Mixed Results in Uganda’s Constitutional Development: An Assessment of the Year 1999

 

 

By

 

Dr. Nyangabyaki Bazaara

Centre for Basic Research,

P.O. Box 9863,

Kampala

 

 

The 1995 Constitution represents a fairly radical reconstitution of the organs of the state. Certainly Uganda has not had a constitution that has attempted to effect radical change in the organs of the state and their relationship with the people. There are many things [in the constitution] that point in a new direction… In spite of the radical changes, [however,] there are severe limitations in the rights of association, in political expression and opposition.[1]

 

Introduction

 

Both supporters and critics of the 1995 constitution are united in agreement that despite the shortcomings, the 1995 constitution was a radical departure from all previous constitutions.[2]  It is different in as far as it was crafted through a protracted process that involved a significant number of Ugandans and also in as far as it contains new innovations that do not appear in previous constitutions.[3]  Against this background one would expect the 1995 constitution to be a durable foundation for constitutionalism in Uganda. However, the question remains: will the 1995 constitution work where the previous ones failed? After all the African constitutional experience reveal that elites have been manipulating constitutions to entrench themselves in power.[4] In addition, and as Mahmood Mamdani argues, ‘the terrain of constitutionalism has never been and cannot be an uncontested one.’[5] Whether or not a given constitution can become a basis for constitutionalism is not predetermined. Therefore, we are bound to ask the question as to whether or not the culture of constitutionalism is growing in Uganda as a result of the 1995 constitution.[6]

The objective of this paper is to examine constitutional issues that emerged in the year 1999 and make a critical analysis as to whether or not there is a discernable march towards constitutionalism. The paper is divided into 3 parts. Section one provides the historical context within which the new constitution was crafted. Section two highlights issues that emerged in the year 1999 to show flaws or progress in the process of constitutionalism. Section three concludes the paper.

 

 

 

 1.0 A Violent History of Political Change and Necessity of a New Constitution

 

The 1962 constitutional framework within which Uganda regained independence proved to be undurable. Within a space of less than five years, it was replaced by the 1966 interim constitution that in turn gave way to the 1967 constitution. The 1967 constitution was also thrown out by the military after the coup of 1971. Thereafter, the period 1971-1986 was characterized by unbridled dictatorship. In order to appreciate the implication of this trend to constitutionalism, we need to examine the manner in which constitutional amendments were introduced, the kinds of powers that were affected, the implications of the changed powers to the operation of state structures and how these affected civil and political liberties.

The 1962 independence constitution was based on a compromise of various political interests. The Uganda People’s Congress (UPC) party allied itself with Kabaka Yekka (KY) in order to win state power from the Democratic Party (DP). Yet the interests that had coalesced under those two parties were opposed to each other. KY was a party of monarchists whose ultimate interest was to lead Buganda out of the Ugandan framework. In contrast, the UPC, a party of peasants, workers, some traders and intellectuals was avowedly nationalist. In the event that the Buganda monarchists could not secure a separate existence from Uganda, they successfully entrenched a federal arrangement for Buganda in the 1962 constitution. Under this arrangement Buganda retained powers over the local police, primary education, local forests, etc. In addition, they successful blocked the advance of democratization in local government. Members of parliament were to be elected indirectly.

When Uganda regained independence, executive powers were vested in the office of the Prime Minister, who happened to be the UPC’s Milton Obote. When later the posts of President and Vice president were introduced, Kabaka Mutesa became the first President and the Kyabazinga of Busoga the Vice President. However, the posts of President and Vice President were more or less ceremonial with most of the executive powers in the hands of the Prime Minister.

 From about 1964, differences between the Buganda monarchy and the UPC began seeping to the surface. The touchstone was the issue of referendum provided for in the 1962 Independence Constitution, namely that the problem of the ‘lost counties’ would be resolved two years after independence by way of a referendum. The ‘lost counties’ were areas that formally belonged to Bunyoro-Kitara kingdom but which were given to Buganda as a reward to Buganda chiefs for assisting the British colonial masters in subduing Bunyoro-Kitara.

When two years passed, the Prime Minister Milton Obote was determined to follow through this constitutional provision, i.e holding a referendum in which the inhabitants of the ‘lost counties’ would vote either to remain in Buganda, become independent of both Buganda and Bunyoro or return to Bunyoro. Kabaka Mutesa was determined to ensure that Buganda did not lose the ‘lost counties.’ One of the things he did to achieve this objectives was to try to rig the referendum by settling ex-service men in the lost counties. Mutesa was trying to increase on the numbers of people who would elect that the ‘lost counties’ remain in Buganda.

The second thing he did was to shoot down 9 Banyoro peasants gathered in a market place as a show of his power and might. The stage was now set for real armed confrontation that culminated in the battle at Mengo between central government troops and the palace guards. The unrest that followed in Buganda was clamped down with military might and an emergency declared over Buganda until 1971.

Before the military confrontation, the UPC introduced the 1966 interim constitution. The manner of its introduction and the amendments there in were extremely controversial. First, the 1966 interim constitution was introduced without any discussion. It was merely, and as Abu Mayanja remarked during a parliamentary session, ‘brought in – I know that the new constitution was dropped in our pigeonholes, we read it after we left parliament and after we had been sworn in’.[7] The significance of this method of introducing a new constitution is that many people could not respect it; it could not become a basis of constitutionalism.

Secondly, it is very clear that the executive was usurping the powers of parliament. For example, during the debate on the ‘The Administrations (Kingdom) Bill, 1966, it was discovered that not only were the powers of the local administration being transferred to the District Commissioners but also government was trying to usurp powers to make laws from parliaments. Section 24 of the Administrations (Western Kingdoms and Busoga) Act had empowered government to make laws, subject to the constitution, a) in respect to any matter for which it is required or permitted to make laws, b) public security and c) functions it is required or permitted to carry out. Abu Mayanja quipped

Now this obviously escaped us during the previous time, but here we have an opportunity to correct it, because it is preposterous, Mr. Speaker, for us to speak of Government making laws…In other words, Section 24 is conferring power to make laws upon Government that is to say upon the Ruler and his Council of Ministers, whereas according to the constitution, and indeed according to common sense, the power to make laws should be vested in the Legislature…

 

Subsequent events revealed that the legislature lost its power to the executive.

