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!
