Hours after Parliament passed the Constitution (Amendment) Bill, 2017, dropping the 75 year upper age limit for presidential candidates and extending the term of Parliament to seven years, Dr Busingye Kabumba, a lecturer at Makerere University and a leading constitutional scholar, voiced his frustration on Twitter.
“How does one practise/teach Constitutional Law when there is, in fact, no Constitution in the actual sense of the word?” he asked, prompting a stream of responses from his followers. Most, if not all, were in agreement that there is a problem with Uganda’s 1995 Constitution.
Dr Kabumba and the group that responded to his concern were not alone in their concerns over the constitutional framework in the country.
People across the country have been vocal either in support or against the amendment of the Constitution to remove the age cap that will see President Museveni continue to contest after 2021, when he would have been ineligible if the age cap remained. Concerns about the sanctity of the Constitution had, until the age limit proposal championed by Igara West MP Raphael Magyezi, been minimal. Such debate had been vociferous in 2005, when Parliament voted to scrap the term limits from the Constitution.
An illusory law
In the lead up to Uganda’s celebrations of 50 years of ‘independence’ from British colonial rule, Dr Kabumba described the 1995 Uganda Constitution as “nothing but an illusory law”.
“All power belongs to President Museveni, who exercises this power through the armed forces.
Article 1 of the Constitution is a lie – and the Constitution in Museveni’s Uganda is an elaborate farce that is cynically perpetrated by the President to consolidate and extend his hold on power. This is one of the great tragedies and challenges of ‘Uganda at 50’ and one that promises to engender more turbulent chapters in our political life,” he concluded in his article titled “The 1995 Uganda Constitution is nothing but an illusory law” published by the Daily Monitor newspaper.
If there was any doubt in Dr Kabumba’s observation, he was vindicated by the debate and events that characterised the process and eventual passing of the age limit Bill.
Gloves were off between December 18 and December 20, with the MPs in support of the removal of the age cap from the Constitution making it clear that it was about President Museveni, unlike before when the move had been sold to the public as an attempt to correct an injustice, particularly the discrimination against those between the age of 18 and 35 and those above 75 years.
“The people of Koboko said they cannot imagine themselves going to the polling station without Museveni’s name on the ballot. Ninety-nine per cent of the people told me not only to touch the Constitution, but also to squeeze Article 102(b) out of the Constitution,” State Minister of Finance for Investment and Privatisation and one of Mr Museveni’s most vocal supporters, Evelyn Anite, said.
In his 2013 paper “Towards A New Kind of Politics and Constitutionalism in (B) Uganda”, Prof Joe Oloka-Onyango, from the School of Law at Makerere University, writes that Uganda is in the grip of a serious case of presidentialism, brought about by the violation of both the letter and the spirit of the 1995 Constitution, and placing an opaque shroud over the possibilities of achieving democratic constitutionalism.
Killing own child
Prof Olaka-Onyango terms it as ‘Constitucide’, a situation where the framers of the Constitution are the very people involved in its abrogation.
“The case of Uganda is that rare exception where the founders are able to enjoy the fruits of their labour. But instead of nurturing the tree to produce more fruit, the founding parents are involved in its desecration, whether through the amendment of term limits, the lifting of age limits, or in the appointment of army generals to the civilian Cabinet in blatant violation of the Constitution. This is the essence of constitucide—where the founding parents of the Constitution are systematically involved in killing the child to which they gave birth.
To Kampala Lord Mayor Erias Lukwago, the 1995 Constitution has been abrogated and he has called upon Ugandans to invoke Article 3(4) of the same document to defend it and resist attempts to overthrow what remains of the constitutional order in the country. The Article states that; “All citizens of Uganda have a right and duty to protect the Constitution”
“On that fateful day [December 20] in the August House, the representatives of the people committed treason,” he said, adding that the activities in Parliament confirmed what has widely been alleged, that in this country, there is rule by law instead of rule of law.
From the above observations, it appears that the major amendments of the 1995 Constitution have been about nothing but President Museveni’s interests and that he is the major beneficiary of the constitutional mess that the legal scholars and politicians allude to.
Deputy Attorney General Mwesigwa Rukutana, who has been at the frontline of many amendments, says they have only followed aspirations of Ugandans and the framers of the1995 Constitution.
