NATIONAL DIALOGUE ON COBNSTITUTIONALISM 2014

NATIONAL DIALOGUE ON CONSTITUTIONALISM IN UGANDA – 2014

Wednesday 17th Dec 2014, Katonga Hall, Hotel Africana, Kampala
 
Press Statement
 
Background:
The 1995 Constitution of the Republic of Uganda has been
amended three times since its promulgation as follows:
• The Constitution Amendment Act, 2000, Act No.13 of 2000
which commenced on 1st September, 2000
• The Constitution Amendment Act, 2005, Act N0.11 of 2005
which commenced on 30th September 2005 and
• The Constitution Amendment Act, 2005, Act No. 21 of 2005
which commenced on 30th December 2005

There has been proposals and calls for constitutional reforms from
civil society organizations, political parties and the general public
premised on challenges facing governance in Uganda like:
• the lack of separation of powers in the three arms of government
especially the fusion of Executive and Parliament with
Ministers being part of Parliament and dominance by the
Executive
• Absence of a substantive Chief Justice in the country
• Concerns about the absence of freedom of assembly, association
and expression in the country
• Violation of human and fundamental freedoms
• Free and fair elections
• The need for review of the whole affirmative action composition
in parliament with proposed term limits for the women
MPs and calls for the removal of UPDF from Parliament
which is a partisan arena whereas the constitution requires
the UPDF to be non-partisan
• Need for the reduction of presidential powers throughout
the Constitution

As the Country prepares for the 2016 General elections,
major political parties are holding delegates conferences to
amend their party constitutions, among others but there is
a big challenge of internal party democracy. Cabinet is also
proposing to amend the Constitution in yet another major
overhaul process like the 2005 amendments. It’s important
to note however, that the proposed amendments do not
address the current constitutional challenges in the country
like the fusion of the different arms of government, the
limited political/civic space for engagement and mobilization,
among others and there is limited time for the people
to debate the proposals and make recommendations.
 
Key Questions of the day:

1. Can political parties which do not have internal democracy
give democracy to the country?
2. Does political power still belong to the people as enshrined
in Article 1 of the Constitution? Is Uganda still being governed
according to the wishes and aspirations of the people?
3. Do we still have the consensus generated in 1995, during
the constitutional making process?
 
Purpose:

The purpose of this national Dialogue is to analyze the above
challenges and generate consensus on the way forward for constitutional
governance in Uganda, ahead of 2016 elections.
Objectives:
(i) Debate Cabinets proposed constitutional amendments and
their implications
(ii) Debate the question of internal democracy in political parties
(iii) Generate consensus on how Ugandans can positively influence
the above two processes
 
Methodology:

The Dialogue will be held in an open interactive plenary. There will
also be an online- interactive Live Twitter Streaming Forum using
Hash Tag #Constitutionalism
 
Expected Outcomes:

1. It’s expected that this Dialogue will result into people centered
constitutional reforms that shall be submitted to Parliament
for consideration during the Constitutional amendment
process.
2. People will also be sensitized on the challenges ahead in
Uganda’s journey for constitutional governance.
Participation:
The General Public is invited to attend.
 
Main Speakers:

1. Hon Nuwe Amanya Mushega (FDC)
2. Hon Norbert Mao (DP)
3. Hon Simon Mulongo (NRM)
 
Contact:

Ms. Sarah Bireete
Center for Constitutional Governance (CCG)
info@ccgea.org or s.bireete@ccgea.org
0312 237113/0772 247977

DOCTRINE OF SEPERATION OF POWERS

Doctrine of  Separation of Powers:

By Hon Dr. Miria Matembe 

(Paper presented during the First National Conference on the Constitution)

The origins of the doctrine of the separation of powers can be traced back as far as ancient Greece. It was made popular much later by French philosopher Charles de Montesquieu in 1748 in his work L'Esprit des Lois (the Spirit of the Laws). He wrote that a nation's freedom depended on the three powers of governance—legislative, executive and judicial—each having their own separate institution. 

