State of Constitutionalism in Uganda: Challenges in Observance
Introduction
Constitutionalism is the idea that government can, and should, be legally limited in its powers, and that its authority depends on observance of these limitations. Any state must have some acknowledged means of constituting and specifying the limits (or lack thereof) placed upon the three arms of government: legislature (making laws), executive (implementing laws) and judiciary (adjudicating disputes under laws).
Today, the National Resistance Movement (NRM) government faces a crisis of legitimacy and credibility on a number of issues arising from failure to fully implement the Constitution. There is failure to uphold the doctrine of separation of powers; failure to fight corruption; lack of civil/political rights; cases of unlawful detentions, unfair trials and torture. Around the country, people continued to suffer extreme poverty and social injustice, while the government continues to spend freely on items such as arms/fighter jets.
Essence of Constitutional Government
Constitutional government is limited government based on a prescribed division of powers among public officials. The leading principle of constitutional government is known as the rule of law. This signifies that no political authority is superior to the law itself. When and where the rule of law is in force, the rights of citizens are not dependent upon the will of rulers; rather, their rights are established by law and protected by independent courts. Individuals, thus, have a secure area of autonomy and have set expectations of having their rights and duties pre-established and enforced by law. Related to the principle of the rule of law is the doctrine of the supremacy of law. This is a fundamental concept which requires generality in law. It is a further development of the principle of equality before the law. Laws should not be made in respect of particular persons. The idea of supremacy of law requires a definition that must include the distinction between law, executive administration and prerogative decree.
Failure to maintain the formal differences between these issues would lead to a conception of law as being nothing more than authorisation for power, rather than the guarantor of liberty equally to all.
Principles of government are normally associated with the rule of law and include independence of the judiciary and the right of redress for injustices perpetuated by the state. Security of tenure for judges, the judges’ own distinguished traditions of learning, integrity and technique as well as the law of contempt, ensure that proper judicial review processes can take place. Judicial review empowers a court to invalidate the acts of a legislative body or executive officer. Without these powers of the judiciary, the most elaborate system of rights, remedies and procedures would be of little use/ inconsequential.
Further, structural principles exist that determine the forms of constitutional government. The principle of separation of powers is premised on the basis that when a single person or group has a large amount of power, it can threaten citizens.
Separation of powers is a method of checking the amount of power in any individual or group’s hands, making it more difficult to abuse such power. Protection of the people against misuse of power by the state itself is, in the first instance, secured when the functions of the government are kept separate and when ultimate power of the state vests, in the final analysis, with the people, who exercise it through election of representatives in regular, free and fair elections. The principle of separation of powers relates to the very heart of constitutional government, which is to structure political institutions with the requisite powers and independence to make judgments that respect equal rights of free people, while at the same time promoting the public good.
As a feature of constitutionalism, rules imposing limits upon government power must be entrenched, either by law or by way of constitutional conventions. In other words, individuals whose powers are constitutionally limited must not be legally entitled to change or expunge those limits at their pleasure. Where a government is entitled to change the very terms of its constitutional limitations at its discretion, it is questionable whether there would, in reality, be any constitutional safeguards for the public.
The letter of the constitution by itself is neither enabling nor constraining. For constitutional provisions to operate meaningfully and effectively institutional and cultural apparatus to implement, enforce and safeguard the constitution must be in place. The rule of law is one key components of the constitution’s implementing and safeguarding apparatus. An independent judiciary and the notion of the supremacy of law all work together to ensure that the letter and spirit of the constitution are honoured in the workings of a constitutional government.
It is against this background that this chapter discusses the observance of fundamental constitutional principles with regard to the three state organs mandated to uphold minimum constitutional guarantees in protection of its citizenry.
Security Agencies and Respect for Rights
The role of the army as part of the executive still raises concerns. Although the NRM government has in relative terms endeavoured to discipline and professionalise the army, its role in elections and its presence in parliament still raise questions. In view of the history of the army in usurping power in the country, this position still causes concern. The presence of the Uganda Peoples Defence Forces (UPDF) members in Parliament also contradicts their non partisan character especially since they sit and vote with the ruling government. Actions of other security agencies, which form part of the executive, illustrate excess use of power by the state. The Uganda Human Rights Commission (UHRC), in its reports, still maintains that torture continues to be a widespread practice amongst security organizations in Uganda, being commonly used to humiliate and break down suspects during investigations ( especially on members of the opposition). The issue of “safe houses” also remains unresolved.
Functions of Public Officers
Public officials in Uganda owe their allegiance to the president rather than to the state. Indeed, many such officers cannot be appointed to their offices without the president’s approval. This is a matter that raises concern about whether such officers owe allegiance to the state or to the president, and hence whether they can question actions of the president that are not in the national interest.
Excesses of Power: Overstepping permissible limits with the Judiciary?
The executive publicly attacks the work of the judiciary on land matters, and bail and the classic example is when the Peoples Redemption Army (PRA) suspects were granted bail and the famous black mamba attack on the temple of justice (High Court). Also on 27 June, the president rejected a constitutional court ruling that nullified the 2000 referendum, saying that the government would not accept the contents of the ruling.
