TAKING STOCK OF 18 YEARS OF THE 1995 CONSTITUTION - WHERE ARE WE?

NATIONAL CONFERENCE ON THE CONSTITUTION 

THEME “ TAKING STOCK OF 18 YEARS OF THE 1995 CONSTITUTION – WHERE ARE WE?”

REPORT

Opening Session: Chaired by Mr. Richard Ssewakiryanga, the Executive Director for the National NGO Forum

Opening Remarks by Maj (Rtd) Okwiri Rabwoni, the Exective Director – Center for Constitutional Governance (CCG)

He thanked the Government officials, delegates and the organizers (CCG, AFIEGO, HURINET & NGO FORUM), thanked the CSO fraternity the political parties and the sections of the media that have kept the debate on constitutional governance alive.

He stated that the conference was timely because we have this strange situation in Uganda, where politics is played in the courts of law and public interest litigation inundates the business of the constitutional court. He introduced the Conference objectives as:

·        Generating National Consensus on Electoral Reforms

·        Critically review Uganda’s Human Rights record

·        Appraising the doctrine of Separation of Powers

·        Discussing Uganda’s Multi – Party politics

He stated that the organizers hoped that the contemporary challenges in defending the principle of separation of powers and institutionalized governance would be debated to a logical conclusion, as well as the dynamics of the struggles within the organs of the state and the relationship between the state and civil society.

He further stated that modern constitutions are homes for minority rights and voices and constitutionalism is an instrument of liberation and modernization as it guarantees:

·        Peace and stability.

·        Domestic and foreign investment

·        Institutional growth

·        Civic competence through a vibrant civil society.

·        International respectability and regional peace.

He concluded by calling upon all the delegates to make the conference a place for  building bridges between the state, political parties and civil society in the run up to the 2016 General Elections.

Official Opening by FREDERICK RUHINDI, Deputy Attorney General & Minister of Justice and Constitutional Affairs:

The Minister stated that the Conference should have been convened by Government, but let not get into the definitions. He stated that the 1995 Constitution is Uganda’s foremost document that seeks to guarantee political stability, economic progress and social integration. It is a landmark achievement.

He paid tribute is paid to the leadership of the country and all those who took part in the enactment of the Constitution, that, for the first time, involved grass root people participation and it encompasses the Bill of Rights in Chapter Four of the Constitution.

We should evaluate the institutions (Legislature, Executive and the Judiciary) that have been created under the Constitution as well as the other specific objectives: electoral reforms; reviewing human rights record; and multiparty politics of Uganda.

Government is a partner in this process because it has been discussing these reforms and looks forward to taking into consideration the views that will be generated from this meeting.

He concluded by saying that “Our political skies might be dark and overcast but the sun hasn’t disappeared”.

Key Note Address by Prof John Jean Barya, Law Don, Makerere University

His presentation was based on the theme of the Conference and titled: “Constitutionalism in Uganda: Taking Stock of the Challenges and Achievements of the 1995 Constitution”

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

They are three presuppositions:

i)             A belief in the Constitution;

ii)            Recognition of its importance and relevance to the governed; consciousness about it within the population;

iii)           Presence of organized political parties ready to defend the Constitution

Is the Constitution of Uganda the ultimate source of authority in Uganda?

Talking Points that have been assigned: electoral reforms; human rights record; appraisal of arms of government/doctrine of Separation of Powers and multiparty politics of Uganda.

The NRM regime is characterized by:

i)             Personal Rule

ii)            Militarism

iii)           Neo-patrimonial rule

iv)            

All these are inimical to the development of Constitutionalism.

i)             Electoral Reforms:

These are very important in Uganda today. The limitations are that the incumbent regime has no belief whatsoever in the importance of electoral reforms; and there is no belief in citizenship by the incumbent regime. The regime will have to be forced into seeing the above reforms put into place.

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 for civil and political rights.

Social and Economic Rights: Education—to this and, we should have reforms in this 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. 15% of the national health budget goes to rural health insurance in Rwanda.

Revamping of a strong/representative Civil Society: The representative CSO formations have been emasculated and this negates the whole democratization process. Trade Unions, Cooperatives, Lobby Groups are formidable formations which can protect particular socio-economic rights. Such formations have an interest in defending civil and political rights.

The different arms of government and separation of powers:

i)             Today, there is hardly any Separation of Powers between the Executive and Parliament;

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

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

Disputes before courts take four major forms: citizens versus citizen; multinational interests versus weak citizens; the State versus the Citizen; and political contests.

This trend can only lead to a totalitarian state where all arms of government are fused.

iii)           Multiparty Politics:

Do we have 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.