Since that time this principle has been widely used in the development of many democracies, thus placing the doctrine of separation of powers at the heart of constitutional governance.

Human government is a man made institution starting from the days of the mighty hunter, Nimrod. The numerous nations in our deficient world are all ruled by some sort of government. No matter how the function of governing is executed each one encompasses three aspects which operate in accordance with the principal of administering, legislating and adjudicating. 

Even in the excessively dictatorial countries of our woeful world? Government structure subscribes to these three branches of rule. There is no alternative unless people support the cruel utopia of anarchism or the quirky aberration of the sharia law. 

In his Second Treatise of Civil Government, English philosopher John Locke (1632-1704) noted the temptations to corruption that exist where…” the same persons who have the powers of making laws to have also in their hands the power to execute them…"

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. 

Unlike in biblical terms where the Lord is the judge, the lord is the lawgiver and the Lord is the king (all in one) Isaiah 33:13-22. The principal of separation of powers provides for the different three state organs performing different functions with each of the organs providing a check on the other.

Therefore the doctrine of separation of powers separates the organs of the state into three branches: legislature, executive and Judiciary. Under this doctrine, the power to govern is distributed among these three organs to avoid one group having all the power.  The legislature makes the laws the executive enforces the laws and the judiciary interprets them and adjudicates over controversies. The powers and functions of each are separate and are carried out by separate personnel. The object of separation of powers is to develop mechanisms to prevent power being over concentrated in one arm of government.

However no single organ is able to exercise complete authority but they are inter connected in the execution of their duties, each being interdependent on the other. Power thus divided, should prevent absolutism (as in monarchies or dictatorships where all branches are concentrated in a single authority) or corruption arising from the opportunity unchecked power offers.

Uganda

Uganda constitution provides for the principle of separation of powers. It creates each of the three organs of the state and demacates powers and responsibilities among these organs as well as providing checks and balance among them. Under the system of checks and balances, each branch acts as a restraint on the powers of the other two. The application of this principal guarantees constitutionalism and the rule of law while promoting and protecting human rights of the governed.

However you cannot have a complete separation of powers because some of the roles of the Parliament, the Executive and the Judiciary overlap. For example, ministers who belong to the Executive are also members of Parliament. High Court Judges are appointed by the President and approved by Parliament. Therefore, none of the organs exercises complete authority on its own.

Challenges in Uganda today

The NRM government is credited with the restoration of constitutional order in Uganda and this can be traced from the spirit of the Odoki Commission, the Constitutional Assembly debates and the promulgation of the 1995 Constitution of the Republic of Uganda, which is largely celebrated as one of the best Constitutions in Africa.

However, the same 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; violations of civil/political rights; cases of unlawful detentions, unfair trials and torture. Around the country, people continue to suffer extreme poverty, social injustice, fear, intimidation and harassment especially during elections.

The constitutional order has sine the removal of the presidential term limit long been over thrown and replaced by militarism and monetization of elections. 

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 component 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. Unfortunately in Uganda it is rule by law rather than the rule of the law which operates. Therefore in Uganda we have a constitution without constitutionalism.

Challenges facing the Principle of Separation of Powers in Uganda

·  The president abuses his powers with the assistance of his majority NRM party in the parliament; the president oversteps his authority and thus undermines the authority of the other organs. For instance the power to make political appointments which he is supposed to share with other organs i.e. parliament and the judicial service commission. I.e. the case of Hon Nantaba, the case of Hon Aronda and finally the case of  Justice Odoki

  The executive violates the principle of independence of the judiciary; the judiciary has been subjected to either verbal or physical artillery and is under constant intimidation and threat. Right now it has no substantive head simply because the president has refused to appoint one in accordance with the law.

   i.            The president kept craving for the time when he would” liberate “the judiciary by appointing judges who are carders of the movement party.

   ii.            Recently he has been able to achieve that to a certain extent.

  iii.            But tell me how can cadres of the movement party administer justice independently? Are they national cadres?

