ADDRESS BY RT. HON JUSTICE BENJAMIN ODOKI CHIEF JUSTICE OF UGANDA AT THE LAUNCH OF HIS BOOK: “THE SEARCH FOR A
NATIONAL CONSENSUS” AT
THE IMPERIAL
RESORT BEACH HOTEL, ENTEBBE ON 4TH FEBRUARY 2005 AT 2.30 P.M.
The Chief Guest, the Rt. Hon Justice Arthur Chaskalson, Chief Justice of South Africa;
Rt. Hon Speaker of Parliament
Rt. Hon Chief Justices from the Southern African Region
Former President of Uganda, H E G. L. Binaisa
Hon. Ministers of Justice and Constitutional Affairs/Attorney General
Hon. Justices and Judges of Courts of Judicature;
Hon Members of Parliament of Uganda and East African Legislative Assembly;
The Inspector General of Government
Your Excellency the Irish Ambassador, Mr. Martin O’Fainin
Your Excellencies, Ambassadors and High Commissioners
The Regional Representative of Ford Foundation, Dr Tade Aina
Chairpersons and Members of Constitutional Commissions
The Chairperson and Members of Kituo Cha Katiba;
The Secretary General of the European Centre for Democracy Through Law (Venice Commission);
Members of Civil Society and Mass Media
Distinguished Guests;
Ladies and Gentlemen.
I wish to welcome our distinguished guests from Uganda and outside who accepted our invitation to grace this occasion with their presence. I wish to extend a special welcome and gratitude to the Hon. Chief Justices and other participants attending the Conference of the Southern African Judges Commission which opened here this morning in Entebbe. We are honoured to
have ten Chief Justices from Botswana, Kenya, Lesotho, Mauritius, Namibia, Seychelles, Swaziland, Tanzania and Zimbabwe.
This occasion is dear to me personally, my family and my friends as it marks a landmark in my life. My participation in the process of making a new Constitution for our mother land marks a peak moment in my life. If I had to identify the most important thing I have ever done, the greatest contribution I have made, it would be participating in the process of writing
the Constitution of Uganda. The process was phenomenal, it was unprecedented, it was a life time experience, and it was visionary, It was fraught with immense difficulties and challenges but it was extremely rewarding. I was conscious that we were not only making history but also creating the future. My vision was that we were writing the Constitution not only for this generation but for posterity. The Constitution would serve
as a foundation and framework for the evolution of the country through tremendous changes over the centuries to come. It would serve a future none of us could realize or visualize.
Completing the writing of the story of this unique process and Constitution is yet another significant personal achievement worth celebrating with my friends and well wishers. I thank you all for joining me in this celebration.
Every book is written for a reason to achieve a purpose. The overall objective of writing this book was to promote the process of democratisation and Constitutionalism in Uganda. The 1995 Constitution restored Constitutional rule in the country which has to be nurtured and consolidated by the process of democratisation of power and the creation of a culture of
Constitutionalism. That is why it is said that a Constitution is necessary, but not sufficient. For a Constitution to be an effective instrument of democratisation and development there must be established viable institutions, principles and practices to support it. No Constitution however well written can survive and become a viable vehicle of governance unless it is supported by a culture of constitutionalism. We must avoid
having constitutions without constitutionalism.
The manner in which the Constitution was made through a participatory, popular and transparent approach was meant to advance the general acceptability and legitimacy of the Constitution so that the people could own, respect and uphold it and make it a living experience.
The basic elements of Constitutionalism are limited Government, respect for fundamental human rights, separation of powers, independence of the Judiciary, the rule of law, good governance, transparency and accountability. A culture of Constitutionalism requires fidelity to the Constitution by observing its letter and
This book explains not only how the people participated in the process thus advancing their democratic rights but also why it is important to involve the people in making vital decisions affecting them. It explains the
importance of national consensus in the process and how national consensus was developed. It identifies the issues in which national consensus was obtained and which remained contentious, and why. Some of the Constitutional issues, which remained controversial, may not 1~ave been finally resolved and may need more discussion and negotiation to produce national consensus. The book suggests how national consensus could be
achieved on these issues and why it may be necessary to reconsider them.
