Prime
Mayanja’s two cents on 1967, 1995 constitutions
Abu Mayanja (circled) with some of his grandchildren. PHOTO/COURTESY
What you need to know:
- The 1967 Constitutional proposals contained articles for the removal of traditional hereditary rulers. Mayanja was not only opposed to them but also he was not happy about the exclusion of the Court of Appeal from hearing matters involving the interpretation of the Constitution.
- He opposed sections of the constitutional proposals whereby the Executive branch of government could make laws by promulgating ordinances.
- In the seventh instalment of the serialisation of Prof ABK Kasozi’s book, the historian lays out the constitutional proposals that tickled Mayanja’s imagination.
Abu Mayanja gave his considered opinion on the 1967 Draft Constitution proposals in the Transition Magazine No 32, August to September 1967. It was so detailed that it straddled from page 20 to page 25.
Titled The Government’s Proposals for a new Constitution of Uganda, Mayanja wrote thus: “The keynote of the government proposals is the concentration of all powers of government—Legislative, Executive, administrative and Judiciary—into central government institutions and the subjection of those institutions to the control of one man-the President. The result is the creation—not of a republic, but of a one-man dictatorship, as I shall attempt to show.”
He proceeded to add thus: “Under the proposal, the President is given power, amongst other things—
a) To nominate up to one-third of the members of the National Assembly;
b) To legislate by promulgating ordinances in certain circumstances;
c) To declare states of public emergency and during their duration to make regulations which may override the laws made by Parliament;
d) To prolong and dissolve Parliament at any time;
e) To nominate and appoint the Chief Justice and members of the Judicial Service Commission, which in turn appoints the judges and magistrates;
f) To detain people without trial and to restrict their movements without trial;
g) To appoint and dismiss Cabinet ministers;
h) To appoint, discipline and dismiss all public officers, including public employees of local governments;
i) To appoint, discipline and dismiss members of the Police Force, including power to give operational directives to the Inspector General (the chief officer) of police;
j) To command the armed forces and give them operational directives;
k) To appoint and dismiss the Commander and other officers of the Uganda Armed Forces;
l) Generally, to exercise the entire executive powers of Uganda.
No holds barred
Mayanja further wrote: “The government proposals for a new constitution are thus subject to serious objections. In many respects, they are illiberal, authoritarian and dictatorial. They make serious inroads in the concept of the rule of law as accepted by most jurists and civilised nations.” He added: “They provide for the concentration of excessive, autocratic and dangerous powers in the hands of one man. They are repugnant to the concept of the African personality insofar as they provide a wholesale abolition of all the traditional institutions which were involved in this country over centuries of time, experimentation and adaptation. But they do not attempt to replace them by the more enlightened and generally accepted form of government as understood at any rate in the West. Instead of providing the country with a truly republican form of government, we have ended [up] with a Machiavellian Prince.”
He also proffered: “The justification for all this is—in words of President Obote and some of his colleagues—that Uganda is backward and not yet ready for democratic government, that is to say, a government which bases itself on the consent of the governed, which seeks to divide and distribute the powers of the state amongst different organs, with suitable checks and balances, which observes and promotes the rule of law, and which encourages the free exchange of ideas and the changing government according to the climate of political opinion as ascertained by periodic free elections.”
He added: “This kind of argument is dangerous, and a betrayal of the African revolution. Its only effect is to give comfort, solace and encouragement to men like Mr Ian Smith of Rhodesia, who would enjoy nothing better than to see the African in a state of permanent serfdom—on the ground that he is not yet ready to play a full role in the affairs of a modern state. The people of Uganda must summon all their courage and make it clear to our government that when we fought for freedom, we meant just that—that we believed all men, by reason only of the fact that they are human beings, are entitled to freedom of government by consent, freely given in free elections. Neither more nor less. A dictatorship by Black men has no objective advantages whatsoever over a dictatorship by White men: it may even be less efficient and less impartial.”
While Mayanja preferred a head of state who was a primus inter pares (a first amongst equals), Obote preferred a primus aut nullus (a first or nothing). Unfortunately for Obote and Uganda, those powers were used by an unsophisticated general—Idi Amin.
The 1995 Constitution
The drafting of the 1995 Constitution was preceded by several amendments to the 1967 Constitution by the National Resistance Council acting as a surrogate Parliament for this country. One of the amendments made in July 1993 was the Constitutional Bill 1993 (Ebyaffe) and the Traditional Rulers (Restitution of Assets and Properties) Bill, 1993. It reinstated traditional rulers as cultural entities. Mayanja moved the amendment, which was very hotly debated.
As a member of the Constituent Assembly, Mayanja debated the draft 1995 Constitution written after massive consultations by the Odoki Constitutional Commission.
He defended the merits of responsible local governments in the management of the state. However, the way the 2005 amendment of the 1995 Constitution was conducted unnerved Mayanja. For example, he noted that some 118 articles were brought in an Omnibus package, presented, debated and, most of them, passed without thorough scrutiny of each article. He thought that each article should have been brought alone, placed, debated, passed, or rejected separately.
Writing in the press in March 2005, he noted: “The Constitution Amendment Bill 2005, nicknamed the Omnibus Bill, is an intimidating document. It proposes to make no less than 118 amendments, repeals, replacements and additions to the existing Constitution, which was adopted and promulgated only 10 years ago. This was after an elaborate process of consulting the people of Uganda through the Odoki Constitutional Commission, plus prolonged and sometimes agonising debates in the Constituent Assembly.”
He added: “My problem is that if you bring in one Bill, 50 or 70 different amendments, each dealing with a separate article, topic or principle of the Constitution, and then after a general discussion in Parliament at the second reading, you submit that Bill to a vote and you get a two thirds majority, can anybody say the two-thirds majority has been cast in favour of each and every clause in the Bill?”
Constitution amendment
When Parliament passed the same amendment as Constitution (Amendment Bill 2 and 3 of 2005), Mayanja felt that Parliament had devalued the sanctity of the Constitution and exposed it to desires for constant amendments due to six factors.
First, the government rejected most of the recommendations of the Constitutional Review Committee (CRC). Second, the government added many items that had not been before the CRC. Third, members of Parliament were reported to have been given large sums of money purportedly for consultations with their constituents, but several people suspected government buy offs. Fourth, the amendments were so many (over 100) that members did not have time to debate each thoroughly. Fifth, several items that were not constitutional were incorporated into the document. And lastly, the management and financing of regional governments were not well spelt out.
He concluded by noting that: “Clearly, what Parliament has concluded is most unlikely to stand the test of time as the constitution of this country. What is likely to happen is that every time there is a general election, political parties will be including in their manifestos proposals to enact this or that amendment – for example, to restore presidential term limits and establish a recognisable federal system of government in Uganda. In other words, far from being settled, the Constitution is likely to remain constantly in the political arena.”
The book
The book, breaks new ground in how Uganda and Africa have been viewed by academic and popular opinion. Mayanja’s life sheds light on the last days of colonialism and the early postcolonial history of Uganda and other African countries. First, although Africa, particularly Uganda, is viewed by popular imagination through the images of dictatorial and corrupt African leaders like Amin, Obote, Mubotu, Bokassa, Bongo and others, there were, and still are, voices of reason who advocated for the advantages of good governance.
