DRAFT CONCEPT PAPER ON CONVOCATION OF A NATIONAL CONVENTION FOR CONSENSUAL GOVERNANCE IN UGANDA
The purpose of the draft paper is to provide an exposition of the fundamentals of good governance as incorporated into our Constitution. The objective is to stimulate debate on how Uganda is governed and ought to be governed. The vision is to create a new Uganda in which its citizens feel a sense of belonging, proud to be Ugandans, and desire to live in amity with one another regardless of their ethnic origin, birth, creed, social or economic standing, political opinion or disability while ensuring preservation promotion and maintenance of the heritage of the individual cultural groups which make up the Uganda’s social mosaic.
Our constitution may be divided into segments. The first segment consists of the National Objectives and Directive Principles of State Policy taken together with the provisions on Sovereignty of the people, Supremacy of the Constitution and Protection and Promotion of Fundamental Rights and Freedoms. These provisions are of universal application and not invented by Uganda but only adopted, as they ought to be. The second segement consists of the enforceability and enforcement mechanisms where the State, State organs, and State agencies, stray from the fundamentals of human rights and freedoms. The most important player under this are the Constitutional Court, and other courts, summed up together under the term “Judiciary.” The nature and mandate of the Judiciary are set out succinctly in article 126 and 128(1)(2)(3) of the Constitution. It is advisable to set out those provisions for a smooth flow of reading and hence, understanding; and also to provide food for thought and reflection by the reader on whether and how these provisions cited throughout this discourse have been, or are, or ought to be, observed, safeguarded and implemented; as well as how the civil society must play a supportive, even coercive, role to ensure observance of those provisions by the State leadership and State apparatus. More and more the voices are becoming louder and louder not only from the rank and file but also from the cream of our society which include Judges and persons of similar or equal standing, decrying prevalence of rampant transgressions of the very foundation of the constitutional order on which a viable state is built. They fear that if such transgressions are not checked early, and now, Uganda might soon be engulfed in a political sunami such as has been heard of in Kenya, Zimbabwe, Sudan, Rwanda, the Democratic Republic of Congo, Guinea, Somalia and, to a lesser degree, in the post-apartheid South Africa, Nigeria and Madagascar.
Constitutionally, as ordained in article 1, the Civil Society has the duty to participate in analyzing the issues and forces at play in order to ensure compliance with section XXVI which requires to ensure that “All persons placed in positions of leadership and responsibility shall, in their work be answerable to the people” and
“All lawful measures… be taken to expose, combat and eradicate corruption and abuse of office or misuse of power by those holding political and other public offices”;
Because section XXIX makes it a duty for every citizen.
“to be patriotic and loyal to Uganda and to promote its well-being,
(e) “to foster national unity……….”;
(f) to promote democracy and the rule of law.”
Where the constitutional principles, directives and practical provisions are violated or disregarded, whether deliberately or unintentionally, the rule of law collapses carrying democratic governance with it and ultimately chaos sets in with all its evil ramifications.
Because it is the duty of every citizen to promote democracy and the rule of law; and also because under article 3(4) (a), and (5).
“All citizens of Uganda have the right and duty at all times.
“to defend the Constitution and… to resist any person or group of persons seeking to overthrow the established constitutional order”
“any person or group of persons who… resist the suspension, overthrow, abrogation, or amendment of the Constitution commits no offence”;
preventing such acts calls for regular examination of how far all persons placed in positions of leadership and responsibility have or are carrying out their responsibility and whether or not they ought to be exposed for the deficiencies, if any, in their performance as the Constitution requires.
These duties cast on every citizen are duties which ought not to be left entirely to M.Ps and Councillors who are returned through regular elections, or to Parliament, or to local government councils. No. The electoral process, the Judiciary, the Executive, the Security Agencies and all other organs established by or under the Constitution are, by the cited provisions, part of the organs whose integrity and performance it is the duty of the citizens to examine and rescue from being or getting suspended, overthrown or compromised. Usurpation of the powers of any constitutional organ or agency, by another organ or agency, albeit a Government agency instituted to serve with a degree of independence. in their respective areas of authority by the civil society ought not to be acquiesced in or tolerated by the civil society. Say, resistance ought to come out if the Army were to take over the functions of the Police permanently; or where the Presidency or the Executive were to require the Judiciary to follow Government directives in determining or delivering judgements; or where, as it has recently been voiced, the appointment of judicial officers would no longer be dictated by consideration of the conventional and universally accepted norms of competence, uprightness, and integrity, but based on political party loyalty in order to toy the Government line and to serve political party interests. Such behaviour ought to be looked into by the civil society from time to time and corrected.
It is expected that the proper title of the proposed convention shall be chosen by the conveners.
The present State of Uganda and its formation
The present State of Uganda was cobbled together by the British colonialists towards the end of the 20th Century and crystallized into its present sociological and territorial form on 1st February, 1926.
The original title of Uganda Protectorate applied to the Buganda Kingdom alone, then an independent state occupying the Central region of today’s Uganda.
The European explorers of the 18th and 19th centuries intrigued by the might of the Nile wanted to find its source and in that connection came to hear of a fabulous Kingdom which it was said gave source to the mighty river. So, the quest turned to finding that Kingdom and on arriving at the Kabaka of Buganda’s capital they established a link both with the famed king, his country and the mighty river, the Nile.
The Buganda King fearful of losing his Kingdom to the more powerful European and Arab colonialist he had already heard of, invited the English (British) to send teachers to teach his subjects the new sciences borne of a superior civilization and also to protect his Kingdom from what he regarded to be rapacious and destructive powers from Europe and the Arab countries. The language of communication in the region with strangers was then Kiswahili, the coastal language of the Eastern Africa region, which the Kabaka also spoke fluently. In Kiswahili the name Buganda was pronounced and written as Uganda.
The British having welcomed the Kabaka’s invitation to come to teach and to protect did exactly that, if a little more. They established a protectorate over Buganda (then Uganda) not by force but by Agreement mutually put in place peacefully. It came to be known as the Uganda Agreement 1900. It covered only Buganda and regulated the relationship between the Buganda Kingdom and the British Administration in Buganda. Later, the British, through Agreements in some areas or by direct acquisition through use of force, extended their rule over a larger territory which in 1926 came to be known as Uganda, too. The Baganda having stuck on their original name which had a cultural significance to them, requested that only the larger territory be called Uganda while they retained the name “Buganda” for their nation. The Baganda are to day dismayed and very angry to see that the present Government has not only erased the name “Buganda” from the official maps and other records but its boundary lines, too, removed from the Constitution. The Government’s intentions are highly suspect and may provide the tinder box for a fire ball the consequences of which may not be yet grasped for now. But the erasure is not confined to Buganda alone. No. It covers all those groups whose emblems are depicted on the entrance to the Parliamentary buildings. For now the names of the cultural groups territories are tucked away in the First Schedule to the Constitution.
That as it may, the new territory which had been joined under the British Administration within the boundaries set in 1926 also benefited from the protectorate arrangement earlier made with Buganda. In consequence, Uganda Protectorate took shape and Buganda became an integral part of Uganda but living in a federal relationship with the Uganda Colonial Administration as regulated by the 1900 Agreement between it and the British. Crown.
The first Uganda Constitution, its abrogation and replacement
While indigenous peoples of Uganda themselves took no part in the process of the creation of Uganda, any more than children take part in the decision for their parents to found a family, but on attaining maturity the children are allowed to participate in matters which concern them and their parents as a family unit, likewise; Ugandans, through their respective communities as recognized by their then colonial masters were consulted from time to time as to their governance. The last consultation was what came to be known as the Lancaster House Conference, the Independence Conference held in London in 1962, which ushered in the Uganda Independence under the 1962 Uganda Constitution.
Wholly good or wholly bad, or good only in parts, the Independence Constitution was the result of a consensus of the Ugandan communities as then recognized and administered. Political parties, too, were consulted, and participated. So, appropriately, instead of making a new Constitution it is the Independence Constitution which ought to have been restored; and amended if and where necessary, through the mechanism set out in it. By failing to restore the Independence Constitution, and amend it if necessary, a bad precedent was set which might be followed in future whenever one regime leaves power.
