Entry
Who should Draft a Constitution
Procedure for Drafting a Constitution
Ratifying the Uganda Constitution
Separation of Powers Requires a Two-House Legislature
Bill of Rights
Election of the President
Corruption
Most constitutions do not have a very good track of longevity. Of the 160 written constitutions in the world today, two-thirds of them have been adopted or substantially revised since 1970. Only 14 predate World War II (1. James Madison, Alexander Hamilton, John Jay, The Federalist Papers (Penguin Classics, England, 1987); p. 13 (Editor's Introduction)). Many modern constitutions have been suspended or abrogated by military dictatorships. The failure of so many of these constitutions, particularly in the Southern hemisphere, casts doubt on the wisdom of studying them in depth, other than to learn why they failed. Moreover, some of the largest nations in the world have constitutions which have either disintegrated, or are undergoing drastic change. The throw of East Germany and the Soviet Republics are a case in point. For these reasons, Uganda now in the process of drafting a new constitution, is on much firmer ground to examine the broad spectrum of world history. It is there that we find the time-tested principles of good government and good constitution-making.
What are these time-tested principles and where did they originate? From Montesquieu of France (2. Charles Montesquieu, Spirit of the Laws (1748)) came the all-important doctrine of separation of powers. Grounding his theory upon the realistic premise that power corrupts, Montesquieu held that government's power should be diffused. This diffusion could come about, he said, in three ways: first, by a clear separation of powers between the legislative, executive and judicial branches of government; secondly, by further diffusing legislative power by dividing it into an upper house and a lower house, so that each could operate as a check upon the excesses of the other; and thirdly by diffusing power with a system of power sharing between the central (federal) government and the local government. It should be noted that to many Ugandans, the word federal means a central government which recognises some autonomy of the traditional four kingdoms - Buganda, Ankole, Toro, and Bunyoro. However, the term federal is here used in its most likely accepted meaning to connote any power sharing between a central federal government on the one hand and local government on the other. In the Uganda context, we are talking about a sharing of power between the national Parliament and the 38 local districts.
There are many other sound principles of government that have come from a wide variety of historic sources. From the ancient Greek city-states came the idea of democracy - a government by the people and for the people. Plato's writings contributed the notion of a republican form of government, that is, a government in which the people elect representatives to make law and to administer it. John Locke's essays reasserted this meant power, and that whatever powers a national or a local government has, are entirely delegated to it by the people; that if government tyrannically abuses that power, the people have a natural right to revoke it, and oust any such despotic government by force, if necessary. This right Locke called man's natural right of revolution (3. John Locke, Second Treatise on Government, G. Mace, Locke, Hobbes and the Federalist Papers (Carbondale, III. 1979)). France's Rousseau came up with the idea that a social contract is created between the people and their government; that if government tyrannically abuses that contract obligations, the people have a right to declare a breach of trust, and to terminate the contract (4. Jean Jacques Rousseau, The Social Contract (1762)).
The concept of a government limited by law had its origin in the Magna Carta. England's Bill of Rights in 1688 produced the notion that there should be no standing army in peace time without the consent of the legislature; and likewise, the writ of habeas corpus established the principle that there should be no arrest or detention without a charge and speedy trial. The preference for a single individual, rather than a penal of three persons to run the executive branch of government came from the disastrous experience of ancient Rome's triumvirate system wherein the three leaders were constantly fighting among themselves. The conclusion that a federal government would work better than a confederation, or loose association of states came from a study of the failure of the ancient Greek Lycean confederacy.
If all these concepts are principles of good constitutional government, how can they be brought together? Like Uganda's National Resistance Army (NRA), the patriots of the American Revolution faced the same when the war of liberation against England was drawing to a close: How would they establish a lasting government, and upon what principles? Some officers in the resistance army planned a coup, and proposed to simply announce that they were in control, with General George Washington at the head of an authoritarian government supported by the army (5. Madison et al. The Federalist Papers, op. cit. p. 68). But Washington refused to participate, stating that a constitutional convention of delegates elected by the people, not the barracks, was the proper place to craft a new, permanent federal government. A majority of the army officers and leaders of the Continental Congress (the provisional government that had conducted the war against England) followed Washington's leadership and his view. They resigned from the army, went back to their local districts and elected 55 delegates to a national constitutional convention. Of the 55 delegates, 39 were former army officers or leaders in the provisional government, including Washington, Alexander Hamilton, James Madison and John Jay. A majority of these had returned to the peacetime practice of law, or had elected to peacetime state or district political office.
