Age Limit Debate: Unmasking The Myths And The Falsehoods
By John V Sserwaniko
The campaign to scrap age limit in the Constitution to enable President Museveni rule in perpetuity is in high gear and quite expectedly it has sparked a very polarizing debate. Unlike in 2005 when there was uncertainty (until each MP got Shs5m) as to whether efforts to scrap age limit would succeed, this time round the proponents seem to have upper hand and all they are saying so far is just doing public relations to make their thing look good.
From the very start, with Museveni’s NRM numerically dominating Parliament, the proponents are certain to get in excess of the required minimum of the two thirds majority. The larger problem is certainly in the population and not Parliament. This is the reason proponents are out giving all manner of reasons to justify their hostility to Article 102(b) which sets 35 and 75 years as respectively the minimum and maximum qualification age to become President.
THE UNTRUTHS: In marketing their views, the proponents have made several assertions that shouldn’t go unrebutted. Many of them, ironically including MPs and Ministers, have fallaciously argued that Article 102(b) should go because it deprives those outside the 35-75 age bracket of the right/protection enshrined in Article 21 of the same Constitution. Article 21 basically provides for the equality principle specifically prohibiting discrimination of anybody basing of age, religion, creed, political affiliation etc. Either deliberately or for lack of knowing, the proponents have hidden behind this non-discrimination principle to vehemently argue against Article 102(b).
Whereas it’s in order for anyone to pronounce themselves against what they consider imprudent provisions, it’s in the broader public interest that defective and fallacious arguments are pointed out when detected by those who know. Whereas for argument’s sake, we can agree that superficially what Article 102(b) provides amounts to discriminating the elderly (above 75) and the young under 35, that parse doesn’t make it unconstitutional like many of the proponents have submitted.
For starters, the Constitution (or parts of it) can simply never be said to be unconstitutional. This is so because the Constitution is the standard against which the constitutionality of any other law (or thing) is determined. That was the reasoning in Onyango-Obbo vs. AG (where the holding of Justice Mulenga was very instructive on this) and also in Muwanga Kivumbi vs.
AG where Justice Byamugisha elaborated as much. The Articles (provisions) of the Constitution can never be construed as conflicting with each other. They are interpreted to be complimentary. Mulenga did, at great length, make this explanation in the Onyango-Obbo decision (Supra) which remains one of the most compelling Supreme Court authorities on matters of Constitutional interpretation. A contrary view had been propounded in the Tanzanian case of Rev Christopher Mtikila which has since been departed from by Courts on grounds the reasoning therein was anomalous and based on what now is considered old law.
Perhaps it’s because they rightly know that no Court can make a finding declaring the Constitution (or any of its provisions) unconstitutional, that Hon Adolf Mwesige and other legally-knowledgeable actors hostile to Article 102(b)have chosen the political path as opposed to sponsoring proxies to challenge the alleged discrimination in the Constitutional Court under Article 137.
Yes the Constitution prohibits discrimination in Article 21 but the same Constitution permits deprivation of certain rights provided the test regarding what amounts to “demonstrably justifiable in a free and democratic society” is satisfied. This simply means there are circumstances under which the rights or protection provided under Article 21 can be justifiably (and lawfully) deprived. A few examples can illustrate this. A 10 year old can’t be allowed to become President (however genius he might be) simply because even the most irresponsible person will appreciate he can’t make a good president. That restriction or deprivation (that one could even consider discrimination) will be accepted as “demonstrably justifiable” even in societies with oldest democratic traditions. The same goes for a mad man or any other that suffers mental incapacity.
No sane person will defend such a mad man’s right to be president on grounds that he is being discriminated contrary to Article 21 of the Constitution. That deprivation (preventing mad man from being nominated to run for Presidency or any other public office) will be considered “demonstrably justifiable.” In Uganda we have a scheme called Grants for Social Empowerment (SAGE) which Pius Bigirimana’s gender ministry runs in partnership with UK Aid/DFID. Superficially this program could be protested for being discriminatory because it only caters for elderly persons presumed to be so vulnerable and can’t have a living on their own. Under SAGE, the State monthly gives each such senior citizen Shs25,000 for their upkeep. Now one can’t come out and petition Court to stop the SAGE program (or declare it unconstitutional) on grounds it discriminates the poor in other age groups. Why? Because this superficial/perceived discrimination or deprivation is lawful and permissible under what can be “demonstrably justifiable in a free and democratic society.”
ARTICLE 44: In the same Constitution we have rights that are categorized as non-derogable. This simply means there are no circumstances under which deprivations of such rights can ever be justified. Not even in public interest or for national security. These include right to habeas corpus (i.e. being produced before a court of law), fair trial, freedom from torture (and other rights under Article 24) and freedom from servitude & slavery. Non derogable simply means there can never be lawful justification for denial of any of these rights covered under Article 44 (a-d).
Protection against discrimination (basically rights under Article 21) isn’t anywhere listed among these non derogable rights. This simply means that the framers of the Constitution envisaged circumstances under which the enjoyment of this right (from discrimination under Article 21) could be justifiably deprived. Simply put: however much Article 102(b) can be an obstacle to those below 35 and above 75, you can only overcome it politically through amendment but can’t correctly be dismissed as unconstitutional as those wanting it scrapped have deceptively been arguing.
The other falsehoods or deception, which proponents should abandon, is detaching the proposed amendment from the person of President Museveni. Its good strategy not to personalize this campaign but the timing betrays everything. One would rightly ask (granted we forgot tackling it 5 years ago) why don’t we demonstrate it has nothing to do with Museveni by making it priority business for the 11th Parliament in 2022 or thereafter? That isn’t a question one can easily answer and sound logically believable.
