The Illusion of the Ugandan Constitution

Author: Busingye Kabumba
Lecturer-in-Law, Human Rights and Peace Centre (HURIPEC), Faculty of Law, Makerere University; Consulting Partner with M/S Development Law Associates

For the past few years, it has been my privilege to teach Constitutional Law at Makerere, the nation’s oldest University. As it is a first year course, I am one of the first teachers who meet with the young impressionable minds that are similarly privileged to gain admission to the law programme. In the course of class discussions, it quickly becomes obvious that even these fresh minds are cynical about the state of constitutionalism in our country, an impression that is only made stronger when we begin to delve into the text and the promise of the 1995 constitution and to compare this not only with our Constitutional history but with the present reality of how the country is being governed. I try as much as possible in these discussions to refrain from infusing my own views into these debates, my intention being to demonstrate the method of constitutional argument and to encourage critical thinking and reflection rather than suggest that there is a ‘right’ answer – which indeed, many times, there is not. This is often frustrating for the students whose constant refrain is: ‘But what is your view?’

Well, as Uganda prepares to celebrate fifty years of ‘independence’ from British colonial rule, I think it is perhaps about time I did express a view – in a public forum and to a public audience in the hope that it will generate much needed reflection and debate in the wake of this important milestone. In my view, having regard to the constitutional, political and legal history of our country, I think it is fair to say that the 1995 Constitution is essentially an illusion. The illusion begins right from the first article which rather leads us to believe that ‘[a]ll power belongs to the people who shall exercise their sovereignty in accordance with this Constitution’ and runs on until the very last provision of that document. The simple and unadulterated truth is that for a long time in our history, this has not been the case – and it is certainly not the case at present. If one asked the Ugandan citizen on the Kampala street where the power lies, I believe the answer would be that ‘all power belongs to the President, who exercises his sovereignty through the army’. This is both the over-arching and omnipresent truth of our constitutional age, and also the source of the big lie that underlies the 1995 ‘Constitution’. For it is the gun and the capacity for, and ever present threat of, the use of military force by the executive that currently overshadows the parliament and the judiciary and creates the façade of democracy within which raw and unmitigated political power is exercised by an increasingly narrow group of people.

Of course, occasionally this truth has manifested itself for all to see. In retrospect, it was not insignificant that, on the occasion of his swearing in as President of Uganda in 1986, President Museveni evidently did not find the time to change from military fatigues into civilian clothing. Indeed, it now bears recalling that the ‘fundamental change’ speech was delivered by a soldier in full military gear, surrounded by soldiers, in city that had been recently ‘captured’. The very name of the young President ‘Museveni’ itself spoke to a military genesis, he being named after the famous Seventh Regiment of the King’s African Rifles (KAR) – the Abaseveni, who had fought in World War II. The young President was by his own admission a student of the gun, whose undergraduate dissertation was titled ‘Fanon’s Theory on Violence: Its Verification in Liberated Mozambique’ and who, true to form, had ‘interned’ in the battle fields of Mozambique among others. In a recent book by Major John Kazoora, a part of the group that ‘captured’ Kampala in 1986, we are informed that on 28 June 1980, in the heat of the ill-fated political campaign that triggered the bush war, Museveni informed the public that he was not a professional soldier but an armed politician and further that the gun should be an instrument of politics but that it should not command politics. More pointedly, we are informed that he told the audience that ‘[i]f you look into my history you will be able to predict my future’. And so then, continuing to look into the history of the man whose presence now permeates all political discourse in the country, it is evident that while in 1980 he may only have been an armed politician, by 1986 he was definitely a professional soldier. In the same token, while he may have used the gun only to ‘right’ the political wrongs of the 1980 election, by 1986 at least and without doubt today, the gun definitely commands our politics.

