The media has been awash with the news of the proposed constitutional changes in which some NRM “fanatics” seek to ensure that the President is elected by Parliament and not by adult suffrage as provided in the Constitution of Uganda. In this article, I intend to explain why the proposed changes are uncalled for and are deliberate machinations aimed at promoting the Museveni dynasty.
If successful, the changes will introduce the parliamentary system, as opposed to the current presidential system. Under the presidential system, the President is the Chief Executive, and he is elected directly by the people. Under the parliamentary system, the party with the greatest members of parliament becomes the leader of government.
Article 103 (1) of Uganda’s constitution which provides for the election of the president by universal adult suffrage through a ballot box was a significant departure from Article 36 (1) of the 1962 constitution that provided for the election of the President and the Vice President from among the rulers of the federal states and the constitutional heads of the districts by the members of the National Assembly.
Whereas both systems have advantages and disadvantages, the unique circumstances in Uganda paint to sinister motives, an attempt to usurp the power of the people enshrined in article 1 of the constitution. It is important to note that on the 8th of October 1995, the president while presiding over the launch of the 1995 constitution, castigated the pigeonhole constitution because it disenfranchised the people of Uganda when it took away their right to elect their own leaders.
Why may a constitution be amended?
There are basically two types of constitutions: the rigid constitutions and the flexible constitution. A rigid constitution, is a constitution that is difficult to change, alter or modify. A flexible constitution is easy to change, alter or modify. Rigidity lends legitimacy to the constitution. It gets the respect of all as it cannot be easily abused. A rigid constitution protects the fundamental rights of the individual. A rigid constitution ensures that politicians/leaders don’t easily change the constitution to their advantage.
Constitutions maybe amended for any of the following reasons.
Whereas the constitution empowers parliament to amend the constitution, the intention of the framers of the constitution was to ensure that the amendments would further the enjoyment of individuals’ rights and liberties and advance democracy, rather than stifle it. From a review of literature and various legitimate constitutional changes, a constitution maybe amended to:
- To protect and advance individual rights and liberties; on the backdrop of a chequered and repressive history, many independent African countries reviewed their constitutions or introduced changes in their constitutions to provide for a bill of rights to protect individual rights and liberties. Indeed, in Charles Onyango Obbo & Andrew Mwenda v A.G [2000] UGCC 4 (21 July 2000), Justice Mulenga espoused the fact that the protection of guaranteed rights is the primary objective of the constitution, and the limitation of their enjoyment is an exception to their protection and is a secondary objective. Although the constitution provides for both, it is obvious that the primary objective must be dominant. It can only be overridden in exceptional circumstances that give rise to that secondary objective.
- To align with court orders and changes in the context. In cases where courts declare certain laws or practices unconstitutional, it becomes necessary to make laws to abide by the court’s findings.
- To clarify ambiguities where court or parliament concludes that certain provisions in the law are ambiguous or were ill conceived, it becomes necessary for such ambiguities to be corrected by amending the constitution.
However, the constitution making process is a political affair with various interests. As such, many times constitutions may be revised for other reasons other than the legitimate ones, or those that may be advanced in the political domain. For example, considering increasing opposition, dictatorial regimes may opt to limit the enjoyment of political rights or to spy on the opposition as was the case in Uganda when government introduced the public order management Act and the phone tapping law respectively. In the same light, a constitution may be amended to ensure that the regime in power clings onto power. This is often possible where parliament and the legislature are weak and unable to keep the executive in check. This is the unfortunate situation in Uganda today.
The big question to ask then is “who benefits from the proposed constitutional changes?” Will the proposed changes advance the enjoyment of rights? Will the proposed changes help to advance democracy in Uganda? Will the changes help curb poor governance and corruption? Has the parliament of Uganda over the years demonstrated that it has the capacity to make independent decisions and hold the executive accountable so that citizens can even give it more power to elect a president on their behalf? Unfortunately, an honest reflection will reveal:
- The proposed changes do not seek to advance democracy but rather they will limit the citizens’ ability to exercise the right or power to elect their president. Ugandans will not benefit from the proposed changes as the law will take away their power to elect a President.
- Uganda parliament is neither independent, nor are the vast members of parliament competent to decide on behalf of Ugandans on such a critical issue. For example, rather than exercise their power to punish corrupt individuals or to enact laws to curb corruption, the current speaker and the previous speakers have all been lamenting about corruption just like other hopeless Ugandans. Moreover, the parliament for years, has turned into a rubber stamp institution, unable to hold the executive accountable. Most of its members are incompetent with little or no training in the affairs of public service. Most individuals get elected not because of their exceptional leadership or wisdom, but because they are able to buy their way into parliament.
- In previous amendments, there is evidence that Members of Parliament were bribed by either the President or people acting for or on his behalf to effect changes that resulted in removing of term limits and most recently, the removal of the age limits. Parliament therefore doesn’t come with clean hands and should not be trusted to make such an important decision on behalf of Ugandans.
The need to have an enduring Constitution
The preamble of the constitution recognizes that the constitution was informed by the political and constitutional instability that the country had gone through which necessitated that Ugandans enact and adopt a durable constitution to guarantee stability. This (constitutional instability) was the mischief that the constitution sought to address.
Most legal scholars agree that a constitution must be able to stand the test of time and operate both for the present and future. Constitutions exist to provide a framework within which the government can be able to fulfil its mandate. This must entail placing limitations on the arbitrary exercise of power, curb abuse and nurture democracy. The constitution lays ground rules and a threshold that the state must not cross.
The proposed changes are the last nail in the coffin of democratic pretense. It is evil, undemocratic, and serves no useful purpose. It neither promotes peace, order, development, and good governance as envisaged in Article 79 (1). It is also against article 79 (3) that provides that Parliament shall protect this Constitution and promote the democratic governance of Uganda. The changes if successful, will amount to a coup by parliament. In the past few years, the NRM government has consistently come up with laws that are meant to limit the enjoyment of human rights and liberties. There is reason to be very afraid.
This is an acknowledgement by the NRM that it is not as popular as it has always claimed, and that it is increasingly difficult to sale an NRM candidate to the population. The regime can create as many constituencies as possible in the areas where they are strong and be able to enjoy the majority in parliament. What then happens to the rest, and more likely, the majority of the population? This is not the Uganda we want or deserve.
By Titus Tumusiime, Member of ANT.