Quoting several provisions of the supreme law starting with Article 259, which provides for the amendment of the Constitution, Mr Rukutana says there is no mess for as long as they comply with the methodology laid down by the framers of the Constitution.
“Those who are saying or implying there is a mess with our constitutional framework have a mess in their heads. We are not in any mess; we have amended the Constitution in accordance with the provisions of the same Constitution,” he said.
The future of the 1995 constitution
Karoli Ssemogerere, a lawyer, has termed the age limit amendment move as the final straw that ends the life of the 1995 Constitution. In an opinion published by this newspaper, he called for the enactment of a new Constitution. “This makes a new Constitution urgent as the current one, after being continuously amended, is becoming a farce,” he wrote.
As she adjourned the House following the passing of the Bill to remove the presidential age limit and a vote to increase the tenure of Parliament and the President from five to seven years, Speaker Rebecca Kadaga informed Parliament that soon, a motion will be presented by the parliamentary commission for an amendment. She did not specify.
Government maintains a constitutional review commission will be established to address the outstanding constitutional questions in the country. The last review was done by the Prof Frederick Ssempebwa-led commission in 2005. The Justice Benjamin Odoki-led commission from 1989 to 1993 wrote the draft Constitution, which was discussed by the Constituent Assembly in 1994, promulgating the new Constitution in 1995.
Appearing on NTV on November 21, a day after passing the controversial amendment, Justice minister Kahinda Otafiire reiterated the promise that has been made by, among others Prime Minister Ruhakana Rugunda, that a constitutional review commission shall be established.
The million dollar question
The question then is what made the Raphael Magyezi Bill so important to be considered yet all other calls for reforms requiring the amendment of the Constitution were set aside to be handled by a yet to be appointed constitutional review commission?
Prior to the 2016 general elections, Speaker Kadaga, on various occasions, requested government to present Bills to amend the Constitution in time for proper consideration before the 2016 general elections. Nothing much came in response to her calls.
In his State-of the-Nation address in June 2014, President Museveni had promised that government would introduce Bills to amend the Constitution in that year’s session of Parliament. Again nothing came of the President’s promise.
A year later, the Constitutional (Amendment) Bill, 2015 was passed without reforms in what Civil Society Organisations, opposition political parties and other groups, said was tantamount to an overthrow of the 1995 Constitution as amended.
In January, Dr Rugunda informed the country that government was in the final stages of establishing a constitutional review commission that would, among other things, consider electoral reforms proposed ahead of the 2016 general elections. It also emerged at the time that names of the people to constitute the commission had been forwarded to President Museveni for appointment.
Whether the constitutional review commission is established or not and whether it recommends more amendments, Mr Rukutana says it does not matter for as long as the laid down procedure in the Constitution is followed.
In December 2014, constitutional law experts under Kituo Cha Katiba-East African Centre for Constitutional Development, dissected the 1995 Constitution and presented a raft of proposals to the Uganda Law Reform Commission (ULRC). Interestingly, none of their proposals touched on the limitations imposed on eligibility to run for office of President.
Makerere University School of Law lecturers did not hide their contempt for any attempts to amend the Constitution in favour of the incumbent. It would be reflected in their letter rejecting an invitation by the committee on Legal and Parliamentary Affairs to have an input in the age limit amendment Bill discussion.
“We would thus strongly urge your Committee to disassociate itself from a process which seeks to unravel the democratic pillars and principles constructed by framers of the 1995 Constitution. We, therefore, regret that we cannot be party to such a process and respectfully decline your invitation,” read the letter, in part.
They advised the Committee to carefully reflect on the constitutional and political ramifications of the amendment.
“The counsel of the School of Law is that your distinguished Committee carefully reflects on the constitutional and political ramifications of engaging in a process that is tainted with a patent distortion of our constitutional order,” the letter further read.
Lip service has also been paid to proposals to improve the system of elections and general political environment, despite continued promises by government to consider the same. Ahead of the 2016 general elections, parties under the Inter Party Organisation for Dialogue, including the ruling NRM, proposed and agreed on 45 out of the 48 proposed electoral reforms. These, however, were not considered in the Constitutional Amendment Bill, 2015. Other proposals were contained in the Citizen’s Compact and other reports by different organisations.
The 1995 Constitution, promulgated in 1995, was supposed to clear up the anomalies of the pre and post-colonial Uganda. The Constitution makes it clear that supreme power lies in the hands of the Ugandans. Twenty two years later, that belief is in question.