Prime
The 1966 revolution and the Constitution
In his comment published under the title, ‘Court has sanctioned the return of violent Constitutionalism in Uganda’ (Daily Monitor, August 1), Prof Joe Onyango-Oloka asserts that the Constitutional Court that sat in Mbale has ‘…plunged our constitutional regime into a quagmire not seen since the infamous decision in the case of Ex parte Matovu’.
“Decided in 1966, Matovu’s decision affirmed that the Judiciary would look aside when the Executive arm of government (in that case the government of president Apollo Milton Obote) used force to change the Constitution”.
Far from creating a constitutional quagmire, the events of 1966 actually removed a constitutional quagmire, which had obtained in the federal Constitution of 1962. The 1962 Constitution contained the following clause: “7(1) Subject to provisions of the Constitution of Uganda (including the provisions of the Constitutions of Buganda included therein), the Legislature of Uganda and the Legislature of Buganda shall have concurrent power to make laws for the peace.” This provision became a serious quagmire when it came to dealing with president Edward Mutesa’s transgression.
Secondly, none other than Prof Phares Mukasa Mutibwa, himself a Muganda, a member of the 1995 Constitutional Commission and a retired professor of history, has written in his book, Uganda Since Independence: A story of Unfulfilled Hopes thus: ‘The political dispute between Obote and Ibingira and his supporters centred around the control of UPC and ultimately the very leadership of the country in terms of the political and economic ideologies that were to be followed.
Obote claimed - not without justification - that Ibingira’s group, which included president Edward Mutesa, and the Buganda government at Mengo, which also counted on the support and assistance of the Army Commander, Brig Shaban Opolot, wanted to remove him from power and that plans to this end were in an advanced stage by the end of 1965. No one, let alone Ibingira and his supporters, has denied that they wanted to see Obote and those who believed in socialist philosophies removed. Their only regret is that they failed.”
Mutesa’s involvement in plots to illegally overthrow the government was, of course, treason for which he should have been prosecuted in a court of law.
However, Mutesa was a sitting president of the country with immunity against prosecution. To prosecute him would have required that he be impeached. As provided for in the 1962 Constitution, such a move by Parliament would have required concurrence with a vote of two thirds of the Lukiiko (parliament) of Buganda.
There is no way such a move would have been approved by the Lukiiko. It was to resolve this constitutional contradiction that Godfrey Binaisa, the Attorney General at the time, advised Obote, the prime minister, to abrogate the 1962 Constitution and replaced it with the 1966 Constitution.
The validity of this Constitution was to become an issue when on September 6, 1966, Michael Matovu filed, through his advocate, a writ of habeas corpus under Section 349 of the Criminal Procedure Code of Uganda. Following the revolution, there was some resistance, and some of those who were leading the resistance got arrested. Among those who were arrested was Michael Matovu, the Saza chief of Buddu in Buganda. Matovu was detained on May 26 1966.
Matovu’s application for a writ of habeas corpus was to lead to the need to answer various questions requiring constitutional interpretation and so the presiding judge, Jeffreys Jones, J, referred the matter to a three-member bench of the High Court (Udo Udoma, Chief Justice; Sheridan and Jeffreys Jones, JJ) for hearing and determination of the Constitutional questions (not the application for the writ of habeas corpus per se).
The issues for determination revolved around the constitutional validity of the emergency powers laws by which Matovu was detained and, therefore, by extension, the constitutionality or legal validity of Michael Matovu’s detention. The most important issue, however, and the core of this precedent, turned out to be the question of the 1966 Constitution’s validity.
No doubt, the roots of this 1966 Constitution lay in an extra-constitutional act to wit, revolution carried out by Apollo Milton Obote when he seized all powers of government on February 22, 1966.
The Attorney General submitted that under International Law, an independent and sovereign nation may have its government or Constitution changed by way of a revolution, where an abrupt political change destroys a pre-existing legal order and effectively replaces it in a manner that pre-existing legal order did not itself contemplate.
It was thus argued that the suspension of the 1962 Constitution and seizure of all powers of government by Obote in February 1962 constituted a revolution. It was put to the court that a revolution had occurred in Uganda, destroying the legal order underlying the 1962 Constitution and establishing the new legal order under which the 1966 Constitution was validly established.
Further reliance was sought from the Pakistani Supreme Court decision of the State vs Dosso where the Kelsen theory was applied in a similar circumstance. In the case of Pakistan, the declaration of martial law by president Iskandar Mirza on October 7, 1958 abrogated the 1956 Constitution.
Kelsen theorised: ?No jurist would maintain that even after a successful revolution the old constitution and the laws based thereupon remain in force, on the ground that they have not been nullified in a manner anticipated by the old order itself.
Every jurist will presume that the old order – to which no political reality any longer corresponds – has ceased to be valid, and that all norms, which are valid within the new order, receive their validity exclusively from the new constitution. It follows that, from this juristic point of view the norms of the old order can no longer be recognised as valid norms.
The three-member bench (in ex parte Matovu) concluded that the Kelsenian principle was equally applicable in the Uganda case and held that the 1966 Constitution was thus valid because it was the product of a successful revolution, which had led to a new legal order, ousting that of the 1962 Constitution.
Mr Adhola is a Ugandan living in the United States.
