The Constitutional reforms should reflect our will and aspirations

Published 6 years ago - 76

 Aristotle the philosopher who lived between 384 – 322 BC defined the word “Constitution” as: the fundamental law, written or unwritten, that establishes the character of a government by defining the basic principles to which a society must conform; by describing the organisation of the government and regulation, distribution, and limitation on the functions of different government departments; and by prescribing the extent and manner of the exercise of its sovereign power. [1]

A copy of the 1995 Uganda Constitution

Among the qualities a good constitution  is that it should not be easily changed, but most importantly, should bear the aspirations of the people it is intended to govern. With a history of conflict and human rights violations right from colonial times where extensive measures of oppression used to suppress discontent and deny Ugandans their fundamental human rights, the 1995 Constitution of the republic of Uganda was promulgated, expressing commitment of the people of Uganda to building a better future by establishing a socio – 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. Against this background, through the Constituent Assembly, the 1995 Constitution of the Republic of Uganda was adopted on the 22nd  September 1995.

Since its promulgation, the 1995 Constitution has been amended three times, with the first amendment of 1st September 2000 being successfully challenged in the Supreme Court case of Ssemogerere and Others – vs – Attorney General, Constitutional Appeal No.1 of 2002, with Court observing that the amendment was inconsistent with Article 88 of the Constitution, which provides for the quorum of Parliament when voting on any question.

The second amendment was the Constitutional (Amendment) Act, 2005, Act No.11 of 2005, which among others, saw the removal of term limits on the tenure of the office of the President, creation of anti-corruption court, creation of the office of the Prime Minister and the Deputy Attorney General, and the holding of the referendum.

The third amendment to the Constitution of the republic of Uganda was the Constitutional (Amendment) (No.2) Act, 2005, No.21 of 2005, whose objectives were to provide for Kampala Capital City, creation of regional governments as the highest political authority in the regions, and to provide for new districts of Uganda among others.

The 1995 Constitution of the Republic of Uganda is one of the largely flexible constitutions, which is why in a period of 19 years, it has so far been amended three times, with the first being successfully challenged in Court. The Constitutional Amendment Bill 2015 will be the fourth time, an attempt is made to amend the constitution, and third if successful.

The US constitution is rather a rigid constitution and has since inception in 1787 in Philadelphia undergone 27 amendments, 10 of which were the Bill of Rights, or original Constitutional Amendments,[2] which means that the Constitution has only been amended 17 times. To amend the US Constitution, the process requires supermajorities at both proposals and ratification stages.[3] On the other hand, the UK Constitution is flexible because any of its institutions and rules can be abrogated or modified by an act of Parliament.

In light of the above, the rigidity or flexibility of the constitution should, in all manner of fact, not impede the aspiration of the people it is intended to govern. Being the grand norm, the Constitution should be suitable, representing the needs of the time and should provide for the rights and duties of the citizens.

The 1995 Constitution of the republic of Uganda under Chapter One, Article 1, establishes the sovereignty of the people who shall exercise their sovereignty in accordance with the constitution; and that all authority in the State emanates from the people who shall be governed through their will and consent; and the people shall express that will and consent on who shall govern them and how they should be governed through regular free and fair elections of their representatives or through referendum.

The current Constitutional (Amendments) Bill, 2015 before the Parliament of Uganda has drawn criticism from several people in the country, contending that they are largely uninformed and do not express the interests of the citizens of Uganda. During the meeting of the committee on Legal and Parliamentary Affairs, and the Minister of Justice and Constitutional Affairs along with the Attorney General held on the 12th May 2015, the Committee observed that the Ministry of Justice and Constitutional Affairs had received several proposals from different people and groups, but had adamantly disregarded them and desisted from incorporating them in the Constitutional (Amendment) Bill, 2015 that was presented to the Parliament of Uganda for consideration.

Subsequently, following the receipt of the Bill by Parliament, the responsibility of scrutiny was bestowed upon the Committee of Legal and Parliamentary Affairs, which immediately convened to commence its work, through public hearings, conducted within the precincts of Parliament so far.

Several interested individuals, government entities, political organisations/parties, Non-Governmental Organisations, and Members of Parliament have so far submitted their proposals for consideration by the committee to be incorporated into the Constitutional (Amendment) Bill, 2015. Some of the proposals include the reinstatement of term limits, which the Minister of Justice in his statement considered there was no justification thereof.

The Minister of Justice was also expected to present a proposal for electoral reform, with the change of the composition of the Electoral Commission but instead, his proposal only captured the change in the Electoral Commission name to Independent Electoral Commission. For some reason, during the 2005 constitutional amendment process, the composition Electoral Commission was not changed from the one-party political system (Movement System), yet the country had moved to multi-party politics. In this case, a mere change in the name cannot guarantee the provision of free and fair elections to the citizens of Uganda.

Following the meeting with several people and groups, there have been several proposals being submitted for consideration by the committee, who will eventually submit their report to the House upon completion of the scrutiny of the proposals. Some of the proposals include the amendment of Chapter 11 to provide for the adoption and incorporation of a Federal System of Governance as suggested by Uganda Federal Alliance; Family Life Network, an NGO. It is suggesting that the constitution should be amended to provide for the protection of the family by prohibiting homosexuality, and to provide for the right of the electorate to recall their representatives who do not represent their views.

There are so many views and suggestions that the committee has so far received, and others are yet to be received. As to whether they are incorporated into the Constitutional (Amendment) Bill, 2015, we are yet to know. But as of now, the committee has continued to be as fair as possible, to receive all amendment proposals without restricting to electoral reforms only. In fact, the Maragoli community in Uganda also submitted their request to be included in the third Schedule of the constitution as one of the tribes in Uganda since they lived in Uganda long before end colonial era.

At the end of the Constitutional Amendment process, one can only hope the final document will be a true manifestation of the will and aspirations of the citizens, who would have decided on how they should be governed, unlike the original document that was submitted by the Minister of Justice and Constitutional Affairs which did not capture any of the suggestions that were submitted to him through the Uganda Law reform Commission, but only those of the Executive arm of Government.






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