Judges didn’t kill the Constitution, they only presided over its last funeral rites

Thursday August 2 2018

Daniel K Kalinaki

Daniel K Kalinaki  

By Daniel K Kalinaki

Looking for a silver lining in the dark cloud of last week’s Constitutional Court judgment is like picking through a robbery scene with gloves woven out of naïve optimism: “Thank goodness they took everything, but didn’t rape us,” one might say. Or, “luckily, you lost only one arm; he could have cut off both”.

Of course, things can always be worse – in this case the judges could have let the MPs get away with an extra two years of feeding at the public trough, or it could have been a unanimous kick in the teeth for democracy and constitutionalism – but that does not make them better. That the MPs have also been swindled provides a bit of schadenfreude but no succour to the cause.

Many have accused the majority judges of endorsing a life presidency by refusing to uphold the age limit. In my view, their sin was a lot worse: By giving short shrift to the lack of genuine consultation on such an important matter and by interpreting the fights at Parliament as a mere disciplinary matter rather than the gunboat diplomacy it really was, they endorsed the notion that the end justifies the means.

Such is the rate of attrition that few MPs involved in the parliamentary argy-bargy or the farce of town hall ‘consultations’ were in Parliament in 2005 when the term limits were removed; only a handful were in the CA that wrote the Constitution. So to make sense of these developments is not to see what the robbers might have missed, but to assess what they took and what the robbery itself represents. To do so requires briefly exploring what the 1995 Constitution was meant to represent and examine the context within which it was written.

In summary, the Constitution was a response to emerging demands for fundamental or human rights, and a tool to impose limitations to State power. In its preamble and objectives (the spirit), the authors acknowledged past struggles against the forces of tyranny, oppression and exploitation; in its articles (the letter of the law), they wrote in restrictions seeking, above everything else, to ensure that which Uganda has never had – the peaceful transfer of power from one elected leader to another.

To be fair, the age limit was unnecessary and discriminatory (in fact, as we learnt later, it was smuggled into the process to lock Milton Obote out of future elections), but the two-term limit was fair and essential.

The violent and divisive history that informed the continued restrictions on multiparty politics is the same that informed the artificial limitations to power, including the term and age limits. Universalistic expectations (of the type popular in Western liberal democracies) came head-to-head with particularistic norms of what was possible and required in Uganda. Commonsense and local knowledge won.

The tragedy therefore isn’t merely in the lifting of term limits (smuggled into the amendments without popular participation and made possible by bribing MPs) or scrapping the age limit (again smuggled in as a private member’s Bill and made possible by bribing and beating MPs); it is that there have been no counterpart limitations to power and its exercise. It is also that then, as is the case now, there is only one beneficiary.

As arbiter of presidential electoral contests, the Supreme Court has thrice had the opportunity to rebalance this power dynamic. It could have done this by annulling elections in which victory was procured via open and disguised bribery, intimidation, violence, enjoying an unfair share of public media, gerrymandering, control of the electoral machinery, partisanship by State actors and the security agencies, or simply vote rigging. Yet the court, at every time of asking, hid behind the edifice of substantiality.

So 23 years after the Constitution was enacted, we find ourselves in a place where its very essence has never been exercised, and the relevant safeguards removed. The Constitution gives the presidency significant power over government and the economy. In the case of the incumbent, this power is several times multiplied by dint of historic control of the military and the tapestry of patronage painted over three decades.

These amendments and the failure to punish abuse of power, together with the failure to meaningfully devolve real authority and resources to the grassroots as envisaged, means we have gone from constitutional limitations against an imperial presidency to prayerful appeals to the benevolence of the leader. In other words, it took us two decades to travel from 1986 to 1995; we are back where we started. The drawn-out dramatic diatribe in Mbale wasn’t an exorcism; it was a dirge.

Mr Kalinaki is a journalist and a poor man’s freedom fighter. [email protected]
Twitter: @Kalinaki.