 

During the same period it became obvious that the executive diminished the power of the judiciary. This fact is revealed in the court cases that were brought against the government as a result of the political events that involved the arrest of five ministers and members of the Lukiiko who had declared that the central government remove its capital from Kampala.

To begin with the case of the five ex-ministers, the Obote government had arrested and deported them to Karamoja. One of the ex-ministers, Ibingira, applied for writ of habeas corpus to the high court arguing that under the 1962 Constitution, it was unconstitutional for government to deport its own citizens. When the Court ordered the release of the ministers, the Obote government transported them to Buganda, where government held emergency powers, released them and rearrested them under the emergency regulations. The Obote government also forced parliament to pass a Deportation (Validation) Act. This Act, which started operating retroactively from July 27 1966, sought to indemnify Government from all penalties and liabilities arising out of deportation orders that had been served to the five ex-ministers. In response, Ibingira challenged the validity of the Deportation (Validity) Act as being unconstitutional. The Judges of the High Court agreed that the act was unconstitutional including the 1966, interim constitution. However, the Attorney General Godfrey Binaisa challenged the judges arguing that their decisions was a contradiction in terms because they had been sworn in as Judges under the 1966 Interim Constitution; how could they turn around and allege that the 1966 constitution was not valid? Ibingira appealed to the East African High Court which simply upheld the government side!

The powers of the judiciary vis-à-vis the executive were put to further test in respect to the arrest of Mr. Matovu who was before the crisis a county chief and a member of the Lukiiko (the Buganda Local parliament). After the battle for Mengo was over, Mr. Matovu and others were arrested because thy had participated in the controversial resolution of the Buganda Lukiiko to the effect that the central Government should remove its capital from Buganda soil (Kampala). The bid to get Matovu released led to issues of whether or not the 1966 Interim constitution was legitimate or not. Buganda chiefs filed a civil suit no. 206 of 1966 seeking the High Court of Uganda to declare that the assumption of all powers by Prime Minister Obote was a violation of the 1962 constitution and that Kabaka Mutesa was still the President. The High Court, however, appears to have been intimidated to declare that the interim constitution was invalid.

The trend towards concentrating power in the executive and whittling down the importance of the legislature and the judiciary was further revealed in the proposals that the executive introduced and were later to became the 1967 constitution. First, the President was put beyond legal scrutiny. Article 24 (3) of the 1967 constitution states that the President ‘shall not be liable to any proceedings whatsoever in any court’.[8] Whereas the 1962 constitution shielded the Director of Public prosecutions from control of the executive and political manipulation, the 1967 constitution squarely put the DPP under the control of the Attorney General. In addition, the executive could appoint and dismiss public servants including cabinet members without checks from other organs.

A.A. Nekyon argued persuasively,

Turning to civil liberties, our rights could be suspended summarily under the proposals and there was no recourse to the courts to find out why they had been suspended. This was the biggest indication of autocracy. The members were giving the President power to appoint everybody, dismiss everybody, nominate one third of the parliament and detain them in the bargain…The concentration of powers in one person was not justified. Some of the powers given to the President were excessive. There should be a balance between the office of the President and the Judiciary, and the system of Parliament.[9]

 

In effect the bill of rights was also transformed; restrictions were put on the enjoyment of those rights.[10] 

The 1971 coup that overthrew the UPC government came to seal what was already an established fact: the predominance of the executive power. The coup makers did not lose time; they abolished rights to organize in political parties and the parliament. Hence, the power of making laws was taken over by the executive; the President was to make laws by decree. The judiciary was cowed into silence. Not only was the chief justice, Ben Kiwanuka killed but also the everyday operation of the judiciary was interfered with. As Oloka Onyango has argued, this trend

meant that the constitution was no longer “supreme law”; that it could be altered without reference to parliament, and finally that Parliament lost its law-making powers to the head of State - now empowered to rule by Presidential decree. In effect this made the President not only the “supreme law” of the land, but also the sole law-maker.[11]

 

It took a   foreign Army, the Tanzanian Defence Force, to oust Amin from power in 1979. Although, the overthrow of Amin by a combined force of exiles and the Tanzanian army was called liberation from violence and dictatorship subsequent events demonstrate the opposite. Even the supposedly civilian Obote II government, a government that ascended to power through a ballot box abused the rights of its citizens and many innocent people were subjected to extra- judicial killings.

In summary, prior to the commencement of the process that culminated in the promulgation of the new constitution in 1995, it is clear that politicians have been recrafting constitutions to buttress themselves in power. Given that the amendments were not based on popular discussion and compromise, many Ugandans have not respected pre-1995 constitutions with disastrous consequences for the culture of constitutionalism. Political change has been extremely violent and unconstitutional. In a situation where the Executive was not subjected to checks and balance, the relationship between state organs and the people was that of dictatorship and disrespect of human rights. The people of Uganda have lost close relatives because of state inspired violence or injustice because of police and armed forces that are used by those in power to crush dissent. It was with relief that NRM, on ascending to power tried to curb state inspired violence and reintroduce of some semblance of rule of law, although it curtailed the right of people to organize in political parties. Most important was the NRM’s decision to make a new constitution. A new constitution would be based on the assumption that it is respected by all and change has to be constitutional and peaceful. One way of ensuring that it was respected was to ensure that it was widely discussed and free from manipulations. It is to this process we now turn to test these assumptions.