Since then, there has been allowed to develop a culture of the political leaders abrogating constitutions, or amending them by every incoming regime, contrary to the spirit and principles enshrined in them, through manipulation by those who in the first place swear to uphold, preserve protect and defend those very constitutions; thus institutionalizing regime constitutions whereby every new regime would make a new, or virtually new, constitution to fit its own, not peoples’ agenda.
Restoration of abrogated Constitutions
The principle of restoration of constitutions unlawfully abrogated is recognized in article 3(4) of the 1995 Constitution. It is an old adage that “What is good for the goose is good for the gander.” That this laudable principle was not applied to the 1962 Constitution abrogated through brutal force makes article 3(4) of the 1995 Constitution sound absolutely hollow and it also portrays an image of reasoned hypocrisy.
Article 3(4) of the 1995 Constitution justifies the sentiment that the provision ought to be implemented by recalling the 1962 Constitution, recalling the stakeholders in its making and thereafter seek to amend it, where and if necessary; or else any subsequent regime will feel no restraint to do to the 1995 Constitution what was done to the 1962 Constitution, that is to say abrogate and replace it with yet another one which satisfies his ego. But even as we examine the performance of the 1995 Constitution today, the convention if convened, may find it wise to take a critical look at some aspects of the 1962 Constitution to see what might and ought to be adopted into the 1995 Constitution. If done, the spirit of article 3(4) of the 1995 Constitution would have been given effect to and vindicated.
The Constituent Assembly, or otherwise the composition of the constitution making body, its formation and mandate.
To borrow a word from the world of commerce, at the dawn of Independence in 1962, the owners of Uganda were identified and these are referred to in this discourse as the shareholders. They were fifteen. But for the 1995 Constitution neither the shareholders nor the political parties in existence before the NRM were allowed to participate in their own right.
The shareholders of Uganda Protectorate had been divided into fifteen administrative units. These units were largely based on similarity of cultural and linguistic attributes as well as size of the dominant community within a geographical area, justified on economic and administration cost of service delivery in the unit. The smaller sub-cultures within a given unit were always catered for at the level of county, or sub-county or even of parish, as the situation demanded. This was so, particularly in Buganda. That way, all communities, large or small, had their share in the governance and resources of the country and felt secure in their own setting. For instance, in Buganda the cultural leadership of the Baruli was recognized and accommodated their cultural leader Nangoma; the Banyala cultural leader Namuyonjo was recognized; so, too, the Kooki cultural leader. Here cultural leadership is contradistinguished with political and administrative leadership.
The making of the 1962 Constitution was based on a consensus of the shareholders. Because of that and being mindful of their respective cultures, each community which so desired catered for its culture and way of life and sought to preserve what they perceived to be their most crucial cultural interests in their endeavour to come together in one State, Uganda.
Character of the post 1962 Constitution
The 1962 consensus Constitution was torn apart in 1966. It was replaced by what came to be popularly known as the one man Pigeon Hole Constitution of 1966 which, too, was speedily replaced in a similar manner by the 1967 Constitution. The two Constitutions which came into being after the abrogation of the 1962 Independence Constitution were not consensus Constitutions but Regime Constitutions. Unlike the 1962 Independence Constitution where there was a semblance of a neutral chairman in the form and substance of the British Government which had already taken a position on relinquishing power in Uganda, the subsequent two constitutions were made by, or under, the patronage of a Chairman who had no pretence to neutrality in the matter. In those circumstances the human trait of wishing to impose one’s ideas where circumstances permitted, crept through.
It ought to be remembered that no consultation with the communities which formed and owned Uganda were required to sanction the abrogation of the Independence Constitution. Similarly, no consultations with the Uganda communities were made to introduce the 1966 Pigeon Hole Constitution. Still no consultation with the shareholders was made to overthrow the Pigeon Hole Constitution and replace it with the 1967 Constitution.
Both the 1966 and 1967 Constitutions were made during a State of Emergency, which provided for detention without trial of any body who was perceived to be opposing the Government position or view. A constitution made in such environment could never be a peoples’ constitution. It left the population thirsty of the desire to see their aspirations accommodated.
The 1967 Constitution under the Idi Amin Military Regime
In 1971 there was a military coup. The 1967 Constitution was, in theory, left to stand but it was a mere shell punched by a series of decrees, and later, under the post Idi Amin governments, by ordinances and proclamations, which left it only on a life support but in a state of suspended animation. It had totally lost its effectiveness, shape, and identity by the time the 1995 Constitution came into being.
After the fall of Idi Amin
Idi Amin was overthrown in 1979. An interim caucus called the Uganda National Liberation Front (UNLF) administration took over the country on the fall of Idi Amin. The Uganda National Liberation Front (UNLF) short lived regime further modified what had been left of the 1967 Constitution on the fall of Idi Amin. But the UNLF regime was also military in character in its three successive administrations of Yusuf Lule, Godfrey Binaisa and the Muwanga Military Commission. The Muwanga Military Commission organized elections in 1980 which were widely believed to have been rigged in favour of Milton Obote and his Uganda Peoples Congress party of which Muwanga was a very prominent member. The widely perceived rigging was not tested in the courts of law. The reason for this failure has never been explained. Instead of going to court as a first resort, some people straight away opted for the bush and fought a protracted and vicious war in which so many people lost their lives, limbs and property. There were many splinter groups fighting in the bush; the major one being the National Resistance Army (NRA) with its political wing (NRM) both led by Mr. Yoweri Museveni, now the President of Uganda. The NRA/M took power under then seriously battered 1967 Constitution in which the NRM further punched more holes. Nevertheless, the 1967 Constitution, though hardly recognizable after so much battering, survived, of course, largely for political expediency rather than effect, till the proclamation of the 1995 Constitution.
The Odoki Commission and the 1995 Constitution
The 1995 Constitution was made under the auspices of the NRM political party. The popular perception is that it was the product of NRM as a political party largely pushing its own party agenda according to its own pre-conceived direction. Of course, by then, for lack of a law for that purpose, NRM was not legally a political party, which it later officially became, though still feigning not to be called a party but only a political organization. Nevertheless, NRM had all the trappings of a political party including vying for and holding political power through partisan political elections.
For the making of a new Constitution in 1995, the Government appointed a commission headed by a Judge, now the Chief Justice, His Lordship Benjamin Odoki. The Commission’s composition was not the result of nominations from the member communities of the country, the shareholders. This is not to show skeptism about the Commission’s integrity but to show, as it actually turned out to be, that some of its crucial findings and recommendations could be freely ignored if it suited the appointing authority. Political parties, then under suspension, could not make nominations to the Commission either. So, there was no stakeholders’ consensus agreement on the composition of the Odoki Constitutional Commission. The Commission’s report was, at the end of its business, submitted to the Government which appointed it, and which watered down a good deal of the Commission’s report to impose its own views. The NRM had the majority in the Constituent Assembly (C.A.). Party discipline must have played a role, so it was perceived.
Representatives, not Delegates
That approach did not go down well with a significant portion of the populace. Besides, the Constituent Assembly (C.A.) was made up of representatives elected on the concept of parliamentary constituencies not on principle of delegates drawn from the national communities to reflect the wishes and aspirations of those cultural groups on how they want to be governed. It was a time when political parties, public expression of political opinions, and canvassing for political views, were prohibited. The most important practical distinction between a delegate and representatives in the Constitution making process is that the former’s acts are not final till ratified by the community or body which appointed the delegates, while a representative’s acts become final without prior consultation or agreement of those who chose him or her even where those who elected him or her dislike and even repudiate what he or she had agreed to. The C.A. members, particularly NRM, when faced with questions from their communities were often heard to say that they were not answerable to their communities but to their Party NRM which was the only one allowed to operate, the others totally suppressed by law and in practice. However, it was a convenient answer and a truthful statement. Before the C.A. elections, the people had been hoodwinked into genuinely believing what their leaders were telling them that Uganda was a No-party State, and all those candidates for the C.A. had to be non-partisan. The gullible majority swallowed that sweet pill and went on to elect their representatives subscribing to non-partisan but individual merit. It only became clear after event that the overwhelming majority of the candidates had been sponsored and therefore obliged to follow instructions their sponsor, that is to say, the only political organization then allowed to voice political views, NRM. That as it may, no opportunity was given to the people on whether a new constitution should be made or the Independence Constitution be restored with, or without, amendments, since it was not overthrown as a result of peoples’ demand. That was the amorphous situation in which the 1995 Constitution was made.