The leadership of the NRM isn’t interested in a strong party. A strong party isn’t in the interests of the leadership…a weak party is in the interest of the incumbent leadership of the NRM.  The other parties are nascent and are attempting to become parties. Only the 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 which have socio-economic constituencies.

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

Conclusion:

The Constitution is only a formal document picked and referred to conveniently. The following constitutional reforms are necessary;

·         Term limits

·         Reduction of Presidential powers

·         Electoral Commission should be reformed; but that is not in the interest of the regime

·         We should 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

·         A huge public administration wage bill bloated with a large Parliament, hundreds of supposed Advisors, myriad Ministers etc…so we have so many people who are interested in the status quo—amending this Constitution legally/formally is impossible.

We have to abrogate this Constitution because its inherent design-flaws do not support the required amendment processes that would deliver the objectives we seek.

“A community of sheep will get a government of hyenas.” We must avoid the trap of historical revisionism. Weak citizens; weak institutions/executive dominance; weak political parties and the role of the military in politics

Thematic Sessions:

1.    Human Rights Thematic Area: Chaired by Mr. Mohammed Ndifuna, the Executive Director – HURINET(U)

Facilitator: Mr. Kabumba Busingye – Law Lecturer, Makerere University

i)     The group observed that human rights in Uganda are observed more in violation than in observance.

ii)    Towards having a conscious populace that understands and exercises its individual and collective roles as citizens, the discussion on the Constitution must be taken to every village, town and constituency in Uganda.

iii)   It was recommended that a human rights defenders force be established to protect and uphold human rights in a more practical and overt manner.

iv)   The citizens of Uganda, majority of whom are peasants, must have a stake in the economy (either through direct employment, commercial agriculture or other investment) so that they are elevated beyond hand-to-mouth survival which is a serious impediment to the appreciation of human rights in ‘banana’ Republics such as ours.

v)    We should seek to rely on the support that International Non Governmental Organisations can provide so that our scale and scope of operations is broadened for better outcomes.

vi)   The current Parliament ought to be down-sized by more than half so that it is easier to hold them accountable for their actions and/or inactions.

vii) While they pursue the realization of their stated and Constitutional objectives, Civil Society Organisations should not be unduly restrained, intimidated or harassed by the State’s coercive machinery such as the Police.

viii)                No effort should be spared in ensuring that the independence of the Judiciary is insulated from all attempts to derail it from its duty to dispense justice impartially as stipulated under the Constitution.

ix)   Build an accountable citizenry: work towards ensuring that citizens are responsible so that they are in a position to question their leaders at every level. Irresponsible citizens (at the household level and above) have no basis to demand accountability from their leaders.

x)    The Karamoja, Indian, Chinese, Buganda, Northern Uganda, Bunyoro and Oil Questions must be answered if Uganda is to realize human rights. The history that surrounds these questions is hinged on some of the most grotesque human rights violations recorded in Uganda.

xi)   Civil Society Organisations should form policy partnerships with Parliament deliberately targeting the Human Rights Committee of Parliament so that it is redeemed from Executive manipulation.

xii) Citizens within their various formations should surround Parliament as a show of support whenever the military is deployed around the precincts of Parliament.

xiii)                Civic Education (with human rights as a module) must be introduced as a subject in the secondary schools curriculum.

xiv)                Civil Society Organisations and citizens should harness the strength of international dispute resolution mechanisms like the International Criminal Court to advance the cause of justice.

xv) There should be strong partnerships between human rights organizations so that they develop more effective synergies in the quest for the observance of human rights in Uganda.

2.    Multiparty Thematic Area: Chaired By Ms. Norah Matovu, FIDA (U)

Facilitator: Dr. Julius Kiiza, Political Science, Makerere University

i)     Review our history as Uganda and trace the causes of conflict so that we can avoid making the same mistakes in future.

ii)    Build strong functional political parties so that they are able to participate meaningfully in democratic contestations.

iii)   The military should be divorced from electoral politics so that there is a level-playing field for all political parties without an overbearing ruling party.

iv)   Encourage the young (especially 16-35 years old) to participate in politics.

v)    Clearly define the role of the Army in politics.

vi)   Build a critical mass from the population that can hold government accountable.

vii) Stop the blame game and find workable solutions.

viii)            Eradicate poverty so as to enable citizens to make independent decisions.

ix)   Promote the meaningful and participatory inclusion of women and the youth in politics.

x)    All political players should respect and uphold the rights of minority views, not just the majority views.

xi)   Create a black-list for those who are violating human rights in Uganda i.e. police officers, government officials etc which will be referred to for use in the next political dispensation.

xii) De-politicize service delivery; divorce government programmes from the ruling party.

