Content
The Background
Now the 1962 Constitution
Legislative Powers
The Principle of the 1962 Constitution
The Uganda society is an amalgam of tribes and ethnic groupings. My discussion shall ignore the minute population of residents or citizens from overseas like people of European or Asian stock living in Uganda. I will not refer to them. I will ask my readers to note the following points which are important to my subject:
1. History tells us that the present boundaries of what is Uganda today were set in Berlin in 1884, by the colonialists and although there were later some adjustments as parts were added to Uganda and others taken away, the conceptualisation of Uganda had its origin in the Berlin Conference.
2. Uganda is not what it is today because of the desire of its population but by accident of birth, that birth being the colonial conceptualisation whose origin was pure economic, visualized by the colonial powers and in no way influenced by social realities of the population settled within those boundaries. However, we do accept it today as a child accepts its parents whatever their position and it is to our benefit to do so.
3. At the dawn of colonisation each ethnic grouping had a system of social and cultural institutions which fitted, characterised and identified that grouping irrespective of the size of its geographical area or population. These institutions served a purpose and were held dear by the population affected.
4. On colonisation and creation of what we call Uganda today, which did not come by all at once but gradually, the governments of each independent ethnic grouping became the local government of the area and the road to constitutional development began.
5. As the constitutional development began, it was found that different ethnic groupings within their geographical areas started the process at different levels, some were ahead of others.
6. At the beginning of the constitutional development process it was accepted that the population, the size of the geographical areas as well as the degree of social cohesion within the ethnic grouping varied greatly one from the other.
7. The diversity of languages, some of which were as alien to another as Greek to Chinese, added to the complexity of the Uganda society. For instance, the language and dialects of the Southern belt from Kisoro to Mbale had a similarity which made actual understanding less cumbersome among the peoples of the sub-region while languages of the Northern belt put side by side with the languages of the South made the division more accentuated and interaction more remote.
8. Geography played no minor part in the ethnic stratification of occupations, food habits, and cultural activities and therefore population. Even where there were similarities, say in occupation, the differences were still pronounced. An example can be given of the pastoral Banyankole and Akarimojong. The cattle stock as well as the pastoral methods and practices were vastly different between them. So was the dissimilarity between the agricultural Acholis and the Bagisu. The staple food was very different.
9. Settlement patterns, origins of the settlers and the ages or periods during which these settlements occurred further complicated the fabric of the ethnic mix of the Uganda society. While detailed study of this social mix is the job of the historian and social anthropologist, its impact on the political patterns was then, as of now, quite real and worthy of attention in the political context. Waves of migrants brought with them cultural and religious practices, food habits, social mores and settled in well defined areas providing their own security, entertaining their own aspirations, containing their own fears and struggling to preserve themselves as a species as well as preserve their cultures from complete annihilation.
10. At the beginning of colonisation of Uganda, as all through the colonial era, the British wanted and strenuously and ingenuously endeavored to mould the Uganda society as one homogeneous whole but the existence of the pronounced differences and aspirations I have outlined made it impossible for them to succeed. Indeed they had to remain content to recognise the stark reality of the situation. This recognition is reflected in the 1962 Constitution which I will now endeavour to discuss.
I will deal with the Articles which I think are of major importance to expose the present validity or lack of it, of that Constitution.
Article 2 on the territory of Uganda
It needs revision so that as it was in the case of Buganda concerning Buyaga and Bugangazi, the Bamba and the Bakonjo should be given the right to express themselves on how, by whom and with whom they want to be governed.
Article 5 - on alteration of the Constitution
Alteration should be done with the consent of at least 51% majority in Parliament and six of the federal States. Experience has shown to us how easy it was to alter the Constitution in Parliament at gun-point camouflaged as consent e.g. in the 1966 and 1967 or where the party in power induces it by bribery and threats.
Article 17 to 33 on Fundamental Rights
Fundamental rights should all be subject to the jurisdiction of the courts in order to avoid arbitrary restrictions which often breed disaffection and ultimate turmoil. This would do away with preventive detention.
Articles 30 to 33 on Public Emergency
These articles require the greatest scrutiny. For five years, Buganda was governed under a state of public emergency wholly unjustifiable from a national point of view. The reason was purely personal and designed to keep an unpopular regime in power and to avoid elections.
Article 34 on precedence of the President
(1) This was derogatory and a source of friction. As the whole is greater than the constituent part, the President of Uganda must take precedence over everyone else of whatever political status. I would confine it to political and not other spheres e.g. in the places of worship.
(2) Provision for impeachment of the president during and/or after his term of office should be provided for and the power of clemency over a delinquent President should be left to Parliament in such event but not the succeeding President who may be the crony of his predecessor or who for fear of being himself impeached afterwards exercises it to preempt his own tribulations when the time of reckoning comes.
Article 35 on Retirement
Privileges of the President need to be improved except where suspended as penalty on conviction. The benefits must be certain, generous and index-linked to avoid an hostile partisan Parliament from interfering with the pension of the retired President and also to avoid the necessity of an incumbent President from plundering the national wealth or to fall a prey to corruption in an endeavour to provide for his future.
