The political mayhem surrounding the presidential age-limit debate forced many people to opt out of the debate and leave the fate of the country in the hands of Members of Parliament.
However, after listening to the wisdom of some senior citizens who spoke at a workshop organised by the Elders Forum last Friday, one was forced to reflect on the current political situation in the country in which constitutional matters are being confused with political issues. A national constitution should be above politics and that is why the Constitution itself makes a distinction between the political work of Parliament and its special powers to amend the Constitution.
Article 79 of the Constitution sets out the political functions of Parliament to include:
• The power to make laws on any matter for the peace, order, development and good governance of Uganda.
• The power to confer authority on any person or body to make provisions having the force of law.
• The duty to protect the constitution and promote the democratic governance of Uganda.
In furtherance of these functions, Parliament is given power under Article 94 to make rules to regulate its procedure and Article 94(4)(b) specifically gives a Member of Parliament the right to move a private member’s Bill subject to the following limitations
• The member moving the private member’s Bill must seek assistance of the department of government whose area of operation is affected by the Bill.
• The Attorney General’s office must be involved in drafting of the Bill.
Article 259 of Chapter Eighteen of the Constitution gives special powers to Parliament to amend the Constitution. These powers are separate from the political powers, which are bestowed on Parliament.
Accordingly, the rules governing the procedure to enact laws cannot be used for purposes of amending the Constitution. Indeed Article 259 provides that ‘Parliament may amend any provision of the Constitution according to procedure laid down in this chapter’, meaning Chapter Eighteen and not Chapter Five.
The only way the Constitution can be amended is by first and foremost enacting a law implementing the provision of Chapter Eighteen and making rules under that law providing for procedure for such amendment. The Bill before Parliament was introduced by a private member according to rules, which govern the political work of Parliament, which makes it unconstitutional.
Secondly, even if the current rules of parliamentary procedure were considered to be applicable, the preparation of the Bill would still render it unconstitutional because it was not done according to the requirements of the Constitution.
Article 94(c) and (d) require that the member moving the Bill should have sought the assistance of the Ministry of Constitutional Affairs as the department of government most affected by the Bill as well as the professional assistance of the office of the Attorney General should have been sought in its drafting.
These provisions are important and are in line with the idea that the Constitution should not be capriciously and indiscriminately tampered with by politicians.
Lastly a bill to amend the constitution can only be assented to by the President if it is accompanied by a certificate of the Speaker that the provisions of chapter eighteen have been complied with in relation to it.
This chapter does not confer on a private member the right to move a bill to amend the constitution. As such Hon.Raphel Magyezi’s bill is irregularly and unconstitutionally before august house.
The political and constitutional confusion caused by Hon. Magyezi’s bill can only be sorted out through sober dialogue and the willingness to accept wise counsel.
Credit: Peter Mulira
Daily Monitor Uganda