Uganda at Crossroads with a Failed Political Transition and Constitutional Crisis

Uganda’s Constitutional History:

Before the British and Germans contended for control over the territory, Uganda had three different indigenous political systems: the Hima caste system, the Bunyoro royal clan system and the Buganda kingship system. In 1894, the British succeeded in establishing a protectorate and made the Buganda, also called the people of Buganda, administrators authorized to collect taxes. A British-style High Court of Uganda and an Appeals Court for all Eastern African protectorate were established in 1902. At the same time, a special commissioner was installed to perform executive, legislative and judicial powers. In 1955, a constitutional monarchy with a ministerial government based on the British model was established and in 1957 political parties emerged and direct elections were held.

Uganda became an independent Commonwealth nation on October 9, 1962 under a Constitution much influenced by the British. The Constitution distributed powers between the center and the regions, albeit disproportionately. The Buganda kingdom was given more powers at the expense of the other three kingdoms, namely Ankole, Toro and Bunyoro, and the other districts. The powers granted to the four kingdoms also handicapped the Parliament, which was elected by direct universal suffrage, except for parliamentarians from Buganda who were indirectly elected through the Council of Buganda. Apart from the periodically elected Parliament, the Constitution provided for a Cabinet, drawn from and responsible to Parliament, and defined the powers of major government organs, civil service and judiciary. One year later, an amendment introduced a ceremonial President to replace the Governor General as a head of state, and Kabaka Mutesa became the first elected president on October 9, 1963.

The 1962 Constitution was abrogated by Prime Minister Milton Obote in 1966, who declared himself President under an Interim Constitution of 1966. The Parliament was constituted into a Constituent Assembly and given a mandate to draft a new Constitution for Uganda. On September 8, 1967, the new Constitution came into force. It extended the life of the Parliament and declared the President then in office the President of Uganda for a term of 5 years. Other major changes made by this Constitution were the abolishment of the kingdoms and the introduction of a more centralized system of government. Members of Parliament continued to be elected by direct universal suffrage across the entire country but the President was now elected indirectly by the Parliament. Although the system of government had some democratic semblance, democratic principles were hardly observed in practice, and Obote ruled with army support. Shortly after the constitution of 1967 was promulgated, a state of emergency was declared and Uganda slowly shifted to one-party-rule under the Uganda People’s Congress.

In 1971, General Idi Amin Dada seized power. Amin ruled the country through constitutional decrees and used the army as the main instrument of government. In 1979, Amin too was overthrown by a combination of Ugandan and Tanzanian forces. In the following years, the Ugandan military continued to participate actively in Ugandan political processes. On July 25, 1985 Obote was overthrown by Tito Okello Lutwa who was also deposed a year later by the Museveni-led National Resistance Movement – a rebel movement that had been fighting the regime for years.

On December 21, 1988, the National Resistance Council (NRC) enacted Statute No.5 of 1988, which established the Uganda Constitutional Commission and gave it responsibility to start the process of developing a new Constitution. The mandate of the Commission was to consult the people and make proposals for a democratic permanent Constitution based on national consensus. In its final report of December 1992, the Commission stated that the majority of Ugandans preferred a Constituent Assembly directly elected by the people in order to be as fully representative as possible and provide greater legitimacy. It proposed that an Assembly should be composed mainly of directly elected delegates plus representatives of some interest groups. The proposal was accepted by government and thus the Constituent Assembly consisted of 284 delegates elected by universal suffrage representing 214 electoral areas designated plus additional representatives of specific stakeholders. Nevertheless, some people feared that the delegates to the Constituent Assembly might tailor the constitution to suit their future political ambitions.

The elections for the Constituent Assembly took place in March 1994. Every registered voter who did not have a criminal record and could afford the required nominators and financial deposit was able to run for office. Apart from the decisions relating to national language, land, federalism and the political system, all provisions of the draft constitution were reached by consensus. The land question in Uganda emerged when the British took land away from the communities and gave it to a few individuals, and it was not resolved by the Constituent Assembly. The debate about the political system, on the other hand, was rooted in the bad experience of Ugandans with political parties in the post-independence era. On this basis, a “no party” politics system, also known as “movement politics”, was proposed. In this system, no one is denied the right to run for any political office of his or her choice. The stress is on personal merit, and political parties are permitted to exist but are forbidden from electoral campaigning and sponsoring candidates. Movement politics were strictly opposed by multiparty supporters. As a compromise, the movement type of governance was agreed to be extended for another 5 years but at the end of 3 years a public debate should be held and, after 4 years, the people of Uganda should choose between the two systems in a referendum. On the whole, the Constitution-making process in Uganda was highly participatory and an exercise to reconcile the society, reinstitute democracy, institute the rule of law and place limits on the misuse of state power.