The Odoki Commission sensitization process, and the fate of the people’s views
The making of the 1995 Constitution was preceded by a sensitization process. That was a good thing. The sensitized population gave their opinion as to the system of governance the majority preferred. The Odoki Report showed that about 67% across the board, not to mention 97% or so in Buganda, preferred a federal system; while about 33% either did not care or preferred a non-federal arrangement. But the Regime had different ideas. The question of federalism was not even allowed to figure in the draft constitution, which was put to the debate. The majority of the elected Constituent Assembly representatives, not delegates, were NRM party members following party dictates, not community interests, though they always strenuously publicly denied than that NRM was ever a political party. As such, the elected representatives found it easy to ignore the peoples’ views on the peoples preference for federalism as it was not on NRM’s agenda. So, federalism, the peoples’ choice, lost out. Recently, we have come to know the sole source which despite the majority wishes, was ranged against federalism. Though the reason has not been disclosed to date a person whose directives must be followed, has openly voiced his deep seated dislike for federalism. So, the wishes of the overwhelming majority of Ugandans as to how they wished to be governed were sabotaged. An undemocratic system was thus ushered in from inception; and whatever semblance of democratic principles dotted the 1995 Constitution was erased through the omnibus amendment of the Constitution in 2005. Most of the provisions which were passed as agreed for amendment, were neither focused on or debated in parliament. The MP’s naturally picked and concentrated on the most eye-catching only such as removal of term limits on the President’s incumbency. The trick worked. The rest went through uncontested. Thus the Constitution became just one of those ordinary documents which may be just read and torn as one would wish.
Character of the 1962 Constitution
The 1962 Independence Constitution, though not perfect, was very accommodative. It gave a choice of federal, semi-federal and unitary strands of governance to the various communities of Uganda according to their own choices. What it lacked was a specific provision allowing one community the freedom to move from the system of its first choice, federal, semi-federal, or unitary, to another system available, if that community so wished at any later stage. But that was not expressly prohibited either.
Character of the post 1962 Constitutional order
Having regard to the factors at play during the process of the making of the 1995 Constitution and at its subsequent amendment in 2005, the character of the present Constitution is no different from all those previously put in existence after abrogation of the Independence Constitution. The mood those post 1962 Constitutions ushered in up to 1995 is adequately captured in the Preamble to the 1995 Constitution. We feel it imperative to set out in full here to see whether we are now not back to square one.
CONSTITUTION OF THE REPUBLIC OF UGANDA
Commencement: 8 October, 1995
“We The People of Uganda:
RECALLING our history which has been characterized by political and constitutional instability;
RECOGNISING our struggles against the forces of tyranny, oppression and exploitation;
COMMITTED to building a better future by establishing a scio-economic and political order through a popular and durable national Constitution based on the principles of unity, peace, equality, democracy, freedom, social justice and progress;
EXERCISING our sovereign and inalienable right to determine the form of governance for our country, and having fully participated in the Constitution-making process;
NOTING that a Constituent Assembly was established to represent us and to debate the Draft Constitution prepared by the Uganda Constitutional commission and to adopt and enact a Constitution for Uganda;
DO HEREBY, in and through this Constituent Assembly solemnly adopt, enact and give to ourselves and our posterity, this Constitution of the Republic of Uganda, this 22nd day of September, in the year 1995.
“FOR GOD AND MY COUNTRY”
The spirit and imperatives of a Written Constitution
A constitution has a spirit. That spirit is often captured in what is termed the National Objectives and Directive Principles of State Policy. This is found in many written constitutions of the world states. The present Uganda Constitution is no exception. Here we shall point out only a few of them to illustrate the need for a national convention on consensus governance if Uganda is to put a stop and reverse the continuation of the situation which proceeded the making of the 1995 Constitution as portrayed in the Preamble to the 1995 Constitution itself.
In this regard it is pertinent to consider the following extracts from the National Objectives and Directive Principles State Policy set out in the Constitution of Uganda, 1995:
(a) The following objectives and principles shall guide all organs and agencies of the State, all citizens, organizations and other bodies and persons in applying or interpreting the Constitution or any other law and in taking and implementing any policy decisions for the establishment and promotion of a just, free and democratic society.
The National Convention ought to consider this provision and find out whether or not it has been adequately observed.
II Democratic principles
The State shall be based on democratic principles which empower and encourage the active participation of all citizens at all levels in their own governance.
All the people of Uganda shall have access to leadership positions at all levels, subject to the Constitution.
- The State shall be guided by the Principle of decentralization and devolution of governmental functions and powers to the people at appropriate levels where they can best manage and direct their own affairs
III National Unity and Stability
All organs of State and people of Uganda shall work towards the promotion of national unity, peace and stability.
Every effort shall be made to integrate all the peoples of Uganda while at the same time recognizing the existence of their ethnic, religious, ideological, political, and cultural diversity.
- Everything shall be done to promote a culture of cooperation, understanding, appreciation, tolerance and respect for each other’s customs, traditions and beliefs.
There shall be established and nurtured institutions and procedures for the resolution of conflicts fairly and peacefully.
The State shall provide a peaceful, secure and stable political environment, which is necessary for economic development.
As we look around us today, the situation is bleak. The provision on national unity and stability is in danger of being totally eclipsed and replaced by disintegration and instability. The prospect of Instability and disunity appear to have been introduced, nurtured, and indeed enthusiastically promoted by the very people who daily condemn in words such behaviour.
XXIV Cultural objectives
Cultural and customary values which are consistent with fundamental rights and freedoms, human dignity, democracy and with the Constitution may be developed and incorporated in all aspects of Ugandan life.
This principle is now being abused. Cultural are values being trampled upon and destroyed. Cultural values include protection of the environment and preservation of species. It is sad that in this age of enlightment only lip service is paid to conservation while the environment is being ruthlessly raped by those who are constitutionally charged to protect it. Protection of the environment is otherwise also separately provided for under section XXVII of the Constitution. It makes no difference that people who are doing it may be unaware or that they do it with good intentions. As it was said in old times, it is still true today that “The way to hell is paved with good intentions”. Yes, the intentions may be good by the result catastrophic all the same. While professing to recognize cultural institutions for public consumption, no effort is being spared to fundamentally undermine them to extinction by employing intimidation, intrigue, bribery in all its variant forms, and arm-twisting, together with deprivation of territorial integrity on which the cultures are built.
All public offices shall be held in trust for the people
All persons placed in positions of leadership and responsibility shall, in their work, be answerable to the people.
All lawful measures shall be taken to expose, combat and eradicate corruption and abuse or misuse of power by those holding political and other public offices.
XXIX Duties of a citizen
The exercise and enjoyment of rights and freedoms is inseparable from the performance of duties and obligations; and, accordingly, it shall be the duty of every citizen—
“(a) to be patriotic and loyal to Uganda and to promote its well-being;
The convention ought to examine together the constitutional provisions on accountability and duties of a citizen to see how the leadership have complied with this Directive Principle and, whether the citizens, together or individually, have discharged their obligations under this provision. If not, then they must do so, hence the justification for a national convention. It is a constitutional imperative under section XXIX of the Constitution.
(e) to foster national unity and live in harmony with . others;
(f) to promote democracy and the rule of law.
The need for a national Convention
The need for a national convention on consensual governance arises from Section XXIX (e) and (f) cited above and section XXVI of the National Objectives and Directive Principles of State Policy which provides:
All public offices shall be held in trust for the people.
All persons placed in positions of leadership and responsibility shall, in their work be answerable to the people.
- All lawful measures shall be taken to expose, combat and eradicate corruption and abuse of power by those holding political and other public offices.