Thus when the Constitution continues to say in its very first article that ‘all authority in the State emanates from the people of Uganda’ and that ‘[a]ll power and authority of Government and its organs derive from this Constitution, which in turn derives its authority from the people’, to the Ugandan citizen on the Kampala street referenced above, this is high sounding nonsense. For we know, and indeed are on occasion reminded, that all authority in contemporary Uganda is vested in the President, who in turn derives his power and authority from the National Resistance Army or, as it now calls itself, the ‘Uganda Peoples’ Defence Forces’. In June 2004 the judiciary was forcefully reminded of this when, after the Court of Appeal forgot its place in this ‘democracy’ and declared invalid the Referendum (Political Systems) Act of 2000, an angry Museveni informed them and the nation at large that the ‘major work for the judges is to settle chicken and goat theft cases but not determining the country’s destiny (sic)’. However the final and decisive indignity for the judiciary came on 1 March 2007 when, in response to the granting of bail to suspected rebels of the Peoples’ Redemption Army (PRA), a group of armed paramilitary men fittingly called the ‘black mamba’ surrounded the High Court, marched into the premises and even tried to forcefully enter the Registrar’s office to ensure that the suspects remained behind bars. We were further reminded of this ‘command of the gun’ when later that year, in August 2007, referring to the 1996 elections, President Museveni told the long suffering people of Luweero that ‘Had you elected Ssemogerere we would have gone to the bush. What else should we have done?’ In terms of the ‘Parliament’, for the first time in our country’s history the army is recognised as an important group requiring special representation in the House. More importantly, Parliament has itself been consistently reminded of its uselessness, with the President at one point saying he did not mind if National Resistance Movement (NRM) MPs slept in the House as long as they woke up once in a while to vote along the party lines. More recently, in an outstanding and blatantly sexist attack on the person of the Speaker, Rebecca Kadaga, the President was quoted as saying ‘[a] speaker isn’t supposed to be in dance halls, jumping up and down. A speaker should wear her wig and keep silent until something that needs her guidance comes up’. This is the President’s past and present style of governance, which is available to us as a guide to predict what we can expect going forward.

Now, it could be argued, and many have done so elsewhere, that these are merely instances of disrespect of the Constitution. However, to my mind, the means by which the present NRM acquired power and the means by which they have sustained themselves in power militates against this view. It would appear that the Constitution does not, in fact, have the supremacy it claims for itself. It is not the ultimate source of power or authority in contemporary Uganda, but merely one of the tools by which the NRM’s stranglehold on power is consolidated and perpetuated. In effect, the Constitution and a number of other laws have become mere instruments of politics to be used and abused as the political expedience demands. In such a situation, I do not think it is accurate to say the Constitution has been violated – the Constitution itself is naked, impotent and illusory. The gun is the real source of power and authority in contemporary Uganda. All power belongs to the President Museveni, who exercises this power through the armed forces. Article 1 of the Constitution is a lie – and the Constitution in Museveni’s Uganda is an elaborate farce that is cynically perpetrated by the President to consolidate and extend his hold on power. This is one of the great tragedies and challenges of ‘Uganda at Fifty’ and one that promises to engender more turbulent chapters in our political life.

About the Author:
Busingye Kabumba is Lecturer-in-Law at the Human Rights and Peace Centre (HURIPEC), a department of the Faculty of Law, Makerere University and Consulting Partner with M/s Development Law Associates. He has taught Constitutional Law and International Law at graduate and undergraduate levels. He is also an Advocate of the Supreme Court of Uganda and all subordinate courts thereto. He holds the degrees LL.B (Makerere), BCL (Oxford), LLM (Harvard) as well as a Post Graduate Diploma in Legal Practice from the Law Development Centre, Kampala.

Advertisements

17 Comments on “The Illusion of the Ugandan Constitution”

  1. Benjamin says:

    Finally !,

    At last, someone boldly blogs about what we all agreed upon, albeit in the dark, secluded cold lecture theater halls at the 1st Year Law class , at Makerere or the annals of Lumumba, Livingstone halls or the dirty disregarded streets of KiKumi Kikumi or Wandegeya.

    Perhaps even more telling of the facade that is the 1995 Constitution and the exhibition of the illusory nature of Art. 1(1) of the 1995 Constitution is the Constitution (Amendment) Act, 2005 wherein ‘student of the gun’ abolished term limits creating his “presidency for life”. Whereas the Judiciary has attempted to take bold steps such as those in Ssemogerere & Ors Vs AG, it was surely reminded by the Black mambas that all power belongs to “he who came by the Bush and shall only leave by the bush”.