Hence, this book is an autopsy on the 1988-1 995 Constitution-making process in Uganda. I have written it because there has been a significant demand for me to tell the story, the personal story of my recollections and
reflections on the process, to enhance the understanding and appreciation of the historic challenges and opportunities we faced during the process. The demands came from interested persons and organisations both in the country and outside it who appreciated the uniqueness of the process and the product. Whenever I was invited to give lectures on the process many of those who listened to me suggested that I write a book about
the process. Some people wanted me to explain my personal role and experience in the process. They wanted to know what type of people were the Commissioners and how were they selected. How did I work with them? Why did we traverse the whole country consulting the people and how did we manage to do so? What did the people actually say or want? How did we manage to read and analyse all the 25,000 submissions received by the
Commission? What problems d id we encounter and how did they affect our work? How did we formulate the proposals for the new Constitution? Were we not influenced by Government? What role did the various players and interest groups play in the process and how did each influence the process and the outcome?
Many people wanted to know what were the justifications for the various provisions in the Constitution, some of which appeared contradictory to each other. They wanted to know whether I was satisfied with the manner in which the Constituent Assembly debated the Draft constitution, and the final Constitution they adopted. They asked me what lessons can be drawn from the process to guide the Constitutional review process here and elsewhere.
Answers to these and other questions are the subject matter of this book. It is a story of how we prepared ourselves, and the people, how the people responded, what we did with their views, how the 1995 Constitution was
born, how the Constitution has performed, and the effect of current Constitution review process on the Constitution and transition to political pluralism and the future of Constitutionalism in Uganda.
The requests to tell my story started soon after I completed my work in the Constitutional Commission in 1993. I did not accept these requests then because I thought that they were premature, especially those made before
the Constitution was adopted in 1995. My story would have been incomplete without witnessing the glorious moment when the Constitution was adopted and promulgated on 8th October 1995. Even thereafter, I knew that the task of implementing the Constitution would be more difficult, and I wanted to see how a democratically elected Government would function and perform under the new Constitution. I wanted to give the Constitution a
credibility test before I could write the autopsy.
I was also reluctant to tell my story because I thought that writing about one’s experience could be seen as an exercise in egoism and self-glorification. It is fraught with risks of divulging personal and privileged
information, which should be kept confidential, and of stepping on other people’s toes, or casting doubt on the credibility of the process itself. It requires one to present accurate, fair, balanced, facts and opinions about the process. This can be extremely difficult and challenging when writing about contemporary personalities and events. I hope I shall be forgiven if I have erred or wronged some people. However, I
believe that we must encourage the culture of writing in order to promote the culture of reading. For the intellectuals, the challenge is “publish or perish.” I commend leaders who have told their stories like H E Gen. Yoweri K Museveni, President of Uganda, who has written “Sowing The Mustard Seed.”
Many Africans cherish the oral tradition whereby testimony is transmitted verbally from one generation to the next ones. This may partly explain the dearth of autobiographical or historical materials on contemporary
history by key actors in public affairs. While this tradition may have served our ancestors well for many centuries, time has come for us to modernize our means of communication and break out of this tradition and tell our stories in print and electronic media. As I have already said, documenting personal or national experiences poses many challenges and risks and requires great courage, fairness and objectivity. But this is
the only way we shall succeed in preserving our culture and history, and passing them onto our future generations. Unless we do so we shall not only be unable to learn from history but also lose our roots and our identity.
In 2000, I eventually agreed to tell my story. The Constitution was five years old and I could therefore write with a measure of satisfaction and confidence. I could reflect back and assess whether the Constitution was
achieving the objectives of its framers. I was approached by Kituo Cha Katiba (The East African Centre for Constitutional Development) and the Ford Foundation with a proposal for funding the project of writing the book. It has been said that good things come to those who wait, but best things come to those who seize the moment and make it their own. I seized the moment and accepted the proposal because at that time, I was
Chairperson of the Judicial Service Commission and had more time to spend on writing the book. However, I feared that it might not be possible for me to complete the book when I return to the Supreme at the end of 2000. I anticipated that the exercise of writing the book would take at least two years, but as it is clear, I have taken fours years.