Corruption in public office is not confined to bribery. It extends to all forms of dishonest dealings and acts. No body else has identified corruption in public office more than President Museveni himself. Having regard to all the information publicly available the President cannot be faulted on this. The President has cried out for help from all people. The disease is so pervading that there can be no hope of its cure unless it is attacked massively, quickly, mercilessly and right from top to bottom. Corruption in Uganda is like rain. It comes from the heavens to drop to the ground. Indicators abound as to the source. One must walk the talk as they say. Corruption in high place has assumed such proportions that it now amounts to brazen daylight-aggravated robbery. It has godfathers with the establishment. No good governance can succeed in such a situation. It is the worst source of abuse of human rights and power.
The cause for the rot ought to be identified and where necessary uprooted. New diseases free ground must be found, prepared and new seeds cultured to yield disease resistant plants. The job is heavy diverse and consuming. The present operators have found themselves overwhelmed and need assistance. Only concerted efforts of the concerned citizens can redeem the situation, and only through a national convention.
Pillars of the Constitution
After the National Objectives and Directive Principles of State Policy come the pillars of the Constitution. They are found in the articles of the Constitution. Let us here mention a few of these articles:
Article 1. Sovereignty of the people.
“(1) All power belongs to the people who shall exercise their sovereignty in accordance with this Constitution.
(2) Without limiting the effect of clause (1) of this article, all authority in the State emanates from the people of Uganda; and the people shall be governed through their will and consent.
(3) All power and authority of Government and its organs derive from this Constitution, which in turn derives its authority from the people who consent to be governed in accordance with this Constitution.
(4) The people shall express their will and consent on who shall govern them and how they should be governed, through regular, free and fair elections of their representatives or through referenda.”
Article 20. Fundamental and other human rights and freedoms Capitals
“(1) Fundamental rights and freedoms of the individual are inherent and not granted by the State.
(2) The rights and freedoms of the individual and groups enshrined in this Chapter shall be respected, upheld and promoted by all organs and agencies of Government and by all persons.”
This article sets out a universal truth that no one in authority ought to pride itself or expect to be thanked for granting freedom to the people. No. It is a duty and failure to do so is a criminal act.
Article 21. Equality and freedom from discrimination
“(1) All persons are equal before and under the law in all spheres of political, economic, social and cultural life and in every other respect and shall enjoy equal protection of the law.
(3) For the purpose of this article, “discriminate” means to give different treatment to different persons attributable only or mainly to their respective descriptions by sex, race, colour, ethnic origin, tribe, birth, creed or religion, social or economic standing, political opinion, or disability.”
The convention ought to focus on how far these imperatives have been observed by those in authority since the Constitution was put in place, particularly as concerns “ethnic origin, tribe, and political opinion in distribution of political offices and allocation or ranks in the public service, which here includes the security forces and parastatals, among persons of equal qualifications, and how persons holding political opinions different from those of the regime in power have been treated under the law.
Article 23. Protection of personal liberty
(1) No person shall be deprived of personal liberty except…..
in execution of the sentence or order of a court… in respect of a criminal offence of which that person has been convicted,…
- … or upon reasonable suspicion that that person has committed or is about to commit a criminal offence under the laws of Uganda.
(2) A person arrested, restricted or detained shall be kept in a place authorized by law.
(3) A person arrested or detained.
shall, if not earlier released, be brought to court as soon as possible but in any case not later than forty eight hours from the time of his or her arrest.
(4) Where a person is restricted or detained…
the next-of-kin of that person shall, at the request of that person, be informed as soon as possible of the restriction or detention;
the next-of-kin, lawyer and personal doctor of that person shall be allowed reasonable access to that person;
(7) A person unlawfully arrested, restricted or detained by any other person or authority shall be entitled to compensation from that other person or authority whether it is the stat or an agency of the State or other person or authority.
Where does all this leave the safe houses and the directive of the President to the courts not to grant bail to the persons detained on the yet unproven allegations of committing crimes such as those arrested during and following the September 10th, 2009 prevention of the Kabaka from traveling to Kayunga District? Is such directive in consonance with the two cardinal provisions of the Constitution on administration of justice namely, the independence of the Judiciary set out in article 128 and the Oath judicial officers take enjoining them on how they ought to proceed in the discharge of their duties of dispensing justice? It is important to reproduce here those two constitution imperatives:
Article 128, Independence of the Judiciary
(1) In the exercise of judicial power, the courts shall be independent and shall not be subject to the control or direction of any person or authority.
No person or authority shall interfare with the courts or judicial officers in the exercise of their judicial lfunctions.
All organs and agencies of the State shall accord to the courts such assistance as may be required to ensure the effectiveness of the courts.
“I,…..swear in the name of the Almighty God…. That I will well and truly exercise the judicial functions entrusted to me and will do right to all manner of people in accordance with the Constitution of the Republic of Uganda as by law established and in accordance with the law and usage of the Republic of Uganda without fear or favour, affection or ill will. “ [So Help me God]
Article 24. Respect for human dignity and protection from inhuman treatment
“No person shall be subjected to any form of torture or, inhuman or degrading treatment or punishment.”
The convention might feel constrained to look at the situation on the ground, particularly with regard to the practices of the numerous, often uncoordinated and at times dubious security agencies established outside the law, notorious for depriving persons of their personal liberty, keeping their victims in unspecified “safe houses, privately tortured there or tortured in public by Kiboko squads, and unruly police operatives as we often see from television footages, all obligingly following “Orders from above” for the reason only that these victims were exercising their constitutional rights to demonstrate peacefully and unarmed, albeit to the dislike of the political masters in power rightly or wrongly fearful of losing ground in a free contest. The pernicious acts of savagery sponsored by the State which many people have claimed through the media, the constitutional Human Rights Commission, numerous local and international NGOs and the national courts, exist and are destructive of the sense of national unity and patriotism to which so much lip service has been given of late by those who know the truth but choose to live in self deception revelling in the empty comfort that no one else knows the truth. But let us move on to the other pillars of the Constitution (1995)
Article 29. Protection of freedom of expression, movement, assembly and association
(1) Every person shall have the right to
freedom of speech and expression which shall include freedom of the press and other media;
freedom to assemble and to demonstrate together with others peacefully and unarmed……;
- freedom of association……..
(2) Every Ugandan shall have the right–
to move freely throughout Uganda and to reside and settle in any part of Uganda;
Does this apply, too, to a traditional leader paying a visit to an area where the Government desires to create and install a new traditional leader?
The provisions of articles 21 and 29 set out above ought to be examined together to see how far they have been observed by the trustees of the people, the Government; and whether Ugandans, with so much docility, should continue to tolerate such a situation, or speak up.
The terms “traditional leader” and “cultural leader” appear to be wrecking havoc in some people’s heads. But in actual fact the two are not one and the same. A traditional leader may have a territory annexed to his leadership; but a cultural leader need not. In some cases a traditional leader may at the same time be a cultural leader in another aspect. A good example is Buganda. Clan leaders are cultural leaders and under the Kabaka with no territory annexed to their offices except as to the official cultural estates serving as a place of abode for the incumbent; but the Kabaka is a traditional leader with Buganda as a territory, annexed to his office. There lies the difference.
37. Right to culture and similar rights
“Every person has a right as applicable to belong to, enjoy, practice, profess, maintain and promote any culture, cultural institution, language, tradition, creed or religion in community with others.”
Has this cultural right been permitted uniformly throughout Uganda, including in Ankole, as to traditional or cultural institutions?
38. Civic rights and activities
“(1) Every Uganda citizen has the right to participate in the affairs of government, individually or through his or her representatives in accordance with law.
(2) Every Ugandan has a right to participate in peaceful activities to influence the policies of government through civic organisations.”