2.1 Constitutional Commission and the Constituency Assembly

 The process of making a new constitution began in 1988 with the appointment of a Constitutional Commission, which produced a draft constitution, and the election of a constituency Assembly in 1994, which debated the draft constitution and produced a new constitution that was promulgated in 1995.[12]

The appointment of the people to constitute the commission was very controversial and probably may have affected the kind of constitution that emerged. Critics have argued that the biggest drawback was that the members of the constitution were handpicked and many were deemed to sympathetic to the NRM. Organised political interests such as political parties were not invited to send their own chosen representatives. Questions have been raised on the manner in which the Constitutional Commission went about ‘educating’ people. It has been argued that the kind of questions the Commission posed and the debates were designed in such a way as to favour the NRM as against the multi-partists. Most controversial is the Constitutional Commission’s suggestion that political party activities be frozen until some future date. In short the Constitutional Commission created a framework for the Constituent Assembly to proscribe freedom of assembly and association.

The decision to elect a Constituency Assembly was no doubt a movement forward in the history of constitutional making. Although the 1967 Constitution was a product of debate and discussion, the problem was that it was passed by a parliament whose prescribed time had long expired. Parliament was operating unconstitutionally. In addition, the choice of a protracted and time-consuming process was also new and commendable, for this approach was the only way to generate the much needed consensus that would make the new constitution to be respected and obeyed by all.[13] For that commentators have argued that truly it was serious attempt to make constitutionalism a reality.

However, there are flaws in the manner in which the CA was constituted. Those individuals who came through the electoral process were elected on ‘individual’ merit rather than on the basis of organizational support. This means that they could be influenced to support wrong motions with the promise of state patronage. Indeed many of the delegates debated issues in the CA with a political calculation of accessing state patronage or being elected as parliamentarians in the post-CA elections. This was particularly so because the law did not forbid CA delegates from standing for parliamentary elections after the CA.

It has also been argued that NRM supporters who were out not to debate but to support the NRM line whether it was right or wrong dominated the CA. There are instances when useful motions moved by known multi-partists were not supported because a multi-partist had moved them.[14] In the process, the CA went ahead to recommend that the NRM ‘system’ continue for another five years, with political party activities proscribed and that a decision as to whether or not the NRM should be replaced by a multiparty system would be decided by a referendum. The controversial article 269 banning political activities remains one of the clauses in the 1995 constitution that contradicts the otherwise excellent bills of rights section and dilutes the protracted, time consuming and sometimes painful efforts put in the constitutional making process. No doubt, this article is one of the biggest drawbacks to the growth of constitutionalism in Uganda.

It should be noted that the constitution contains new innovations. First, the language is gender–sensitive. Secondly, there are elaborate provisions to advance rights of women, the disabled and children. In addition, the constitution provides for the rights to organize for categories of workers such as medical workers, a right that had been denied by previous constitutions.

What then is the progress after promulgation of the constitution? Is there progress towards durable constitutionalism? In the following section we highlight those issues that emerged in 1999 and assess whether or not a culture of constitutionalism is growing.

 

2.0 Constitutional Issues in 1999

 

2.1 Armed Insurgence in Northern and Western Uganda

 

One of the assumptions behind the making of the 1995 Constitution was that this would usher in an era of peace and peaceful resolution of conflict. Peace is an important ingredient for constitutionalism. However, even with the new constitution the resort to armed methods to address political issues still prevails. The Lord’s Resistance Army (LRA) has continued to maraud the north for close to a decade and the Allied Democratic Force (ADF) has destabilized the western region.

One aspect of the armed insurgence in northern and western Uganda is the involvement of neighboring countries in arming and supporting the insurgents. In the year under review Sudan continued to provide armed support to the LRA and ADF. The success of foreign forces in destabilizing Uganda may partly be related to the fact that there is a missing link in Uganda’s democratization process. Disenchanted people resort to foreign support to force the system to respond to their needs.[15] But most important, the culture of constitutionalism can only grow if Uganda has peaceful relations with her neigbours and internally the democratic process accommodates people of diverse opinions.

During the year 1999, there was an attempt to use peaceful means to end the conflict in northern and western Uganda. An Amnesty Bill was passed in December 1999 to establish a ‘legal framework within which the government can implement its policy of reconciliation and facilitate its efforts to eliminate rebel elements in some parts of the country.’[16] Since it was passed in December 1999, its practical achievements can only be realised in the year 2000, a year out of scope of this study. However, the point here is that the deepening of a culture of constitutionalism requires that Ugandans develop a culture of democracy and also nurture peaceful relations with her neighbours. Yet the persistence of armed insurgence is testimony of the fact that there are still gaps in the constitutionalism culture and the democratisation process. Some observers are inclined to think that the 1995 constitution has not provided an acceptable legal way to express dissent. As a result people have been resorting to arms in order to express their dissatisfaction with the NRM government. The ban on political party activity has closed avenues for those who do not believe in the movement government. Article 269 of the 1995 constitution prohibits political parties from

a)     opening and operating branches,

b)     holding delegates conferences,

c)      holding public rallies,

d)      sponsoring or offering platform to or in any way campaigning for or against a candidate for any public elections,

e)     carrying on any activities that may interfere with the movement political system for the time being in force.[17] 

This article contradicts the fundamental rights – the right to associate and the right to dissent. Article 29 clause (e) states that every person shall have the right to ‘freedom of association, which shall include the freedom to form and join associations or unions, including trade unions and political and other civic organisations’(emphasis added).[18] Second, those who believe in multi-parties have tried to defy the provisions of article 269. In the past, elections under the movement system have been aligned along party interests and multi-partyists have continued to meet and politick sometimes in disguised form. It is not a surprise that activities of the Foundation for African Development (FAD) are always a target of the state. FAD is generally believed to be a cloak behind which Democratic Party hides although it is registered as an NGO. In 1999, state officials broke up two seminars organised by FAD. One seminar for civic education in Moyo was prevented from taking place in January 1999. The seminar was

broken up for political reasons. A local FAD organizer informed the organization’s officials that the district council chairperson had described the FAD seminar as a multiparty meeting intended to cause disruption in the district, and that the meeting should be prevented from taking place.[19]

 

In another incident in Mpigi, an official of FAD was harassed in April 1999. Once again it was believed that the seminar was a multiparty function.[20] What is interesting to note is the fact that the state in some instances uses extra-constitutional or extra-legal actions against political parties. Seminars, for example, are not part of the list of activities prohibited by Article 269. 