The proponents should wear a bold face and say it’s about Museveni and give reasons like he still has vigor, there is no scientific proof that his capabilities diminish at 75, he is the best we have as NRM and many other justifications that have always been used to market him to the population. The proponents should have the guts to tell the population “we are amending it now because the best star we still have has become ineligible yet we still need him.” Yes this in the short term poses a bit of moral problems for the campaign (e.g. the NTV/Kamara clip of Museveni implying he won’t cling on after 75) but in the long term all will (as usual) be fine.
UNSTOPPABLE? Comparing the dynamics of today with what prevailed in 2005 when Museveni successfully had the Constitution amended to prolong his stay beyond the 10 years the Constitution initially provided, today a lot more seems to be going for him. He faces much more weakened/demoralized opposition in Parliament compared to what he faced in 2005. Much as they resent him (naturally the political fatigue resulting from 30 years of one president), the population today is politically more apathetic and resigned getting rid of him than was the case in 2005.
There was much more myth in terms of what his major opponent Kizza Besigye represented and was thought capable of doing then (in terms of plan B) than today when he and many other veteran opposition leaders have almost become demystified. Today many more citizens (including those that have never voted for him and will never) believe in Museveni’s invincibility than they did in 2005. The profile of people leading the opposition in Parliament, more so within his own NRM, must also be reflected upon.
Be it profile, experience, commitment levels, sophistication and political clout, the Monica Amodings & Felix Okots of today aren’t anywhere near to the formidably coherent dissenters Museveni faced in 2005. These included founding PAFO founding Chairman Patrick Musisi, Eriya Kategaya, Jaberi Bidandi Ssali, Miria Matembe, Amanya Mushega, John Kazoora, Mugisha Muntu, Richard Kaijuka, Nandala Mafabi, Dr. John Nkuhe, the indomitable Salaam Musumba and others.
These were senior people, had big history behind them and meant what they said which is why you would never hear of double dealers who criticized Museveni during day time and dined with him at night like we hear today. The total absence of such rumors in 2005 is indicative of how serious the above dissenters were in their principled fallout with Museveni. Yes a few like Kategaya and Kaijuka softened and made peace with Museveni but that can be story for another day.
They were never suspected of opposing 3rd term because they wanted Museveni to dangle some groceries at them like we commonly hear today. Some of today’s opponents are lukewarm in their stated reasons for opposing lifting age limit if what Felix Okot said Thursday on NTV’s On the Sport program can be used as an example. He implied he is opposed to the way the thing was being done (form) and not necessarily what was being done (substance).
This simply means many of those making noise will easily adjust and quickly return to the Museveni fold making the usual excuses of “I was misled or I didn’t have full facts” which is a game similar to what some of the NRM Poor Youths played (denouncing JPAM) during the 2016 campaigns. These and many other factors make the job to manipulate the Constitution much easier than it was 12 years ago when term limits were scrapped. And Museveni will certainly be a candidate in 2021.
ALL NOT LOST: We must also reflect on what could happen once age limit is gone and Museveni is certain to rule for life. A number of things are possible including assassination attempts similar to what Obote endured at Lugogo 1969 or even a coup attempt.
The latter could be with or without his involvement. Coups aren’t only out-fashioned, they are also expressly prohibited by the international system. Plotters have previously risked sanctions and international isolation but especially junior officers could naively attempt it claiming inevitability given our peculiar situation of a very strong man determined to stay on for life.
Historically, coups haven’t been staged by very senior officers. Arab Spring style uprising, which Besigye has been attempting, could become the other option. It won’t have anything to do with Besigye or other opposition leaders who are clearly burnt out having already done and said their best in the last so many years/decades. Having grown fatigue towards such leaders and organized politics against Museveni, the population could spontaneously act on their own and seriously mess up Museveni.
This could happen sooner or later than we think. Kayunga is a good example. According to Gen Sejusa who was a key actor in many of the security offensives against the protestors, absence of any organized leadership greatly complicated the security response which explains why the violent protests persisted for a number of days. Sejusa has previously said if the Kayunga riots carried on for another two weeks, the history of this country would by now read differently.
He says, because there was no press conference or organizing committee announcing anything, the security apparatus was caught off guard. Once protest leaders are known, it becomes easy to compromise or have them arrested. This is the reason why re-occurrence of a protest like Kayunga will be the worst nightmare for Museveni at this point in time. Extremist actions, similar to Kyuma kya Yesu’s, could intensify targeting individual MPs causing many to re-think how they vote.
Or at worst, a leaderless mob of young people could risk police brutality and on their own match onto Parliament (Burkina Fuso-style) and mess up things. Recent history shows we should learn never to say never; few ever expected the Kenyan Supreme Court to decide the way it did, that Libyans would dare Col Gaddafi or the Burkinabe to ever dare Blaise Compaore or Ivorians to ever dare the hitherto invincible Laurent Gbagbo the way they did.
And for Uganda’s case, all this will depend on how much money Museveni invests in the campaign as a way of appeasing potentially troublesome groups that could ride on the angry public opinion to ferment chaos. In absence of money, the other option will be unleashing the military and ruthlessly crush those resisting his continuity but that too has its own costs including international condemnation or even isolation which could hurt tourism receipts and FDIs which Museveni badly needs to sustain or even making our economy better.
The writer is a law student & can be reached on 0703164755.