Where Uganda is now
Among the civil society there is a strong feeling that Uganda is increasingly degenerating into the chaos it was during the regimes of the 1966 and 1967 Constitutions. That the mood portrayed in the Preamble to the 1995 Constitution is reclaiming its previous position fast. That the National Objectives and Directive Principles of State Policy have long been abandoned and no longer influence management of the State. That the leaders no longer regard themselves as trustees for the people but as masters to whose generosity the population owes a living. That the most crucial of the fundamental rights are being more honoured in breach than in observance. That a cloud of fear of sliding into past chaos and conflict hangs over the political terrain. That civil democratic institutions are being seriously undermined. That sovereignty of the people is being snatched away from them by the very people who incessantly sing it. That centralization of power is fast replacing the decentralization and devolution ordained in the Constitution. That the highly hyped authority of the people has turned into a myth. True or false, the situation calls for investigation and, where necessary, correction, in order to prevent the grim prospect of the re-emergence of social strife highlighted in the Preamble to the Constitution, and to rescue the demise of the Directive Principles of State Policy enshrined in our Constitution, realizing that under section XXIX it is the bounden “duty of every citizen”–
to be patriotic and loyal to Uganda and to promote its well-being;
(d) to foster national unity and live in harmony with others; and
to promote democracy and the rule of law; and in that connection to run to the defence of the Constitution
3. Defence of the Constitution
(1) It is prohibited for any person or group of persons to take or retain control of the Government of Uganda, except in accordance with the provisions of this Constitution.
(2) Any person who, singly or in concert with others, by any violent or other unlawful means, suspends, overthrows, abrogates or amends this Constitution or any part of it or attempts to do any such act, commits the offence of treason and shall be punished according to law.
(3) This Constitution shall not lose its force and effect even where its observance is interrupted by a government established by the force of arms; and in any case, as soon as the people recover their liberty, its observance shall be reestablished and all persons who have taken part in any rebellion or other activity which resulted in the interruption of the observance shall be tried in accordance with this Constitution and other laws consistent with it.
(4) All citizens of Uganda shall have the right and duty at all times-(a) to defend this Constitution and, in particular, to resist any person or group of persons seeking to overthrow the established constitutional order; and
(b) to do all in their power to restore this Constitution after it has been suspended, overthrown, abrogated or amended contrary to its provisions.
(5) Any person or group of persons who, as required by clause (4) of this article, resists the suspension, overthrow, abrogation or amendment of this Constitution commits no offence.
It ought to be appreciated that where the Constitution is amended in anyway contrary to the provisions of the National Objectives and Directive Principles of State Policy the person, or group of persons; and this includes the Executive and Parliament, who cause or abet or sanction the unconstitutional methods or procedures of amending the Constitution are guilty of unlawfully taking or retaining control of the Government of Uganda and are liable to be punished pursuant to article 3 of the Constitution.
It is in pursuance of that duty the elite citizens of Uganda of all political persuasions as well as those without any partisan political leanings, together with those in Government today, as well as their support groups and those outside it, must come together in a national convention to draw up the road map for consensual governance in Uganda. The positions be secured by a national consensus Constitution not based on regime ideology, and partisan politics, but dependent on national consensus and parameters acceptable to all, a matter which has dogged Uganda from 1966 to the present day. Such Constitution should create strong, viable working institutions, and save the head of state from being reduced to a jack of all trades, and also the sole dispenser of largesse to all and sundry dipping his finger in every pie; all made possible by the ignorance of the unsentisized masses. To prevent such a situation article 4 of the Constitution was put in place.
Breakdown of institutional governance, the risk to the President and Country and the rescue plan.
To prevent development of the above situation, article 4 of the Constitution was put in place thus:
The State shall promote public awareness of this Constitution by—
translating it into Ugandan languages and disseminating it as widely as possible; and
providing for the teaching of the Constitution in all educational institutions and armed forces training institutions and regularly transmitting and publishing programmes through the media generally.
It is suspected that the State’s failure to honour this vital provision is deliberate because it proved to be problematic.
A population which knows its constitutional rights and obligations is hard to patronize and to oppress with impunity, for they would be aware of their strength granted or recognized by the Constitution; and they would equally know the limitations and boundaries beyond which their rulers could not venture, perhaps except through the device of military coups. As it is, institutional governance has seriously been trampled down upon now and replaced by personal rule, a situation which puts his Excellency’s personal health at risk. It is not hard to imagine that due to absence of properly working institutions the current President, His Excellency, Yoweri Kaguta Museveni, has not found it feasible to take a holiday since he assumed the Office of President almost a quarter of a century now. That is bad for the health of both himself and of the Country. It might even adversely affect the President’s political judgement without anyone realizing it, let alone himself. The President needs to be rescued from that predicament. The rescue can only materialize if constitutional safeguards, both for the benefit of the President and for the Country, are put in place and allowed to prevail. For today, we are lucky that Mr. Museveni is a very robust man, but this will not always be so, or to all the persons that may grace the highest office in this land. It is so because to carry oneself so in a high pressure job can only cause dwindling energy and poorer performance more and more. The country then begins to reap diminishing returns. The contrary to this physical and mental trend is against the dictates of nature whatever our wish may be. The situation is worse in countries where few institutions are functioning adequately or at all but management of public affairs is over whelming borne by the Head of State. It must be realized that institutions are not tailored fit the varying propensities of the individuals who may assume public offices; it is those individual who must fit into the institutions put in place not for them but for the public good and in the national interest. which is why it is very timely that concerned citizens must assist in averting a possible political chaos by discussing adherence to institutional management styles and laying proper foundations for the Country’s good governance and save the Country from a possible catastrophe.
Knowledgeable citizens must present papers for discussion at the convention for consensus opinions to be ultimately presented both to the Government and to the population for possible adoption which, if necessary will lead to a consensual Constitution, for a better and safer Uganda.
Participation in the projected convention must reflect the true character of the Ugandan Civil Society in political, social, religious faith, race, ethnic, geographical and economic, backgrounds. The Chairperson(s) must be persons of high moral standing, political integrity and experience preferably drawn from outside Uganda. All participants must do so on equal footing.
The 1985 Nairobi Peace Talks Agreement
The idea of a National Convention is not new since Independence. It was first articulated seriously at the Nairobi Peace Talks. However, when the Peace Talks Agreement was scuttled, the projected Convention which alone would marshal the broad ideas of the peoples of Uganda diverse in their ethnicity, faiths, creed and political pursuassion was also scuttled leaving the new Constitution to be monopolized and dictated by the single ideology and aspirations of the regime in power, an event which failed to unite the people in their diversity and to lead to mass prosperity and happiness but instead to condemned the majority to increasing poverty, oppression torture and deprivation at the hands of a clique of the ruling elite. The events of 9/10 in Buganda and spontaneous outbursts and killings which ensured followed by the rampant closures of media houses together with the startling admissions by the ruling elite of the otherwise long documented evidence of the institutionalized vote which has characterized all elections since 1995 events which only those in the corridors of power could successfully mastermind, which, incidentally, an increasing number of the adherents of the ruling party now recognize as a source for formenting chaos in the country, are all signs of the likely doom the country faces. It may be a good idea to bring to those who did not participate or were not around at the Nairobi Peace Talks the came and purpose of the National Convention was conceived.
Towards the end of the protracted war, which lasted for five years (1981 – 1986) peace talks in search for peace in our beloved country, to end all hostilities between the then military government, the National Resistance Movement (NRM) and other combatant forces, Uganda Freedom Movement (UFM), the Federal Democratic Movement (FEDEMU), the Former Uganda National Army (FUNA) and Uganda National Rescue Front (UNRF), were held in NAIROBI Kenya, from 26th August, 1985 to 17th December, 1985, under the Chairmanship of H.E. Daniel Toroitich Arap Moi, President of Kenya. At the end of the talks, all parties agreed to end all hostilities and signed an agreement for the Restoration of peace to the sovereign State of the Republic of Uganda. The importance and justification of that agreement is ably and convincingly, captured in the preamble, where salient and pertinent parts, of the same, we wish to bring out here, so that one can realize that the issues which were being addressed in the talks are exactly the same problems which are haunting us at this very moment. Parts of the aforesaid preamble are as follows:
THE UGANDA PEACE TALK AGREEMENT
THE RESORATION OF PEACE TO
THE SEVEREIGN STATE OF THE REPUBLIC OF UGANDA
17th December, 1985
The Military Government and the National Resistance Movement, the Parties to the Agreement.
RECALLING the desire of the people of the Sovereign State of Uganda, at Independence on the 9th of October, 1962 to exercise fully the right to self determination as one Nation within the United Nation Organisation.
