What government seeks to change in Constitution

Monday June 23 2014

 

By YASIIN MUGERWA

Kampala.

Cabinet is considering amending the 1995 Constitution to provide for an independent Electoral Commission, stipulate grounds for recalling MPs, establish a salaries commission and give more statutory powers to the President.
During the State-of-Nation address a fortnight ago, President Museveni, told Parliament that the government would table proposals to change sections of the Constitution.

A Cabinet sub-committee headed by the Third Deputy Prime Minister, Gen Moses Ali, is overseeing the process of preparing the amendments. Information minister Rose Namayanja said: “When the committee completes its work, they will present a report to Cabinet for discussion before we table the approved amendments to Parliament.”

The Daily Monitor has seen a copy of the draft Cabinet proposals dated April 22, which indicates one of the key changes as being the reconstitution of the Badru Kiggundu-led Electoral Commission. This particular proposal was adopted from ideas mooted by the Citizens’ Coalition for Electoral Democracy in Uganda (CCEDU), a broad coalition of more than 600 civil society organisations.

EC to be reconstituted
CCEDU proposed that Article 60 (1) be amended to rename and reconstitute the Electoral Commission as the “Independent Electoral Commission”. They also proposed that Article 60 (2) be revised to provide for an and independent EC with professional commissioners and technical staff who are able to manage election affairs more efficiently and impartially.

In justifying the need to fix things at EC, the draft Cabinet document quoting proposals from CCEDU reads: “The composition of the EC must reflect a diversity of skills and social demographics skills, including legal, communication, and corporate management knowledge necessary to ensure an Electoral Commission functions efficiently and appropriately to navigate the complex task of impartiality in managing electoral processes.”
On the proposal to change the EC name, the document states: “The current name does not convey the body [EC] as an independent, impartial and fair reference that can preside over elections and referenda.”

The Cabinet document also proposes to amend Article 60 (3) to provide only one term for the EC commissioners. The current law provides that the appointment of the commissioners may be renewed by the President for one more term only. There is also a proposal to increase the number of the commissioners from seven to nine.

To ensure that service delivery is not knock off-balance on account of the political vacuum during elections, Cabinet is proposing to amend the Supreme law to introduce Article 114A to provide that the Cabinet in office at the time of the elections shall remain in office until the person elected president assumes office.

Some political analysts say some Cabinet ministers could abuse the new amendment to use government facilities such as vehicles for campaigns, giving them an edge over their opponents.

Recalling MPs
To strengthen the multiparty politics, Cabinet proposes to amend Article 83 of the Constitution so that a Member of Parliament will lose his or her seat if he or she ceases to be a member of the party for which he or she stood to enter Parliament and where he or she ceases to be a member by being expelled from the party. The current law provides that a member can only lose his or her seat upon crossing to another party. This matter is now before court.

The government is also proposing to amend Article84 of the Constitution to provide under Clause (6) grounds and procedure for recalling a Member of Parliament under the multi-party political system. The justification is that the right of the electorate and the political parties that sponsor candidates for election, to recall a Member of Parliament under the multi-party system, should be recognised
Under the proposed grounds for recall, the government has proposed that where an MP is found, after due process of the law, to have violated the provisions of the Constitution or the Leadership Code; is found, after due process of the law, to have mismanaged public resources, is convicted of an offence under any of the electoral laws.

They proposed that the recall should only be initiated after 24 months (two years) after the election of the Member of Parliament and should be initiated either by the political party or political organisation which sponsored the member for election or by a Petition which must be supported by a specified number of the registered voters. Also, the recall should not be permitted within 12 months to a general election.

More presidential powers
In order to give the President more constitutional powers, the Cabinet sub-committee is proposing that Article 155 (3) of the Constitution be amended to empower the President to revise the estimates of revenue and expenditure from the self-accounting departments, and organisations, before submitting them to Parliament. Under the current law, the president is supposed lay the estimates before Parliament without revision but with any recommendations that the Government may have on them.

The government is also proposing to amend Article 60 (6) to establish the “Salaries and Remuneration Board” a new body that will be charged with determining and harmonising the salaries, allowances and gratuity of state officers in the context of fairness across the board. CCEDU had proposed the creation of Salaries and Remuneration Commission but Cabinet is proposing to create a board appointed by the President.

Land question
To promote investments needed to create jobs, the government is proposing to amend Article 26 to legalise compulsory acquisition of land in strategic areas. The government said this provision will also apply for “public health” ventures. However, safeguards have been proposed to ensure prompt payment of fair and adequate compensation, prior to the taking of possession or acquisition of property in the case of physical structures in permanent materials.