  iv.            Sometime ago when the president was addressing the judiciary at the judges conference he publically accused some of them of bias wondering as to what should be done to biased judges (but who determines as to whether a judge is biased or not?) what are the appellant channels for, if it is the president to declare that a judge is biased simply because cases are not decided in his favor?

 v.             In the ongoing Lukwago case, you all heard the declarations of the prime minister and the attorney general in relation to the courts order on injunction.

 vi.            You all remember of the mamba’s invention of the judiciary and the kiboko guards within the judiciary premises.

 vii.            You might also remember when the boda boda guys were mobilized to invade and attack judiciary simply because a constitutional case was not decided in favor of the executive.

 viii.            Judiciary needs to be free from political intervention in order to administer justice fairly without fear or favor.

  ix.            Such a judiciary is lacking in Uganda.

·  The parliament has been rendered powerless in the exercise of its oversight role over the executive. Through the NRM caucus members of parliament are intimidated, harassed, and bribed in order to give in to the executive’s desires. Many incidences including the rebel (whom I call redeemer MPs case testify to this fact)

·  In a situation where the Parliament and the Executive are fused together while the judiciary is threatened and intimidated, one cannot talk of the principle of separation of powers. I am afraid, that is the situation in Uganda. The president (Not even the presidency) is the authority.

Proposals for Reform

·  Ministers should not be MPs

·  The speaker and the deputy speaker should not be MPs, but should rather be elected from outside parliament for the whole term of parliament so that they are not easily intimidated by the executive.

·  The army which is part of the executive and supposed to be non partisan should not be represented in parliament.

·   The president should have no right to reject the vetting of parliament and the judicial service commission in carrying out political appointments.

·  The president should have limited time within which to make the appointments after they have been vetted.

·   The vetting of political appointments by parliament should be transparent and subject to public scrutiny.

·   Judges should be appointed by the judicial service commission through public interviews and scrutiny and appointment by the president should be by way of endorsing those who have successfully gone through the interviews.

Is Democracy on a Declining Trend in Africa?

By Sarah Bireete

Director of Programmes

Center for Constitutional Governance (CCG)

Introduction:

It is now more than 20 years since pro-democracy grassroots organizations led struggles that eventually resulted in the overthrow of long-serving authoritarian regimes in many countries in Africa. Since the 1990s, there have been significant improvements in the transition to democratic governance in Africa. However, there have also been some major reversals.

Unfortunately, some pre-1990 incumbent leaders (for example, Paul Biya of Cameroon and Robert Gabriel Mugabe of Zimbabwe, President Museveni of Uganda) remain in power, despite efforts by the opposition to unseat them.

The failure of national institutions to grant adequate protection to individual liberties continues to plague countries into more democratic chaos

Political transformations across Africa have rarely come piecemeal. Instead, they tend to come in waves, sweeping across the region and leaving massive social transformations in their wake.

Previous Key Uprisings in Africa: 

1.      Pre Independence mass movements: The first wave includes the nationalist protests of the 1950s, a set of uprisings that culminated in the formal independence of almost all African states. During this wave, nationalist parties often moved to the forefront, redirecting often-inchoate and amorphous popular outrage at colonial rule into a clear demand for independence. By offering to negotiate with colonial rulers and constrain the undisciplined masses, nationalist elites were able to reap the benefits of independence. Unsurprisingly, once in power, the same elites quickly replicated many of the ruling practices introduced by colonial regimes, devoting much energy to demobilizing the popular constituencies that brought them to power in the first place.

2.      The Soweto uprising or Soweto riots were a series of clashes in Soweto, South Africa on June 16, 1976 between black youths and the South African authorities. The riots grew out of protests against the policies of the National Party government and its apartheid regime. June 16 is now celebrated in South Africa as Youth Day.

