Before the abrogation of the Independence Constitution in 1966, Uganda was a peaceful nation. It had a sound economic base and the rule of law prevailed in most of the regions. The 1962 Federal Constitution was good because it was tailored on the basis of natural law and it granted substantial autonomy to the regions under the formula where “power checked power”.
Although the 1995 Constitution fully acknowledges the right of the people to own power as stated in Article 1, it merely transfers the power points to the districts as mere care-takers. It is only the President of the country, who owns power. That is why under Article 202 of the Constitution, the President may take over the administration of the districts where it becomes difficult for any district government to function.
Today, constitutional governance is failing because the top leadership in the country wants to direct policy without adherence to the doctrine of separation of powers as advocated by Montesquieu. The separation of powers doctrine denotes that powers are exercised by different institutions and the individuals cannot be members of more than one such institution.
A case in point is that of Gen Elly Tumwine. He is a representative of the UPDF in Parliament as well as a minister in government. In such circumstances, a person like that can easily distort the legal meaning of the word “torture ” in defence of his office when he is addressing incidents like the recent election fracas in Arua Municipality.
Government is losing Constitution direction – that is absurd. All decisions made by the State operators should be measured from a constitutional yard-stick. The Constitution should be respected by all the State operators, including the Security Forces, because it is the organic law of the nation from which the apparatus of government and individual rights draw their consent.
In 1966, when the political question in Uganda overwhelmed Milton Obote and his chief spy Akena Adoko, the 1962 Constitution was unceremoniously abandoned to create space for the declaration of the “Common Man’s Charter” on the Move to the Left strategy through a revolution. Obote legitimised that form of revolution through the famous case of Ex–Parte Michael Matovu vs Commissioner of Prisons (1966) where Chief Justice Sir Udo Udoma held that under international law, a sovereign State can alter its constitutional order through a revolution as had earlier on been done pursuant to the Pakistan case of the State Vs DOSSO (1958). Uganda is moving in that direction.
In 1995, many people admired the existing Constitution. It has a good preamble and its chapter on Human Rights is one of the best in Africa. However, the numerous amendments inserted therein since 2005, are reducing it to a distorted document. The presidential age limits under Article 102(b) have been quashed by Parliament so as to enable the President to reign life.
Recently, one of President Museveni’s ministers had the courage to state that the agony said to have been subjected to Members of Parliament like Bobi Wine, Francis Zaake and others in Arua, does not amount to torture. That is amazing! The Presidential term limits have equally varnished.
Article 24 of the Constitution states that no person shall be subjected to any form of torture while Article 44 of the same Constitution adds that protection from torture is a non-derogable right. With reference to what is stated in the two constitutional provisions above, I am reluctant to take the contents of Article 3 of the same law seriously.
That Article (3) states and I quote that the 1995 Constitution shall not lose its force and effect where its observance is interrupted by a government established by the force of arms. What happens in case a Constitution begins losing meaning through distorted amendments? Such a Constitution would lie in abeyance awaiting revolutionary replacement. Our Constitution is moving in that direction.
In a nutshell, the Hans Kelsen theory on which the glorification of the repeal of the Constitution through a revolution will continue to gain momentum for as long as the State does not protect its Constitution. A good Constitution should derive its origin from natural law as articulated by the content of Chapter 4 of the 1995 Constitution, which is now in danger of extinction.
Mr Lukyamuzi is the president general,
Conservative Party and ex-MP for Lubaga South