According to Lawyer Peter Mulira, the provisions under which the Constitution can be amended as spelt out in Article 259 can only be fulfilled through a procedure which is not specified. He states that this procedure can only be based on an act of Parliament which has never been passed.
Constitutional lawyer Peter Mulira says Parliament cannot use its legislative powers to amend the Constitution arguing that ‘Constitutional matters are not legislative'.
Mulira argued that governments and parliaments govern through laws and not through the Constitution. He says that the procedure to amend the Constitution must be based on a specific Act of Parliament.
According to Mulira, the provisions under which the Constitution can be amended as spelt out in Article 259 can only be fulfilled through a procedure which is not specified. He states that this procedure can only be based on an Act of Parliament which has never been passed.
The Constitution gives Members of Parliament two distinctive mandates namely to make laws on any matter for peace, order, development and good governance. Secondly, to amend the Constitution by way of addition, variation or repeal under Article 259 which article Mulira says restricts Parliament's freedom to amend.
Mulira who concentrated on the interpretation of the Constitution said that a Member of Parliament is free to move a bill but that in this case, the process of the amendment is the most important and that currently it is not streamlined by an Act of Parliament.
He further states that this procedure cannot be found in the ordinary rules of parliamentary procedure because the power to amend the Constitution does not emanate from Chapter 6 which gives parliament legislative powers hence arguing that constitutional matters are not legislative.
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Mulira was today appearing before the Legal and Parliamentary Affairs Committee chaired by West Budama South MP Jacob Oboth-Oboth which is currently considering the Constitutional (Amendment) (No.2) Bill, 2017.
Tabled by Igara West MP Raphael Magyezi, the Bill seeks to among others change Article 102(b) of the Constitution which puts 35 and 75 as lower and upper caps respectively on the presidential age.
According to those opposed to this amendment, the move if okayed by Parliament would eliminate the last hurdle for President Yoweri Museveni to seek re-election when his current term of office expires in 2021. President Museveni, who was born in 1944, wouldn't be eligible to contest for the presidency in 2021, since he will be above 75 years of age.
Museveni has been President since 1986.
In his previous opinions in different newspapers, Mulira noted the Ghana Constitution which provides that an amendment of the Constitution, which is not entrenched, cannot be introduced in Parliament unless it has been published twice in the Gazette with the second publication being made at least three months after the first publication and until after 10 days after the second publication. The Speaker is enjoined to refer the Bill to the Counsel of State for consideration and advice.
In Kenya, the Constitution requires Parliament to publish any Bill to amend the Constitution and facilitate public debate about it and the Bill cannot be called for the second reading within 90 days after the first reading.
Mulira told MPs that Uganda needs to borrow a leaf from these countries and others by putting in place the necessary law with a procedure that will allow amendments.
Mwenge South MP Aston Kajara, himself a lawyer, challenged Mulira saying that Parliament as an institution is already established by an Act of parliament and that he finds no vacuum with parliament amending the Constitution even in the absence of a law streamlining the procedure.
Kajara said that the Parliament Act gives powers to parliament to set rules of procedure which currently streamline the process of a Private Member tabling a Bill.
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However, Mulira maintained his position saying that powers to amend the Constitution do not emanate from the legislative powers of parliament but through a specific law.
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Meanwhile, Mulira criticised the MPs for proceeding with the debate without basing on the Constitution but rather discussing politics. He noted that his submission before the committee was aimed to trigger a debate that would move in the correct direction.
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Speaking about the proposed amendment to Article 102(b), Mulira argued that leaders can ably serve regardless of their age and cited the example of Ronald Reagan a former US President who was 78 at the time he retired in 1989. Mulira branded Article 102(b) as clumsy.