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OPINION: Supreme Court Ruling – A Lay Man’s Appreciation

posted onJanuary 6, 2017
Besi Ndereya

By Besi Ndereya

Government authority and legitimacy rest on a network of beliefs about human nature, society and the purpose of government. History shows Speculation on these matters eventually led to a new branch of study- political philosophy/theory. This new branch was majorly cultivated by the ancient Greek philosophers of classical antiquity. Like all philosophy, political philosophy is a footnote to Plato. At Independence in 1962, Uganda like much of Africa inherited a poor political class. The intelligentsia at the time neglected “politics” deeming it ‘unorderly, chaotic and reserved for the poorly educated.’ Uganda also inherited a law based on English Common Law. Mr. Obote and King Freddie were therefore left to shape Uganda’s political fortunes.

Their mantra, though not written in stone seemed to be more like that of Dickens in Oliver Twist – “the law is an ass.” This is why, following in their footsteps, on 22nd September 1972 Idi Amin ordered the execution of his own Chief Justice Benedicto Kagimu Kiwanuka. Kiwanuka had objected to Amin’s total disregard for the rule of law. In 1988, the NRM government initiated a constitution making process in order to afford all Ugandans an opportunity in order to freely determine a system of governance. On 8th/10/1995, this process was concluded and Ugandans promulgated our 4th Constitution after a lengthy and wide consultation. This process was hailed as “unique and unprecedented” in Africa’s history of constitution making.

It was deeply influenced by history, culture values and aspirations of Ugandans as well as a need to strike genuine compromise between diverse interest groups. As in many young democracies, Uganda’s political landscape continues to evolve. This has required that amendments are made to the constitution. The methods to effect Amendment are either through a Referendum as was the case in 2005 and or through Parliament. On Maundy Thursday, the Supreme Court pronounced itself on an appeal filed by Male Mabirizi Kiwanuka and others challenging the presidential age limit judgement by the Constitutional Court.

By seeking redress firstly through the Constitutional Court and the Supreme Court, Mabirizi and his team were within their rights. However, this move, of which they are still ANGRY displays their ignorance of politics and its unique relation within law specifically jurisprudence as the philosophy and theory of law. Like political philosophy, jurisprudence =legal philosophy is a social institution. It must exist as part of a wider and social milieu. In listening to the 7 individual judgements of learned justices of the Supreme Court with specific regard to Consolidated Appeals No. 2, No. 3 and No. 4 of 2018, Uganda needs to urgently review and renew our 1995 democratic consensus.

All 7 Justices agreed that Parliament had powers to amend the constitution as stipulated. 4 of the 7 agreed the constitution be amended in regard to the case that was before them i.e. scrapping age limit and finally all agreed that all provisions in the constitution can be amended by the people of Uganda. On 15th June 1215 AD, King John of England at Runnymede agreed to a Charter of rights collectively known as Magna Carta Libertatum. 600 years of very violent, uncertain and troubling times followed. Both the British and American legal communities, though very diverse in basic structure still hold Magna Carta as an important symbol of liberty today. Like Lord Denning, they describe it as “the greatest constitutional document of all time”. The journey to renew, review our democratic consensus as Uganda can’t be therefore hurried. It can’t be wished away. The challenges faced by Uganda today can’t be dolled down to the person of the president alone. Today’s challenges require us to safe guard our security as individuals within Uganda through economic prosperity – ‘Take off’.

They require Ugandans to understand our place in East Africa (Regional Integration) and Africa (Continental Integration) Vis a Vis a shifting ‘Global terrain of Contest’. They require us to understand how to enshrine, embed and reflect the emerging new democratic consensus regarding all these issues in our constitutional framework - and very importantly, general jurisprudence. The very ambiguous and false narrative told by Nobert Mao, Mabirizi, Ssemujju, Ssentamu and other opposition elements that our Constitution has no safeguards MUST be totally rejected. The “fundamental disequilibrium” they seek to create is neither healthy nor encouraging for our “nascent constitutional and democratic dispensation.” The safeguard of our constitution is in article 1. As the Magna Carta has taught us, if this safeguard is threatened, you entrench it.

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