Age limit Judgment: Mabirizi files appeal at Supreme Court

By Farooq Kasule

The lawyer who filed a notice of appeal just a day after the judgment, this morning filed a memorandum of appeal at the Supreme Court

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After Justices of Constitutional Court in a majority decision last month okayed the removal of the Presidential age Limit and unanimously declared the extension of the term of members of parliament and local government unconstitutional, one of the petitioners Hassan Male Mabirizi has formerly appealed to the Supreme Court.

Mabirizi, who filed a notice of appeal just a day after the judgment, has this morning filed a memorandum of appeal at the Supreme Court in which he challenges parts of the constitutional court judgement.

He says that he is dissatisfied with part of the majority judgement, orders and some aspects of the unanimous judgement.

abirizi arrived at court with the documents aboard a pickup truck hoto by bbey amadhanMabirizi arrived at court with the documents aboard a pickup truck. Photo by Abbey Ramadhan

 

It should be noted that 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.

Mabirizi arrived in court at about 9:20am aboard a white pickup truck with documents and straight away went to the registry to file the appeal. It was received by court registrar, Godfrey Opifeni Anguandia.

Grounds

Mabirizi contends that the lower Court derogated his right to fair hearing, treated him in an inhuman, degrading and discriminated against him in a manner not justifiable in a free and democratic society or allowed by the constitution when they evicted him from seats occupied by representatives of other petitioners hence putting him in a dock throughout the hearing.

He avers that the lower Court also substantially derogated his right of reply to the respondent's submissions by refusing him to respond to the submissions by way of rejoinder, which respondent's submissions court substantially accepted.

Summon Kadaga

Mabirizi also accuses the lower Court of failure to summon the speaker of parliament Rebecca Kadaga for questioning on her role in the process leading to the impugned Act and failed to give reasons for their decision despite promising to do so by all of them.

He also argues that the lower Court failed to give him enough time to present his case when they extremely and unnecessarily interfered with his submissions and limited his scope of coverage thereby derogating his right to a fair hearing.

abirizi hands over documents to court registrar odfrey pifeni nguandia hoto by bbey amadhanMabirizi hands over documents to court registrar Godfrey Opifeni Anguandia. Photo by Abbey Ramadhan

 

Mabirizi contends that the lower Court erred in law when it failed to make a decision on the two affidavits of Secretary to the Treasury Keith Muhakanizi and Chief of Defence Forces Gen. David Muhoozi which he contends was full of hearsay.

  He also faults the Justices of failure to make a clear and specific determination of issue 6(a) of the impugned Act, relating to restrictions imposed by Article 93 of the constitution but instead jumped on availability of a certificate of Financial Implication which he says is not provided for under Article 93 of the constitution and it was not their case.

Mabirizi further accuses justices of the lower court of failure to make a finding on the principle of constitutional replacement, determine the point the speaker stopped presiding over actions and presenting them as lawful which she had allegedly earlier found to be lawful and failure to make a finding on costs and damages which he prayed for.

 He faults the justices of failure to determine the constitutionality for an amendment allowing the Electoral Commission to hold a presidential election on a day different from that of parliamentary elections and failure to make a finding on the constitutionality of the armed forces outside parliament and all over which he says facilitated amendment of the impugned Act by use of arms contrary to the constitution.

 Mabirizi also accuses justices of the lower court over failure to rule on constitutionality of detaining, arresting members of parliament from the parliamentary chambers, failure to consider a variety of authorities given to them during hearing.

He faults justices of the lower court of abdicating their constitutional duty of interpreting the constitution and allegedly applied statutory substantial effect principles applicable to election petitions which he says do not apply interpretation of the constitution and principles of validity of an Act of parliament passed in contravention of the constitution.

"They deviated from their won binding precedent of Oloka Onyango and 9 others vs Attorney General and applied a quantitative test in determining the validity of the constitutional amendment Act," Mabirizi contends.

Mabirizi accuses the justices of giving sweeping powers to the speaker of parliament to prevent the petitioners from accessing parliament without any resolution to the effect which he says overrides the sovereignty of the people and supremacy of the constitution.

 

According to Mabirizi, the justices erred in law and facts when they held that the petitioners were not denied access to parliament yet the clerk to parliament Jane Kibirige confirmed it.

Mabirizi argues that there is no need for corroboration of evidence in constitutional petitions.

He says that the justices were wrong to say that the speaker has powers to determine the business of Parliament and order paper yet the Rules of procedure provide for a business committee.

Mabirizi faults the justices of deciding that absence of members of opposition does not incapacitate parliament yet provisions prohibiting a single party state is entrenched in the constitution.

He also says that the justices misrepresented the facts that the un-seconded motion of the deputy Attorney General Mwesigwa Rukutana was moved during the committee of the entire House yet Mabirizi claims that it was done during plenary normal sitting of parliament.

Mabirizi faults four of the justices for failure to declare the entire amendment unconstitutional having found out that the restrictions on fundamental rights during the process were not demonstrably justifiable in a free and democratic society.

He also accuses justices of denying him professional fees yet he is a legal professional being a graduate of law from Makerere University, a professional course.