AWARE of the endless conflicts resulting from the denial of, or impediments in the way of freedom and peace for the citizens of and people of Uganda by successive Governments, which conflicts have destroyed peace and stability, eroded national institutions and democratic principles and threatened the sovereignty and integral status of our Country so dearly cherished by us and all Ugandans everywhere.
CONSCIOUS of the need for the creation of conditions of stability and well being and people based on respect of individual persons and of the need for respect and observance of human rights and fundamental freedom for all person in Uganda without distinction as to race, sex, place of origin, political opinions, colour creed or language.
CONVINCED that any continuation of armed conflict, dictatorial rule, denial of human rights and fundamental freedom prevent development in Uganda as well as positive international co-operation with friendly and brotherly nations and other bodies and militates against the ideals of peace.
BELIEVING that the process of restoration of peace, stability and democratic rule and Government is now irresistible and irreversible as exemplified by the spirit of mutual co-operation, trust and frankness between the parties at the Peace Talks, and in so believing, desiring a formula to terminate the problems that have for so long bedeviled and manacled Uganda such as dictatorial rule, and all practices of denial of human rights and fundamental freedoms, discrimination and massacre associated with such rule.
NOW DO SOLEMNLY PROCLAIM for and in the name of Uganda the urgent necessity:-
Of bringing to a most speedy end of dictatorship in all its forms and manifestations, armed conflict and denial of human rights and fundamental freedoms.
Of restoring peace, security, law and order throughout the country, through reconstruction of the country’s economy, re-establishment of an effective administration both in Central and Local government initiation and implementation of military reforms designed to ensure balanced, disciplined and national armed forces and security service and;
Of laying the groundwork for the preparation and drafting of a popular constitution which will be supreme Law of Uganda, which constitution shall be promulgated by a popularly elected parliament/National Assembly in due course, and ensuring the speedy return to democratic government through free and fair general elections within the framework of such a constitution.
AND TO THIS END DECLARE AND AGREE, THAT:-
END OF PREAMBLE
To further throw more light on what transpired at this Nairobi Peace Talks, here below is Article 15 of that Agreement which read as follows:-
CONVENING OF NATIONAL CONFERENCE AND GENERAL ELECTION
ARTICLE 15 – NATIONAL CONFERENCE
As soon as practical after the signing of this agreement, the Military Council shall convene a National Conference to discuss key National issues to wit, tenure of the interim government, the future national constitution framework, election and the National army, representative at the said National conference shall be drawn from all districts as well as all National Institutions, Political parties, religious groups and military council.
From this Article one can note that although the parties to the talks arrogated to themselves the liberty to handle such very important national issues without first consulting the owners of the state, Ugandans, the beneficiaries from the agreement were going to be those very people, because the out-comes would have been the remedy for the wrongs which forced Ugandans to go to the bush. Mark you these are the same problems, still haunting the people up to now.
Therefore, all what has happened in the country after the collapse of the Nairobi Peace talks, and what is happening now, namely, the continued internecine conflicts in Northern Uganda, resulting in unprecedented loss of life and property in the region, the unilateral constitution making process which brought in the 1995 regime Constitution, the unconsensual governance and the pro NRM electoral Commission and electoral laws, presently contested, the unbalanced tribes representation in the armed forces and other security forces, are some of the problems which were consolidated by those who flouted that agreement. To solve those problems people insist that it can only be done by dialogue through a National Convention. A course of action which had been agreed upon in Article 15 of that agreement referred to in this paper. This is why the demand for a National Convention which would have been held long ago in 1985 still lingers on. Hence, all the above-mentioned misfortune and all the political scuffles taking place in the country must be baled to that group.
Uganda did not come into being organically. It is an artificial State cobbled into being by its one time colonial masters. However, as they agitated for Independence, Ugandans, in spite of their ethnic or cultural diversities, opted to remain one in one State. Geographical locations, language and culture broadly define the make up of the Ugandan social fabric today, as it was before through the colonial era. The outer boundaries of Uganda were defined in 1926. Up to to-day Uganda is largely an amalgam of the various ethnic communities that comprise it. Today, the communities which have since 1926 settled in Uganda are of insignificant demographic importance. By this we refer to such people as have settled in Uganda from Asia, Europe, America and those from elsewhere on the African continent. So, largely in the context of the Constitution, we are talking of the indigenous communities by and large defined by their native locations, traditions and indigenous languages. Principally, these are the peoples whose views must be sought to give expression to Uganda’s political dispensation in constitutional terms. The Constitution must express their cherished views. These are the people who must separately and together put forward the parameters necessary for each of them to live in peace, tranquility, amity and happiness in the State of Uganda. Of course minorities’ views must also be sought with the aim of accommodating them.
It was heard that in 1966 the Buganda Lukiiko (Buganda Parliament) voiced a desire to seccede. This was denied. Those who were there say that they only asked the then President of Uganda, Milton Obote, to remove his Government from Buganda soil because he had breached the Independence Constitution which alone tied all the individual communities of Uganda in one State. Not long ago some political elements in Northern Uganda, particularly in Acholi land, and lately Moyo, voiced the same sentiment. Whether or not the secession sentiment exists and is or is not widely shared, and whether or not it was, or is, confined to the Baganda and Acholis alone, the fact that it has been at all aired must be a source, of great concern and its cause must be timeously investigated by the civil society. Though it is not always true, the old saying that “There is no smoke without fire” is not just a stupid rumbling, borne of primitive ignorance. When smoke is sighted it is prudent to investigate it and quickly, too, establish the reality and cause, and provide a peaceful and permanent solution; or it may get too late to save the situation without serious damage, or at all.
Despite the advent of the NRM, Uganda has not witnessed real peace in every corner of the country. Kony might have been defeated, at least for the time being, but unless the cause has been investigated and totally removed it will be idle to say that the war has been won. First, there was Lakwena, then Uganda Patriotic Alliance (UPA), NALU, ADF, Kony and more; only in a space of just about twenty years. Is Buganda not now volatile again? Can we say with all certainty that there can be no others to follow? No. We can only affirm this if we know the cause, and remove or find a solution to that cause.
Political discontent cannot be wished away, nor can mere condemnation of others by calling them things, tribalists, secessionists, unpatriotic and whatever other humiliating and intimidatory lebels do not offer solutions. They did not do so through all the previous regimes. As we must be well aware yesterday’s thug villain, rebel, murderer, is to-day’s hero and patriot; and vice versa. Political stability is predicated on good governance; and good governance can best come about if the universal principles of good governance and the constitutional guiding principles now largely ignored with impunity and impudence reiterated in our Constitution particularly Article 1, are observed and adhered to. But where the people are denied a say in their governance, stability cannot be assured however strong the coercive State machinery may be. It is more the spirit and less the weaponry that prevails in the long run and it matters less how long it takes. The sudden collapse of the communist regimes in Eastern Europe a decade ago, shortly followed by the fall and disintegration of the Soviet Union should be a lesson to us in this regard except to the naïve or mad political operator or activist.
The old adage says, “Whom the gods will destroy, they first make mad”. May be it is the gods alone who should be blamed. After all a mad person cannot himself know he is mad so he ought not be blamed. It is those same people around him who may know. In politics, unfortunately, there is no constitutionally compulsory periodic medical examination of the mental state of political leaders of any description and level. That being the case, it is the duty of the civil society to put in place measures to safeguard Society from the effect of such a state of affairs by creating strong institutions which endure beyond any incumbent and not designed serve the incumbent’s personal whimsical interests but that of the State and the Civil Society. For elective positions which exercise executive powers there is ultimately no better safeguard than prescribed term limits.
Adherence to the universal principles of good governance as reflected in Article 1 of our Constitution is another bedrock of national stability, which can wed communities together in peace, tranquility and happiness, thus perpetually inducing the citizens and communities of all cultural backgrounds to desire to belong to the unity of the State and be ready to the die for it. Without good governance properly felt by the governed heaps of hours of patriotism lessons will amount to a futile endeavour.
