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CONSTITUTIONAL LAW FIRST YEAR, SECOND SEMESTER

CONSTITUTIONS IN THE UGANDAN CONTEXT

(I)

INTRODUCTION

Uganda's constitutionalism is characterised by both the several instruments and rules of the colonial period as well as those which have been in existence since independence, viz:

1962 Constitution: (Embodying semi-federal Executive, Prime Minister, Parliamentary Government and the protection of basic human rights.)

1966 Interim Constitution: (Transitional document which followed the abrogation of 1962 Constitution and suspended several provisions)

1967 Republican Constitution: (Formally declared Uganda a Republic; has provisions for the Executive President and extensive curtailments on the Bill of Rights

The Decrees from 1971-1979: During this period, President Idi Amin was the Constitution, the supreme law of the land having repealed article 1 of the 1967 Constitution thus rendering the Constitution ‘subordinate’ to him.

1995 Constitution: (Hybrid Constitution, part - Parliamentary and part Executive with several new provisions)

Several Legal Notices (No.1 of 1971; No.1 of 1979; Nos. 1 & 6 of 1986, all passed to legitimise the unlawful seizure of power by Amin, UNLF and the NRA)

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(A) REVIEWING THE AFRICAN EXPERIENCE IN CONSTITUTIONALISM

1. Why has Constitutionalism proven a difficult seed to bear fruit in the African context?

The question of Constitutionalism in a broad context of Africa: Constitutionalism in Africa over the past 50 years has been characterised by a mixture of different negative and positive events. Against the background of colonialism, which was shared by all African states, the pattern of constitutional respect has been mixed at best and appalling at worst. At Independence, most African countries inherited a Constitutional framework that had been designed mainly on the pattern of the departing colonial power’s understanding of Constitutionalism. In other words, there was an attempt to recreate Constitutions in the images of the departing colonial powers.

It very soon became obvious that most of these colonial inspired mechanisms of government were inadequate for the purposes of ensuring a smooth democratic transition for the new African States. Independent African countries were faced with a principle dilemma of adjusting to these inherited systems of governance from the colonial States to the concrete conditions on the ground. In this way, many African governments became involved in experimenting with different forms of governance and statehood which they believed were most appropriate to our circumstances. They became involved in a search for autonomy and thereby tried to set home grown or indigenously nurtured constitutional orders.

With all this came many experiments the most prominent of which was a single party state where by African leaders argued that their history based on their traditions and the reality of the situation in which they were, did not permit a luxury of a competitive political situation. That African history had never recognised competition in politics and that such competition was alien.

Accompanying the concept of a single state was the phenomenon of a strong leader. In the course of the evolution of a strong leader, the next stage was the establishment of a dictatorial political order; one in which free elements of expression, free association and free competition were completely outlawed. In many instances, in many countries, we also had the direct intervention of the armed forces to take over the reigns of the State.

The mode of governance became one of military dictatorship. In the course of this, the idea of Constitutionalism was cast in the background. Constitutions were made and abrogated to suit a particular ruler. Africa became a continent of Constitutions without Constitutionalism. In other words,

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constitutional instruments were not worth the paper on which they were written. The nature of government depended on the particular will of the leader.

The African Constitutional context was also affected by the demands and the interests of the countries or powers outside Africa. The last 50 years of our world history were characterised by the cold war that was a struggle between the system of communism and capitalism, i.e. between Russia and the USA respectively. The cold war was an intervention of both a direct and indirect nature which was designed to facilitate the achievement of the interests of countries outside of Africa greatly undermining constitutions and the development of constitutional law in Africa, e.g. former Zaire where the C.J.A intervened to remove Patrick Lumumba and replaced him with Mobutu Sseseseko.

The cold war intervened to introduce dictatorial leaders whose interests were more tied to the external countries than there were to domestic affairs. The cold war further created rivalry and the African leaders combined it with their own dictatorial tendencies to make Constitutionalism merely one of form than substance. 2. Why exactly did Constitutionalism have a difficult birth in post colonial Africa? Africa’s Constitutionalism also confronted problems emerging from both the nature of underdevelopment which was existent in the continent, combined with the struggle for the underdeveloped resources by a low level of illiteracy among the broad African populace.

In these conditions, factors like sectarianism, ethnic and religious discrimination and nepotism all contributed to the failure of the constitutional governments in the African continent.

More specifically, these are factors that have had a bearing on the easy birth of Constitutionalism in Africa:

(a) The colonial heritage of authoritarian government that continues to create havoc on various forms of the struggle for constitutional government. Among the problems here, we have:

The ruler is above the law and his authority is unquestionable by any person.

The Judiciary is an arm of government and the notion of independence has little reality in practice.

