The Con­sti­tu­tional re­forms should re­flect our will and as­pi­ra­tions

By: Isaac Okello

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.

[1] Le­gal-dic­tio­nary.the­free­d­ic­​con­sti­tu­tion

[2] http://​billofrightsin­sti­​found­ing-doc­u­ments/​ad­di­tional-amend­ments/

[3] global.bri­tan­