    Indeed, decisions by the guardians of justice …and Uganda’s last hope … such as the Besigye Vs Museveni supreme court decision that ” whereas the vote was rigged, it was not soo substantially rigged so as to merit a miscarriage of justice” is a pointer that fifty years on, there is no ‘Uhuru’ (freedom) for the people of Uganda yet.

    • Busingye Kabumba says:

      Thanks Benjamin. Yes, indeed there is need for an open and frank discussion about the state of constitutionalism in Uganda.

      • Harimwomugasho Francis says:

        Busingye Kabumba, Iam amazed at this frank discussion however thanks for the courage which most of us lack. I need some basic education here: if the people’s vote (read power to chose how and by whom they are led) was procured by the people’s gun(read former rebels now freedom self awarding heroes at your own risk) what is wrong with the people”s gun keeping around to ensure that another set of guns does not come to take away the people’s vote?

  2. Paul says:

    Your analysis of the state of democracy in Uganda paints a true picture that is preferably assumed than discussed. The focus on the conduct of the President gives it a practical point of view. Having said that, in my view, the article would be complete if it discussed the options for Uganda to transition into a democracy. In other words, what is the way forward for Uganda?

    • James says:

      Indeed Paul it would good to know what the way forward for Ugandais, now that we know that what we have is s military regime well crafted ss a constitutional democracy.

      • Busingye Kabumba says:

        Thanks Paul and James. I do not think that prescription must necessarily follow diagnosis. These thoughts can stand alone as my contribution to the discussion and, perhaps, wiser heads may chart out a path to a return to normalcy.

  3. But Uganda has improved in democratic rankings according to the Economist Intelligence Unit Index of democracy. [[http://www.observer.ug/index.php?option=com_content&view=article&id=16639:uganda-improves-in-democratic-rankings&catid=34:news&Itemid=114]]

    Just a question: If there is no rule of law as stated in this article, why has the Ugandan Government been loosing many court cases? [[http://www.ugpulse.com/uganda-news/government/government-to-spend-80billion-shillings-on-lost-cases/5025.aspx]]

    “Uganda became independent in 1962 and in 2012 the Pearl of Africa – Uganda celebrates its 50th Birthday and Ugandans know how to celebrate and there is much to celebrate – for one thing Uganda is a peaceful, safe and secure country. – Uganda has gone through a lot of changes during the last 50 years and the last 26 years under the leadership of President Museveni Uganda has become a more stable nation – Ugandans love Uganda and are proud to be Ugandan no matter of their cultural roots and background – they are Ugandans and call Uganda their motherland and home.

    As we celebrate Uganda at 50, Let us look at cherish our achievements as a country and also think about the solutions and way forward to our challenges. We are tied of presenting ‘problems’ and illusions only!

    NB: Visit http://uganda2012.ug/ for a reason to celebrate Uganda!

    I believe in Uganda, and hope in the power of our abilities. Uganda has a secure and bright future. I am patriotic and proudly Ugandan. For God and my Country.

    • Busingye Kabumba says:

      Thanks for your thoughts Rogers,

      I am a Ugandan too, and a patriotic one I hope.

      However I am a bit wary of such declarations given that patriotism as it were, is best demonstrated not proclaimed. As Wole Soyinka once said, ‘A tiger does not proclaim his tigritude, he pounces’.

      Re the loss by government of court cases: this is part of the illusion I refer to. Those cases are typically brought against the Attorney General in his representative capacity. They may range from issues wrongful termination of contracts to more serious cases such torture and wrongful imprisonment. That Courts can adjudicate on such matters is a good thing. However that alone is not evidence of a truly independent judicial system. After all, there was a semblance of a judiciary during the colonial period (prior to the independence Constitution) and courts continued to function even during the Idi Amin period!

      The real test comes when the courts are faced with an issue that touches on the power of the executive. On these occasions, you will find that the executive has always come out of on top. Again, this is quite historical, having its origins in a colonial past that was marked by a high degree of fusion of powers in the Governor and which continued right through independence todate.

      In terms of democratic rankings, the link you provided indicates that Uganda moved from ‘the position of 98 in 2010 to 96 in 2011’. What a dramatic improvement! More seriously though, you ignore another survey mentioned in the same article which Uganda in the category of ‘failed states’. Under this survey Uganda was ranked 21 from the bottom of 117 countries.