3.      The Third Uprisings encompass protests centered in West Africa that occurred between the mid-1980s to early 1990s. These protests, a response to brutal austerity measures imposed upon African states by the World Bank and the International Monetary Fund – Protests against the Structural Adjustments Programme (SAPs). These protests ushered in democracy across the continent. Opposition parties, often founded and controlled by former members of the ruling elite, successfully corralled popular energies into a narrow demand for elections. But what was the content of these ostensibly democratic reforms? Across Africa, participants in this protest wave found their legitimate demands for reform replaced with empty talk of multipartism. As Thandika Mkandawire wrote at the time, for too many African states, the democratic reforms of the early 1990s amounted to little more than “choiceless democracies,” assuaging the energies of protesters but denying them what they truly sought: political and economic transformation.

4.      “Arab Spring” – African Spring: The momentous people’s uprising of Tunisia and Egypt caught off guard peoples and nations around the world, and now clearly these upheavals have not only gripped the global community but they also seem to have wider ramifications in North Africa.

The uprisings in Tunisia and Egypt are the mass upheavals of African people and they compel us to constantly re-assess the past, and also enable us to come to grips with the complexity of the mass protests and relatively understand the essence and outcomes of the mass-based rebellions, although we may not figure out the definite future trajectory of the movements.

The North African uprisings, like plethora of other preceding uprisings throughout history, are not the deliberate preplanned actions of people. The human-agency-cum-peoples uprisings are indeed inseparable, but uprisings don’t happen by design; they just occur, and when they come no force can stop or deflect them because, in most instances, the impetus behind the upheavals are a combination of fragile and/or weak political systems and an angry people that have forged unity against the manipulative, tyrannical, coercive, and authoritarian regimes.

In the Tunisian and Egyptian cases, although there were no nominal leadership and the vanguards were amorphous, elite circles like the Revolutionary Youth Alliance in Egypt have coordinated the performance of the protestors by communicating with the different political groupings. The distinct advantage of the North African uprisings anonymous and informal leaders over the leaders of the classical revolutions is the fact that they were able to use the latest digital technology in communication, and it is not surprising that the mass upheavals are dubbed ‘Face Book Revolutions.’

The cause for the Egyptian popular uprising is essentially the same with that of Tunisia because both were governed by tyrannical regimes and both were engulfed by endemic economic crisis that directly affected the stomach of the multitude poor and the wallet of the middle class. Egypt, however, is much bigger than Tunisia and its population is eight times higher than that of Tunisia. Egypt also has relatively sophisticated civic and political institutions, including the most robust elite army in the entire Africa.

The spark of mass upheaval has now spread all over North Africa and the Middle East and in Algeria and Libya the protestors may not easily dislodge the dictators, and confrontations between the police and the people could be bloody, but in the long run democracy could triumph in the entire North Africa and the rest of the continent.

What is the implication of the North African uprising for Foreign Policy? I am of the opinion that the Western World can no longer afford to support dictators and sustain their rule, although it is understandable (but may be not morally acceptable) to deal with autocrats in the context of real politic.

The many individuals that participated in North Africa's grassroots revolution ... are frustrated because their revolutions did not achieve their critical goals. The struggles of grassroots organizations in Libya, Tunisia and Egypt are symptomatic of what needs to be done throughout Africa to deepen and institutionalize democracy.

CASE OF BURKINA FASO

In 1984, a year after coming to power at the head of a military coup, Thomas Sankara addressed the U.N. General Assembly. Claiming the mantle for the dispossessed, for women, for youths, for the poor, Sankara — then all of 34 years old and just three years away from his tragic killing — told the assemblage of international elites: “I protest on behalf of all those who vainly seek a forum in this world where they can make their voice heard and have it genuinely taken into consideration.”

Over the past three weeks, the events in Burkina Faso, a country he bequeathed with its unquestionably brilliant name (Land of the Upright People), justified his struggles and avenged his brutal murder.

The political and constitutional crisis in Burkina Faso erupted with speed and has passed through stages of military rule and the restored civilian rule now – with H.E Michel Kafando as the New President. Its immediate cause was a scheduled vote to amend the constitution, which would have paved the way for the incumbent president, Blaise Compaoré – who came to power in 1987 – to prolong his stay. But on Thursday 30 October, protesters took to the streets in the West African country’s main cities, Ouagadougou and Bobo Diolaasu, burned down parliament and ensured the vote’s indefinite postponement.