1995 Constitution

On September 27, 1995, the Constituent Assembly adopted the new Constitution. The 1995 Constitution establishes a quasi-parliamentary system of government, consisting of a President, Prime Minster, Cabinet, unicameral Parliament, Supreme Court and Constitutional Court. The preamble states that the Constitution shall be based on the “principles of unity, peace, quality, democracy, social justice and progress” and includes a long chapter on “National Objectives and Directive Principles of State Policy”. Moreover, Article 1 of the Constitution proclaims the sovereignty of the people and according to Article 2, the Constitution “shall have binding force on all authorities and persons throughout Uganda”. The Constitution stresses the importance of the protection of human rights by stating that “fundamental rights and freedoms of the individual are inherent and not granted by the State” and guarantees specific rights and freedoms such as freedom from discrimination, freedom of religion, the prohibition of torture and slavery, and the rights to privacy, assembly and association.

In opposition to the Constitution of 1967, the current Constitution contains a range of powers that are shared between the President, Parliament and other constitutional bodies. Amongst others, the presidential power of appointment regarding the Vice President and Ministers is subject to the approval of the Parliament, and the appointment of Permanent Secretaries and heads of departments have to be made upon recommendation of the Public Service Commission. The Public Service Commission moreover has the power to appoint all other civil servants and judicial officers other than Judges of the High Court, Court of Appeal and the Supreme Court, which are appointed by the Judicial Service Commission. In other areas, the power of the executive has been cut down extremely: The President no longer has the power to dissolve Parliament, and in the area of legislation the Parliament can over-ride the presidential veto by two-thirds majority. The executive’s powers to borrow money are also limited since Parliament now first has to approve borrowing.

In 2000 and 2005, important referenda on the system of government took place: The first referendum favored a “no-party” system of government but was invalidated by a court ruling some years after because of procedural shortcomings, whilst the second referendum approved a multiparty system and abolished the two-term limitation on the presidency.

 Key amendments to the 1995 Constitution:

Since its enactment, the 1995 Constitution has been amended four times, the most recent being in 2015. The 2015 Amendments secured the tenure of electoral commissioners, re-election of MPs, the joining and leaving of political parties by MPs, constitutional appeals and appointment of staff of the judiciary.

The 2005 amendments removed presidential term limits and ushered in the multiparty politics again in Uganda, among other changes. Other amendments have led to the following: providing for a quorum of parliament when voting on any question; return to multiparty politics; distinguishing Kampala as a Capital City of Uganda; providing for Swahili as the second official language; providing for Leader of Opposition in Parliament; creating the offices of Prime Minister and Deputy Attorney General; providing for special courts to handle corruption; establishing the functions of a leadership code tribunal; providing for control of minerals and petroleum; providing for holding of referenda generally; providing for regional governments; removal of members of the electoral commission and change of the name of the commission; MPs who cross from one political side to another in the last 12 months of Parliament do not lose their seats.

 Hon J.F Wapakhabulo, in his paper on “Uganda’s experience in Constitution making” delivered on September 15, 2001, states that most issues in the current constitution were reached through consensus except for a few contentious issues. The contentious issues included: language, land, federalism and the political system (Choosing to return to multiparty politics).

He concluded his paper with the following remarks: “with the enactment of the 1995 Constitution, Ugandans, unless they choose to disrupt themselves, they are confidently building what is bound to become, in ten to twenty years from now, a truly modern state. This would happen with a powerful and influential civil society which will under-pin the democratic measures provided for by the Constitution of 1995”.

 Achievements of the 1995 Constitution:

There has been a number of achievements from the 1995 constitution that include the relative stability of the economy and governance as evidenced by institutions like the Central Bank, Auditor General, Uganda Human Rights Commission, Inspectorate of Government and a fairly stable judiciary. These achievements put in place some semblance of the rule of law as evidenced from the existence of rules and processes for example, Magistrate’s Courts exist in every District.

The 1995 Constitution emphasized respect for human rights and freedoms, and affirmed the equality of all persons; it also prohibited discrimination on the basis of sex, age, ethnic or other social status and obligated the State to institute affirmative action in favor of disadvantaged groups. This has created an enabling environment for the advancement of women and it has increased the numbers of women participating in decision-making processes. However, delayed enactment of the Domestic Relations Bill (Now termed as the Marriage and Divorce Bill) is a major setback to the struggle for women empowerment.