There appears, however, to be some misconceptions among some of the political class that patriotism means, and only means, unquestionable loyalty to a leader, or regime, or a ruling party at any given time, and any deviation from that is treason which ought to be punishable with death. It is high time that people woke up from that dormancy and myopia. “Regime and State” are not synonymous. If indeed they were, all those who participated, or in any way supported, the 1981-86 Bush War ought to be convicted of treason whether now or any time in the future, and be hanged on the gallows for that treason. However, the reality is that a person who resists an evil dictatorship or acts which might result into destabilization of the State is as much, or even more, of a patriot than that who condescends to the perpetuation of bad governance whose consequences may lead to the disintegration of the State. Those who waged the Bush War were rebels against the regime in power then, but they were not rebels against the State of Uganda. That is so because in their view they prosecuted the Bush War only to make Uganda a better place. If so, they were patriots. Patriotism is not a passing phase. It endures at all times through all generations. Our present Constitution recognizes and encourages this plausible disposition. It might be pertinent to set out here some of the provisions of Articles 1 and 3 of our present Constitution.
1. Sovereignty of the people
(1) All power belongs to the people who shall exercise their sovereignty in accordance with this Constitution.
(2) Without limiting the effect of (1) of this article, all authority in the State emanates from the people of Uganda; and the people shall be governed through their will and consent.
(3) all power and authority of Government and its organs derive from this Constitution, which in turn derives its authority from the people who consent to be governed in accordance with this Constitution.
(4) The people shall express their will and consent on who shall govern them and how they should be governed, through regular, free and fair elections of their representatives or through referenda.
2. Supremacy of the Constitution
“(1) This Constitution is the supreme law of Uganda and shall have binding force on all authorities and persons throughout Uganda.”
The purpose for setting out here those provisions is to draw the reader’s or listener’s attention to the italicized parts and to inform that those are fundamental principles of universal application to all constitutions world wide. Their presence in the Constitution is a mere reminder of the people’s rights. As indicated earlier, all citizens of Uganda have a constitutional duty and is also a human right not granted by the State but inherent in the people to review how they are governed and set goals for their governance. Good governance, which includes governance by consent of the people concerned, is essential to economic development which can only thrive in a tranquil environment. Those who put themselves up or aspire to lead ought to be mindful of the new and fast developing culture in the world today which no longer permits violation of human rights by national leaders to go unpunished. There are today numerous evidence of this dotted around the world, from the Nuremberg trials of post Nazi Germany, the Pinochet trial of the former Argentinean military dictator, the trial of ex-President Fujimori of Chile for corruption, the trial of Molesevic of the former Yugoslavia for abuse of human rights, the Sadam Hussein trial, though not for the “smoking bomb” the ongoing Rwandese and Charles Taylor genocide trials, the recent suicide of the former South Korea President to avoid prosecution for corruption. Yes, corruption among leaders is a gross violation of human rights of the proportions of genocide. Millions die for want of medical care, sanitation, food, preventive medicine and the like due to thieving leaders or institutional toleration of such persons by corrupt regime which abet such people and the pending arrest warrant for Kony. The measures which are now being meted out to such leaders after they leave office, which include jail terms and confiscation of their loot slashed away in off shore accounts, ought to serve as a wake up call; that abuse of office by leaders may no longer go unpunished; hence also the injunction found in article 3(3) of the Uganda Constitution:
“This Constitution shall not loose its force and effect, even where its observance is interrupted by a Government established by the force of arms, and in any case, as soon as the people recover their liberty, its observance shall be reestablished and all persons who have taken part in any rebellion or other activity which resulted in the interruption of the observance shall be tried in accordance with the Constitution and other laws consistent with it.”
The emphasized part of this sentence is loaded and was intended to cover activities which those in power or who may perpetuate themselves in power, or may come to power by acts (other than military), but contrary to the principles and provisions set out in this Constitution may nevertheless be tried. This provision covers amendment of the Constitution through manipulation of the parliamentary and electoral process or through deception or bribery. It is, therefore, necessary that the population does not wait for events to take place, seeking scapegoats or victims, but take the bull by the horns early before greater damage is done. A national convention is undoubtedly the best route to the solution and the time is now, before things get worse.
Convention to be a regular feature
The civil society being constitutionally charged with the duty of defending the Constitution should, through a national convention structure, meet at regular intervals to assess and discuss how far the Constitution is being observed, irrespective of which political party is in power, in the knowledge and realization that Constitutions are not made to serve political party interests or to maintain leaders in power for the leaders sake but rather to maintain, sustain and promote the national interest and the public good. So, in line with the principles of our Constitution which have been outlined in this discourse, the civil society ought to realize their obligations. This provision (article 3(3) of the Constitution) covers amendments of the Constitution if arbitrarily made through manipulation of the parliamentary or electoral process by diverse means or through reliance on the coercive forces to intimidate and silence public opinion in their demand for transparency, fairness and justice.
The National Convention should periodically convene and review Government performance levels on good governance focusing, especially, on the National Objectives and Directive Principles of State Policy, particularly those referred to in this discourse, which include articles:
1, on the Sovereignty of the people;
2, on the Supremacy of the Constitution;
3, on the Defence of the Constitution;
4, on Promotion of Public awareness of the Constitution;
20,21, on the nature of fundamental and other human rights and freedoms which include:
(i) 21 equality and freedom from discrimination;
(ii) 22 protection of the right to life;
(iii) 23 protection of personal liberty;
(iv) 24, respect for human dignity and protection from inhuman treatment;
(v) 26, protection from deprivation of property;
(vi) 28, right to fair hearing;
(vii) 29, protection of freedom of conscience, expression, movement, religion, assembly and association including right to demonstrate;
37, right to culture;
right of access to information.
The above are the most commonly and persistently abused human rights to day. The overwhelming majority of Ugandans are unawere of the protection given to them under the Constitution and so they fear to assert themselves, wrongly thinking that it is unlawful to resist what the statutory authorities, which includes Government functionaries, state agencies, such as the Police, the military and other security agencies, formal and informal illegal.
Where civil society are well informed of their most basic and fundamental constitutional rights they will not only resist dictatorship but will also feel and realize that it is their constitutional duty to participate in their own governance and decision making and abandon the false perception that they are required only to be passive watchers of events which are only the preserve of their leaders, the ruling elite, or political party functionaries. They will realize that governance is a collective activity and pursuit. The Government, too, will realize that ultimately it is in its vital interest and indeed a duty to forge a partnership with the civil society for mutual benefit in the governance of the country. Only then shall democracy prevail and have a meaning away from the lip service it is often paid. To day, either because of large-scale ignorance, fear, or poverty among the civil society, the politicians have usurped peoples’ power and suppressed peoples’ rights making governance a preserve of the politicians alone to the exclusion of the civil society.
It is said that politics is to precious to be left to politicians alone. The press, print or electronic, is being intimidated out of existence or subdued to the level of becoming trivial and valueless. Public gatherings to discuss issues of national or parochial importance not sponsored by either the Government or the ruling Party are wantonly prevented even by petty Party operatives and Police at very low levels vying to please their bosses higher up; and this they do with impunity and great encouragement and great encouragement from “above”; lest such gatherings generate what might sound to be a criticism of the performance of the leadership, turning the whole country into a Police State. There is a perception in some quarters that whatever is not said in praise of the leadership must necessarily be unpatriotic, subversive and stupid. Only the national leadership has the monopoly of knowledge, intelligence and love for the Country. Surely, Ugandans can only sit by and watch that buffoonery prevail at the expense of national decay. The time to wake up and act is now, at least to forestall looming dangers with which we are not unfamiliar in our very short history as a State. The constitutionalism is in danger and with it, us. To save it is to save ourselves, and the future of our nation. We should not shirk this responsibility. It is not a duty for party politics or for the Government and the opposition alone, it ought to be the concern of everybody, the politicians, the non-political class, which include the apolitical, the clergy, the professions of every shade and calling, and the concerned. Uganda belongs to us all. This is a clarion call to action. Our early response is crucial.
Pillars of the Constitution
After the National objectives and Directive principles of State
These are constituted in several articles of the Constitution. Let us here mention the following:
Can this be achieved unless there is in place structures, machinery and political will on the pool of the leaders to establish a genuinely independent electoral commission with non partisan laws in place and with independent work force during the election times?
