Is the Legal and Parliamentary Affairs Committee of Parliament ready for Constitutional Horse-Trading

Published in 9th June 2015 in Daily Monitor Uganda is currently undergoing a process of amending the Constitution. The Legal and Parliamentary Affairs Committee is holding public hearings on Constitutional Amendment Bill No 11 of 2015. This process will lead to the fourth amendment of the 1995 since its promulgation. It’s important to note that this is a unique approach to the process of amending the 1995 Constitution, save for the first amendment when a vote for a referendum was passed without quorum and was successfully challenged in the courts of law. In 2005, the two subsequent amendments were made after debate on the Sempebwa Constitutional Review Commission Report which had been constituted to receive and compile peoples’ views for Parliament’s consideration. A principled constitution building process means that everyone will need to lose something in order to gain something better. What distinguishes constitutional politics is that constitutional amendments will gain legitimacy only if they have the broadest base of supporters. So, political players of constitutional politics realize that their success also needs to be built on shared values and principles as the only way to give everybody a stake through constitutional horse – trading. The main reason why constitutional reforms succeed or fail in their countries is the way people in power behave at critical times when there is need for cooperation in stakeholder-driven constitutional reforms. In South Africa, the text of the constitution emerged as a final negotiated settlement between the leadership of two dominant parties during the post-apartheid era in 1994. Also in 2010, Kenya enacted a politically negotiated constitution after the polarization of the 2007 post-election violence. From these and numerous other examples, divided societies could draw the general lesson that constitution building is all about exclusionary pragmatic politics of accommodation. Yet while politics may be the decisive and necessary factor for the successful completion of constitution building, it involves the unacceptable risk that partisans will go no further than is needed to entrench their own primary interests, even if the distance required for a durable and broadly legitimate constitution requires more work. Constitutional Review Processes are concerned with the strategic use of principles to shape processes rather than constitutional content. The relevant principles are not merely an idealistic aspiration.  There must be inclusive dialogue in the process of constitutional reforms especially between and among political actors, often times because of their partisan interests. This prevents any single party acting alone from obstructing the completion or reverse the rules of the game at a future stage. Constitution building anticipates the politics of accommodation so that everyone owns the outcome and is supportive of the New Constitution that is representative of the broader views of all stakeholders. Shared principles are one way to give everyone a stake in constitutional horse-trading, while realistically acknowledging that constitution building is fundamentally political.

The 9^th Parliament has a duty to ensure that the amended Constitution has acceptability and legitimacy from all the stakeholders. A nation confident in a stable future of internal harmony and agreed purpose is not the typical site of constitution making today. A changed world calls the utility of the traditional model of the constitution into question and how high a bar that traditional model of an act of completion sets to establishing and legitimating constitutions for posterity.

Gone are the days when a constitution is seen as a contract, negotiated by appropriate representatives, concluded, signed, and observed. The constitution of new constitutionalism is, in contrast, a conversation, conducted by all concerned; open to new entrants and issues, seeking a workable formula that will be sustainable rather than assuredly stable.

The Legal and Parliamentary Affairs Committee has replaced the Odoki and Sempebwa Commissions and should genuinely assess peoples’ views to come up with representative amendments to the Constitution.

Constitutional making processes have no room for party positions and the only victors are the people.

Sarah Bireete (Lawyer)

Center for Constitutional Governance

s.bireete@ccgea.org