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The legislature generally lacks autonomy from the executive and it is the executive that does its bidding with the practice of drawing cabinet officials from Parliament as undermining the independence of the judiciary.

(b) Another factor is the low level of socio economic development; this means that:

The literacy of voters and leaders is generally very low.

The presence of extraneous influences (other than merit), such as religion, ethnicity etc. that hold way over political choice.

The guiding principle of government is to make and accumulate as much money and property as possible for the possible rainy day that will come once power has been lost.

(c) Closely connected to the above, there is lack of true nationalism/patriotism among the different ascending leaders who have substituted this for selfishness. Even when there is hope for positive Constitutionalism, the different leaders have done all it takes to stick to power at the expense of positive Constitutionalism. Many nations in Africa are yet to witness a peaceful hand-over of the instruments of power to a President elect after a free and fair election. (Kibaki)

(d) The electorate have failed to give a chance to new comers in the political arena including the President pleading that ‘they are all the same.’ Perhaps this should be blamed unto the elected who have proved to be the same at the end of the day.

(e) The different Presidents have not been fair to the electorate and instead chosen to manipulate it, more so the less educated and less knowledgeable by convincing them that the incumbent is the only one who can manage to lead the country. The Presidents have hidden the truth from the electorate that if they, the Presidents who drive the security arm can hand over the instruments of power peacefully, there can’t be any problem with a new President leading the country to even higher horizons;

(f) Closely connected to the above, because they are less informed or perhaps they fear for their lives, the electorate have helped keep Presidents in power for long.

(g) Militarism is yet another factor affecting the growth of Constitutionalism in Africa. The issues involved here are:

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How feasible are the bestera models of Constitutionalism / governance adopted at independence and how well have the forms of constitutional order which African government substituted fared in the promotion of true Constitutionalism in Africa?

Constitutional revivalism on the African continent:

Since the late 1980s but especially in the 1990s, there has been a concerted attempt to revive the spirit of Constitutionalism and to retract constitutional orders, which respond less of the dictates of the leaders and much more to the demands of the people.1

Around the African continent, the single party states and the military dictatorships have been progressively challenged and forced to review the structures of governance and the relationship of the leader and the led and the separation of powers, the rule of law and all the components of constitutional law.

The constitutional revival era phenomenon has seen old, dictatorial constitutional structures discarded and attempts made to design new constitutional instruments, which address the past history. Further more, all attempts have been made to capture the present reality combined with a sense of the individual history of each particular state in order to promote a new constitutional era.

To what extent is this new constitutional order a departure from that of the past?

The methods by which these new constitutions were made are very different from the old ones. Either they were a product of a specialist commission or broad assemblies or national conferences where the citizens of these countries have attempted to identify the different components of statehood which they are confronting or there have been responses to popular demands for a change of the system of governance.

The processes seem to have flourished in home-grown conditions of statehood governance. These processes have also taken place in the context in which the cold war has since changed almost everything. The international economy has also undergone a change. There is also a bigger involvement of the people in their political leadership.

The question however remains, ‘Will this Constitutionalism survive and grow to higher levels?’

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For example, article 1 of the 1995 Uganda Constitution vests all power in the people who shall exercise their sovereignty in accordance with the Constitution.

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There are already indications that even the incumbent President (Yoweri Museveni), after a number of significant achievements towards constitutionalism has succumbed to the failures of his predecessors by inter alia failing to hand over power peacefully and in this way proved that he is no different from most African leaders. He ensured the amendment of the Constitution to favour a third term in office for him and in his own words said that he is not going anywhere. Ironically, the very reasons that compelled him to go to the bush are manifesting themselves in his regime. 2 In this way, the legacy left by George Orwell in his book ‘The Animal Farm’ still has its significance even here with us to date.

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According to one of President Museveni’s former Ministers Amanya Mushega on Program of ‘Capital Gang’ on the radio on Saturday, January 21, 2006, the reasons why they waged war on UNLF were because of election rigging, making State House a business and leaders clinging to power.

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BACKGROUND AND DEFINITIONS

(1) What is constitutional law?

Constitutional law is not only the study of the different organs of government as stipulated in the constitution and how they operate or the significant roles they play in our day to day life but also covers the different legislation passed by the Parliament or any other law making body, which legislation must have a bearing on the constitution. The subject tries to analyse different key players, who have made history and played significant roles in the destiny of a particular country and how their actions affect the country. Constitutional law also considers human rights as fundamental, the respect of which is the cornerstone of any democratic society. In this regard, constitutional law is also concerned with the different ways a person whose human rights have been violated can get redress through the different courts of law or quasi- courts. At the end of the day, constitutional law aims at tracing where we are coming from, what went wrong and finding solutions to making the nation a better place for not only ourselves but also our posterity (future generations). 3 Constitutional law must however be distinguished from administrative law. While both areas of the law fall under a broader branch of the law termed ‘public law’ and do actually bear some similarities, they are nevertheless different in form and substance. Administrative Law concerns itself with the system of rules whereby governmental powers arise particularly with the fashion in which those powers are overseen / checked

(2) Why do we study constitutional law? 

