Sunday July 16 2017

Amending Constitution cannot benefit the incumbent, only his successor



Prof George W. Kanyeihamba

Prof George W. Kanyeihamba 

By Prof George W. Kanyeihamba

The preamble to the Constitution contains fundamental declarations worded as follows:-

“Recalling our history which has been characterised by political and constitutional instability; Recognising our struggles against the forces of tyranny, oppression and exploitation; exercising our sovereign and inalienable right to determine the form of governance for our country, and having fully participated in the Constitution-making process;

Do Hereby, in and through this Constituent Assembly solemnly adopt, enact and give to ourselves and our posterity, this Constitution of the Republic of Uganda, this 22nd, day of September, in the year 1995.”
The Constituent Assembly delegates not only sighed with relief, but many of us were overcome by emotions knowing that our troubled past had indeed taught us an unforgettable lesson.

This columnist, who was the chairman of the Legal and Drafting Committee of 15 distinguished Ugandan lawyers representing all political parties and civil society organisations, was further emotionally charged when he formally moved the resolution inviting President Museveni, as chief guest, to launch the 1995 Constitution for Uganda and the whole world to know.

The President was loudly applauded when he solemnly stated that he would go to the bush once more to fight and defeat anyone who attempted to violate or alter the same Constitution.

No one either before, during or after the promulgation of the Constitution thought that Museveni himself and the ruling oligarchy he led would be the first to ignore and break his solemn promise and get away with it.

When the idea of term limits removal was first floated, most Ugandans thought that it was a joke in bad test. The Constituent Assembly delegates recalled that the debate about and subsequent adoption of the term limits provisions were not contentious and their acceptance as part of the permanent features of the supreme law of the country were nationally and universally accepted as absolute and binding.

No one reckoned the intentions or methods that were to be employed to ridicule President Museveni’s undertaking. First, Cabinet ministers had to be coerced into supporting the amendment removing term limits.

Those who refused or expressed doubt on the measure were booted out of Cabinet. Next, was to persuade Members of Parliament to fall in line. When it was realised that many of them were reluctant to do so, they were each bribed with Shs5 million, at that time a great deal of money.

Consequently, Parliament passed the amendment to the Constitution oblivious of the ordained words in the preamble. Following the lifting of term limits, President Museveni took advantage of the amendment, stood and was re-elected to hold terms beyond limits, even though he promised that it was his last term of office. We shall show that accepting to stand again was a blatant violation of his presidential oath.

Ugandans have soldiered on, hoping that since the Constitution provides for age limit at 75 years, President Museveni will have passed it in his current term; therefore, there would be change of leadership peacefully. Once again, Ugandans were duped into believing the promises made by the NRM party leadership.
The stories that NRM intends to remove age limits started about a year ago. Once again, Ugandans regard it as another sick joke and are not worried about Museveni.

In fact, in 2016, President Museveni himself was shown on social media denouncing any politician who attempted or persuaded Ugandans to elect politicians aged 75 or more.
Last month, the minister of Justice and Constitutional Affairs, Maj Gen Kahinda Otafiire, dropped a bombshell on the issue when he said he was tabling an amendment to the Constitution. The Bill to do so contained wide ranging clauses, including one on the age limit.

He finally argued wrongly that there is nothing in the 1995 Constitution which Parliament of Uganda cannot amend if they so wish. He ignored the provisions of Article 44, which are intended to prohibit forever the amendment of provisions on absolute human rights.

This then is the background to the question, “Can Museveni benefit from the mooted amendment?”
The Constitution must be read as a whole. I invite those interested to analyse carefully the constitutional oaths contained in Schedule Four of the Constitution which prohibits him from standing again. The President’s oath is distinctly different from all other oaths.

In the presidential oath, the deponent swears to owe loyalty to Uganda and respect, uphold and protect the Constitution. In the other oaths, the Speaker, Prime Minister and ministers also swear to be loyal to Uganda but in their respective oaths they swear to respect a Constitution as by law established.

It means, therefore, that Museveni cannot take advantage of a constitution amendment effected in his term of office without violating the presidential oath.
If there are any constitutional amendments during Museveni’s term, they can only benefit his successor, but not Museveni who gives assent to them.

To do otherwise would certainly render Museveni liable under Article 107 which prescribes the offences and punishments of all who violate the Constitution.
Therefore, while the 10th Parliament can lawfully amend the Constitution which President Museveni swore to protect, he himself cannot benefit under those amendments without breaking the oath and committing presidential crimes, which are punishable by impeachment and removal as prescribed by the same Constitution.

Going by its acts and behaviour in the past, NRM is most certainly likely to ignore the constitutional orders. The amendment question should be decided in the same way it was legitimately answered unanimously by the people of Uganda under both the Odoki Commission and Constituent Assembly, which rested the supreme power of determining how they are to be governed and authority to decide the destiny of Uganda.

Prof Kanyeihamba is a retired Supreme Court judge. gwkany@yahoo.com

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