3.    Electoral Reforms Thematic area: Chaired by Bishop Zac Niringiye

Facilitator: Hon. Lydia Wanyoto Mutende, Former MP, EALA & Former Member, NRM Electoral Commission

i)     Review the electoral laws such as the Presidential Elections and Parliamentary Elections Acts.

ii)    Have cross-cutting representation of political parties on the Electoral Commission.

iii)   Inclusive participation of citizens in the selection of commissioners on the Electoral Commission’s management.

iv)   Effect and strengthen penalties for electoral offences so as to have deterrence against ballot stuffing, intimidation and other such violations.

v)    Strengthen the institutional framework that supports the operations of the Electoral Commission.

vi)   Rename the Electoral Commission as the Independent Electoral Commission and then ensure that it is an independent institution that is free from the influence of any interference, political or otherwise.

vii) We must have a credible voters’ register that has gone through the process of updating, validation and deletion; the constituencies and their corresponding polling stations must be demarcated ahead of time and citizens must be involved in this process.

viii)        Civic education must be heavily invested in by civil society so that the population is aware about their roles and responsibilities in the electoral process.

4.    Separation of Powers Thematic Area: Chaired by Hon Betty Oilve Kamya, President- UFA

Facilitator: Hon. Miria Matembe

i)     This break-out session observed that there are myriad challenges to the observance of the Rule of Law in Uganda including but not limited to:

·         An overbearing Executive;

·         An emasculated Judiciary which is routinely intimidated and harassed by the Executive and which for close to a year has had no substantive Chief Justice;

·         The militarization of Cabinet through the appointment of serving soldiers;

·         Outright disregard by the Executive of court decisions.

ii)    It was against the backdrop of these observations that this group resolved that crucial for the realization of Separation of Powers in Uganda is that the judiciary must be free from undue political interference; Parliament should be independent so that it can exercise its oversight role over the Executive.

iii)   The recommendations made were as follows:

iv)   The Speaker and Deputy Speaker should not be selected from Parliament and should not hold any position of leadership in a political organization/party.

v)    The decisions/recommendations of the Judicial Service Commission and the Appointments Committee of Parliament should be above the President’s power of veto.

vi)   Ministers should not be selected from Parliament for appointment because as the situation is today, Parliament has been fused with the Executive and this is further reflected in the voting patterns which reduces Parliament into a vestige of the Executive.

vii) There should be limited time within which to approve an appointment recommendation that has been made so that the President does not drag his/her feet at the expense of citizens who should be served by the arms of government.

viii)          There should be public scrutiny and vetting before public positions are assumed by appointees.

ix)   Presidential term limits should be restored in the Constitution.

x)    Government must be separate from the State; the infrastructure of the State must be separate from Government. Government is a transient group of people who have “won a contract” to implement their manifesto; the State on the other hand is the permanent infrastructure (Police, Revenue Authority, Electoral Commission etc) that should ideally support whichever government that assumes power unlike today where Government and the State are joined at the hip.

xi)   The President’s powers to appoint must be limited to Cabinet and Advisors.

xii) Members of Parliament should not vote on laws that they have not debated; they must also present evidence that they consulted their constituents.

xiii)          Seek extra-legal means of resolving the constitutional crisis we are resolved with. The citizens should take up the situation and resolve it because there is no hope in the current regime to self-correct.

xiv)          The power to recall a Member of Parliament should be resurrected in the Constitution (Article 84) so that citizens have power to recall leaders at parliamentary level.

xv) We should invest in the revival of societal values as a remedy to the crisis of morals in Uganda.

xvi)          There should be term limits for Members of Parliament.

xvii)         Civil Society Organisations should invest in a caravan for constitutionalism.

xviii)       The bar for who qualifies to become MP should be raised above a Senior 6 certificate so that the quality of debate, legislation and oversight by Parliament is improved.

xix)          There should be deliberate investment in the development of ideology-based political parties that have socio-economic constituencies.

xx) On a light note, it was recommended that Parliament be facilitated by lobby groups from the Civil Society to support Members of Parliament to reinstate term limits in the Constitution.

xxi)          There should be a genuine devolution of administrative powers to the lowest units of government.

xxii)         The Army should not be represented in Parliament because they are already part of the Executive.

xxiii)       There should be a Constitutional review process with a view to reducing the powers of the President.

xxiv)       Uganda should have a Truth-telling and Reconciliation Committee to support a national healing process.

xxv)         Ethnic communities should not be punished for the actions of individuals or small groups. There should be individual responsibility for individual crimes.

xxvi)       The Constitution should guarantee a functional and inclusive economy.

xxvii)      Citizens’ pressure must be brought to bear on the Judiciary so that every judicial officer is daily reminded that his/her actions or inactions can plunge this country back to war or set it on a path of progress, stability and unity and a nation of opportunity and dignity for all.

xxviii)     Civil Society Organizations should participate in the formation of policies that precede legislation so that there is an input and a level of influence that we have over the policy formulation and legislation.

