Uganda is undergoing a constitutional crisis of an unprecedented nature and Parliament is seemingly stuck after being gripped by a feeling of fear following last year’s scuffle. National security is at stake and the rule of law is riddled with uncertainty. That state of affairs is absurd for it could plunge us into the days of turmoil anytime from now.
Lord Tom Bingham, one of the most eminent British legal scholars of our time, has observed in his book, The Rule of Law , that any legislation which is inconsistent with the country’s Constitution, even if duly enacted, can be held unconstitutional and invalid.
The recent constitutional amendment on presidential age limit in Parliament was characterised by confusion and intimidation and no responsible Ugandan can be proud of it. Such a legislation does not in any way differ from the negative experience subjected to the rule of law as referred to in Lord Bingham’s book above.
I have heard several government spokespersons say the LCI elections can only be held after the coming referendum on the extension of the presidential term of office from five to seven years has been held and they are looking at November/December 2018 as the time for holding the perceived referendum. What we are seeing is not what we expected in 1986 when President Museveni came to power.
As I writenow, governance in the 59,000 villages in the country is constitutionally non-existent pursuant to the Constitutional Court ruling in the petition of Maj Rubaramira Ruranga Vs the Attorney General. The continued reliance on the rule by speculation in those villages, is to a great extent, responsible for the current state of lawlessness prevalent in the country. Parliament is silent.
The referendum exercise envisaged under Articles 105(1) and 260(1) (f) of the Constitution is politically healthy because it is a demonstration that power belongs to the people. Such an exercise also asserts the power point entrusted to the people in justification of their sovereignty. The criteria for holding that referendum are dictated by the Constitution and should not be seen to be emanating from the ruling government and its confused agents.
What does a referendum mean? A referendum denotes a general vote by the country’s electorate on a single political question, which is referred to that electorate in search of a free direct decision. No referendum should, therefore, be carried out in a rush. The Electoral Commission should give ample time to the key-players to carry the appropriate messages to the people without intimidation.
The framers of the 1995 Constitution put in place a number of circumstances for holding referenda. Several parties have contested the passing of the recent amendment of Article 102(b) of the Constitution by Parliament and have gone to court. So, until the Constitutional Court has pronounced itself on the matter, the Electoral Commission cannot announce the date for holding any referendum.
The current Referendum Act (2005) lacks clarity and was enacted by Parliament in a rush. It did not operationalise all the modes of the referenda envisaged under Articles 260(f), 105 (1), 261 and 262 of the Constitution.
The long title of that Act, for example, is premised on the change of the political system in the country on the basis of Articles 74 and 76 of the Constitution and is silent on all the pending referenda undertakings, including the pending one on the change of the presidential terms of office.
Parliament has to put in place another law to specifically address the respective referenda as constitutionally framed. Right now, it is only the general referendum measured from the yardstick of Article 255 of the Constitution that can be held on the directives of the Referendum Act (2005).
A good number of provisions in the existing referendum law are no longer relevant to the prevailing circumstances and should be repealed. This implies that the pending referendum on the contents of Article 105(1) of the Constitution cannot go ahead until Parliament has enacted an appropriate law to address it. The referendum cannot similarly be conducted until the Constitutional Court has pronounced itself on the two pending petitions challenging the legitimacy of the constitutional amendment passed recently by Parliament.
The Opposition, to which the Conservative Party subscribes, is not prepared to participate in the coming referendum for the sake of appeasing those in government. The history of referenda under the NRM leadership has left a bad image on the ground. The rules of the game must correctly be brought on table for all to take part without fear or favour. I, therefore, call upon the Chief Justice of Uganda and the Electoral Commission to watch out.
Mr Ken-Lukyamuzi is former MP Lubaga South and president general Conservative Party.