Mabirizi challenges regional court verdict

COURT|AGE LIMIT|CONSTITUTION 

KAMPALA - Three eminent courts of law including the East African Court of Justice First Instance Division have all Okayed the removal of the Age Limit clause from the country's 1995 Constitution but Kampala lawyer Hassan Male Mabirizi still not satisfied with their respective verdicts. 

In the latest development, Mabirizi, who is described by many people as a perennial litigant has escalated the matter to the East African Court of Justice Appellate Division. 

In a notice of appeal served to Uganda's Attorney General William Byaruhanga dated October 19, 2020, Mabirizi contends that he is dissatisfied with part of the regional court First Instance Division verdict. 

Mabirizi purports that justices Monica Mugenyi, Dr Charles Nyawello, and Charles Nyachae failed to interrogate and decide the compliance of the country's Supreme Court decision in regard to the matter and hence undermined the citizens' participation in their Constitutional amendment process. 

Asked whether his appeal is not time bad since the electoral roadmap for 2021 general elections is in advanced stages, Mabirizi said, "They can go ahead with their elections because my case is purely legal based. I believe if I win the appeal, I can be implemented in the due process." 

An official from the Attorney General's office who spoke on conditions of anonymity however argues that Mabirizi's appeal is moot. 

Last month, the East African Court of Justice (EACJ) dismissed the case and ordered Mabirizi to pay costs to the Government.  

In a unanimous verdict, the judges ruled that the Country's Supreme Court decision in regard to the matter was not inconsistent with the principles in Articles 6(d) and 7(2) of the Treaty for the Establishment of the East Africa Community as Mabirizi alleged.  

 "The upshot of the Court's determination of this case is that the reference is hereby dismissed with costs to the respondent (Mabirizi)," they ruled.  

The regional court judges observed that the Supreme Court decision did not violate the rule of law principle either in terms of judicial conduct that underpins it or substance.  

The judges concurred with the submissions of the Attorney General (AG), William Byaruhanga that the process that led to the enactment and passing of the Constitutional (Amendment) Act No. 2 of 2018 was carried out in accordance with the principles of the East African Community Treaty that mandate a partner state to act in accordance with democracy, rule of law and good governance.  

"In the result, we find that the judicial process and decision in Constitutional Appeal No. 2/ 2018: Male Mabirizi vs The Attorney General of the Republic of Uganda were neither in contravention of Ugandan laws nor inconsistent with the rule of law principle enshrined in Articles 6(d) and 7(2) of the Treaty," they ruled.  

On April 29, 2019, the Supreme Court in a 4:3 majority judgment also dismissed the case against the Constitutional Court verdict in which it Okayed the removal of the presidential age limit.   

The majority justices of the court ruled that despite several breaches that occurred during the tabling, debating, and passing of the law, it had no substantive effect on the process of the entire enactment of the Constitutional Amendment Act no.1 of 2018.   

Chief Justice emeritus Bart Katureebe, Stella Arach Amoko, Rubby Aweri, and Jotham Tumwesigye dismissed the appeal while Eldad Mwangusya, Lilian Tibatemwa-Ekirikubinza, and Paul Mugamba dissented.

Being dissatisfied with the verdict, Mabirizi petitioned the regional court seeking to have the enactment nullified.    

On December 20, 2017, Parliament passed the Constitutional Amendment Act, 2017 effectively removing the Presidential age limit of 75 provided for under Article 102(b) of the Constitution.  Mabirizi, Uganda Law Society and six lawmakers challenged the same to Constitutional Court.  

The regional court also overruled Mabirizi's assertion that Justices of the Supreme and Constitutional Court were duty-bound to conclude the matters before them within sixty days, failure of which they were obliged to furnish the parties with reasons for the delay.  

"We find no evidence of the breach of that constitutional duty given the sheer volume of materials that the two courts had to sift through. Certainly, as correctly opined by the respondent (AG), the complexity and gravity of Constitutional Petition No. 49 of 2017 and Constitutional Appeal No. 2 of 2018 placed them within that category of cases that would require an additional amount of time to determine the case," they noted.  

The regional court faulted Mabirizi over failure to adduce any evidence illustrating bias or prejudice as alleged against the Chief Justice emeritus Bart Katureebe, Justices Stella Arach Amoko, Justice Tumwesigye, Elizabeth Musoke, and Cheborion Barishaki.  

"Given that the Chief Justice Bart Katureebe (now retired) was able to write his judgment, we find no proof of judicial incompetence neither would the infirmity he suffered be a reason to impeach his judgment," they ruled.  

Mabirizi had accused the judges of being personally known to President Yoweri Museveni and could not annul the Act which he alleged was the sole beneficiary.  

The court however declined to vitiate the parliamentary proceedings during the debate and passing of the Act.  

"This matter would only be considered in the context of the Supreme Court's handling of the issue. Consequently, we are not at liberty to engage in an intrinsic interrogation as to who of the actors in the violence abused the exigencies of constitutionalism and human rights," they noted.  

The court also ruled that when two additional motions were moved by private members to introduce additional amendments without the cushion availed in Rule 117, Parliament should not have commenced debate on the said motions.  

They however said the speaker of Parliament, Rebecca Kadaga correctly invoked her prerogative under that constitutional provision to only endorse the constitutional amendments that had been validly debated and passed.  

The court also said the majority justices of the Supreme Court rightly applied the severance doctrine in respect of the provisions of the Amendment Bill that flouted Article 93 of the Uganda Constitution.  

"The severance doctrine is a recognized judicial remedy and we find the impugned decisions of the majority justices on this issue to have been firmly rooted in astute judicial reasoning and the applicant (Mabirizi) fell short on the required standard of proof of his allegations as against the Respondent State," the court ruled.  

They added, "We do therefore agree with the majority justices on their application of the severance doctrine to sever the unconstitutional amendments and uphold the constitutionally compliant ones."  

Mabirizi had accused the Supreme Court of their recourse to the severance doctrine yet it had not been pleaded during the trial.  

The court also found that the Constitutional Court was right to deny Mabirizi professional fees of sh20m which was awarded to other petitioners since he is not an advocate yet he self-represented himself.  

In regard to discrimination in the sitting arrangements at the Supreme Court, the regional court said being a self-represented litigant; it did not warrant Mabirizi a seat at the Bar in court since he is not an advocate.  

"It is not indicative of bias that alternative sitting arrangements would be made for a self-represented party cum lawyer that is not qualified to practice his trade before the courts," they ruled.  

The regional court also trashed Mabirizi's allegations of judicial fraud against Katureebe as malicious and false.  

The court however ruled that it has powers to interrogate Supreme Court decisions and determine their compliance