After listening to the seven individual judgments of the Justices of the Supreme Court with regard to Consolidated Appeals No. 2, No. 3 and No. 4 of 2018, it struck me strongly that the country might urgently need to renew and perhaps redirect, the democratic consensus of 1995. We might just need a National Conference specifically convened for that purpose, preferably within a year or so of the 2021 elections.
Building a new democratic consensus would revolve around strictly three or four core issues: How to build and consolidate a Ugandan national ethos and psyche - with pan-Africanist parameters; how to achieve and effect national economic transformation and take-off; how to work with other African peoples to secure our strategic future in the world community of nations and peoples; how to enshrine, embed and reflect the emerging new democratic consensus regarding all these issues in our national, legal and constitutional framework - and very importantly, general jurisprudence.
With specific regard to jurisprudence as the philosophy and theory of law - my concern is not only about addressing issues internal to law and the legal system, but also viewing law as a social institution that is a subset of a wider political and social milieu within which it must exist. Part of the critical working material for a would-be conference would be the existent National Objectives and Directive Principles of State Policy in our Constitution.
That is, aside from appropriately researched, focused and directed working papers, etc. Part of the thrust here is to move away from the narrow obsession with “elections” - as the supposedly central national issue of the day. Now, how such a National Conference would be convened, hosted, managed, financed, structured, etc - would be details to be agreed and worked out. Mine is to flag the need and principle - and to state that the onus is on the Executive to initiate it and provide leadership.
But first things first. Congratulations are in order to the Justices of the Supreme Court for ably disposing of the aforementioned Consolidated Appeals. The four to three decision reflects a fully functional, independent and vibrant Judiciary - part of our evolving and healthy democratic dispensation. It was a most exhilarating and riveting experience - watching and listening to the Justices of the Supreme Court. Their great and extraordinary professional competence and experience; was evident for wananchi and the world to see. Their erudite judgments, composed (and sometimes passionate) clear delivery - are national gems to be treasured by a democratic nation in becoming.
It was, though, an equally disturbing experience. As we were moved in a kaleidoscopic change of scenario - through basic structure doctrine, severance doctrine, substantiality doctrine, precedents, case law, what the framers of the 1995 Constitution “intended” or “cannot have intended,” “authorities,” etc, - we were left breathless! Two clear strands started emerging though: An uncompromisingly purist stance on the one hand, an accommodating and cautious stance on the other; the counterposing (objectively) of procedure on the one hand, to substance, on the other; etc.
There was, additionally, the looming large certificate of financial implication question, which received a very important counter question from Justice Jotham Tumwesigye (to paraphrase): “What was the intention of the very clear two thirds majority - during both the second and third readings”?! What, however, was most disturbing in all this, was the very wide swing of the pendulum … Difference, dissent are very healthy. When, however, the swing is very wide, it maybe suggestive of a fundamental disequilibrium, which may not be particularly healthy for our nascent constitutional and democratic dispensation.
Judicial activism in any direction, and what has been called “legislation from the bench” are healthy by any account. Especially in older nations and states or stable multinational commonalities, where the National Question has been resolved in fundamentals. In other jurisdictions where incomplete national and statal formation are reality, where no national ethos or psyche have been consolidated - these must be exercised most judiciously and cautiously.
A number of wider questions contingent upon the legal and constitutional realm arising from this litigation, lead me straight to the idea of the National Conference I flagged above … That is, aside from other questions, which lead me in the same direction, as for example: How do we move 68 per cent of our population out of subsistence economy? How do we crystallise and consolidate a new, revolutionary and patriotic and pan-Africanist ideology in the face of the relentless onslaught of a stifling neo-liberalist orthodoxy with which our intelligentsia (including the Judiciary), political class, elite and technocrats are daily bombarded? Which onslaught seeks to subvert our people’s all-round and independent development? How do we rid ourselves of the ramifications of enclave economy subsisting in the periphery of global capitalism - and which is rooted in our peasantry?
A peasantry whose provincialism and localism casts their disruptive shadow over all our young institutions without exception?Back to the other questions arising from the litigation we have been discussing … How do values, norms and aspirations of the people develop? Are they products of acts of creation or of historical processes? How does peasant reality mediate the development of these values, norms and aspirations? How should the answers to these and related questions be reflected in the principles for the adjudication of cases of both a criminal and civil nature? How we do we ensure that substantive justice is never subverted under any circumstance? Bottom line: does man serve law, or law serves man?
Legal, constitutional and democratic national development is a very long, tortuous, circuitous and complex historical process for any people. Unfortunately, it is not possible to leapfrog over critical nodal points in this both revolutionary and evolutionary journey. This is why it took England some very troubled 600 years from King John’s Magna Carta in 1215 (described by Lord Denning as “the greatest constitutional document of all times - the foundation of the freedom of the individual against the arbitrary authority of the despot”) to grow a more or less modern multiparty political system - via the growth of capitalism and the industrial revolution.
We in the Ugandan motherland, must build and consolidate a new, democratic consensus about our journey together into the future - as Ugandan and African people. We must continually renew it.
Mr Mafabi is a Senior Presidential Advisor/Special Duties, State House.