Constitution amendment is void as it violates ‘basic structure’ doctrine

I read Senior Counsel Peter Mulira’s thought-provoking article in The Daily Monitor of October 17 titled: ‘Constitution should not be tampered with by politicians’. Counsel Mulira raises very interesting procedural grounds on which the proposed amendment of Article 102(b) of the Constitution could be forestalled through preemptive court process or through which the amendment can even be set aside and reversed after it has been passed. That is of course assuming the Constitutional Court and/or the Supreme Court would be ready to consider making such a decision, a big “if”, when you consider the recent trends in the Superior Courts of our beloved country. In my view, the legal points he raises are valid.

However, in my view, there is another equally interesting ground on which the validity of the unfolding amendment could be challenged, even if it was to be passed in scrupulous compliance with the procedural requirements. I wish to suggest that the proposed amendment arguably violates the Basic Structure Doctrine.

The Basic Structure doctrine was enunciated by the Supreme Court of India in one of its most important decisions ever, in the 1973 case of Kesavananda Bharati vs The State of Kerala. The doctrine is to the effect that a national constitution has certain basic features which underlie not just the letter, but also the spirit of that constitution, and any amendment, which purports to alter the constitution in a manner that takes away that basic structure, is void and of no effect.

The rationale of the decision was that an amendment, which makes a change in the basic structure of the constitution, is not really an amendment, but is in effect, tantamount to rewriting the constitution, which Parliament has no power to do. The court held that as the Supreme Court of the land, it had a limited power to review and strike down amendments which went to the very heart and core of the constitution, by seeking to alter its basic structure.

In its wisdom, the Court did not lay down a list of provisions it considered to constitute the basic structure. The claim of any particular feature of the constitution to be a “basic structure” is left to be determined by the court on a case by case basis. The basic structure doctrine has since been upheld and relied on in subsequent decisions in that country, for example, in Minerva Mills Ltd y. Union of India (1980) and Indira Nehru Gandhi v. Raj Narain (1975). It has also been widely accepted, adopted and cited with approval in many other commonwealth countries, or what we call common law jurisdictions, for example in Anwar Hossain Chowdhary v. Bangladesh (Supreme Court of Bangladesh, 1989), Phang Chin Hock v. Public Prosecutor (Federal Court of Malyasia, 1980), SivarasaRasiah v. BadanPeguam(Federal Court of Malaysia, 2010), Pakistani Lawyers’ Forum v. Federation of Pakistan (Supreme Court of Pakistan, 2005) and many others.

In the process, the courts have suggested various guidelines which can be relied on to determine whether an amendment touches the basic structure of a particular constitution and is, therefore, void. Whether or not a provision is part of the basic structure varies from country to country, depending on each country’s peculiar circumstances, including its history, political challenges and national vision. Importantly, the decisions I have cited show that in answering this important question, courts will consider factors such as the preamble to the constitution, national objectives and directive principles of State policy (in countries which have them in their constitutions, such as Uganda), the Bill of rights, the history of the constitution that led to the given provision, and the likely consequences of the amendment.

It is clear that in the case of Uganda, all the above factors being taken into consideration would lead to the inevitable conclusion that Article 102(b) is part of the basic structure of our Constitution, that its removal would strike at the very heart, core and essence of the Constitution, and should only be amended with the direct involvement of the entire population, possibly through a constituent assembly.

The 1995 Constitution was enacted against the historical reality that since independence, Uganda has never had a peaceful transfer of power, but was instead characterised by presidents hanging on to power by all sorts of stratagems until they are violently removed, including even a life president. The amendment sets the stage for the very history the repetition of which the Constitution was designed to forestall.

The preamble to the Constitution captures the spirit behind the Constitution, that it was made to address a history “characterised by political and constitutional instability”. The goal of ensuring stability is echoed in National Objective number III. Above all, the preamble declares that what was intended to be enacted was a Constitution for “ourselves and our posterity”, in other words, a durable Constitution.

The amendment not only paves way for a fresh round of instability, it also wipes out the intended durability of the Constitution. To amend the Constitution, moreover, through the casual and frivolous route of a private member’s Bill, is to reduce it to an ordinary Act of Parliament.
You cannot do that and thereafter pretend that the Constitution is sacred. Indeed, the very idea summarised in Ms Evelyn Anite’s arrogant assertion, that they will amend it because they have the army, is the best proof of the low regard, verging on contempt, in which the Constitution is now held. It is indeed a proclamation that the Constitution is not supreme, that it is the military that is supreme.

Removing Article 102(b), especially having earlier removed term limits, wipes out the very purpose for which the Constitution was enacted. What then was the purpose of making this Constitution? It is my submission that the amendment, both in intent and effect, undermines the basic structure of the 1995 Constitution, the very spirit that informed the enactment of the Constitution. The amendment is, therefore, void and, on that ground alone, it ought to fail.

Mr Tusasirwe teaches law at Makerere University and is Doctor of Laws (LL. D) candidate)