The purpose of this paper is to provide an exposition of the fundamentals of good governance as incorporated into our Constitution. Our constitution may be divided into segments. The first segment consists of the National Objectives and Directive Principles of State Policy taken together with the provisions on Sovereignty of the people, Supremacy of the Constitution and Protection and Promotion of Fundamental Rights and Freedoms. These provisions are of universal application and not invented by Uganda but only adopted, as they ought to be. The second segement consists of the enforceability and enforcement mechanisms where the State, State organs, and State agencies, stray from the fundamentals of human rights and freedoms. The most important player under this are the Constitutional and other courts, summed up together under the term “Judiciary.” The nature and mandate of the Judiciary are set out succinctly in article 126 and 128(1)(2)(3) of the Constitution. It is advisable to set out those provisions he for a smooth flow of reading and hence, understanding and also to provide food for thought and reflection by the reader on whether and how these provision cited throughout this discourse have been or are or ought to be observed safeguarded and implemented; as well as how the civil society must play a supportive, even coercive role to ensure observance of those provisions by the State leadership and State apparatus. More and more the voices are becoming louder and louder not only from the rank and file but also from the cream of our society which include Judges and persons of similar or equal standing decrying prevalence of rampant transgression of the very foundation of the constitutional order on which a viable state is built. They fear that if such transgration is not che… early, and now, Uganda might soon be engulfed in a political surnama such as has been heard of in Kenya, Zimbabwe, Sudan, Ruanda, the Democratic Republic of Congo, Guinea, Somalia and to a lesser degree in the post-apartheid South Africa Nigeria and Madagascar. Constitutionally, as ordained in article 1, the Civil Society has the duty to participate in analyzing the issues and forces at play in order to ensure compliance with section XXVI which requires to ensure that “All persons placed in positions of leadership and responsibility shall, in their work be answerable to the people” and
“All lawful measures… be taken to expose, combat and eradicate corruption and abuse of office or misuse of power by those holding political and other public offices.“
because section XXIX makes it a duty for every citizen.
“to be patriotic and loyal to Uganda and to promote its well-being;
(e) to foster national unity………..
(f) to promote democracy and the rule of law.”
Where the constitutional principles, directives and practical provisions are violated or disregarded, whether deliberately or unintentionally, the rule of law collapses carrying democratic governance with it and ultimately chaos sets in with all its evil ramifications.
Because it is the duty of every citizen to promote democracy and the rule of law; and also because under article 3(4) (a), and (5)
“All citizens of Uganda have the right and duty at all times..
“to defend the Constitution and… to resist any person or group of persons seeking to overthrow the established constitutional order;” and because
“any person or group of persons who… resist the suspension, overthrow abrogation or amendment of the Constitution commits no offence.
Preventing such acts calls for regular examination of how far all persons placed in positions of leadership and responsibility have or are carrying out their responsibility and whether they should be exposed for the deficiencies in their performance as the Constitution requires. These duties cost on every citizen are duties independent of the role of M.Ps through regular elections and their performance in Parliament or local government councils. No. The electoral process, the Judiciary, the Executive, the Security Agencies and all other organs established by or under the Constitution are by the cited provisions part of the organs whose integrity it is the duty of the citizens to examine and rescue from being or getting suspended, overthrown or compromised. Usurpation of the powers of any constitutional organ or agency by another organ or agency albeit a Government agency, such as if the army were to take over the functions of the Police permanently or where the Presidency or the Executive were to require the Judiciary to follow Government directives in determining delivering judgements or, as it has recently been voiced that the appointment of judicial officers in no longer dictated by the conventional and universally accepted norms of competence uprightness and integrity but on political persuasion, such suspect behaviour ought to be looked into by the civil society from time to time and brought to the attention of the whole world as a corrective measure to ensure good governance without which the people may express their will and consent on who shall (not) govern them and how they should (not) be governed” (parenthesis supplied).
Besides the foregoing, the following are some of the areas in the Constitution which ought to receive urgent examination by the Civil Society in a national convention on governance.
1. Sharing of revenues from the natural resources of a given federal or regional area
The revenue yielding resources in the regional and district areas are God given. They belong to those areas primarily for the benefits of the people of those areas. That the Central Government also shares in those revenues is of secondary importance. The districts and regional ownership of the resources which generate those revenues is original while that of the Central government ought to be accepted to be derivative. The Central Government has, with all honesty, only inferior rights to those resources and revenues. If Uganda were a commercial enterprise, the regions and the districts would be the shareholders, the true owners. The Central Government would be the management team, the Directors. Ultimate power lies with the shareholders because where loss occurs the shareholders are the losers. Ownership and control over land and natural resources must be viewed in this context. It ought to be realized that the Central Government has no land except as otherwise as set out in article 239 of the Constitution, which reads in part:
The Uganda Land Commission shall hold and manage any land in Uganda vested or acquired by the Government of Uganda in accordance with the provisions of the Constitution.
So, where the Government claims any land, it must show its title and how it acquired it otherwise it has no power to allocate or to work on any land which does not belong to it, without the consent of the persons concerned.
Although the Government hardly owns any land, Article 244(1) of the Constitution puts the entire ownership and control of mineral and petroleum in the Government of Uganda. Article 244 2(b) gives Parliament the power to make laws regulating “the sharing of royalties arising from minerals and petroleum exploitation.” It does not provide any definite formula. Thus, the true owner, the region or district, is left at the mercy, or greed, of the stranger, the Central Government, which may, in a token observance of this provision of the Constitution, decide to give to the host region or district 0.00001% of the net revenues realized from the exploited minerals or petroleum. Seeing the secrecy that surround the mineral and petroleum concessions in recent times and the high prevalence of graft in the management of public affairs, the provisions on Mineral and Petroleum resources ought to be revisited with all convenient speed. The people concerned must have a say and a share in the financial and other benefits generated by those resources in their areas. It is a human right for those people.
The Constitution must provide, on a percentage basis, what amount must be reserved for the district and region as a direct income for the benefit of those people; similar consideration for employment, all things being equal, of the natives of those areas ought to be made, too, not only as a measure of social integration between the native communities of given areas and immigrant communities (Bafuruki) in order to prevent or eliminate a feeling of being subjugated, whether real or imaginary, by favoured immigrant communities or ethnicities. The employment policy and practice should not be limited to numbers only but should be reflected at all levels of responsibility in the mining enterprise, the local workers and staff, if and where duly qualified, taking the larger share. Such policy will also reduce nepotism, which is clandestinely but speedily and seriously eating into the Uganda public sector. This policy if constitutionalized will also protect our political leaders from pressures exerted on them by relatives and cronies seeking employment and groovy positions in public and quasi public service establishments.
Besides sharing of resources between the Central and local governments, the people should be entitled to share in the economic resources of their areas through cooperatives. There must be devised a formular for participation in the foreign backed investment schemes for partnerships between the foreign investors, the central government, regional government, district government, private individuals and cooperatives. This arrangement will not only make people develop a saving and investment culture, it will also improve peoples financial and economic power, and also act as a catalyst to mobilization of investment capital internally. This approach will minimize, if not completely eliminate, the chances of conflicts and evils which we hear happening in a number of other developing countries arising from foreign exploitation of the natural wealth of those countries. Parliament must always first approve of all contracts for exploitation of our country’s natural resources to ensure transparency, social justice and accountability, and the regional governments must participate in the negotiation of the concessions. There ought to be ceiling on shareholding by a single individual, too, to ensure equity.
Preventing of corruption by public officials including political leaders
An enabling provision ought to be made in the Constitution for forfeiture of assets corruptly acquired any time it is discovered, in addition to any other punishment; and where one is found to be in ownership of assets far in excess of what his or her known legitimate income justifies, it must be assumed that he or she acquired it corruptly unless he or she can give a satisfactory account of how and when he or she acquired it. Section XXVI (iii) provides:
“all lawful measures shall be taken to expose, combat, and eradicate corruption and abuse or misuse of power by those holding political and other public offices”.
The suggested provisions shall give teeth to the above quoted constitutional provision which is now toothless.
Abuse of office and violation of human rights
A provision should be put in place for trying persons who abuse their public office by committing acts of gross violation of human rights set out in the Constitution, as soon as it becomes convenient and practical to try them and on conviction be punished.