Mabirizi on Amendment Review

Male H. Mabirizi v Attorney General and Karuhanga and Others v Attorney General and Uganda Law Society v Attorney General (Constitutional Appeals 2, 3 and 4 of 2018) [2019] UGSC 102 (18 April 2019) is one of the most important modern decisions of the Supreme Court of Uganda on constitutional amendment litigation. The case is widely known as the age limit decision because it arose from the removal of the upper age limit for presidential candidates and Local Council V chairpersons. Yet its precedent value goes beyond age. It addresses judicial review of constitutional amendments, parliamentary procedure, public participation, severance, the basic structure doctrine and the practical meaning of constitutional supremacy.

The panel included Katureebe CJ, Arach Amoko JSC, Mwangusya JSC, Opio Aweri JSC, Tibatemwa Ekirikubinza JSC, Mugamba JSC and Tumwesigye Ag JSC. Chief Justice Bart M. Katureebe wrote separately while agreeing with the judgment of Stella Arach Amoko JSC and adding his own reasoning on several central questions. The judgments considered not only the wording of the amendment but also the process that produced it. That matters because constitutional amendment cases often sit at the uncomfortable boundary between politics and law. The Court had to decide how far judges could go in reviewing a process that was plainly political, but still governed by constitutional rules.

The facts began in 2017 when Hon. Raphael Magyezi, Member of Parliament for Igara West, moved a private member’s motion seeking leave to introduce a constitutional amendment bill. The bill became the Constitution (Amendment) Act No. 1 of 2018. It removed the age limit for a person seeking election as President under Article 102(b) and also removed the age limit for a person seeking election as District Chairperson under Article 183(2)(b). The amendment also contained other provisions touching election and institutional matters. Some provisions were controversial because of their legal and financial implications, and because the parliamentary process itself was marked by disorder, security concerns and intense public disagreement.

Several petitioners challenged the amendment in the Constitutional Court. That Court struck down some provisions but upheld the retained provisions, including the removal of the presidential and District Chairperson age limits. The appellants then appealed to the Supreme Court. Their arguments were broad. They said the age limit formed part of the basic structure of the Constitution and could not be removed by ordinary amendment. They also complained of violence, intimidation, inadequate consultation, defects in parliamentary procedure and improper application of the doctrine of severance. Mr. Male Mabirizi separately argued that the President elected in 2016 had to vacate office upon attaining seventy five years of age.

The Attorney General defended the amendment. The State’s position was that Parliament had followed the applicable constitutional procedure, that removal of the age limits did not destroy the identity of the Constitution, and that any defects in the process were not substantial enough to invalidate the retained provisions. The Attorney General also argued that the former Article 102(b) concerned eligibility for election, not automatic vacation of office during an ongoing presidential term. That distinction became important because it avoided turning an eligibility rule into a removal rule.

The Supreme Court dismissed the appeals. The final result was that the Constitutional Court’s decision was upheld by a majority of four to three, with several issues resolved unanimously. The Court unanimously rejected the preliminary objections, the basic structure challenge to the removal of the age limit, and the argument that the sitting President had to vacate office upon reaching seventy five years. By a majority, the Court held that the process of enactment did not invalidate the retained provisions, that the violence and disorder around Parliament did not nullify the amendment, and that the substantiality test had been properly used to evaluate procedural irregularities.

The rule from the case is not that Parliament can amend the Constitution however it likes. That would be too simple and, frankly, misleading. The Court confirmed that constitutional amendments are reviewable by courts as to procedure and, where appropriate, as to substance. At the same time, it held that not every irregularity, political controversy or breach of parliamentary practice will invalidate an amendment. The defect must be constitutionally material, fundamental or substantial enough to affect the validity of the retained provisions. This is the practical centre of the judgment.

The decision on the basic structure doctrine is particularly significant. The Court did not appear to reject the possibility that Uganda’s Constitution has foundational features that cannot simply be destroyed by ordinary amendment. It accepted that constitutional interpretation must take account of Uganda’s history, the sovereignty of the people, constitutional supremacy and democratic governance. But the Court drew a line between a foundational pillar and an important rule that remains amendable. The age limit was treated as an eligibility condition rather than an unchangeable element of the Constitution’s identity. In Chief Justice Katureebe’s reasoning, removing the age limit widened the field of possible candidates for voters rather than destroying popular sovereignty.