Article 36 on Election of the President
(1) This should be wholly done away with. Traditional rulers of federal states should never aspire to the office of President unless they first resigned their positions and subjected themselves to the popular vote.
(2) Further, I would propose that the president be directly elected in a popular vote separate from that of elections of members of Parliament. The President may or may not be a member of any political party and his tenure of office should not depend on the tenure of the party in power in Parliament. This system is working well in some countries like France and the USA.
(3) His term of office should overlap the term of office of Parliament in order to avoid a vacuum at any given time.
Article 37 and 38 on Composition of Parliament
The merit in having a bicameral Parliament with a strong and powerful wholly elected Lower House and an Upper House with mixed representation of persons nominated or elected from that states to represent such states and some other interests. They should be given a definite role to play although they should not be permitted to override the powers of the popularly elected Lower House.
The institution of Upper House may obviate the necessity of having specially elected members in a single Chamber Parliament or as in the present NRC and would remove the misgivings caused by a direct representation of the Armed Forces as the only distinct group represented. The Upper House can initiate legislation, debate issues presented on petitions by the public and suggest amendments from a detached position not motivated by partisan mainstream politics and bring about expert views some of which may be lacking in the elected Lower Chamber but could be of vital importance to the nation. Not faced with heavy responsibilities cast on an elected member to nurture his constituency, members of the Upper House can find more time for parliamentary business than available to elected members. Normally, members of the Upper House tend to be more mature and better provided so as not to be as emotional or as busy as the elected members.
The Upper House could also assist in forging greater unity and interaction, through interactions of its members not vying for largesse or political office which often characterise the superlative politicians of the Lower Chamber. If this proposal were adopted, election or nomination of the Upper Chamber should be one year after that of the Lower Chamber.
Article 45 - on Election Commission
I would suggest that the Electoral Commission should be appointed by Parliament:
(a) should have security of tenure of office; and
(b) its members should not belong, or have belonged before, to any political party;
(c) preferably the Chairman should be a retired Judge of the High or Supreme Court of proven ability and integrity.
Article 48 - on Tenure of office of members of the National Assembly
I would like to see a provision to the effect that any member who ceases to belong to a political party on whose ticket he was elected, shall immediately vacate his seat and there shall be a bye-election which he may contest in his new status. This will not harm politicians of conviction and integrity but will prevent political prostitutes from pursuing personal gains at the expense of the electorate.
Article 53 on Quorum in National Assembly
I am particularly amused by the press reports of frequent adjournments of NRC business on account of lack of quorum. This does not show commitment and seriousness on the part of our representatives. I would therefore wish to see a strong provision which will automatically disqualify a member for excessive absences.
Article 54 - on Laws having retrospective effect
I would frown at a provision of the Constitution giving power to parliament to make laws having retrospective effect. This is dangerous and can be grossly abused by a vindictive Parliament especially with laws creating offences or depriving people of their properties.
Article 59 on Sittings of Parliament
The summoning of Parliament should not be left to the whim of the President. Sessions of Parliament must be fixed by the Constitution. The President should be left to summon only extra-ordinary sessions in case of emergency or urgent business.
Similarly the term of office of the President and Parliament must be provided for and the exact date of their election fixed and be public knowledge so that none is left to speculation. I would suggest a maximum of two, five year terms for the President and election of the Lower House every five years and the Upper House every four years.
Article 61 to 64 - on the Executive of Uganda
(1) I would like an executive President but where powers are shared with the Prime Minister and Parliament. Neither holder of either office should be a lame duck. Both roles must be clearly defined and the Prime Minister must be leader of Government business and spell out his programme. The balance of authority is somewhat delicate but we can get guidance from countries like France.
(2) Ministries must be regulated and sanctioned by Parliament rather than being left to the whim of the President or Prime Minister.
(3) Ministers shall not be members of Parliament. A member who is appointed minister should vacate his parliamentary seat. Being in Parliament and holding a ministerial appointment brings about neglect of one's constituency thus disenfranchising the people of that constituency. It also causes conflict of interest and divided loyalty. A minister is bound by the rules of the game to an oath of secrecy as well as to collective responsibility even on matters he violently differs. As in our experience, it is likely to take long before our representatives resign their ministerial positions as a matter of honour and commitment to their constituencies and/or conscience. A minister is more likely to opt for the maintenance of his position than sacrifice for his constituency. To avoid this conflict of interest I would suggest a course of division of responsibilities.
(4) I would further suggest that ministers be vented by Parliament before they are vested with office and venting should include disclosure of their assets. Of course it should not be made public but be confined to Parliament.
(5) A minister should also be subject to a code of conduct in order to maintain his decorum, public accountability and public image which befits a respectable nation.
(6) With these changes, Articles 65 to 72 would undergo drastic consequential alterations.