How did this group of former military leaders go about establishing a federal system of governance in 1787? The convention was filled with hard-working men of letters, science, and creativity - men of stature of Col. George Masson, Gen. Charles Pinckney, and Benjamin Franklin (6. At the age of 81, Franklin was the oldest delegate. He made a number of important speeches in the debates, but had them read for him because of difficulty for standing for long periods of time. He published a newspaper, authored Poor Richard's Almanac, discovered electricity, invented eye glasses, and the famous Franklin iron stove still used throughout the world. Sailing across the Atlantic on a diplomatic mission to France, he busied himself with daily measurements of the ocean temperature and developed one of the first theories of ocean currents, such as the Gulf Stream! The convention adopted his motion that all sessions commence with prayer). To get an idea how seriously the delegates took their task and prepared themselves for it, let's focus on just one delegate - 36 year old James Madison. A lawyer in peacetime, Madison was president of the provisional government that planned, fought and won the war. He commenced to prepare himself for the Constitution Convention a year in advance. He had his close friends, Thomas Jefferson, then ambassador to France, ship him two crates constituting a 5-foot shelf of all the books that could be found in Europe on the history of natural law, economics, political history, ancient and modern confederacies, and the social and political philosophies of Hume, Hobbes, Locke, Rousseau, Montesquieu and Bacon. Supplementing his education as a former graduate of Princeton University, he studied in depth the weaknesses of the ancient governments of Greece, Rome, Carthage, and the decline and fall of the Lycian, Amphictyonic, Achaean, Helvetic, Belgic, and Germanic confederacies. He published two papers on the structure of government before the Convention started. Almost daily in the four-month session of the Constitution Convention, Madison argued from these historical sources.
In addition to his other talents, Madison was a skilled shorthand reporter. Although the convention of 1787 had appointed an official reporter, historians have long since proclaimed Madison's Notes of Debates in the Federal Convention of 1787 as the most authoritative, accurate, and detailed account of the day-to-day proceedings of the Convention (7. Madison scrupulously observed the Convention rule that all proceedings would be kept secret until the last delegate had died, in order to foster free and open debate and to not jeopardize the public life of the delegates. As it turned out, Madison was the last survivor, dying in 1837 and his Notes were first published in 1840. About his Notes, he wrote in his last papers: Nor was I unaware of the value of such a contribution to the fund of materials for the History of a Constitution on which would be staked the happiness of a people great even in its infancy, and possibly the cause of Liberty throughout the world. Madison's Notes, p. 17). Madison became the fourth President of the United States, was elected to two terms, serving eight years, and was Commander-in-chief of the armed forces during the war of 1812. During the year following the completion of the Constitution, Madison, Jay, and Hamilton, using the pseudonym Publius and Brutus published 85 pamphlets, collectively called the Federalist Papers, to persuade the people of the 13 states to ratify and approve the Constitution. It is easy to see why Madison's contemporaries, as well as history, quickly acclaimed him as the Father of the Constitution. It is useful to keep in mind that at the time of the Convention of 1787, America was still a small county with a population of only 3.9 million - less than a fourth of the present population of Uganda.
What kind of a constitution was written by these 55 men, most of whom were army officers in war, and lawyers in peacetime? It was surprisingly a short document - only 5,000 words in length - about twice the length of this paper. It was the first national written constitution in the history of the world. After standing the test of time for more than 200 years, it is today the oldest written constitution in the world that is still in effect. Because of its strict observance of separation of powers, there has never been a military coup or an attempted coup in its two centuries of existence. In the same period of time, separation of powers between the legislature, executive, and judicial branches of government has enabled Congress to throw one President - Nixon, out of office, remove a dozen judges from the Bench for taking bribes or other crimes, and to eject a handful of legislators from office for corruption or other misfeasance. John Adams wrote from England that the US Constitution represented the greatest single effort of national deliberation that the world ahs ever seen. Thomas Jefferson who was not at the Convention wrote from France where he was serving as ambassador, The Constitution is unquestionably the wisest document ever yet presented to man. In 1887 William Gladstone, the English statesman, asserted that The United States Constitution was the most wonderful work ever struck off at a given time by the brain and purpose of man (8. Franklin D. Roosevelt, the US President from 1930 to 1994 observed in 1937 that the Constitution is a layman's document, not a lawyer's contract. He also said, Like the Bible, it ought to be read again and again. Michael Kammen, ed., Origins of the American Constitution (Penguin Books, N.Y., 1986), p. vii).