That reasoning is powerful, but it is not beyond criticism. One may agree that an age limit is not automatically a basic structure rule, yet still worry about the political context in which term and eligibility rules are changed. Constitutional identity is not only about isolated words. It can also be shaped by how rules work together to manage power. The Court’s approach may therefore be seen as cautious. It avoided turning the basic structure doctrine into a broad weapon against every controversial amendment, but it also left future litigants with the demanding task of proving that an amendment destroys a foundational feature rather than merely changing an important constitutional detail.

The judgment is also important for parliamentary procedure. The Court did not say that Parliament’s internal actions are immune from review. On the contrary, it recognised that courts may examine whether constitutional requirements were followed in law making and amendment. However, the Court treated procedural defects according to their seriousness and effect. Some defects may be improper but not fatal. Others may go to the root of validity. This is where the substantiality test becomes central. A petitioner must show not only that something went wrong, but that the wrong was serious enough to affect the constitutional quality of the enactment.

The discussion of violence and consultation is equally important. The appellants argued that some Members of Parliament were intimidated or prevented from consulting freely, and that security forces interfered with the process. The majority accepted that some incidents were unlawful or improper. Even so, it held that the evidence did not show that the overall consultative process was constitutionally defeated. This creates a demanding evidentiary burden for future public participation challenges. A petitioner must connect incidents of interference to a broader failure of the constitutional process, rather than relying only on isolated examples.

The doctrine of severance also received important treatment. The Constitutional Court had struck down some provisions while allowing the retained parts of the amendment to survive. The Supreme Court upheld that approach. The lesson is that a court need not invalidate an entire amendment if the unconstitutional parts can be separated and the remaining provisions can stand independently. This can be sensible because it avoids unnecessary destruction of valid law. Still, severance must be used carefully. If the remaining parts are inseparable from the invalid provisions, or if the whole legislative bargain is constitutionally contaminated, then severance may hide rather than solve the problem.

Mabirizi fits into an important line of Ugandan constitutional cases. In Paul K. Ssemogerere and Others v Attorney General, the Supreme Court insisted on strict compliance with constitutional amendment procedure. In Oloka Onyango and Others v Attorney General, the Constitutional Court invalidated legislation passed without quorum. Mabirizi does not abandon those cases. It adds nuance. It suggests that constitutional procedure matters, but courts must still ask whether the proven defect is substantial enough to justify invalidating the law or amendment. That nuance can make the case attractive to governments defending amendments and challenging for litigants seeking invalidation.

The practical lesson is that constitutional amendment litigation requires precision. It is not enough to say that Parliament acted badly, that the politics were tense or that some rules were broken. A successful challenge should identify the exact constitutional requirement, prove the breach, explain why it was fundamental, and show why the surviving law cannot stand. At the same time, Parliament should not read the case as a licence for casual procedure. The Court repeatedly affirmed constitutional supremacy and judicial review. Mabirizi may have upheld the age limit amendment, but it did not place constitutional amendments beyond the reach of the courts.

In the end, Mabirizi is best understood as a case about the legal control of constitutional change. It confirms that amendment power is real, broad and politically important. It also confirms that courts can review that power. The difficult question is when a defect is serious enough to defeat an amendment. The Court answered that question cautiously, and some readers may find the caution too great. Even so, the decision remains central precedent in Uganda for amendment review, basic structure arguments, severance, public consultation and the relationship between parliamentary politics and constitutional legality.

Source note. This article is based on Male H. Mabirizi v Attorney General and Karuhanga and Others v Attorney General and Uganda Law Society v Attorney General, Constitutional Appeals 2, 3 and 4 of 2018, [2019] UGSC 102, Supreme Court of Uganda, judgment delivered on 18 April 2019, with reference to the Constitution of the Republic of Uganda, 1995, the Constitution (Amendment) Act, 2018, and related Ugandan constitutional amendment authorities. It is prepared for public legal education only and should not be treated as legal advice for any specific constitutional dispute.

Suggested citation

Ronald Serwanga, “Mabirizi on Amendment Review” East Africa Legal Insight (20 June 2026).