Articles 73 to 82 on legislative powers
This would undergo a drastic change. I would provide three lists of legislative competence. The first list would be within the exclusive competence of the Central Government exercised by the national Parliament e.g. power to declare war and conduct of foreign relations. The second list would lie in the exclusive sphere of competence of the federal states e.g. the question of traditional rulers and succession. The third list would be common to both and I would call it the concurrent list e.g. provisions on education, health, law enforcement and the judiciary. This proposed structure would totally change the concept and provisions of articles 90 to 98 of the 1962 Constitution which relate the judiciary.
Article 122 - Language
Perhaps while we must exercise our minds now and we do something to promote and uphold our vernaculars it may be too early to promote anyone of them to an official language. It may well be that through a federal system these languages will be given a chance to develop. In as much as possible for the time being each should be the official language of the area where it is native. I would also say that pending selection of one of our languages as the official language, there should be a conscious policy and active pursuit of the development of our indigenous languages. I would not subscribe to the view of replacing one foreign language, English, to another foreign language, Kiswahili. At least English has a much greater advantage over Kiswahili. It is more developed in vocabulary, it has extensive literature, it is more international.
I would like to make a distinction here between official and national language. It appears to me that confusion has been created over this issue where the concept of a national language has been equated with an official language. English is today Uganda's official language but it is far from being national. It does not belong to any indigenous grouping in Uganda. It is a foreign language but adopted for government business. If we are looking for a national language it must be indigenous. Perhaps this is the time to think of promoting one or two of the many we have so that one day that or those languages become not only national but also official.
When we look at the dissection I have made of the 1962 Constitution it leaves virtually a mere shell. In effect I am saying that when opportunity presents itself the Constitution should be totally renegotiated. In my renegotiation I would examine the schedules to it.
Having gone over the major provisions of the 1962 Constitution, there is little that is precious left of it which I could sustain today. This is as far as the written provisions are concerned in the main part of the Constitution. However, I have not dealt with the principles of it or the aspirations it enshrined. At this stage I wish to deal with this aspect.
The Principle of the 1962 Constitution
The 1962 Constitution comprises the Uganda Constitution and the Constitutions of some of the territories which comprise Uganda. These territorial Constitutions are appended as Schedules 1 to 2. The major schedule 1 to 5 relate to the Kingdoms of Buganda, Bunyoro, Ankole, Toro and what was termed the Territory of Busoga. These five had a status peculiar to themselves and dealt with matters peculiar to their political and cultural environment.
While Buganda, Bunyoro, Ankole and Toro had Kings with hereditary succession, Busoga had hereditary County or Saza Chiefs and the territorial head was elective. These institutions were peculiar to the peoples of those areas and had political and cultural significance unknown to the other areas.
The 1962 Constitution was neither wholly federal nor wholly unitary. It was a hybrid, a cross between the two systems. It embodied the principles of compromise, tolerance, freedom of choice and conscience. It recognised unity within diversity and it was an attempt to check arbitrary use of power and minimise the impact of political corruption which often accompanies the wielding of too much power by one man or woman or by a clique. To my mind this would have been the effect if it were allowed to work but as fate would have it, it was not to be. Within that Constitution of course, were some provisions which allowed a schemer to exploit it and justify its overthrow for his personal gains and establish a dictatorial regime which has characterised Uganda since 1966 and only watered down on the advent of the NRM but with a great potential to re-surface. The present pigeon hole constitution is a receipt for dictatorship. The difference can only be in the character of the incumbent. He may be a malevolent dictator, a benevolent one or a democrat at heart, but a democrat not by compulsion of the present Constitution because it does not provide for democracy.
If I had my way, I would adopt the principles of the 1962 Constitution found in chapter 1 and in the Schedules and express them in a new language with a modified framework. I would ask the people of each nationality throughout all the ethnic areas of Uganda to decide what they want and I would respect and concede their opinion on matters which affect their population alone. For instance I, as a Muganda, would be disentitled to decide on whether or not the Imbalu practice of the Bagisu should continue or be abolished however outrageous I consider that custom to be. This would be so even if my family had lived in Bugisu for generations, spoke the language and socially got integrated. If for medical reasons I found the practice dangerous as an AIDS agent, I would devise the means to prevent the disease catching through this medium by improving the method of execution but I would leave the rest of the question to the Bagisu alone and to nobody else.
If you want to avoid disaffection and use of brutal force, if you want to promote stability, development and happiness in the country, give to each man his due.
After so much experimentation, the present trend in the world today, on all the continents, is federal structure of Government. Governing without the consent of the people and suppressing people's views in their vital interests is the bedrock of civil strife which no army, however strong and modern, can hold down for ever. The best security in a country is that which generates from the people's minds, not in military barracks. The experiences in Iran, Eastern Europe, the Soviet Union and here at home are still too fresh in our minds to allow any equivocation. Let the people of each area choose for themselves. Anything else to my mind, will be a choice between peace, stability and development on one side and disaffection, conflict and chaos on the other.