Closing Session: Chaired by Mr. Mohammed Ndifuna, Executive Director, HURINET (U)

The Communique was read out by Mr. Okwiri Rabwoni:

Communique

Citizens’ Resolutions Passed and Adopted on the 6^th Day of December 2013, at Imperial Royale Hotel, Kampala

During the First National Conference on the Constitution

Aware that Uganda promulgated a much-celebrated Constitution in 1995 which promised to be the beacon of Uganda on the path to growth and prosperity;

Cognizant of the fact that a number of challenges have hamstrung the full realization of the Constitutional order that came into being including the nurturing of a culture of respect for established norms and the Rule of Law;

Recognizing the critical role of the Civil Society, political party representatives, academia, members of professional bodies, Members of Parliament and representatives of government institutions in entrenching Constitutionalism and the Rule of Law;

The Centre for Constitutional Governance, African Institute for Energy Governance, the Human Rights Network and the Uganda National NGO Forum have provided a platform to address the state of the implementation of the 1995 Constitution, As amended;

We the citizens of Uganda herein assembled have addressed our minds to the state of constitutionalism in Uganda and adopt the following Resolutions:

1.   Constructively and actively engage in building enduring Constitutions by advocating for a review of the current Constitution with a view of arriving at a sustainable and inclusive settlement of historical questions that have permanently bedeviled the Ugandan polity, the Rule of Law, Democracy and Constitutionalism;

2.  Advocate for the creation of economic conditions for Constitutionalism by engaging in the formulation and implementation of radical, transformative policies that will support the attainment of social and economic rights of the citizens of Uganda so that they are able to agitate for their civil and political rights;

3.  Agree to create a framework through which citizens can defend the Constitution through this National Conference process deliberated upon today by carrying out regional consultative conferences and a series of national conferences, involving all stakeholders;

4.   Undertake regular, accurate and critical analysis of the state of Constitutionalism and the Rule of Law beyond academic discussions but mobilize the public on specific issues such as the presidential term limits, appointment of serving soldiers to Cabinet; meaningful electoral reforms and the attempts to impose an unqualified Chief Justice on the Judiciary;

5.   Lead the struggle for genuine transformation for an environment for Constitutionalism and the Rule of Law to take root by raising the awareness of the citizens, particularly those in the rural communities;

6.   Raise the civic competence of the citizens through creating awareness together with Civil Society and the Media as well as playing a front-line role on engaging the oversight arms of government to develop common ground;

7.   Adjudication and challenging the status quo in areas of glaring affronts to Constitutionalism such as the fractious and illegitimate Public Order Management Act and related laws;

8.   Establish and nurture an economic mechanism that works for all Ugandans and not just a few;

9.   Pursue an end to impunity by contributing towards the development of appropriate mechanisms with the ultimate objective of enshrining accountability;

10.        Strengthen and develop relevant networks and partnerships with the broader Civil Society actors such as academic institutions, the media and other players in the struggle;

We so declare!

Closing Remarks by the Speaker of Parliament of the Republic of Uganda, RT Hon Rebecca Alitwala Kadaga:

She stated that Eighteen years (18 years) of the Constitution is a lifetime. Those who were born in 1995 are now ready to vote. The challenge, however, is that very few Ugandans have had access to the Constitution. The Constitution needs to be translated in a language that people can understand; and this deficiency to be cured.

She stated that so far, CSOs have shown no interest nor capacity to draft private members’ Bills on ECOSOC rights as enunciated under Article 40 of the Constitution, yet this is the heart of the economic rights for Ugandans.

The Speaker said that she has found the question of appointing serving soldiers as ministers very problematic. There are many areas in the Constitution that require review like the issue of appointing servicing soldiers to Cabinet: “on one hand, you have the Constitution that directs you to ensure that the army is in the House but the same Constitution says that army should not participate in politics”. How do you resolve this? These are two commands that are contradictory in the Constitution. These contradictions should be resolved.

Kadaga also revealed that she had not received the electoral reforms from both the government and the opposition. She said that if these reforms are brought before her, she will fast track them because in order to ensure that there is deep thinking before matters are passed into law. She called upon CSOs to intensify their demand for these reforms so that they are debated and passed on time.

She pledged the support of Parliament to the National Conference on the Constitution as well as to CSOs participating in the promotion of constitutionalism and good governance in Uganda.

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