By J. Kasangwawo
I shall restrict my contribution to those articles of the 1995 constitution, which to my mind present clear contradictions and/or constitute an infringement on fundamental human rights as set out in the Universal Declaration of Human Rights to which Uganda is a party.
Chapter 4 is about Human Rights and Freedoms and is headed:
Protection and Promotion of Fundamental and other Human Rights and Freedoms.
It states at the beginning:
Fundamental and other human rights and freedoms
20. (1) Fundamental rights and freedoms of the individual are inherent and not granted by the State.
(2) The rights and freedoms of the individual and groups enshrined in this Chapter shall be respected, upheld and promoted by all organs and agencies of Government and by all persons.
It seems there is an attempt to divide the rights into those that are fundamental and those that are not. However, no effort is made to elaborate on this differentiation apart from stating it in the title. Consequently, it is not clear what these fundamental human rights and freedoms are and how differently they have to be treated from the others.
Article 29 of the same chapter states:
Protection of freedom of co-science, expression, movement, religion, assembly and association
(a) freedom of speech and expression, which shall include freedom of the press and other media;
(b) freedom of thought, conscience and belief which shall include academic freedom in institutions of learning;
(c) freedom to practice any religion and manifest such practice which shall include the right to belong to and participate in the practices of any religious body or organisation in a manner consistent with this Constitution;
(d) freedom to assemble and to demonstrate together with others peacefully and unarmed and to petition; and
(e) freedom of association which shall include the freedom to form and join associations or unions, including trade unions and political and other civic organisations.
Following from this, the right to freedom of association which includes the right to form and join political parties is a fundamental right which is inherent and not granted by the state. The freedom to assemble, which implies the right to express the views for which the association was formed, is also recognized in Article 29 (1)(d).
Article 43 of the same chapter then puts a general limitation on the enjoyment of these rights and freedoms, but if it is in the public interest. This is in order not to encroach on the rights and freedoms of others, i.e. in situations where it is justifiable. It states:
General limitation on fundamental and other human rights and freedoms
43. (1) In the enjoyment of the rights and freedoms prescribed in this Chapter, no person shall prejudice the fundamental or other human rights and freedoms of others or the public interest.
2) Public interest under this article shall not permit -
(a) political persecution;
(b) detention without trial;(c) any limitation of the enjoyment of the rights and freedoms prescribed by this Chapter beyond what is acceptable and demonstrably justifiable in a free and democratic society, or what is provided in this Constitution.
Article 69 is outside chapter 4 and refers to the movement and multiparty political systems, but without defining what a political system is. The next Article 70 describes the characteristics of the movement political system while Article 71 refers to a multiparty political system but without defining it except stating what it should conform to. Article 71 specifically mentions political party but it is not defined anywhere in the constitution.
According to the Movement Act of 1997, the Movement is an organization with structures that are similar to that of a political party, e.g. The National Executive, The National Conference (Delegates Conference?), Secretariat (Party headquarters?), committees (branches?), et cetera. The organizational structures of parties such as DP, CP, UPC or any political parties in other countries for that matter, have a similar form and substance. In short, the Movement as manifested in the Movement Act is a political party. There is no fundamental difference between a political party and the Movement. The two could, therefore, co-exist if it were not for Article 73 which prohibits activities of political parties during the period when one of the political systems provided in Article 69 (Movement at the moment in time) has been adopted. Article 73 of the Constitution, therefore, derogates the enjoyment of the rights and freedoms enshrined in Article 29.
The exhilaration of Prof. Ihonvbere from Ford Foundation notwithstanding (he is of the opinion that the 1995 Constitution is a super one) let me continue to address the flaws embedded therein.
I shall now turn to the probably most controversial and oppressive article of this constitution - Article 269. This article falls under the title:
Regulation of Political Organisations.
269. On the commencement of this Constitution and until Parliament makes laws regulating the activities of political organisations in accordance with article 73 of this Constitution, political activities may continue except-
(a) opening and operating branch offices;
(b) holding delegates’ conference;
(c) holding public rallies;
(d) sponsoring or offering a 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.
269 (a) prohibits the opening and operating of a branch office. This is in contradiction with Article 71(a) which clearly states:
(a) every political party shall have a national character;
How can a party have a national character when it is not allowed to spread to different areas? What this restriction actually means is that a Party formed, let us say in Fort Portal, cannot operate in Jinja - for how will it operate if it is not even allowed to open an office in that district?
269 (b) prohibits the holding of a delegates’ conference which is the forum where members of the party national organs are supposed to be elected. This is in direct contradiction with Article 71(d), which stipulates:
(d) members of the national organs of a political party shall be regularly elected from citizens of Uganda in conformity with the provisions of paragraphs (a) and (b) of this article [i.e. in such a way as to give the parties a national character] and with due >consideration for gender;
How can you regularly elect when you are prohibited by 269(b)? The repressive nature of clauses (c), (d) and (e) is also self-evident. This article is clearly an invasion of the rights and freedoms enshrined in Chapter 4. It revokes the right to associate, the right to assemble, the right to freedom of speech and expression, the right to hold views and sharing them with others.
As far as I can recall, all Ugandans belong to the Movement. Article 269 taken together with the Movement Act, violates Article 71(f) which states:
(f) no person shall be compelled to join a particular party by virtue of belonging to an organization or interest group.
In fact it even offends Article 20(2) of the Universal Declaration of Human Rights, which states:
(2) No one may be compelled to belong to an association.
Article 269 discriminates against those who do not subscribe to the Movement system and violates their rights and freedoms as enshrined in Article 21(1) and (2) which state:
21. (1) All persons are equal before and under the law in all spheres of political, economic, social and cultural life and in every other respect and shall enjoy equal protection of the law.
(2) Without prejudice to clause (1) of this article, a person shall not be discriminated against on the ground of sex, race, colour, ethnic origin, tribe, birth, creed or religion, or social or economic standing, political opinion or disability.As to the question on whether the Movement will register under POA, I really do not think so, because it does not consider itself to be a party and, therefore, that provision would not refer to it.
Article 269, on the other hand, places restrictions before any justifiable situation has arisen. It suspends rights as long as it suits the state to suspend them.
While Article 44 lays down the rights and freedoms that cannot be derogated, those in Article 29 are not included. This can only mean that, although they are deemed to be inherent and not granted by the state, they can still be derogated!
Article 270 is, in my opinion, like giving something with one hand and then taking it away with another. It allows for the existing political parties to continue existing and operating, but then places such restrictions (Article 269) that they are disabled from functioning. Article 270 states:
270. Notwithstanding the provisions of clause (2) of article 72 of this Constitution, but subject to article 269 of this Constitution, the political parties or organisations in existence immediately before the coming into force of this Constitution shall continue to exist and operate in conformity with the provisions of this Constitution until Parliament makes laws relating to registration of political parties and organisations.
I consider a constitution to be a permanent document. Article 271, on the contrary, seems to me to be a temporary provision, which could have been dealt with in an administrative measure or whatever they would wish to call it. In any case, it is now redundant.
In conclusion, I would say that the provisions of Article 269 have further been entrenched in the Political Parties and Organisations Act (POA). The POA places new curbs on the activities of opposition parties and effectively confines them to the capital, thereby barring them from effective national operation. It also sets stiff terms for the registration of new ones. Parties are prohibited from holding public meetings, are allowed to hold only one national meeting in a year and they are barred from holding rallies or sponsoring candidates in an election. These provisions can hardly be justified in a democratic environment.