On the other hand, the 1995 Constitution has not lived to its promise as seen from the enactment of retrogressive legislation such as laws aimed at removing the rights of persons as contained in Chapter Four. This is illustrated by the Public Order Management Act, which aims at clamping down personal freedoms; the NGO Amendment Act that restricts the freedom of association and assembly, etc.

As a way forward, there is need to go back to the promise that the 1995 Constitution gave when it was made 22 years ago and was termed then as the best gift that the President had offered to Ugandans. What needs to change as well is the tendency to think that for every problem, there should be a law enacted. We should address the problem of lack of a culture of responsible rule of law. There is a need to have an empowered citizenry that is able to link the problems they face daily to the Constitution.

 Current Constitutional Challenges:

The current constitutional challenges include, among others: attempts to lift age limits from the constitution and extend tenure of the electoral commissioners; failure to enact electoral reforms; huge public administration costs; absence of freedom of assembly and expression; violation of human and other fundamental rights; corruption; executive dominance, which defeats the doctrine of separation of powers; and the enactment of draconian laws, among others.

As we celebrate 22 years of the 1995 Constitution, do we have constitutionalism in Uganda today? Are we prepared to transition into a petrol state when it comes to oil and gas sector governance? Are we on the right track as a nation when it comes to the much-needed constitutional reforms? Is constitutionalism in Uganda still the crafted relationship between recognized national ideas and the day-to-day aspirations of the citizenry? What is the status of Uganda’s constitutional journey in terms of observance, as compared to the contemporary practices in developed democracies?

Is the Uganda Constitution an illusion? Why are the young people full of cynicism when it comes to constitutionalism in Uganda? What are the practical aspects on the 1995 Constitution and are they being observed? Does the Ugandan Constitution have the supremacy it claims to have? Is the Constitution the ultimate source of power and authority in Uganda today? Or it is a mere tool of governance, or an instrument of the current politics?

 Challenges of Constitutionalism in Uganda today

 A constitution is defined in the black’s law dictionary 9th edition as the fundamental and organic role of a nation or state that establishes the institutions and apparatus of government, determines the scope of governmental sovereign powers and guarantees individual civil rights and liberties.

 It is the written instrument embodying this fundamental law together with any formal amendment. Constitutionalism on the other hand is defined among others by the Oxford Advanced Learners dictionary - the national student’s edition to mean a belief in the constitutional government. Indeed, it goes without saying that a belief in constitutional government is a perquisite for every nation. This is the normative culture we must continue to build.

 Uganda was endowed with a well-written constitution, the provisions of which other nations have found worthy to borrow from, like the importance of Chapter Four on the protection and promotion of fundamental and other human rights and freedoms.

 Many, if not all African countries have Constitutions. It is one thing to have a Constitution; it is another to practice Constitutionalism.

 Constitutionalism presupposes three things:

i)            A belief in the Constitution by many political parties and political leaders. If the main political actors do not believe in the Constitution, you may have a Constitution as a mere document with no constitutionalism;

ii)           Recognition of its importance by the main actors in the citizenry or population. If the Constitution is of relevance to only a few people in the capital, in the political parties or academia, then you cannot have constitutionalism where there is no minimum consciousness by major actors amongst the population.

iii)         Presence of organized political forces that are not only interested in constitutionalism but are ready to defend it.

 Constitutionalism should be practiced in public and private as well as by individuals; there should be powers constrained by law which are limited but not limitless power.

Paragraph Three of the Preamble, 1995 Constitution as amended, summarizes the gist of constitutionalism and the expectations of the people: “We the people of Uganda, committed to building a better future by establishing social, economic and political order through a popular and durable national constitution based on the principles of unity, peace, equality, democracy, freedom, social justice and progress;”.

This paragraph in essence requires procedural stability; procedures should not be subject to frequent changes, and we should not change the rules when situations change, such as changing the age limit because one is growing old.

Once you do not have the above three elements, you cannot have constitutionalism – a belief needed by the major political actors, recognition of its importance by the citizens or its major actors and the presence of organized political forces that are prepared to defend it. If these tenets are not present, constitutionalism becomes an academic or religious ritual; just as how many people say “our father who art in heaven, or hail Mary full of grace”.