The questions raised by these developments go to the heart of constitutional democracy. They include why term limits have become such a sensitive issue in contemporary Africa, and why and how citizens are taking steps to protect them from abuse.

In Burkina Faso’s case, Article 37 of the 1991 constitution (which was revised in 2000, 2003 and 2012) imposes a two-term limit for the president. The planned vote was the second time Compaoré had sought to manipulate the rule; the first was in 1997, when he repealed the term-limit provision set in 1991, before civil and political strife forced him to reintroduce it in 2000.

Most sub-Saharan countries introduced term-limit provisions as part of a package of reforms in the early and mid-1990s to democratise politics and end the growing phenomenon of “life presidencies” in post-colonial Africa. The events in Burkina Faso provide a fresh reminder of a disturbing trend: presidents introducing constitutional term-limits only to scrap them (or attempt to do so) when they are no longer politically convenient. This has happened in two waves – with a third one now underway.

The political context of lifting presidential term limits

The first wave came just before and after the turn of the millennium. If Blaise Compaoré in 1997 was the pioneer, he was followed by Sam Nujoma of Namibia (1999), Omar Bongo of Gabon (2003), Lansane Conté of Guinea (2003), Gnassingbé Eyadéma of Togo (2002), and Zine el Abidine Ben Ali of Tunisia in (2002).

The second wave picked up from the mid-2000s through the turn of the decade with Idriss Déby of Chad (2005), Yoweri Museveni of Uganda (2005), Paul Biya of Cameroon (2008), Abdelazziz Bouteflika of Algeria (2008). There were also several failed attempts to abolish term-limits, including in Zambia (2001), Malawi (2003), by Olusegun Obasanjo of Nigeria (2006), Mamadou Tandja of Niger in 2009, and Abdoulaye Wade of Senegal (2011).

Today, a third wave is appearing, even as the crisis in Burkina Faso unfolds. Incumbents in at least three other African countries are currently seeking officially to scrap term-limit provisions to pave the way for their re-election, while others may discreetly be preparing the ground for it.

The first group comprises Joseph-Désiré Kabila in the Democratic Republic of Congo (DRC), Pierre Nkurunziza of Burundi, and Denis Sassou Nguesso of Congo-Brazzaville. In a familiar tone, characteristic of how changes have been engineered across the continent, allies of Rwanda’s Paul Kagame have been urging him to stay and are now seeking a vote to allow him a third term, even as the president himself remains suspiciously ambiguous on the subject. The incumbent Yayi Boni In Benin, often considered a rare positive story of francophone Africa’s democratic progress in recent decades, has also proposed reforms to the 1990 constitution which many local actors see as a strategic ploy designed eventually to extend his stay in power.

These nineteen countries, twelve of them francophone and six anglophone (along with Cameroon which is both) are a sad reminder of the challenges of entrenching democratic alternation of power and constitutional governance on the continent. In this context of events in Burkina Faso reinforce a glimmer of hope, resonant of the early days of Arab-spring revolts, that the populace can rise up to demand political change. They reveal that African political cultures, long held back by the chains of a victim mentality or tribal or patronage-based loyalties, are becoming more politically conscious and engaged. Younger Africans in particular are highly distrustful of politicians and becoming more resilient against repressive leadership. In addition they are also becoming more aware of their rights and more willing to fight to protect the constitutions in which these rights are enshrined.

The attitude of “Don’t Touch My Constitution” has inspired a French human-rights project with this name and provoked African citizens to widespread protests. In Senegal, the phrase was a rallying-cry for protesters as they fought Abdoulaye Wade’s efforts in 2011 to run for a third term. The same was the case in Cameroon in 2008 and more recently in the DRC. Although the protests have not all been successful, they are significant for two reasons.