It was agreed that Kituo Cha Katiba would provide the administrative and research support, while Prof. Frederick Jjuuko of Makerere University would serve as the Consultant to the project. I started working on the project
by producing an outline of the contents of the book in form of list of chapters. Then I formulated a methodology, which included a study of the various constitutional documents used by the Constitutional Commission and a questionnaire administered to the public to find out their views about the process and its outcome, interviewing of former Constitutional Commissioners, Constituent Assembly Delegates and Ministers, collection
of relevant news paper reports, and study of various articles, papers and books written on the process and the Constitution. This methodology proved unmanageable due to lack of time and resources. I decided to rely on my memory, and some official records of the Commission and Constituent Assembly and my personal documents. This did not make the task any easier because the materials I used were neither properly categorized nor
well stored. It was a long search for unpublished materials. Kituo Cha Katiba provided some research assistance whenever I needed it.
The key to a great story is not how and when but why. Why did I choose the title of the book to be “The Search for a National Consensus”? What is the significance of this title to the making of the 1995
Constitution, and the objectives of the book? A Constitution is the basic decision by a people on how they wish to be governed and live together in peace and prosperity. The people must make the decision by participating in the making of their own Constitution, which should not be imposed on them by their leaders. The people themselves must agree on the Constitutional framework for their governance
—
the social contract
—
for them to consider it acceptable and binding on them.
“Consensus” connotes general agreement or shared views. It signifies a meeting of minds, ideals and values by all parties involved. It implies a shared vision and aspirations for the future. But it does not necessarily involve 100% agreement. Consensus is an important method in the resolution of conflicts and in the promotion of democracy and national stability. It suggests that there has been some process of negotiation and compromise among several divergent views. Consensus is an African method of settling disputes by listening to every one and taking into account all views. It is a painstaking exercise which is most rewarding in the end, because it produces no losers since all are winners. It promotes legitimacy and acceptability of decisions. Consensus instills the qualities of patience, tolerance and compromise.
Nothing could have described the “spirit”of the process of making the 1995 Constitution better than the title “The Search for National a Consensus.” But the “letter” of
the laws governing the process also required and encouraged the search for national consensus.
In the preamble to the Uganda Constitutional Commission Statute 1988, it was clearly stated that we were set up to search for national consensus, thus;
“Whereas the National Resistance Government recognizes the need to involve the people of Uganda in the determination and promulgation of a national Constitution that will be respected and upheld by the people of
Uganda, through the establishment of a Constitutional Commission with a view to achieving “a national consensus~~ on the most suitable Constitutional arrangement for their country.’
(underling added)
In Section 4 of the same Statute, one of the functions of the Commission was formulate a Constitution which would among others, “create viable political institutions that will ensure maximum consensus and orderly
succession to government.” Therefore, it is not only the methodology of formulating the Constitution that was to be based on the principle of Consensus but the institutions established in the Constitution itself had to be capable of generating and promoting the principle of consensus.
Throughout the Constitution-making exercise it was generally agreed that the Constitution should be based on the views of the people. That is why the people had to be consulted, and given sufficient time to contribute
their views. Popular participation and anchoring the Constitution on the views, values and aspiration of the people would enhance its ownership by the people as well as its legitimacy. These elements were essential in ensuring that the Constitution is respected, upheld and defended by all. Indeed the process which had started as “state
-
driven”
ended up being “people
—
driven.”
The National Resistance Movement Government must be commended for allowing the people themselves to evolve a Constitution of their choice without dictation or coercion. This political will was important in ensuring that the process was “people-driven”.
We received overwhelming support and response from the people. Searching for and identifying national consensus from the mass of submissions received from the people was a major challenge for the Constitutional Commission.
The study and analysis of data itself took a whole year; the public discussion and collection of views having taken no less than two years. Even in the formulation and discussion of proposals for the new Constitution which took another year had to be guided by the search and identification of the national consensus. It is only where the there was a failure to secure national consensus on a particular issue, that majority views were adopted while giving due attention to the minority views. This was the case with controversial or
contentions issues. But the largest part of the Constitution was based on national consensus. Although the Commission Statute required decision of the Commission to be determined by a majority of members present and voting, we did not strictly follow this requirement because all our decisions were determined by consensus. We discussed until we reached an agreement on any issue. It was remarkable achievement.
