Two years to 2026 polls, reforms remain on paper

Political historians claim that Uganda continues to be haunted by the spectre of its turbulent past as chaotic scenes at Parliament in 2017 during the age limit debate bore parallels with the Milton Obote I pigeon-hole constitution—Uganda’s first cardinal constitutional sin— which was passed through the barrel of the gun.

Daniel Ruhweza, a constitutional law lecturer at Makerere University, opines that the term limit and age limit provisions violated the basic structure doctrine, which amounts to “specific provisions in the constitution that are so critical.” They are, he adds, “like the pillars that hold the house called the constitution. And if you tamper with them the house may continue in existence but you have compromised the essence and some have even argued fundamentally changed the constitution.”

Dan Wandera Ogalo, a lawyer who was a Constituent Assembly delegate, recalls how a break with the turbulent past informed the spirit within which the 1995 Constitution was framed.

“You can see from all our history we have never had a peaceful change so it worked on us during the Constituent Assembly. How do we ensure that this doesn’t happen because when it happens it comes with a lot of suffering, killings, death and loss of property,” he told Sunday Monitor, adding, “So, what do we put in this constitution so we have a peaceful transition of power. That is how we ended up with the two-term limit. The mistake we made was not making sure we protect that provision by what we call in law, entrenchment. We ought to have entrenched that provision to require that in order to change it you require a referendum.”

Worrying reluctance

Delays by the Executive to enact the recommendations of the Supreme Court in light of judgements delivered in the 2001, 2006 and 2016 presidential election petitions stoke fears that there is a deliberate attempt to skew the playing field in favour of the incumbent. Specifically in 2016, the Supreme Court, enriched by the amici curiae submissions from Makerere University law lecturers, directed the government to introduce 10 recommendations to improve the credibility of the elections.

Amongst the reforms sought is to increase the number of a presidential election petition from 30 days to 60 days— to accept the use of oral evidence alongside affidavit evidence— government officials and organs who violate laws in regard to access to state-owned media should be sanctioned—election-related reforms should be enacted within the first two years of a new Parliament and laws be enacted to prevent candidates including the president from doling out donations during campaigns, amongst others.

A shrinking civic space notwithstanding, civil society has contributed to efforts to restore the constitutional order, particularly in the manner in which elections are managed. The Citizen Compact for Free and Fair Elections was one such vehicle rolled out in 2014. It recommended that a new independent and impartial Electoral Commission be established. The selection of commissioners and the Electoral Commission staff must follow a process of open application, public hearings and scrutiny conducted by the Judicial Service Commission.

It also recommended that the military should have no involvement whatsoever in the electoral process and should remain focused on its constitutional duty of securing the country’s borders and defending its sovereignty. A mechanism, as well, must be established to monitor and prevent raids for funds from the central bank, ministries and international assistance accounts, in the period before and during election campaigns.

Further, it recommended that the President should relinquish tactical command and control of the armed forces to the Joint Chiefs and must not serve as the chairperson of the UPDF High Command.

A recent study on militarisation of the police undertaken by the Network of Public Interest Lawyers discovered that the military capture largely responsible for enacting political policing has resulted in egregious human rights abuses in the areas of crowd management and riot control.

The November 2020 riots in Kampala shortly after presidential candidate, Bobi Wine, was arrested in Luuka District, is instructive. Job Kijja, a civil society activist, facilitated this effort and reveals its motivations.

“What we felt needed to be done was for Uganda as a country needed to get into some sort of conversation which would help us arrive at a new mechanism for managing elections in the country. We needed to build consensus, “ he revealed.

Reconciliation

Dr Ruhweza says whereas reforms are important, there must be a genuine attempt of truth-telling and reconciliation.

“You could return the term limits, you could actually return the age limits. But that doesn’t answer other fundamental questions, things like biases people may have, grievances people may have, pent up anger, people who have been arrested and have allegedly not returned, you don’t know where they are,” he said.

During the plenary held on October 24, 2023, Justice and Constitutional Affairs minister, Norbert Mao, said that “the country is hurting and needs reconciliation between the building blocks that make Uganda. Let us go back to the Constitution because that is the consensus from where we build ourselves.”

In the absence of safeguards such as term limits, Ogalo fears that the country is gravitating towards the cliff.

“It is unfortunate because we had thought we had made a break with the violent past in 1995 when we made the Constitution. We have failed the country again,” he said.

Mr Kiija argues that the litmus test is whether the government will live up to its promise to deliver electoral reforms that don’t favour the incumbent.

“It is our hope and prayer that the Citizen Compact is revisited and the critical elements in the compact are considered as this constitutional amendment is happening,” he said.

Almost two years to the next general election, constitutional amendments and electoral law reforms are yet to be tabled in Parliament. Traditionally amendments of this nature from the government have not lived up to the expectations of progressives.

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