Even more important for the culture of constitutionalism, are the accusations of the Movement system of being ‘undemocratic, corrupt and opportunistic’. Col. Kiiza Besigye, wrote a statement that was widely publicised in the media. Kiiza Besigye was accused of having used a wrong forum for airing his grievances.[21] However, Kiiza Besigye’s criticism point to the fact that unless the NRM can itself practice democracy within itself, its moral claim that political parties are up to no good will remain hollow.

 

2.2 Uganda’s Involvement in the Congo

Another thorny constitutional issue in 1999 was the continued presence of Ugandan troops in the Congo. In a speech to Parliament in 1998, President Yoweri Kaguta Museveni argued that

Our involvement in Congo (indirectly last year and a bit more directly this year) is mainly, because of the threats to our security that emanate from there in the form of NALU in the past and, more recently, ADF…Therefore, Mr. Speaker, may I restate our position. We are in Congo primarily for our own security.[22]

 

Although, it is perfectly in order for a country to ensure its security interests, the constitutional snag is that the President (executive) did not seek the approval of Parliament as stipulated in the Ugandan constitution. According to Artical 210 (d) parliament shall make laws regulating the Uganda People’s Defence Forces, and in particular for the ‘deployment of troops outside Uganda.’[23]  The continued presence of the army in Congo remains a very controversial aspect as far as constitutionalism is concerned.

2.3 The Functioning of State Organs

The Parliament

Censure of A Minister

 Parliament improved its performance by censuring the Minister for Finance in charge of Planning and Investment, Sam Kuteesa. One hundred and sixteen members of parliament signed a petition of censure. A motion was moved citing

Kutesa’s ministerial portfolio and being a chairman of the Entebbe cargo handling firm, ENHAS, as constituting a conflict of interest, contrary to the leadership code of conduct. Kutesa was also accused of causing financial loss to Uganda Airlines by allowing ENHAS to buy the national carrier’s shares in the cargo firm below market value and also writing off as a bad debt US $ 400,000.[24]

 

Members of parliament numbering 152 voted to censure the minister who was dropped in the subsequent cabinet reshuffle. Kutesa was the second minister after Jim Muhwezi who was censured in 1998. Shortly after, parliament sought to censure the Vice President, Specioza Wandira Kazibwe and the two ministers of state in Agriculture, Lawrence Kezimbira Miyingo and Kibirige Ssebunnya. It was believed that the shs. 3.4 billion meant for the construction of valley dams in Masaka, Mbarara and Luwero districts was utilised inappropriately.[25] To save the Vice President, the President dropped her from the Ministry of Agriculture. We need to note here that parliament played a positive role here by acting as a check on the executive arm of government. This has enhanced the culture of constitutionalism.

2.4 The Relationship between the Executive and Parliament

Despite these positive developments in the functioning of parliament, it still remained overshadowed by the executive. Mention has already been made regarding how the executive deployed troops in Congo without recourse to Parliament. In addition, there are more instances in which the executive tried to bulldoze parliament to pass legislation, particularly that legislation aimed at attracting foreign investors or when the executive is under pressure from foreign donors.

 One of the issues around which the Executive and Parliament clashed was the legislation to liberalise the production of electricity. Up until then, production and distribution of electricity was monopolised by the Uganda Electricity Board. To allow other private investors to enter the business of producing electricity and its distribution required a new law. The Executive wanted parliament to expeditiously pass a law liberalizing the production of electricity so that foreign investors could embark on construction of dams at Bujagali and Karuma falls. However, the environmental consequences related to dam construction at these sites had not been assessed and therefore parliament was arguing that such an assessment be made first, much to the displeasure of the Executive. During a World Bank sponsored workshop held in Kampala, President Museveni accused MPs of delaying the process. He argued that this could cause a “political crisis”.[26]

These days I am very disgruntled, I am tired and sick of wiseacres, everybody is an authority and they do not listen to my advice. There is a lot of wastage of time…Parliament is another confusion. Traditionally, I have been having bureaucrats but now there are MPs and sometimes the World Bank comes from the other side. How many wars shall I fight?…World Bank told me Uganda was in danger of too much electricity. We have struck a compromise with Mr. Adams that we can have a dam at Bujagali and then Karuma afterwards, but still I have a problem with parliament.[27]

 

In response to this attack by the Executive, members of parliament met  and passed a resolution that parliamentarians ‘have no intention, have never had intentions and will never have an intention to cause a crisis’.[28] Major Okwiri Rabwoni (Youth MP Western) argued that the youth ‘look on with trepidation when the process of democratisation and constitutionalism is about to be halted’.  Elly Karuhanga speaking on behalf of parliamentary committees argued that it was the Executive and not Parliament that was to blame.[29] The most important thing about this exchange between the Executive and Parliament is that it sensitised the public about the self-assertion of the parliament vis-vis the Executive. In a sense this exchange could have enhanced the culture of constitutionalism. This is readily discernable in the letters that appeared in the media.  For example Peter Nyanzi wrote

Parliament has shown that even a poor and needy country like Uganda reserves the right to study investment proposals, take them through a sifting process and negotiate for what is best for its people and on the best terms possible. However long it takes, however good the investment projects are, even in a poor country, they should be in line with established regulations and prescribed procedure. It is amazing and ironical that even in the light of the hastily made shoddy deals with companies like Midroc, West Mont, and Tahar Fourati’s Africa Continental Hotels, the Government is now criticizing parliament for  ‘delaying’ to approve the AES power deal.[30]

 

It would appear that although the Executive is able to assert itself, it also has to contend with parliament and outside forces. In this case we are not only referring to the World Bank and IMF, and other donor conditionalities but also forces of globalisation in general. As the President indicated, sometimes he is under pressure to create enabling environment for foreign investors. This pressure on the Executive forces it to compel parliament to pass certain legislations. This outside pressure from donors or investors can be detrimental to the maintenance of adequate checks and balances between the Executive and Parliament and, therefore, the culture of constitutionalism. It should be recalled that in the history of constitutions, the first casualty of the internal conflicts or outside pressure is parliament.  For a country that is still developing, the danger of the Executive capturing the role of parliament is ever present and can only be averted when there are organised political forces in the country committed to the culture of constitutionalism.