AG and Supreme Court
The government has also proposed to amend Article 132 to allow the Attorney General, the legal adviser to government to seek an opinion from the Supreme Court on any matter regarding the interpretation of the Constitution and that the Supreme Court shall advise appropriately. The Ministry of Justice said this is the practice in Kenya, South Africa and Ghana.

Term limits’ silence
However, the government proposals are silent on some of the key demands the Opposition has made, especially in relation to electoral laws. Besides an independent electoral commission, the opposition also wants a reinstatement of presidential term limits and removal of the army from Parliament.

Making a case for the reinstatement of presidential term limits, Shadow Attorney General Abdu Katuntu said: “Ten years for a sitting president would be enough to make valuable contribution and pointed out the need to align Uganda with the rest of East African states which enforce the two term limits.”
But Presidency minister Frank Tumwebaze accused the Opposition of agitating for “illogical and impossible reforms that they want to use as scapegoats to justify their failure to win support”. He said the opposition parties were better off building their own internal democracy infrastructure.

Timeline to uganda’s constitutionalism
1962: First constitution is established in the context of a newly- formed alliance between Uganda People’s Congress and the Baganda Kabaka Yekka party.

1963: The British Queen remains Head of State until
1963 when the Constitution is amended to install a president. Under this Constitution, Uganda institutes a unitary system, with Buganda enjoying autonomous status than other districts.

1966: 1962 Constitution abrogated and replaced with “a pigeon hall” Constitution after confrontation between Prime Minister Milton Obote and Sir Edward Mutesa, the President of Uganda and Kabaka of Buganda. Obote ends Buganda’s autonomy.

1967: New constitution vests considerable power in the president and divides Buganda into four districts. Obote then declares himself president without elections.

1986: President Museveni comes to power. 1994: The Constituent Assembly elections mark the end of the broad-based coalition and the beginning of the NRM acting as a single party under the Movement System.

1995: New constitution legalises political parties but maintains ban on political activity.

2005: Parliament approves a constitutional amendment which abolishes presidential term limits. Referendum leads to a return to multi-party politics.

What the key players say
Fred Mukasa Mbidde (Eala representative) and lawyer.
“The amendment to the effect of the establishment of parliamentary system makes the ruling party shift its focus to rigging parliamentary elections. It narrows the arena of rigging and shall result into the most rubberstamp Parliament in Uganda’s history. But I advise we maintain a presidential system on universal adult suffrage.”

Erias Lukwago, Kampala Lord Mayor. “I was part of the team that initiated IPod in the 8th Parliament. IPod suffered a still birth largely on account of impunity of the NRM. They even opposed the minimum electoral reforms we agreed upon. Otherwise the suggested reforms are okay, save for the idea of scrapping the presidential election. But we cannot realise genuine reforms under the framework of IPod. It’s already manipulated...”

Godber W Tumushabe; Lawyer policy analyst
“The mistake everybody is making is to think or suggest that these reforms will be delivered by Museveni or political leaders. Most of us who are involved look at this as a citizens’ movement. And we are going to build this as much as we can and ensure that there are risks for anybody who dare not listen to us. That is why we focus on mobilising citizens. We will not allow anybody to hijack this agenda...”

Charles Rwomushana, Ex-ISO Intelligence boss
“The pattern of constitutional reforms has always begun with agitations from the Opposition and this always facilitates Museveni to remove all the safeguards we put in the Constitution to regulate the powers of the presidency. They are at it again. On direct presidential elections, It’s becoming tricky winning the direct presidential election. It’s even costly to the obvious victor...”

Cissy Kagaba, Activist.
“There is no hope in the proposed constitutional amendments and electoral reforms because the current regime does not respect systems and structures simply because that does not promote its agenda. In any case, even the MPs themselves cannot be trusted after what happened in 7th Parliament. The integrity of Parliament is questionable. This is why many Ugandans have lost hope. They are just wasting time.”

Nicholas Opiyo, Lawyer
“Parliamentary process are so discredited that they do not adequately reflect the wishes of the wider population and left on their own, they will be manipulated by the MPs for their own selfish ends. In that sense, therefore, IPod is a talking shop- a useful one at that for gauging the political temperature - but one that needs a more inclusive process to deliver real change that will put this country on the path of peaceful transfer of power from one individual to another.. That process I suggest is a CA-like process.”

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