President Museveni said that a closer look at the ruling revealed an absurdity and shocked the general moral of common sense: “We restored constitutionalism and the rule of law. That is why judges can rule like
this against the government. There were times when if a judge made such a ruling, he would not live to see tomorrow. The ruling will not work. It is simply unacceptable. Judges say Article 74 has evaporated. Article 74 is not dead. The movement system is not dead. We are all here.”
The courts were forced to close, resulting in cessation of their work, when the public, after hearing these statements, took to the streets and demonstrated to oppose the ruling. The president made matters worse when he inferred that the judiciary was not impartial. In a public address, he stated that the Democratic Party (DP), which had filed the petition on the legality of the referendum, always filed weak cases only to be helped by “their friends the judges”. He thereon pledged to “sort out” the judges and stated that the days for “biased” courts in the Ugandan judiciary were numbered. He stated that judges were hiding behind the principle of separation of powers to mete out injustice to the people.
Violation of Other Human Rights
In 2004, the government, through the Broadcasting Council, closed down a television station and four radio stations, apparently due to unpaid licence fees. An official of the Council stated that about thirty radio stations and three television stations faced closure over unpaid license fees. This, by then, raised the question of deliberate hiking of licence fees by the government, thereby forcing broadcasters off the air and limiting peoples’ rights to expression and information. Later, this became a case by case clamp down on media freedoms and right of freedom of expression with the closure of a Soroti-based private FM radio station, Kyoga Veritas, for allegedly because it defied a ministerial directive to refrain from broadcasting news about LRA attacks in the region. It’s also important to note that during the 2001,2006 and 2011, radio stations or presenters that hosted opposition leaders were closed/fired or suspended and this trend worsened after the 2009 Buganda riots where a large number of radio stations were closed and radio presenters arrested/prosecuted/fired for discussion on the riots. Today, a number of radio talk show programmes have been suspended in the directive of the media council for discussing corruption scandals which involve highly connected politicians. This is a clear infringement of rights enshrined in the constitution, harming constitutional development in the country.
At the same time, the government still interferes with the people’s right to free association by limiting the ability of political parties/ civil society groups to undertake their work. The Uganda Police Force (UPF) whose constitutional mandate is to keep law and order has continued to abuse Chapter IV of the Constitution on the protection and promotion of fundamental and other human rights and freedoms especially civil and political rights. The Kiboko squad continues to cause mayhem on civil political leaders supervised by the Police.
Journalists are still beaten up and their gadgets destroyed by police while on duty and also they are still arrested/persecuted for reporting what the government does not want to hear. This was intended to intimidate the journalists into ceasing to report freely on the key governance issues in Uganda.
Legislation and Public Participation
Laws and bills that infringe on rights have gained positive state audience and attention. One such bill is the Public Order Management Bill where government seeks to ban any meeting or two or more people without police permission. Government is also proposing that whoever wants to use public address system must first obtain police permission. The law further seeks to impose a liability duty on the owners of the premises where such meetings will be taking place. Other recent laws like the Non- Governmental Organization (NGO) Amendment Act, which has put in place stringent provisions for regulating the work of NGOs. Requirements, such as annual registration and license fees, put NGOs in an awkward situation. This Act fails to recognize NGOs as partners in development with government. It sought to deny permits to NGOs whose development plans or activities might be against or contradict government policies.
The Legislature and Observance of Constitutional Guarantees
Following the promulgation of the Constitution in 1995, Uganda opted for a presidential and parliamentary democracy. The main emphasis of the constitution was to ensure that the sovereignty of the people was exercised through a democratically elected representative body called the legislature.
Most functions by the executive branch of the government are accountable to parliament. Parliament is supposed to exercise control over the executive arm of government through legislative business. Besides ministers, including the president, are answerable to parliament for their actions. Therefore, parliament has a significant role to play in improving the quality of governance.
For the 9th Parliament, during its first year, it was generally seen as assertive and its actions upheld the rationale for constitutional governance. But with the Kyankwazi interference and arrests of Mps after the death of the colleague the Late Cerinah Nebanda coupled with the failed recall of Parliament at the beginning of 2013, the vibrant Mps have gone silent. It’s important to note, therefore, that the executive arm of government is still reluctant to accept in good faith resolutions of parliament as an autonomous body. In these instances, the executive has made deliberate moves to influence parliament’s decisions directly, for example, by invoking party sentiments or political patronage when it came to voting on contentious issues.
Law in the Making
a) Public Order Management Bill, Bill No.3 of 2011
What is the spirit of this Bill?
Following the civil unrest in the country- dating back to the 2007 Mabira riots, Government proposed a bill for the management of public order which was first drafted in 2009.
The objective of the proposed Bill is to provide for the regulation of public meetings, duties and responsibilities of police, organizers and participants in relation to public meetings/gatherings; and to prescribe measures for safeguarding the public order without compromising the principles of democracy, freedom of association and freedom of speech.