      However, it is easy to get lost in surveys and indicators. The surest ‘indicator’ is what actually takes place on the streets of Kampala. In this regard, I find it interesting to note that on the very day that you responded to my thoughts (1st October 2012) Dr. Kizza Besigye, head of the main opposition party in Uganda, was being arrested for no greater crime than attempting to address vendors in a market. The irony of ironies, in my view, is that his ultimate destination was the Constitutional Square in Kampala.

      On the off chance that I am stretching the facts, please see this account from The Daily Monitor: http://www.monitor.co.ug/News/National/Besigye+arrested+in+Kampala/-/688334/1522054/-/md0bgl/-/index.html

      However, in case you see the Daily Monitor as one of those ‘unpatriotic’ media houses, then you might want to take a look at the account in The New Vision, which includes video footage: http://www.newvision.co.ug/news/635832-fdc-s-kizza-besigye-arrested.html

      Uganda may have a bright future, but right now it is a little difficult to see it through all the tear gas.

      With best regards,

      Bk

      • Diana. says:

        Totally agree. I was on of the many cynical minds in Pro. Oloka’s constitutional history class. He had the same sentiments as you express here. I think we have a generation of young people that have lost complete faith in the ability of Uganda to have a living and active constitution in operation. But who can blame them when we see what occurs in reality. Even the one place we ought to be certain that the people’s voice will be heard has been completely compromised, i.e. the election system.

        I agree that the Judiciary, in-spite of its valiant attempts to maintain the respect for the Constitution, has not been successful, for its decisions must be implemented by the executive. One must find a benevolent figure in the executive to ensure that Government complies when you have the verdict in your favor. It is well known that even with a judgement in one’s favor, one still must find a middle person to ensure that payment or compensation is done, which in most cases will likely be a fraction of the original award. That for me, undermines the independence of the judiciary. The power belongs to the President and anyone who wishes to enjoy it must align himself to the president’s goals.

        I shall not attempt to analyse our Legislature for they are an example of real, unabashed failure who will vote whichever way the money bags are open, with a few lone dissenting voices.

        Anyway, I only meant to say, thank you for your analysis. At least I get to vent in public too 🙂

  4. Mbayaki Wafula says:

    BK, your article reminds me of my year 1 Constitutional Law classes and Introduction to Law at the MUK (Faculty of Law). One of the topics was ‘Constitutionalism in Uganda’. As I understood it then and which view I still hold is that ‘Constitutionalism’ begs to answer the question ‘whether there is respect for the constitution-both the letter and the spirit’. One of the litmus tests of Constitutionalism is to answer the question ‘whether we have the rule of law’. It is trite law that the law is an ass hence whether we have any rule of law at all we have to see it through the eyes, the lens of those who wield power as the Rule of Law depends on those who are in (real) power.

    The writing is on the wall for all but for the proverbial ostrich with its buried in the sand to see. BK,what have you taught your students about the ‘rule of law’? It could help lift the veil off the farce.

    In spiritual parlance 7 symbolizes completeness, the fullness of something. President Museveni, famously referred to as M7 may be living the General Rule of No.7.

    Thank you for the exposition.

  5. Busingye Kabumba says:

    Recent events appear to only confirm the views I expressed above.

    See for instance http://www.monitor.co.ug/News/National/Museveni-tells-MPs–Army-can-take-over/-/688334/1668782/-/15pey9/-/index.html

    and

    http://www.monitor.co.ug/News/National/Don-t-tempt-the-army—Kiyonga/-/688334/1669654/-/iich9k/-/index.html

    ‘Therefore, send not to know for whom the bell tolls, it tolls for thee’ ~ John Donne

  6. Keith Muganyizi says:

    Huh…if only Museveni knew how hurt the common man is.

  7. sjb says:

    a commendable analysis indeed

  8. […] that time, however, it has become clear that the country’s path towards constitutionalism and democracy remains difficult. Since the […]

  9. Nuwasinga Stephen says:

    It has been an interesting lecture to me,very organised and important notes.Now understanding more of Uganda’s constitutionalism since 1986.


Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s