These hyperbolic descriptions should not obscure the caustic criticism that was also levelled against the Constitution during the year when the people were debating whether to ratify or to reject it. For example, John Lansing of New York denounced it as a triple headed monster, as deep and wicked a conspiracy as ever was invented in the darkest ages against the liberties of a free people. Moreover, at ratifying conventions in state after state, the Constitution would be adopted by the narrowest of margins - with often only a handful of votes separating the pro-constitution Federalists from the opponents of the Constitution - the Anti-Federalists. The jugular issue about which the ratification controversy raged was the exact opposite of the controversy that can reasonably be foreseen in Uganda, namely whether there will be a stronger local government at the expenses of some weakening of the national government; or conversely, whether the national government will be strengthened at the expense of a weakening local district government. Stated another way, the problem that the American Constitution-makers had to face was a basic mistrust of a strong central government; whereas the problem Uganda's constitution drafters may have to deal with is a basic mistrust of local rule.
In early America the issue was whether local government, that is, the 13 sovereign state governments (that had formerly been separate colonies) would give up some of their power to the formed national federal government. It will be recalled that after their Declaration of Independence in 1776, each of the 13 colonies drew up a constitution with separation of powers, all 13 except Pennsylvania, established a two-house legislature, and all of them declared that they were independent sovereign nations. They then formed a loose alliance under the Articles of Confederation, which essentially did not involve any surrender of whatsoever of national sovereignty. The provisional government under the Articles of Confederation which prosecuted the war, was severely handicapped because its proportionate assessments against the states for men and money to carry on the war, required voluntary compliance of each of the 13 states which was all too often not forthcoming. Thus, the problem of the Constitution Convention was to create a strong central government that had not previously existed, with power to tax the people directly, to regulate interdistrict commerce, declare war, and deal exclusively with foreign nations - all of which were powers formerly held exclusively by the 13 local states.
In Uganda, the constitution-making problem is almost the exact reverse. Traditionally, since independence in 1962, Uganda has had a strong central government. Indeed, during a large part of that post-independence period most people would agree that the central government has been too strong, too arbitrary, too dictatorial, and too repressive. During the same period, there has been a progressive waking of local or district government. For example, even today, the supreme executive authority in the district, the District Administrator, is appointed from Kampala, not elected in the district by the people, as is the case in most Western democracies where the chief executive of state, county, or city government is elected by the people with a secret ballot, following a vigorous debate in public and in the press between rival candidates from rival political parties. Thus, from a comparative standpoint with other modern federal governments such as Mexico, Costa Rica, the United States, and the Federal Republic of Germany, Uganda would appear to have a top-heavy national government, and relatively weak local government; and if this is true, it would call for a redistribution of additional governmental power to the local district.
It is, of course, easy on the basis of individual self-interest in the short run to decide whether there should be an increase in local district autonomy and power in such traditional areas as the power to levy local taxes, to have greater voice in the nomination or appointment of magistrates, power to enact local building and zoning ordinances, to maintain local streets and highways, police and fire protection, local water system, public health programs, or, as the US Constitution provided - the power of local district (state) government to appoint officers of the district militia and to train them in accordance with the standards prescribed by the national legislature.
Presumably, residents of Kampala and officials, both elective and appointive in the national government, and the military, would tend to prefer a strong concentration of power in the national government. Similarly, the wananchi living in the districts whose problems and day-to-day concerns are largely local, would tend to opt for more governmental power at the local level.
But the issue involves broader considerations of the underlying political theory of democratic governance, and its practical implications for the long run stability of Uganda. In the first place, if Montesquieu's theory is correct - that the best way to promote stability and avoid tyranny is to separate power as much as possible - including setting up local power in opposition to national power - then serious consideration should be given to the argument that such reallocation of power may create a healthy tension between the national (federal) government and the local districts. We are talking about the same kind of tension that exists in the United States today between the local (state) governments and the national federal government. James Madison explained the advantages of such a rivalry between the national government on the one hand and the local district government on the other hand.
