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A Summary Of The Age Limit Case: Mabirizi Kiwanuka & Other V Attorney General

Constitutional Appeal No.02 Of 2018

The judgment was delivered on the 18thApril 2019. Coram; Katureebe CJ, Arach Amoko, Mwangusya, OpioAweri, Tibatemwa Ekirikubinza and Mugamba JJSC, Tumwesigye JSC.

This was an appeal from the judgment of the Justices of the Constitutional Court Owiny Dollo, DCJ, Kasule, Kakuru, Musoke and Cheborion

The Chief Justice Katureeebe discussed the basic structure doctrine in light of the declaration of the Constitutional Court;  that sections 1, 3, 4 and 7 of the Constitutional(Amendment) Act No 1 of 2018 which among others removed the age limit of the President and the local council V Chairperson were in full compliance with the Constitution and thus remain lawful and valid provisions of the Constitutional (Amendment) Act No 1 of 2018.

The Appellants contended that the provisions offended the basic structure of the constitution of the Republic of Uganda.

The basic structure doctrine means that a country’s Constitution has certain basic features that cannot be amended by a legislative body. The amendment of such features would result in drastic changes that would render the Constitution unrecognizable.

The Chief Justice noted that; in interpreting a Constitution, the history of the country and the prevailing circumstances have to be put into consideration. He referred to the preamble of the Constitution which shows that the history of Uganda is characterized by political treachery, military coups, and gross violations of human rights.

He further noted that he has seen nothing to suggest that in the constitutional history of Uganda, one of the problems has been either a very young or a very aged President. There is also nothing to suggest that the ideals espoused both in the preamble and the National Objectives and Directive Principles of State Policy were directed at the age of the person seeking the office of the president or Local Council V Chairperson.  That what is clear is that the ideals were directed to over stay in power without the free will and consent of the people.

CJ Katureebe pointed out that there was no evidence adduced to show that a person below 35years of age or above 75 years of age has an inherent inability to be President. He further gave examples of instances where old and young leaders have been successful for instance; in Malaysia in May 2018, Prime Minister Mahathir Mohammad was popularly elected at the age of 92 becoming the eldest political leader in the world, in Austria, Sebastian Kurtz, the current chancellor was elected in December 2017 at age of 31. On the other hand, neither Idi Amin nor Hitler, who committed atrocities, were 75 years and above or below 35years of age.

He also opined that one should not be denied a chance to participate because of age citing the preamble and National Objective II that promotes equality.

On this background, Supreme Court found that the Justices of the Constitutional Court were correct to find that the restriction on the age of the President or the Chairperson Local Council V was not a basic pillar of the Constitution of Uganda and was therefore not part of the basic structure. Further, the removal of the age limit didn’t in any way negate people’s power to choose a leader of their choice. The removal instead enhances their participation.