 The current regime, broadly and the Constitution of the State are characterized by at least three major elements:

 i)            Personal Rule and not institutional rule; (Leadership decisions are not taken by governance institutions as established by the legal framework in place; they are merely communicated to institutions)

ii)           Militarism: all our political processes may have a veneer of democratic or civilian governance but they are actually under pinned at the end of the day, by military;

iii)         Neo-patrimonialism: this means that you may have the Constitution, you may have laws; and you may have institutions, but the formal actual power lies in the process and all these elements are definitely inimical or contrary to the above development of constitutionalism. This means that power lies somewhere else and institutions are mere projected symbols.

 What then is the assessment as far as the four key areas necessary for promoting constitutionalism are concerned?

 i)           Electoral Reforms:

 Having an independent electoral commission and a credible electoral process is critical for any democratic country. These are very important in Uganda today. The limitations are that the incumbent regime has no belief whatsoever in the importance of electoral reforms, constitutionalism, social justice and equity. The regime will have to be forced into seeing the electoral reforms put into place. The Citizens Compact – a compendium of people centered electoral reforms that were presented in Parliament in 2015; is now gathering dust.

 ii)          Human Rights:

 While political and civil rights are important to the majority of the people in this country or any other country in East Africa, socioeconomic rights are more critical. There is a tendency to only keep debating the civil and political rights when all these rights are contained in our Constitution and they were never contested. The only controversial issue during the constitutional making process was whether we should have multiparty politics or not and this was also resolved in 2005 amendments to the Constitution.

 With that resolution, there is no major debate as to whether we should have the civil and political rights as enshrined in the Constitution. In order for Uganda to move forward, we should focus more on the social and economic rights, where the majority of the citizens can see immediate and tangible benefits.

 It must also be underscored that social and economic rights must be looked at more so that the citizens are elevated beyond survival and as such can aspire to defend their civil and political rights.

 a)  Social and Economic Rights:

 Education—to this end, we should have reforms in the direction of primary education; secondary school education and tertiary/vocational education. Attainment of education will bring about the right to work and thereafter, civil and political rights will have meaning to the citizens. Health: we should have a national insurance policy that guarantees healthcare for all citizenry with categories: employed high income earners; low incomes earners and rural communities. In Rwanda for example, 15% of the national health budget goes to rural health insurance.

 b)  Revamping of a strong/representative Civil Society:

The representative Civil Society Organization formations have been weakened and this negates the whole democratization process. Trade Unions, Cooperatives, Lobby Groups are formidable formations that can protect particular socioeconomic rights. Such have an interest in defending civil and political rights.

 iii)        The different arms of government and separation of powers:

 Today, there is hardly any separation of powers between the Executive and Parliament;

Our country’s history has been characterized by the individual merit/one-party system.

The Judiciary in Uganda is struggling for its independence. We need a bipartisan effort to rescue the Judiciary because an independent Judiciary is in the interest of everyone.

Disputes before courts take four major forms: citizen versus citizen; multinational interests versus weak citizens; the State versus the citizen; and political contests. This is dangerous because weak citizens cannot defeat multinational interests in a weak judicial system and we can’t have all political contestations ending up in courts of law that are not independent. This trend can only lead to a totalitarian state where all arms of government are fused.

 iv)        Multiparty Politics:

 Do we have political parties in Uganda since 2005? We do not yet have Parties in Uganda. Political disputes are underpinned by militarism. The ruling political party is fused with a state, underpinned by military force and the conditions for nurturing and promotion genuine multi-party politics do not exist.

 On the other hand, the other parties are nascent and are attempting to become parties. Only the Forum for Democratic Change (FDC) has made significant efforts towards a viable, clear party. There is a need to have clear ideological bases for parties if we are to build viable parties that have socioeconomic constituencies (strong population support base).

What we have is a shell of a dysfunctional ruling party fused with the State and backed by military force.

 Other Challenges:

 On the functioning of the doctrine of Separation of powers: the head of executive should not preside over elections of the speaker and deputy speaker of Parliament; accountability of government agencies and leaders in government lacking and there is growing lack of respect for human rights and democratic freedoms.

Fair economic and land policies: when the 1995 constitution was promulgated all land belonged to the people, but the proposed land amendment strives to vest all land in the hands of the executive.

Uganda has gone through a history of political strife right from independence and then from 1986 – 2005, one party state or the movement system; from 2005 to-date, multi-party politics were introduced by many of the features of a single party state remain in place. We have not yet overcome our past turbulent political instability which the Constitution was promulgated to resolve.

Enforcement:

The 1995 constitution was welcomed with a great deal of hope because of its enshrinement of human rights, democracy and constitutional governance. In comparison, the 1962 constitution had no gender provision and the 1967 constitution had restrictions on human rights and no mechanism for accountability. This in effect made the 1995 Constitution a human rights document that encompassed human rights development across the globe and was described as one of the best that existed at that time.