 

2.5 Drawbacks in the Parliament

Although parliament carried out a lot of anti-corruption activities there remain a number of weaknesses. Earlier analysis of the strengths and weaknesses of parliament after the constitution was promulgated were identified as follows:

a)Although it had asserted independence from the executive by, for example, censuring Ministers Kirunda Kevejinja, Jim Muhwezi and Sam Kuteesa over corruption and conflict of interest, it has failed to exert its influence on issues of deployment of troops and fiscal matters. Indeed, the executive continues to dole out patronage to favorites through cabinet posts. Is it surprising that parliament approved the expansion of cabinet? Recognising the dangers involved MP for Amuria County, Onapito Ekolomoit, introduced a motion intended to enhance the separation of powers in the organs of state power. His motion targeted article 113 of the 1995 constitution. This article provides that ‘cabinet members shall be appointed by the President with the approval of parliament from among members of parliament or persons qualified to be elected members of parliament’.[31] The suggested amendment is that once a parliamentarian is appointed cabinet minister, that individual is automatically dropped from parliament. According to Mugisha Muntu, if passed, the bill would ‘advance democratic practice, improve efficiency in government, enhance transparency and undermine opportunism and intrigue’.[32]

The reduction of the numbers of cabinet posts and the privatisation of public enterprises has reduced the resources at the disposal of the Executive to dispense patronage. However this has not improved significantly the operation of the parliament. The Executive can still take initiative aimed to co-opting a particular vocal individual. As Oloka Onyango argued:

 The Legislature remains trapped by the one phenomenon that has dogged movement politics from the outset, the factor of  “individual” merit. Given this factor, it is questionable that parliament (as a group) can do little more than nibble at the edifice of state power and control. Since each member is in the house as an individual, they are so easily divided on the basis of individual interest and concerns. Of particular concern is the pavlovian dangling of cabinet posts in order to secure compliance on an issue in which the executive has staked out a particular interest. This explains why parliament as a body can demand the resignation of a single individual (even if he /she is a powerful one like Muhwezi) and not demand that the whole government resigns. [33]

 

Given the massive dependence of Uganda on foreign funds, the sovereignty of the country is compromised. To a considerable extent the legislature has not been at the forefront to debate what kind of economic policies to adopt or rejected. As is well known IMF/World Bank sponsored programmes are conditionalities for Uganda’s continued access to foreign loans and grants. Quite often the donors through the Executive have had their way, thereby transforming the legislature from a supreme organ in the land into a mere rubber stamp of policies dictated from abroad. A case in point is the budgeting process. It is well known that donors overshadow the entire process. Before a budget is passed on to parliament it has to be reviewed by donors, including the financial institutions of the IMF and IBRD. Constitutionalism culture here is undermined because parliament, which is supposed to debate a budget, is reduced to a rubber stamp.

One of the crucial issues is in regard to parliament’s own rules of procedure. Does parliament respect constitutional rules when conducting business? The litmus test for parliament’s credibility was when it passed the Referendum and other Provisions Act,1999 allegedly without the requisite quorum.[34] Speaker, Francis Ayume claimed that there was a quorum not on the basis of the physical count of the people in the house but on the basis of members who had signed in the register. This became extremely controversial. In September 1999, Ssemwogerere and Zachary Olum, petitioned the constitutional court. They prayed the court to declare the Referendum and Other Provisions Act null and void. They argued that the Act was not valid for two reasons. First, it was enacted without a quorum in the parliament. Second, that it was enacted after the expiry of the date stipulated in the constitution. The petition was thrown out on the basis of the technical argument that the petitioners could not use in evidence parliamentary records without the permission of the Speaker, among other things. There are two constitutional issues here. First, is the problem of not respecting the constitutional provisions, i.e., enacting the Act after the date stipulated in the constitution had long passed. The second, is the operation of the parliament without a quorum. Article 88 of the 1995 Constitution stipulates that ‘the quorum of Parliament shall be one-third of all members of parliament’. Article 89 (1) stipulates that ‘except as otherwise prescribed by this constitution or any law consistent with this Constitution, any question proposed for decision of Parliament shall be determined by a majority of votes of the members present and voting’.[35] Since the Act was passed without a quorum consisting of physically present members, then one can argue that the Referendum act was passed unconstitutionally. Given that some of the parliamentarians boycotted the proceedings this undermines the progress towards constitutionalism.

The constitution empowers parliament to enact a number of laws within a given time frame. Article 41 (1) of the constitution provides that ‘every citizen has a right of access to information in the possession of the State or any other organ or agency of State except where the release of the information is likely to prejudice the security or sovereignty of the State or interference with the right to the privacy of any other person. Clause 2 provides that ‘Parliament shall make laws prescribing the classes of information referred to in clause (1) of this article and the procedure for obtaining access to that information. 

The constitution further provides in article 32 (1) ‘Notwithstanding anything in this constitution, the State shall take affirmative action in favour of groups marginalized on the basis of gender, age, disability or any other reason created by history, tradition or custom, or the purpose of redressing imbalances which exist against them. Clause 2 provides that ‘Parliament shall make relevant laws, including laws for the establishment of an equal opportunities commission, for the purpose of giving full effect to clause (1) of this article.

In article 270 ‘parliament was required to make ‘laws relating to the registration of political parties and organisations’. Under article 125, Parliament is supposed to establish a National Planning Authority and prescribe its functions and functions. Article 244 provides that Parliament shall make laws regarding the exploitation of minerals, the sharing of royalties arising from mineral exploitation, etc. None of these laws were enacted by the end of 1999.