But in a federal system, the people, without exaggeration, are entirely the masters of their own fate. Power being almost always the rival of power, the national government will at all times stand ready to check the usurpations of the district governments, and these will have the same disposition towards the national government. The people, by throwing themselves into either scale, will infallibly make it preponderate. If their rights are invaded by either, they can make use of the other as the instrument of redress. How wise will it be in them cherishing the federal system to preserve themselves an advantage which can never be too highly prized! (9. Madison, et al, The Federalist Papers, # 28, op. cit. p. 206).
Secondly, the Framers of the American Constitution took seriously Locke's theory that all political power derives from the people. Therefore, they drew the Constitution to give only specifically enumerated powers to the national federal government, and they were very explicit in providing that all other residual power would be reserved to the local government (states) or to the people. This fundamental theory that power originates with the people contrasts sharply with the political theory on which Nigeria's Constitution is based. It delegates specific powers to the local governments and reserves all other powers to the national government. Obviously, such a constitution is grounded on the theory that power originates, not with the people, but with the national government, and from that source it trickles down to the local level - a clear antithesis of Locke's theory that there is a natural law that vests political power of governance in the people.
Thirdly, a more balanced distribution (and separation) of power between the national and district governments has a bearing on what may be called the Idi Amin Principle - that is the possible danger of a military takeover. At the Constitution Convention, there was so much controversy over the right of the local (district) governments to maintain a militia that a special committee was appointed to study the issue for several months. The final draft of the Constitution as ratified provided that the national federal legislature could prescribe the standards of the training of the district militia, but the appointment of the officers and the training of the militia would be left to the states (that is, the districts). This arrangement was seen as bulwark of local strength against the threat of tyranny, despotism, dictatorship, or usurpation of power at the national federal governmental level. Madison wrote about the counterbalancing effect of local government against a despotic national takeover attempt in one of his Federalist Papers. As we heed his words, we cannot but wonder if Idi Amin could have staged a successful coup if a district militia had been in place that was collectively larger than his stand army: Madison said:
Let us suppose a regular army, fully equal to the resources of the country, be formed: and let it be entirely at the control of a despotic national government; still it would not be going too far to say that the state (district) governments with people on their side would be able to repel the danger. If the aggregate state (district) militia are five times the size of any national army, with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties and united by and conducted by state (district) governments possessing their affections and confidence, they can easily prevail. The existence of subordinate governments, to which the people are attached and by which militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of.
The argument for a district militia may be put into a very concise form which appears altogether conclusive. Either the mode in which the national government is to be constructed will render it sufficiently dependent on the people, or it will not. If it is dependent on the people, it will be restrained by that dependence from forming schemes of usurpation obnoxious to their constituents. If it is not dependent on the people, it will not posses the confidence of the people, and its scheme of usurpation will be easily defeated by the district governments who will be supported by the people. (10. Madison, et al, The Federalist Papers, #46, P. 303).
How has this arrangement worked in the United States? Throughout most of its history, the local state militia in aggregate have very substantially exceeded the size of any national standing army. As has been noted, the militia are officered and trained, by the local districts (states), but are subject to call by the President upon receiving authority from the national Congress. Today, 60% of the total armed forces of the United States consist of the local militia (11. Confusingly, the state militia are called the National Guard) or reserves of the army. Of the approximately 500,000 called into duty in the Persian Gulf, 200,000 were from the local state militia or army reserves. The local state militia are paid by the local government, but when, pursuant to authority from the national legislature they are called into national service, they are then under the command of the national government and are paid by it. The local State militia account for one-third of the combat strength of the army's nine divisions, but with the decline of the cold war and reduction of the armed forces in Western Europe, the size of the regular army will undoubtedly be significantly diminished and the local state militia's role will again increase in importance.
While I have focussed on the importance of a more even balance of strength between the national and local government as a vital part of the separation-of-powers scheme, there are other critical matters that should be touched upon in the process of drafting a new constitution. These can most appropriately be covered by asking and answering the question: If the 55 men who drafted the Constitution of 1787 were looking in on Uganda today, what advice and suggestions can we say with certainty that they would give us? We can find clear and unequivocal answers in Madison's notes of Debates in the Federal Convention, and the Federalist Papers of Madison, Hamilton and John Jay, who himself, later became Chief Justice of the Supreme Court. Here is what they would say:
Who should Draft a Constitution
If the Constitution is going to be the supreme law, it must originate with the people; that is each district should elect one or two delegates to attend a convention to draw the new document. In 1786, Washington, Madison and Hamilton requested the states (districts) to appoint commissioners to consider constitutional problems. The Commission met in Annapolis in September. Because the problem of drafting a constitution was so important and complex, they issued a report recommending that the states (district) elect delegates to a constitutional convention in Philadelphia in May, 1787.
