In the article he published on Facebook page, he visits all articles in the constitution related to the recently passed Age Limit Bill, why it is wise to conduct elections in 2023 instead of 2021 and constitutionality of extending term for from 5 to 7 years
By: Prof. V Baryamureeba, Former Presidential Candidate
Chapter 18 of the 1995 Uganda Constitution provides that Parliament may amend by way of addition, variation or repeal, any provision of the Constitution in accordance with the procedure laid down in this Chapter. This Chapter provides three ways of amending the constitution i.e. Article 260 provides for amendments requiring a referendum; Article 261 provides for amendments requiring approval by district councils and Article 262 provides for amendments by Parliament. Now a bill for an Act of Parliament to amend any provision of the Constitution, other than those referred to in articles 260 and 261 of the Constitution, shall not be taken as passed unless it is supported at the second and third readings by the votes of not less than two-thirds of all members of Parliament.
Article 77(3) on 5-year term of Parliament and article 102(b) on age limit for a President were not entrenched and only required at the second and third readings votes of not less than two-thirds of all members of Parliament (article 262 of the constitution). This was secured and what is pending is only for the President to accent to Constitution (Amendment) (no. 2) Bill, 2017 that contains these amendments. On the other hand, article 105(1) that provides for a term of 5 years for a President is entrenched can only be amended as provided for under article 260 i.e. after the passing of the Constitution (Amendment) (no. 2) Bill, 2017 it has to be referred to a decision of the people and approved by them in a referendum.
It is now clear that the term of office of members of Parliament in article 77(3) has been amended to 7 years and so is the term of chairpersons and councilors in districts. So its prudent to align the term of President to that of the members of Parliament otherwise it would double the cost of conducting elections, if the parliamentary and presidential elections were held on different days. So when a referendum is called to amend article 105(1) and provide for a term of 7 years for a President, majority of voters shall pass it. In addition to cutting the cost of conducting elections, it is also important that the term of Parliament and President end around the same time as has been the case.
The only question on the minds of the people of Uganda is whether Parliament has powers to extend its term retrospectively. Article 79(1) provides that Parliament shall have power to make laws on any matter for peace, order, development and good governance of Uganda. Article 92 is on restriction on retrospective legislation and provides that Parliament shall not pass a law to alter the decision or judgment of any court as between the parties to the decision or judgment. So what needs to be proven is that the extension of the current term of parliament to seven (7) years contravenes article 79(1) of the constitution. Article 77(3) of the constitution provides that the commencement date of the term of Parliament shall be the date of its first sitting after a general election. Article 83 provides for the tenure of office of members of Parliament and specifically article 83(1)(c) provides that a member of parliament shall vacate his or her seat in Parliament upon dissolution of Parliament. Article 96 is on dissolution of parliament and it provides that Parliament shall stand dissolved upon the expiration of its term as prescribed by article 77 of the Constitution.
It is good practice for parliament to provide for transitional clauses whenever it makes laws that fundamentally change the status-quo. So Parliament needs to provide for transition from 5-year term to 7-year term for members of Parliament and other affected offices. Parliament has opted to extend the term of the current parliament by 2 years as part of the transitional arrangements and so instead of parliament being dissolved in 2021, it shall now be dissolved in 2023. In my view its immoral and not a good practice for the current parliament to extend its term retrospectively but as per article 92 of the constitution its not illegal. Thus, accordingly, the term of the current President should be extended to end in 2023 instead of 2021 for reasons already given above. Now that parliament and the executive are in bed as far as extending the term of the current President and parliament, we need to avoid political gymnastics as this will lead to more political instability and economic uncertainty. We should not follow the path of DRC where the President (read executive) refused to conduct elections on grounds that there were no funds. If the term of the President is not aligned with that of Parliament I see the executive saying that government does not have funds to conduct parliamentary and presidential elections. If we get to this, I see the executive and parliament invoking articles 77(4), 103(3)(d) and 110 on state of emergency up to the end of the 2-year extension that would end in May 2023.
We need to note that article 110 provides for the state of emergency and in article 110(1)(a) a President shall declare a state of emergency in Uganda, or any part of Uganda if the President is satisfied that circumstances exist in Uganda or in that part of Uganda— in which Uganda or that part of it is threatened by war or external aggression. Article 103(3)(d) provides that the election of the President shall be held before the expiration of the term of the President, except in the case of— an election necessitated by the fact that a normal presidential election could not be held as a result of the existence of a state of war or a state of emergency, in which case, the election shall be held within such period as Parliament may, by law, prescribe. Article 77(4) provides that where there exists a state of war or state of emergency which would prevent a normal general election from being held, Parliament may, by resolution supported by not less than two-thirds of all members of Parliament, extend the life of Parliament for a period not exceeding six months at a time. Even today, President Museveni can declare a state of emergency in parts of Uganda bordering either Rwanda or DRC if he wanted using article 110(1)(a) and parliament would extend it for as many times the executive and parliament want as it just requires support of at least one-half of members of parliament as provided for in article 110(8).
So what are the dynamics at play. The Executive including the President and Parliament have all said that 5-year term is little for them to ably serve Ugandans and that the term of the President and Parliament that commenced on 12th and 18th May 2016 respectively be extended by 2 years. President Museveni wants this extension for personal reasons. Members of Cabinet also want it as history has shown that if elections were held in 2021 and a President is sworn in, more than half of the Cabinet members would not be re-appointed as Ministers. Also the Speaker wants it as this seems to be her last term as Speaker of Parliament, if we are to go by what transpired before her election in May 2016. Also majority of MPs want the 2 years’ extension as a reward for removal of presidential age limit since their support for the unpopular age limit bill is going to increase their attrition rate to over 90% when the next parliamentary elections are held. In short, less than 10% of the current MPs will make it to the 11th Parliament. So without the support of the two arms of government (executive and legislature), the judiciary’s hands are tied when it comes to ensuring that parliamentary and presidential elections are held in 2021, i.e. if it ruled so in regard to retrospective legislation.
On a good note, a lot of funds in trillions of shillings will be saved when elections are held in 2023 instead of 2021. For example, every time elections are held for President and Parliament among others, the government spends trillions of shillings buying new cars for the President and Ministers. Also government spends billions of shillings buying new vehicles for the speaker, deputy speaker, leader of opposition, and chairperson of parliamentary committees among others. In addition, in 2016 each MP got 200 million shillings for a vehicle and in 2021 it could be 300 million per MP and so Ugandans can save this money too (which would be about 15 billion shillings as number of MPs is increasing every year with introduction of new constituencies). Furthermore, every time new district chairpersons and councilors take office, government spends billions of shillings buying new vehicles to be used at district level. When you add billions of shillings given to the electoral commission to conduct elections and the trillions of shillings used by the sitting President during elections, all this can be saved. So let the next Presidential and Parliamentary elections be in 2023 and thereafter we can wait for another 7 years. In so doing, the ministers, speaker, deputy speaker, leader of opposition etc. will use their current vehicles until 2023. There wont be vehicle purchase allowances for MPs too. Also frequent politicking causes shocks in the economy leading to big losses especially to the private sector and thus making Uganda un-attractive to investors. If we all put the country first, we can wait to participate in the Presidential, Parliamentary and local council elections in 2023. There is no evidence to show that frequent elections can lead to development; so let them be regular but after every 7 years beginning with the current President and Parliament.