The failure of parliament to carry out such constitutional mandates in itself undermines the progress made so far in the direction of constitutionalism.

 

2.6 The Judiciary and the Executive

The relationship between the judiciary and the Executive remained strained in the year under review. In the history of Uganda, there has been little independence of the judiciary from the Executive. According to Article 126, among the principles that guide the courts of law is that ‘justice shall not be delayed’. Under article 128 (1), the courts are supposed to be ‘independent and shall not be subject to the control or direction of any person or authority’. Clause (2) stipulates that ‘no person or authority shall interfere with the courts or judicial officers in the exercise of their judicial functions’.[36]  In practice court cases are delayed and courts are rarely independent of the executive. 

One of the mechanisms used by the executive to erode the judiciary’s independence from the Executive, is the latter’s control over finances and general decisions regarding the welfare of the officers in the judiciary. As Justice J.H. Ntabgoba noted

Even if we took the expression “interfere” by its direct meaning we are not short of those individuals or authorities that interfere with our magistrates in the exercise of judicial functions. Cases of Resident District Commissioners (RDCs) threatening to punish Magistrates for the decisions they make in their judicial capacities abound. How about the political leaders who are often heard threatening to hold demonstrations about matters pending therein? But the worst instances are the press speculations and discussions of matters pending in courts! So much for direct interferences. The indirect interferences are more grave and inhibitive. Take a case in which the tools of trade e.g. transport accommodation, books and a living wage. To deny them such tools is the the greatest of all interferences because without them, they cannot discharge their judicial functions. [37]

 

As can be notice from this extract, organs that interfere with the judiciary are part of the executive arm of government. The executive arm of the state again makes the decisions concerning the payment and facilitation of the judiciary. This means that if the executive is displeased with rulings of courts on certain items, it could starve it of funds.

2.7 SAPs and the Judiciary

            The most damaging aspect of the current epoch is the failure of the judiciary to fulfill their constitutional obligations because of donor conditionalities. As part of the IMF and World Bank cost cutting measures, government spending was severely curtailed and recruitment into the state departments frozen. The effect was that the judiciary could not render the necessary services and to fulfil its constitutional obligations. Again Justice Ntabgoba notes that

For several years now, the High Court has had to operate under capacity because of the so-called embargo on recruitment. It is disheartening that those who are supposed to recruit for the judiciary have always made ridiculous justifications that the embargo on recruitment includes embargo on replacement. Consequently, the judicial staff has been so depleted that it is no longer possible to operate. How can a judge, for instance, do his or her work without a secretary, without a court clerk or interpreter and without a driver? A number of Judges do not have these support staff members and yet blames for delays in trials have become a litany, not only on the lips of members of the litigating public, but also of those who have denied the judiciary the necessary employees to do the work! If I may specifically give figures with reference to the High Court and the Magistrates’ courts, the High Court which is supposed to have 30 Judges can now make do with 17 Judges. The 12 or 13 judges cannot be recruited to make the full complement, thanks to the embargo on recruitment and replacement…We are told that it is a conditionality of our donors that a recruitment and replacement embargo be clamped even on the government institutions rendering essential services like the administration of justice. Yet in the same breath we are told that it is a conditionality of the donors that the courts remove backlog in trials and that they must decongest the prisons by trying inmates on remand. Surely, either the donors or those in government charged with enabling and facilitating the Judiciary or both are not serious.[38]

 

This speech was made in 1996. However, a study carried out in 1999 notes that the problem still persists:

Uganda has about 350 judges and magistrates, 50 of them (14 per cent) women. This is far from what is needed. At chief magistrate level, for example, there are only 18 magistrates in service, as opposed to the established 29. At the grade one magistrate level half of the posts are vacant. The backlog of cases is thus massive. High court judges are hitherto to be found in only six upcountry stations and prison inmates on remand have had to wait for three years for this court to sit. Others have spent up to seven years in prison without being tried…[39]

 

In this situation, it is not difficult to see that the constitutional provision that the people should have speedy hearing is undermined.[40]

 

2.8 Workers’ Rights to Form/Join Trade Unions

The judiciary is not the only area where fulfillment of constitutional provisions is diminished. There are other areas of the constitution that cannot be implemented simply because of the structural adjustment programmes. Such an area is the workers right to belong to a trade union. The current economic situation characterised, as it is, by privatisation of public enterprises has had negative effects on the provision that workers have a right to form trade unions. As noted above, article 29 (e) states that every person has a right to join associations or unions, ‘including trade unions and political and other civic organisations’. It is apparent that in some industries such as privatised hotels the employers have been preventing workers from joining or forming trade unions contrary to the constitution. The employees have no mechanism to enforce their rights because trade unions have been severely weakened by the very Structural Adjustment policies.[41]  Employers have been reneging on their agreement to pay adequate compensation to laid off workers. And governments, right from early independence days, have been violating some of the constitutional guarantees of workers’ rights simply because they have sought to attract foreign investors. For example, the right to strike is always violated by governments in one way or the other.

2.9 The 1998 Land Act

Yet another matter that puts question marks on the process of constitutionalism is to do with the implementation of the 1998 Land Act, and more particularly on the issue of land tribunals. Article 243 (1) of the 1995 Constitution states that Parliament shall by law provide for the establishment of land tribunals. Clause (2) reads “the jurisdiction of a land tribunal shall include –

(a)   the determination of disputes relating to the grant, lease, repossession, transfer or acquisition of land by individuals, the Uganda Land Commission or other authority with responsibility relating to land and

(b)   the determination of disputes relating to the amount of compensation to be paid for land acquired.

This constitutional requirement is also reflected in an elaborate form in the 1998 Land Act.[42] In fact some provisions in section 77 of the 1998 Land Act are lifted word for word from the Constitution. In the year under review the land tribunals had not been put in place. This means that not only were the constitutional provisions not implemented but also justice was denied to people because the magistrates’ courts have been divested of their jurisdiction over land disputes. The people are effectively denied their constitutional right to ‘a fair, speedy’ hearing. The unresolved land conflicts also have an adverse effect on production especially in rural areas.