However, the 2005 amendments created a new Constitution all together. Lifting of term limits eroded gains on human rights and governance as well as democracy. The checks and balances mechanism that was designed based on a temporary presidency with a maximum limit of 10 years is now nonfunctional.

Examples of the Challenges:

1.   Constitution mandates a political transition. Since 2005, there has been constitutional stagnation because the occurrence of this transition was postponed. The age limit debate is evidence of this stagnation.

2.   Courts of law: independence of judiciary promotes constitutionalism. Cases like Tinyefuza vs. AG and Muwanga Kivumbi vs. AG proved that the courts were private arbiters of human rights in the Constitution. But the case of Kawanga Ssemogerere and Another vs. AG about the 2000 referendum sparked abuses from the Executive to Judiciary for usurping the powers of the people and serving the opposition. A mob was organized to attack the courts of law, and a press conference by the President said that judges are only fit to preside over cases of chicken thieves. There was also the black mamba assault against courts of law and demonstration against the private prosecution of Gen Kale Kayihura (as evidence of continuing assault of the judiciary by the executive). The Enactment of POMA after the Muwanga Kivumbi case is contempt of court – Article 92 of the Constitution restricts retrospective legislation.

3.   Age Limits: debate on lifting the presidential age limit also touched on the judiciary; the appointment and promotion of junior judges against the more senior experienced judges; selective treatment of judicial matters with some matters in court being given priority against others; case backlog and absence of judicial philosophy in Uganda.

4.   Recent Presidential Election Petition of Amama Mbabazi: the 9-0 decision is the most ridiculous decision of the Honorable Justices of the Supreme Court. Even if 9 lawyers agreed, their reasons for agreement would be different. Lawyers would always have different reasons for agreeing or disagreeing.

5.   There is also the issue of technical competence of the Attorney Generals especially based on the nature of legal advise they give to government; which, at times contradict the Constitution.

6.   The Susan Kigula case rendered the death penalty unconstitutional meaning that cases like murder and treason that are punishable by death are unconstitutional. The people charged with murder and treason should be set free! In essence, laws that carry such charges should have been amended to remove the unconstitutional death penalty.

7.   Incompetence and technical neglect are impounded by impunity; state agencies continuously abuse courts of law, especially the security organs like the police. Impunity has become the culture rather than constitutionalism

8.   The founding fathers of the Constitution are Yoweri Kaguta Museveni, the late Wapa and Justice Odoki. However, these founding parents with exception of Wapa have not done much to give life to our Constitution. Museveni’s attempt to re-appoint Odoki as Chief Justice manifested abuse of the Constitution and his letter to the Judicial Service Commission read in part as follows: “It’s my view that in those two years, Odoki should continue to be Chief Justice so as to minimize our Human Resources….. Therefore, send the necessary instruments of appointment for my signature.” This attempt undermined the preamble of Constitution and the independence of judiciary. This is because of stagnation due to lack of political transition.

In Conclusion, the Constitution is only a formal document picked and referred to conveniently. The following constitutional reforms are necessary: term limits should be reinstated and entrenched; reduction of Presidential powers; electoral Commission should be reformed; there is need to focus on the socio-economic rights because citizens will find reason to fight for civil and political rights; defend the independence of the Judiciary; build ideologically based political parties with socio-economic constituencies (With a membership from the population that can fund political activities); review the huge public administration wage bill bloated with a large Parliament, hundreds of supposed presidential advisors, myriad Ministers etc; an amendment to the qualifications for those intending to become Members of Parliament be changed from senior six or its equivalent to a Bachelor’s degree; the army representatives should be removed from Parliament; the speaker should be appointed by the Parliamentary Commission and should not be an active politician; clear criteria/mechanisms be put in place on the creation of new constituencies/districts; size of Parliament be reduced by having two MPs per district: one male and one female; there is need to provide for recall of MPs under the multiparty dispensation (by amending Article 84(7) of the Constitution; the three arms of government should operate independently and MPs who are appointed ministers should resign their positions as MPs and urgently stop lifting of age limits and entrench the article providing for the same.

 For most founding parents, the fruits of new instruments are passed on to the new generation. Founding fathers should be looking forward to this. In Uganda, instead of nurturing a tree to produce more fruits, the founding parents are engaged in mutilation. If presidential age limit is lifted from the Constitution, Uganda will lose all its constitutional gains and further be eluded by the absence of peaceful handover of power for another 3 three decades to come!