There is renewed focus on Uganda’s Constitution following news of an intention by the NRM/Museveni junta to carry out major amendments that include removal of age-limit from qualifications of persons eligible for election as president.
Though a raft of wide-ranging amendments is to be presented by the junta, the one that is (rightly) causing the most excitement is the abolition of age-limit from Article 102(b) of the Uganda Constitution.
This is understandable because, after more than 31 years of a (controversial) Museveni presidency, this provision offered certainty that he would be disqualified for election as President in the next election slated for 2021.
The background to this excitement is because since political independence from British rule in 1962, no Ugandan leader has ever handed over power to another peacefully. The trauma of violence, distraction and uncertainty that accompanies change of leaders weighs heavily on the country.
Along with trouble in changing leaders has been the instability of the Uganda Constitution. Regimes make constitutions that vanish with them. The current Constitution was promulgated in 1995.
The 1995 Constitution was preceded by an elaborate consultative process (conducted by a Constitutional Commission) that culminated in a draft for debate by an elected Constituent Assembly (CA). Trouble started with how the CA was “elected” and the CA process managed.
NRM set up secret district committees that selected people that were funded and State machinery used to get them elected; many CA delegates were appointed into the Executive during the course of Constitution making; etc. This formed a large part of my (controversial) 1999 critique of the NRM.
Therefore, the Constitution making process was significantly manipulated and subverted by Mr Museveni, leading to some essential outcomes that were at variance with views expressed by Ugandans through the Constitutional Commission.
The subversion of the process notwithstanding, the 1995 Constitution contained vitally important elements and safeguards. These include: Sovereignty of the people and defence of the Constitution; Bill of rights; some checks on Executive authority; public finances and a (decentralised) local government system.
Since 1995, there have been significant and controversial amendments to the Constitution; clearly unconstitutional laws enacted and implemented; and outright gross violations of provisions of the Constitution.
Important among these amendments were the 2005 amendments that included the controversial removal of term limits on tenure of office of president. This was to facilitate Mr Museveni (the only affected Ugandan) to be a candidate again in 2006!
It’s against the above background that the current public anxiety has been heightened in anticipation of another round of tinkering with the Constitution, especially to remove the only remaining constitutional bar to what’s popularly referred to as a Museveni life presidency.
The Ugandan (and African) State and constitutions
A constitution provides the fundamental principles upon which a state is based; power is exercised and limited; and upon which the state governed.
Therefore, a constitution is made by, and for the benefit of, those who have power over the state. This is a critical matter that underpins Uganda’s (and most of Africa’s) constitutional challenges. Uganda (like other modern African states) was born out of the Berlin Conference (1884/5) that provided for “legitimate” territorial sovereignty over areas occupied by different European powers.
The Ugandan State was created by British coercive forces for purposes of extracting resources and taxes. The coercive control of Ugandans (Africans) was, indeed, not different from organised crime (protection rackets), save for the aura of Berlin Conference “legitimacy”.
The British made laws and rules and introduced advanced bureaucracies for governing Uganda to facilitate the taking resources and collecting taxes.
From 1890, when Buganda (and later other parts of present Uganda) came under British control, Ugandans lost their “citizenship” and became subjects of the Queen of England. They lost power over decision-making;
institutions of the State; and control over resources.
Although independence from British rule (1962) and the Independence Constitution ended direct British control, power was still controlled (by post-colonial rulers) using the same coercive forces- the military and security institutions!
That’s why the Independence Constitution (made by some representatives of Uganda’s main ethnic groups with British “facilitation”) was shortly overthrown, and another imposed by the new rulers. The same source of power afforded the new (Independence) rulers to have control over decision-making, State institutions and national resources.
Since power resides in the coercive forces, all changes of Uganda’s leaders have been mediated by force/ violence. Each regime has had its own constitutional order. I’ve already referred to the status of the current (Museveni) Constitution.
Every armed force that takes control of Uganda seeks to legitimise itself through highly controlled political gimmicks intended to portray people’s consent to their rule. “Ugandans declared” Gen Idi Amin a life president!!