Impact of Burkina Faso Uprising on Constitutional Democracy

Ø First, they demonstrate that citizens no longer see constitutions as a matter for politicians alone, but as determining their own relationship with these politicians. In other words, they are beginning to recognize not only what a constitution is but also why it matters for them.

Ø Second, they are a signal to authoritarian leaders across the continent that citizens are no longer prepared to remain passive observers while politicians make and break rules and tamper with their constitutions for selfish political interests.

It is not hard to see why this is becoming the case. Multiparty politics, introduced during the democratic reforms of the early and mid-1990s, has failed to take genuine root across most of Africa. A single party dominated by one individual has consistently dominated the political space, due in part to questionable, yet barely challenged, electoral victories. The well-known examples include Robert Mugabe’s Zimbabwe African National Union-Patriotic Front (ZANU-PF), Paul Biya’s Cameroon Peoples’ Democratic Movement (CPDM), Sassou Ngessou’s Congolese Party of Labour (CPL), Joseph Kabila’s Peoples’ Party for Reconstruction and Democracy (PPRD), and Kagame’s Rwandan Patriotic Front (RPF).

Opposition political parties are either too weak to be effective due to an uneven playing-field, persecuted and intimidated into silence, or become victims of different forms of cooptation by the ruling regime. In consequence, such parties split apart or lose public credibility, to the advantage of the ruling party. The examples of manipulation include Cameroon’s Social Democratic Front (SDF) and Zimbabwe’s Movement for Democratic Change (MDC).

Moreover, the dominance of one political party has created extremely weak political institutions. Legislatures are dominated by the same party that holds the executive power; judiciaries are packed with sympathetic judges; the military is co-opted with high salaries and other benefits. Thus, parliaments and judiciaries become mere agents of the executive, completely incapable of upholding the principle of separation of powers and providing effective checks on the executive. Unsurprisingly, African heads of state have become increasingly powerful and unaccountable, setting up patronage systems in which friends and sympathisers are rewarded and troublemakers punished.

All this has generated greater citizen distrust with the broader political establishment across the continent, often reflected in high voter abstention. Opposition parties as well as the ruling party are increasingly seen as two sides of the same coin, having the capture and retention of political power as their only objective and seeing political office only as a means for self-enrichment. The torching of Burkina Faso’s parliament and the homes of members of parliament from both regime and opposition sides is a clear sign of this broader dissatisfaction.

LESSONS FOR UGANDA:

So how can the widely observed political apathy in Africa be reconciled with the scenes in Burkina Faso, where citizens risked (and in thirty cases lost) their lives in order to prevent a parliamentary vote?

The timing is instructive. That the government was overthrown at the moment it sought to entrench its power in the constitution indicates a growing understanding of the separation of the state (as something owned by the people-as-sovereign) from the government (as transitory managers of the state on behalf of the people). The constitution provides the rules which cannot be broken if this core concept of democratic constitutionalism is to hold.

Blaise Compaoré - once regarded by some as Africa’s venerated peacemaker - is now gone in disgrace. Will others contemplating a longer stint in power take heed? Perhaps. But one lesson they must learn from Burkina Faso is that Africa’s citizens and youth are waking up and guarding their constitutions closely. It’s no longer business as usual.

This simply means the OUR ELECTED LEADERS CANNOT BE TRUSTED ON MATTERS THAT ARE CARDINAL TO OUR DEMOCRACY AND THE WELL BEING OF THE PEOPLE.

CONCLUSION:

 “Africa Uprising: Popular Protest and Political Change” – is a manifestation of the failing Electoral Democracy in Africa. The profound APATHY that has engulfed the whole continent has left the people more hopeless than ever imagined. Independence and democratization, both offered as resolutions to the continent’s structural woes, have brought little improvement to the African masses. And despite all the talk of “Africa Rising,” the challenges remain severe. After more than a decade of positive growth across Africa, little wealth has trickled downward to the vast majority of people.

Ugandan Youth should shade off their “Overdose of Fear – transverse the Political Jungles, brave the Tear Gas and Restore Sanity in this Country.