As already pointed out, the subject aims at tracing the bearing of the actions of the different personalities in the destiny of a nation.

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The subject aims at creating a quest in the student to question what went on in the past and devise ways of making the country a better place to live in. In this regard, a student is expected to have well understood his or her constitutional history before he or she can pass judgement on the different significant personalities who have played a role in the destiny of the country. A constitutional law student is thus expected to give a well reasoned answer to any issue that might confront him basing himself on the constitutional development of the different material areas he or she is bound to use to confront such issues.

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Help students make better decisions that steer the destiny of a nation.

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For constitutional law practice.

(3) What is a Constitution? 3

See the preamble to the 1995 Uganda Constitution.

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The concept of a constitution dates to the city-states of ancient Greece. The philosopher Aristotle (384–322 B.C), in his work Politics, analyzed over 150 Greek constitutions. He described a constitution as creating the frame upon which the government and laws of a society are built.

A Constitution is the basic law, which governs a particular society. It is the basic / fundamental law from which all organs of government and the state derive their legitimacy. A constitution consists of those laws that it deems fundamental and essential for the inhabitants of a state to exist in a regime of governance and well being. The term “ Constitution” is usually used to define the fundamental law, which is put in place to govern a particular society.

Every state has a constitution in the sense of body of rules by which the state is governed. It is usually embodied in a single, written document (except Israel and UK). The first written Constitution was that of the United States promulgated in 1786. In modern Europe, written constitutions came into greater use during the eighteenth and nineteenth centuries. Constitutions such as that of the United States, created in 1787, were influenced by the ancient Greek models. During the twentieth century, an increasing number of countries around the world concluded that constitutions are a necessary part of democratic or republican government. Many thus adopted their own constitutions. In its ideal form, a constitution emanates from the consent and will of the people whom it governs. A constitution may take many forms and structures and may differ in details and coverage, but most importantly it is a fundamental law upon which a society is governed. Organised societies are characterised by the presence of a government and the constitution concerns itself in the establishment of government and distribution of powers between various organs of government. Each organ should know the extent of its powers.

A constitution is also referred to as a contract between rulers and subjects or government and its citizens. Therefore, it also concerns itself with the relationship between the individual and the government i.e. the rights of the individual in a particular society.

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(4) Why is a constitution described as ‘fundamental’?

A constitution is a fundamental law because all laws get their authority from it. Each law must be justified on the basis of some provision in the Constitution. If any law is inconsistent with the constitution then, that law will be void4.

A constitution is also referred to as fundamental because it concerns itself with the ultimate distribution of power. It defines/provides methods of acquisition of power, i.e., who may be elected, who may vote, powers to be enjoyed in office etc. It is fundamental because it is a basic document for spelling out the relationship between individuals and government, provides for rights, duties of government towards an individuals and rights, duties of individuals.

Constitutions all over the world are concerned with some basic issues and these are: -

-The power to make laws and how these powers are to be handled. This is the responsibility of the legislative arm of government. 

Exercise of executive authority i.e. the Leadership of the country, including the cabinet, etc.

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Must put in place a judiciary system, i.e. how judicial power is to be exercised.

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Must set up fundamental rights and duties of individuals and how they should be enforced.

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Must deal with the question of Citizenship and identity. i.e., Who has a right to be a citizen?

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Constitutions also cover the issue of transfer of power (i.e. elections)

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Land tenure system and control of natural resources is another area covered in the Constitution.

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Public finance: i.e. the various ways of raising revenue, how it will be spent, and what system of control will work against malpractices.

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Establishment of security organs e.g. army and police.

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Public system: i.e. the administration aspect of government.

One of the basic principles of constitutional law is that a country "should create a constitution able to move with the times without seeming to be destroyed by the times."

Constitutions are made by states and statehood is as important a concept therein, enshrining 3 attributes, viz.:

1. A defined territory (distinct borders), 2. A people in terms of nationality and sometimes citizenship and 4

See article 2 of the 1995 Constitution.

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3. A system of organised government.

COMMON CHARACTERISTICS OF CONSTITUTIONS

(1) The question of who is supreme under the 1995 Constitution?

Most Constitutions provide for their own supremacy over all authorities and person throughout the country.5 Thus, in the case of Joseph Tumushabe v. A.G,6 the Constitutional Court held that all provisions of the Constitution are binding on all authorities in Uganda unless specifically excepted by the Constitution itself.

The same Constitutions usually incorporate a clause rendering void any other law or custom that is incon...