This is why elections or referenda, per se, organised by such a regime cannot, in the main, lead to a result contrary to regime’s determination.
Some of our pro-democracy leaders who are advocating for a referendum need to take cognisance of the extent to which “consent is controlled” under the current military regime. It will be used to further confer illusory legitimacy to the regime.
Several Ugandan scholars and activists have, this year 2017, published a book titled ‘Controlling Consent’ that mainly focuses on the 2016 elections. All who are interested in Uganda’s political processes are encouraged to read it.
As long as Mr Museveni has (sovereign) control of Uganda, he’ll make and amend the Uganda Constitution as he wishes.
Even, without any formal government office, he’d continue to exercise authority over the country.
Struggle for a democratic transition
The struggle of the people of Uganda since Independence, therefore, has been to regain power and control over the country and to subordinate armed forces.
It’s only after regaining power that a legitimate Ugandan Constitution can be forged. Mr Daniel Muliika and others have written on the concept of (re-) establishing a new national consensus regarding the fundamental principles on which our country is based.
The NRM/NRA struggle (as some of us understood it) was meant to capture power for purposes of ushering a transitional process, through which power would be conferred onto the people. I’ve already referred to how Mr Museveni subverted that process.
The reality is that power over a state is not conferred but acquired. The people of Uganda must struggle to take power and subordinate the armed forces and all other State institutions. This struggle has three key elements- people’s awareness, organisation, and popular actions.
Pro-democratic-transition activists have used “elections” and periods in between electoral cycles to raise the awareness and organisational competences of Ugandans.
The changes in our population have been generally subtle but quite remarkable. Ugandans today are quite perceptive and politically engaged. They now know that they’ll have to struggle to regain control over their country.
This was the message that rallied Ugandans during the 2016 presidential elections. We made it clear that we would only win and take power by struggle (defiance) through the opportunity of the election. That is why Ugandans across the whole country turned up in unprecedented numbers and, for the very first time, publicly contributed resources and volunteered variously to our campaign.
The outcome of the 2016 election was also unique. Although militarisation, monetisation, vote suppression, and all other forms of rigging the election were escalated, we received an emphatic win that can be proved.
This compelled the NRM/Museveni junta’s outright violation of the Constitution and 2016 electoral process. Court unequivocally declared that candidate Kizza Besigye was under illegal detention from February 19, 2016, to May 13, 2016, when the junta preferred a trumped-up charge of treason.
This grave violation of the Constitution and electoral process rendered the 2016 elections technically “inconclusive”. That’s why an independent, internationally supervised audit of the 2016 election was proposed as a way out.
Regardless of what the regime does, the people of Uganda are definitely closing in to take back their power and embark on a transition to a new dispensation.
The NRM/Museveni junta has no legitimacy to amend the Constitution as it’s planning to do. This will be an activity of the transition process.
Termination of the NRM/Museveni junta
The following needs to be done to terminate the junta’s control of our country:
Intensify the “awakening campaign”, for most Ugandans to become active in the processes of achieving a transition. Everyone has a role to play in achieving this.
Forming activist networks to make it possible to act together and to be coordinated.
Everyone seeking a democratic transition should take deliberate actions, individually or in concert with others to disempower and break down the junta. Each one’s actions, however small, contribute significantly towards the desired change.
Public servants, including those in the security and military are called upon to join the struggle for democratic transition.
In coordination with other political and civil society formations, we’ll soon start various activities that will disempower and bring the, now fragile, junta to an end.
A transition process will start when the junta ceases the control of the State- either, through popular actions or a dialogue process.
The key activities of the transition period are:
Government of national unity.
A comprehensive review of the Constitution.
Rebuilding State institutions to ensure transparency in recruitment and a national character, a high standard of performance and public accountability; non-partisan character; high standard of discipline and professionalism etc.
Truth telling, justice and reconciliation.
Free and fair elections.
The writer is former president of FDC party and presidential candidate