Related to this is the provision on a Land Fund intended to give loans to tenants by occupancy to acquire registrable interests and government acquisition of registered land to enable tenants gain registrable interests. An investigation in the matter revealed that the fund could not be set up because of lack of funds and serious doubt was cast on the workability of the Land Fund even with availability of the money.[43]

2.10 Leadership Code of conduct

Yet another 1999 constitutional issue meriting our attention is the leadership code of conduct. Article 233 of the 1995 constitution, provides for the Leadership Code of Conduct which shall ‘require specified officers to declare their incomes assets and liabilities from time to time and how they acquired or incurred them’. Article 234 provides that the Inspectorate of Government or such other authority will enforce the Leadership Code of Conduct as parliament may by law prescribe’.[44] The implementation of this constitutional provision has been difficult. During his address to Resident District Commissioners, at the International Conference Centre, the Inspector of Government, Mr. Jotham Tumwesigye, reported that 87 percent of the district leaders had refused to declare their assets contrary to the constitution.

Only 205 out of 1,659 district chairpersons and councilors had declared their assets since taking office. He also said only two out of 205 town clerks and treasurers and 605 district heads of department had declared assets.[45]

 

   Part of the problem was that the Inspectorate had not been given sufficient powers by the parliament to deal with those who do not adhere to the Leadership Code of Conduct. But the other is the conflict of interest that pervades parliament in this matter. Parliamentarians would not certainly legislate a law to catch them. The problem of conflict of interest is also pronounced in the structures of decentralization. Many councilors are involved in procuring tenders for the supply of essential items to the districts, contrary to the principle of conflict of interest.[46]

2.11The Human Rights Commission

Noticeable in the year under review is the work of the Uganda Human Rights Commission (UHRC). Among other things UHRC is mandated to investigate, on its own initiative or on a complaint made by any person or group of persons against the violation of any human right; to visit jails, prisons, and places of detention or related facilities with a view to assessing and inspecting conditions of inmates and make recommendations; to establish a continuing programme of research, education and information to enhance respect of human rights; etc.[47]  The UHRC is reported to have handled almost two thousand complaints, relating mainly deprivation of rights to property, violations of the right to fair hearing, employment rights and the right to pensions. UHRC has also carried out educational campaigns, seminars and training programmes. Its role in contributing to the rule of law and constitutionalism was summed up by the Monitor editorial

It is a sign of the complexities and possibilities in Uganda that the UHRC takes its job more seriously than many other supposedly independent human rights organisations. It has also exhibited more moral courage than some of the foreign missions which fund some of its activities, and otherwise have more leverage vis-a-vis the government than the UHRC does. For example, no Ugandan human rights organisation takes a position on such broad issues like UHRC does; speaking out on Congo, the Referendum, the right of parties to organise, press freedom and many more…For once, here is a government funded body which is worth the tax-payers’ money. The best thing those who care for human rights can do it to give the UHRC every possible support, and we hope it will live up to its expectations.[48]

 

2.12 Judicial Commission of Inquiry into the Police Force

The year also saw the appointment of the Judicial Commission of Inquiry into the Police force (JCIP).[49] The JCIP, headed by Lady Justice Julia Sebutinde, was mandated to investigate allegations of corruption in the police force.[50] The facts revealed in the public hearings shocked the nation as regards the extent of corruption in the police force, abuse of human rights by police personnel. However, it is one thing to have a commission of inquiry and another to implement far-reaching reforms so that even those who are supposed to administer the law uphold the rule of  law and the constitution.

 

 

 

3.0 Conclusions

1999 has been a year of mixed results as far as the culture of constitutionalism is concerned. On the positive note, there were strides in the operation of the parliament especially in taming the Executive that has for the greater part of post-independence period dominated the functioning of the state machinery. We have also, and amazingly too, witnessed a state organ – the Uganda Human Rights Commission, play such a useful role in buttressing some of the fundamental freedoms and rights embedded in the constitution. In addition, the year saw the appointment of the Judicial Commission of Inquiry into the Police Force. At least this was a gesture to show that government was willing to tame some of the state organs that were meting out onto the populace the kind of state inspired terror that characterised pre-NRM periods.

All these positive developments, however, continue to be dogged by certain drawbacks such as the overwhelming dependence of Uganda on foreign funds, the economic policies dictated by IMF and World Bank which in the final analysis undermine the otherwise useful provisions within the constitution. These include the quick subjection of individuals to a fair hearing, the right of workers to belong to a union, the establishment of tribunals crucial to peaceful resolution of conflicts over land, etc. The culture of constitutionalism was further dealt a blow by the continued-armed conflicts in northern and Western Uganda and by the Karamojong’s sporadic fighting in northeastern Uganda. This in itself could be an expression of a sense of frustration and more particularly the contradiction within the constitution, which on one the hand provides for freedom to associate, and on the other removes it by banning political party activities. Those who do not want to belong to the movement seem to be denied the right to dissent or to organize.

In general 1999 was a year in which positive developments occurred and building on the very tremendous contribution by the NRM to end state inspired violence. However, it will be too much to expect the NRM to be a watchdog for the upholding of the Ugandan constitution and promoting the culture of constitutionalism. There are other things that need to be in place for this to happen such as a vibrant civil society and media. Constitutionalism has to be struggle for. Preceded by the armed struggle of the NRA/NRM the little achieved so far need to be consolidated in this epoch through mechanisms that allow peaceful dissent and assembly.

 

 

 

 

4.0 Bibliography

 

 

Address by H.E. the President to Parliament 15^th September, 1998 (mimeo).

 

Adoko, Akena, ‘The Constitution of the Republic of Uganda,’ Transition Vol 7 No. 33 October/November, 1967.

 

Ali Picho, ‘The 1967 Republican Constitution of Uganda,’ Transition Vol. 7, No 34 December/January, 1968.

