Our Constitution is superior to party majorities in Parliament

When I appeared before the Parliamentary Committee on Legal Affairs to give my testimony on Constitutional (Amendment) Bill no 2 of 2017, which seeks to remove age limits from the Constitution, I left the committee room impressed by the sincerity of members who appeared to be determined to seek out what was best for the people of Uganda.

However, the report of the committee, which came out last week, in which it does not only recommend the amendment of Article 102(b) of the Constitution, but goes ahead to recommend extension of Parliament’s term from five to seven years, has shattered my initial impression. This not only because the proposal is selfish, but it is also evidence that even our trusted politicians fall short of our democratic aspirations.

Article 77(3) of the Constitution provides that “Subject to the provisions of this Constitution, the term of Parliament shall be five years from the date of its first sitting after a general election.”

This provision must be read in conjunction with Article 79(3), which provides that ‘Parliament shall protect this Constitution and promote democratic governance of Uganda.’
The interests, which members of Parliament must protect, are the interests of the country at large and not their individual or party interest.

Indeed, the oath a Member of Parliament takes, puts an onus to them to subscribe to a higher moral order. The oath reads: ‘I A.B, swear in the name of Almighty God/solemnly affirm that I will give faithful service to the Parliament and support and uphold the Constitution of the Republic of Uganda as by law established.’

This puts a moral though not legal obligation on members of Parliament not to manipulate the Constitution for their party’s or personal selfish reasons.

Democracy has failed to take root in Africa because the oaths leaders take on assuming office do not mean anything to them.

As it has been pointed out by experts, a Constitution cannot be changed by ordinary acts of government bodies, change can only come through a process of general popular consent.
Our Constitution then is superior to ordinary laws of Parliament, decisions of court and party majorities in Parliament.

The Constitution sets up governmental bodies such as Parliament and it grants them powers. Since powers are granted by the Constitution, governmental bodies cannot increase the powers, which were given to them; it is only the people as owners of the constitution, who can increase those powers.

Although Article 259 gives Parliament power to amend the Constitution by way of ‘addition, variation or repeal’ of any provision, the power to make variation in a provision of the Constitution does not include the power to vary by giving oneself benefits, which were not originally bestowed by the people. At best, that would amount to making a new constitutional provision, which power Parliament does not have.

To put it in simpler language, if a contract, for example, allows an agent to sell a house at Shs10 million with a discretion to negotiate the price as need may arise, it will be against the spirit of the contract if the agent used the discretion given to him to negotiate for an extra Shs2 million to put in his pocket.

An MP is an agent of the people with power to vary any constitutional provision, but that variation cannot be for his or her own benefit.

Our constitutional experience of the last few months has shown us that there is need to take away the power to amend the Constitution from politicians and hand it over to a national convention comprised of statesmen and women of all political hews, who can weigh national interests in a more objective manner.

Mr Mulira is a lawyer.
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