The book explains the reasons why it was possible to secure consensus on some issues and not on others, how consensus issues were distinguished from controversial issues, what was involved in identifying consensus, how
we gave effect to consensus, and how we chose Constitutional arrangements that best gave effect to the consensus. It is acknowledged in the book that while it was easy to agree on matters of principle, for instance, the need for separation of powers between the Legislative and Executive and Judicial branches of the state, it was very difficult to agree on matters of detail for instance the relationship between the three organs
and the powers and limitations to be placed on each branch to promote checks and balances. W e had to be creative to formulate details which best advanced the principle, in light of the objectives of the Constitution.
The establishment of a Constituent Assembly consisting of directly and freshly elected delegates, representing various significant socio-political forces was also aimed at promoting national consensus. Indeed the
Constituent Assembly Statute and the Assembly Rules of Procedure provided that decisions by the Assembly would be by Consensus as far possible. Where Consensus was not obtained the matter would be resolved by voting or referendum. It is common knowledge that most issues were resolved by consensus or voting, and none by national referendum.
Therefore, the search for national consensus was central to the process of formulating and adopting the new Constitution. This signified a fundamental departure from the methodologies employed in making past
Constitutions of Uganda which had been made by few leaders with least participation from the people. The Constitution which was formulated by people was not only unique but popular and democratic, and has served well the people of Uganda for the last ten years by promoting peace, stability and socio-economic transformation.
However, the search for national consensus has not ended. There were some contentions Constitutional issues on which national consensus was searched but not obtained. The current Constitutional review process
demonstrates a further search for national consensus. Indeed all the contentious issues formed part of the terms of reference for the Constitutional Review Commission whose recommendations now form the subject of the Government White Paper, and the
Constitutional Amendment Bill. The values of the principle of consensus and the methodology of seeking for it should provide useful lessons in undertaking the current Constitutional review process. The book should offer
some useful lessons. The current Constitutional Review process is important and should be handled democratically because the future of Constitutionalism in the country will largely depend on its outcome.
The progress in writing the book was affected by my appointment in February 2001 as Chief Justice. However, I soon settled down in my new post and progressed steady on the project. It has taken me four years to complete
writing the book. I thank God that I have made it.
I hope that this book will promote better understanding of the process of Constitution making and the 1995 Constitution. Explaining the roles played by various players in the process should build public confidence and
promote the legitimacy of the Constitution. It is hoped that this will destroy the destructive myths about the process and the Constitution, and explain why the Constitution can be called a “People’s Constitution.”
It is also my hope that the book will provide information which will promote orderly and informed constitutional development and growth, and make the Constitution a dynamic and living instrument for promoting peace,
freedom and development.
It now remains my duty to pay tribute to all those who have assisted and supported me to ensure that this book is written and launched.
I thank His Excellency the President of Uganda Gen. Y K Museveni, His Government and the people of Uganda for the trust and support accorded to me during the Constitution-making process.
I am grateful to all the various Ministers I worked with during the process for their support and advice.
I must pay glowing tribute to my colleagues, the former members of the Commission, for their patriotism and commitment to their historic task and the unbridled and selfness support and assistance accorded to me as their
team leader. May God give eternal peace to those six colleagues of ours who have since departed from this world. I am grateful to all the staff of the Commission for their dedicated service and assistance rendered to me.
I thank all organizations, institutions, donor community, civil society and the mass media for the supportive and crucial role they played to make my work successful, and the writing of this book possible.
I am grateful to all those who helped me in one way or another Constitution making process and during the writing of this book. Special appreciation goes to the following:
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Kituo Cha Katiba for efficiently managing the project. It was a pleasure to work with Justice Bossa, Ms Nassali and Ms Kibalama.
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Ford foundation for funding the project and for being patient with me.
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Prof. Fredrick Jjuuko for his balanced advise, constructive suggestions and constant encouragement.
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Dr. Tade Aina Regional Representative Ford Foundation, Nairobi for his brilliant preface to the book.
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Fountain publishers for agreeing to publish the book at short notice
- Rt. Hon Justice Arthur Chaskalson, Chief Justice of South Africa, for accepting to be the Guest of Honour and to launch the book. It is a great honour for me to have such a distinguished jurist and Constitutional expert and first President of the Constitutional Court of South Africa, to give a keynote address at this function.
Finally, I must acknowledge encouragement I received Veronica, and our children, was in the Commission and immensely.
the sacrifices made and the invaluable support and from my family, my late wife, Christine, my wife Peter, Philip, Dora Joshua, during the four years I the four years I was writing this book. I thank them
I thank you for listening to me.