 

Bazaara, Nyangabyaki, ‘Contemporary Civil Society and the Democratisation Process in Uganda: A Preliminary Exploration, Centre for Basic Research Working Paper No. 54, Kampala: Centre for Basic Research, April 2000.

 

‘Cheers for the Uganda Human Rights Commission,’ The Monitor, March 11, 2000.

 

Hammargen, Henrik; Muhereza, Frank; Ottosson, Ase; Senkumba, John, ‘Peace, democracy and Human Rights in Uganda: A String of Fragile Pearls,’ Stockholm: Swedish International Development Agency, December 1999.

 

Hansen, Holger Bernt, ‘A Long Journey Towards a New Constitution: The Ugandan Experiment in Constitution Making, Copenhagen: Centre for African Studies Working Paper No. 1992/1, 1992.

 

Human Rights Watch, Hostile to Democracy: The Movement System and Political repression in Uganda, New York: Human Rights Watch, August 1999.

 

Henry Ochieng, ‘Parliament in Recess,’ The Monitor, December 20, 1999.

 

‘Judicial Commission of Inquiry into Corruption in the Police Force (Amendment) (No. 2) Notice 1999, The Uganda Gazette No. 59 Vol. XCII November 19, 1999.

 

 

Juuko, Sylvia, President Sick of MPs, Bad Officials,’ The Monitor, October 27, 1999.

 

Kajabago-Ka-Rusoke, ‘Museveni and the Parliament, Who is inefficient? Sunday Vision, October 31, 1999.

 

Kakande, John and  Namutebi, Joyce, ‘Amnesty Bill Passed,’ The New Vision, December 8, 1999. 

 

Kakande, John  and Osike, Felix, ‘Mps Hit Back at Museveni,’ The New Vision October 29, 1999.

 

Kasfir, Nelson, ‘The 1967 Uganda Constituent Assembly Debate’, Transition, Vol. 7, No. 33 October/November, 1967.

 

Lino Steve, ‘The Uganda Constitution’, Transition Vol. 7, No 34 December/January, 1968.

 

Mahmood Mamdani, ‘Social Movements and Constitutionalism in the African Context’ in Issa G. Shivji, State and Constitutionalism: An African Debate on Democracy, Harare: SAPES Books, 1991.

 

Mugisa, Anne A., ‘87%LC5s Refuse to Declare Assets,’ The New Vision November 18, 1999

 

Mwesige, Peter G., ‘Parliament: A House of Scandal,’ The New Vision, December 29, 1999

 

Mwesige, Peter G., ‘Valley Dams Report Calls For CID Probe,’ The New Vision, November 2, 1999.

 

Namutebi, Joyce, ‘Land Fund Can’t Work,’ The New Vision September 14, 1999.

 

Nyanzi, Peter, ‘Delay on AES was for the Good of all,’ The New Vision, December 10, 1999.

 

Odur-Oaper, ‘A Reply’, Transition Vol. 7, No 34 December/January, 1968.

 

Odongo, Onyango, Why Uganda Independence Constitution Failed, Gulu: Lapare General Agency, 1993.

 

Okoth-Ogendo, H. W. O.,  ‘Constitutions Without Constitutionalism: Reflections on an African Political Paradox’ in Issa G. Shivji (ed.), State and Constitutionalism: An African Debate on Democracy, Harare: SAPES Books, 199?

 

 Oloka Onyango, Joe: ‘Judicial Power and Constitutionalism in Uganda’, Kampala: Center for Basic Research Working paper No. 30, 1993.

 

Oloka-Onyango, Joseph, ‘Taming the Executive: The History of and Challenges to Uganda’s Constitution-Making’ in Joseph Oloka Onyango, Kivutha Kibwana and Chris Maina Peter (eds.) Law and the Struggle for Democracy in East Africa, Nairobi: Claripress 1996.

 

Oloka-Onyango, J., ‘Governance, State Structures and Constitutionalism in Contemporary Uganda,’ CBR Working Paper No. 52, Kampala: CBR Publications December 1998.

 

Opolot, Samson James, Kintu-Nyago, Crispin,, Lessons of Constitutional Making in Uganda, CBR Workshop report No. 10, Kampala: Centre for Basic Research, January 2000.

 

Osike, Felix, ‘Did Karim Give Bakiza 100M/- Bribe?’ The New Vision April 28, 1999.

 

Regan, Anthony J., ‘Constitutional Reform and the Politics of the Constitution in Uganda: A Path to Constitutionalism?’ in P. Langseth, J. Katorobo, E. Brett and J. Munene (eds.), Uganda: Landmarks in Rebuilding a Nation, Kampala: Fountain Publishers, 1995.

 

‘Report on the International Conference on Constitutionalism in Africa: New Challenges, New Opportunities,’ Kampala: Faculty of Law, February 2000.

 

Rossiter, Clinton, The Federalist Papers, New York: Mentor, 1999. 

 

‘The Referendum and Other Provisions Act, 1999’, The Uganda Gazette, Vol. XCII No. 34, July 3, 1999

 

The Republic of Uganda, The Constitution of the Republic of Uganda, Kampala: Government of Uganda, 1995.

 

The Republic of Uganda, The Constitution of the Republic of Uganda, Entebbe: Government Printer, 1967.

 

The Republic of Uganda, ‘The Land Act, 1998’, The Uganda Gazette Vol. XCI, No. 41, July 2, 1998.

 

The Uganda Gazette No. 19 Vol. XCII, April 23, 1999.

 

Tukahebwa, Geoffrey B., ‘The Role of District Councils in Decentralisation’ in Apolo Nsibambi (ed.), Decentralisation and Civil Society: The Quest for Good Governance, Kampala: Fountain Publishers, 1998

 

Uganda Parliamentary Debates (Hansard) second Series Vol. 63, First Session 1966-1967, Entebbe: Government Printer, p. 574.

 

‘Uganda was Dragged into the Congo Crisis,’ The New Vision April 19, 1999.