Several developed democracies have legislations on public order management, but the timing of this particular Bill is suspect considering the manner in which police mistreats unarmed civilians and the media during demonstrations. However, if a Bill of this nature must be enacted, then the following should be addressed:
The proposed defining of political organization as “any organization which has among its objectives any political purpose or which pursues a political purpose” can be interpreted to include civil society organizations. This should be limited to the definition in the Political Parties and Organizations Act 2005. Also the defining of a public place as any place where people are gathered is vague. A public place definition should be limited to the definition in the Penal Code Act. A clause proposing that the IGP should be given powers to regulate public meetings and assemblies is unconstitutional. This reproduces section 32(3) of the Police Act, declared unconstitutional in Muwanga Kivumbi v. AG (Constitutional Petition No.9/05) in essence it seeks to re-instate a provision that has been nullified by the Courts of law, by restoring to the IGP the power to permit or disallow an assembly/rally. It’s inconsistent with Articles 29(1) and 43 (2) of the Constitution. Article 92 of the Constitution prohibits the passage of legislation to alter the decision or judgment of any court. The bill further proposes such limitations like organizers giving notice to the police seven days prior to the meeting, etc.
It’s is important to note that the proposed powers of the IGP to stop public meetings or assemblies is already taking place illegally and this is a retrospective measure by the government to cover the unconstitutional acts.
b)-The Oil Bills:
Petroleum wealth has the potential to help raise millions out of poverty, but it also runs the risk of plunging Uganda towards the resource curse. This has created immense expectations/anxiety amongst the population and this calls for increased public participation. A robust legislative framework which provides transparency and accountability in the management of the sector is a first vital step to ensuring that Uganda gets a fair deal for its resources and ordinary Ugandan citizen’s benefit. As such, many stakeholders have a strong vested interest in promoting a solid legislative structure for the sector.
All the three Bills lack the guiding principles that are key in their formulation and implementation. These are:
Guiding Principles
(i) Institutional arrangements: There should be checks and balances whose hierarchy for decision making and the links with other institutions are clear. These should promote inter and intra institutional accountability;
(ii) Independence and autonomy of the institutions: There should be legal safe guards against political interference/undue influence that would otherwise promote patronage politics or compromise the functioning of the institutions;
(iii)Transparency in decision making: There should be best practices like a statutory obligation to publish all license holders, bidders, disclosure of the Production Sharing Agreements (PSAs) and all decisions are made open and accessible to the public. The functioning of the Oil and Gas Sector should be inconformity with 41 of the Constitution on the right of access to information and the Access to Information ACT.
The passing of clause 9 in the Petroleum (Exploration, Development and Production) Bill 2012 on functions of the Minister gives the Minister powers to carry out the following: granting and revoking licenses; initiating, developing and implementing oil and gas policy; submitting draft legislation to Parliament; issuing petroleum Regulations; negotiating and endorsing petroleum agreements; approving field development plans; promoting and sustaining transparency in the petroleum sector; approving data management systems; any other function incidental or consequential to his or her functions.
Observation:
The minister cannot be an institution in the Act. The Minister is responsible for the implementation of the whole Act.
c)- The Public Finance Bill 2012
This bill will determine how the oil resources in the country will be managed. There is very little stakeholder involvement in the scrutiny of this bill and if the oil resources in the country are mismanaged, then the resource curse is eminent in Uganda.
The finance bill provided for a string of amendments to the Bank of Uganda Act, Income Tax Act and the National Audit Tax as a way of meeting new challenges such as the handling of oil revenues and the East African Customs Union.
The Bill also provides for a repeal of both the Public Finance and Accountability Act 2003 and the Budget Act 2001 to pave way for a comprehensive law on the management of the public revenue.
The Finance Bill defines the budget process and its attendant procedures such as the budget framework paper, supplementary budget and the roles of both the Accountant General and the Secretary to Treasury. The Bill also delineates the role of the Central Bank in the management of the Petroleum Fund.
Checks and Balances
Parliament has a watchdog function which is normally exercised most effectively under the specialized committee system through which it scrutinizes and evaluates the performance of other organs of government, especially the executive. In the exercising of these checks and balances, parliament asserted its authority in several regards:
• Parliament rejected some of the President’s Ministerial Nominees
•Parliament has been investigating major corruption scandals and this caused the resignation of Ministers Syda Bumba, and Kiddu Makubuya and the stepping aside of Ministers Sam Kuteesa, Mwesigwa Rukutana over the CHOGM funds.
Conclusion
Recent governance events in the country have brought successes and challenges for Uganda’s constitutional undertakings. Successes related mainly to progressive rulings of the judiciary. Parliament endeavoured to fulfill its legislative function; but overarching these two arms of government, the executive clearly remained intent on ensuring that neither the judiciary nor parliament took actions to undermine its political aims. In doing this, the executive sometimes used arbitrary means.
As mentioned, constitutionalism involves rules that impose limits upon government power which are entrenched in some way, either by law or by way of constitutional conventions. Dialogue amongst all Ugandans must continue to ensure that the three organs of the state are strengthened and that mechanisms for enabling independent and effective functioning of each one of them are not eroded.