The idea that a written constitution is superior to laws passed by a legislature originated immediately after the Declaration of Independence of the 13 colonies in 1776. At that time, the provisional Continental Congress passed a resolution advising the 13 colonies to form a new government without telling them how. The people of the state of Massachusetts passed a resolution calling for a convention of delegates elected by the people to draw up a state constitution. The resolution declared that the legislature was:
By no means a body proper to establish a constitution or form a government ... because the same body that forms a constitution has the subsequent power to alter it and because a constitution alterable by the Legislature is no security at all to the subjects (people) against any encroachment ... on any or all of their rights and privileges (12. Resolutions of the Town Meeting of Concord, Mass. Oct. 11, 1776. Origins of the American Constitution, op. cit. o. 8, ff.).
Hamilton would certainly advise Uganda to have a constitutional convention of delegates so that it can prove to itself, and to the world, that an African nation can adopt a constitution through reflection and choice rather than having to depend on accident and force (13. Madison, Hamilton, Jay, Federalist Papers, op. cit. Thomas Jefferson acclaimed the Federal Papers as the best commentary on the principle of government that was ever written). A major reason for having a convention, elected from the district, draft the constitution is that, having participated in writing it, they will be better able to convince their constituencies to ratify and approve it.
Procedure for Drafting a Constitution
It is estimated that a convention could draft a constitution in less than two months (14. The 55 delegates paid their own travel and living expenses for 4 months. Two years later when the new government convened, they were reimbursed. Doctor (Benjamin) Franklin proposed that legislators receive no salaries, saying: In all cases of public service, the less the profit, the greater the honour.). After a presiding officer and secretary are elected, standing committees should be appointed. These should include: Regulation of Militia, Commercial Discrimination, Inter-district Trade & Export Abroad, Revenue and Taxation; and the procedural Committee on Rules, on Detail (final wording of the draft), and Committee on Remaining Matters (to keep track of issues that have been postponed or are unresolved). The Convention of 1787 found that the most valuable rules provided for: secrecy of meetings from the press until the final draft was completed; and no record of individual delegates votes of yea or nay on any issue, keeping only a record of voting by districts. These rules encouraged free, open and uninhibited debate on all issues and lifted any barrier to a delegate changing his mind at the time of voting on the reconsidered issues that had previously been voted upon.
The US Constitution is one of the shortest constitution in the world, consisting of only 5,000 words. It clearly reflected the views of the framers that a constitution should not contain matters that properly belong in the legislative statute books, namely laws that are subject to change with changing conditions and circumstances. Many constitutions have been drafted with the mistaken notion that legislation favouring special interest groups should be included in a constitution so that it will be more difficult for the people through their legislature to repeal or change it. For example, the California Constitution contains a provision exempting banks from the usury laws; as a result of this law and thousands of others like it, the Constitution requires four volumes to contain it! Obviously, the inclusion of such matter detracts from the dignity of a constitution as the supreme law of the land.
Ratifying the Uganda Constitution
Ancillary to the question of how to draft a constitution is the parallel problem of how to ratify and approve it, and by whom. The issue was hotly debated on July 23, 1787. Some said state legislatures should ratify the Constitution; others said the Continental Congress. But a former army officer, Col. George Mason argued that the draft must be taken to the people. Madison said, It is indispensable that the new Constitution should be ratified in the most unexceptionable form, and by the supreme authority by the people themselves. In an unprecedented nearly unanimous vote, the Convention concluded that the proposed draft should be submitted to the people; and that the best way to ensure that the people's approval had been obtained would be by majority vote of a constituent assembly, that is, a convention, elected by the people, and expressly called for the sole purpose of considering ratification of the constitution.
It was reasoned that approval only by a Legislature was not sufficient to clothe a constitution with legality because: (1) The Legislature had not been expressly and specifically elected for the purpose of approving a constitution: hence it would be improper in infer that the people had delegated such authority to it; (2) If a constitution could become effective by mere approval of a Legislature, it could also be invalidated, suspended, amended, or replaced by the same procedure and, it would not be always supreme and superior to the laws enacted by the legislature, but on the contrary, it would have only the same status as any other law passed by the Legislature; (3) Since the source of all government power is the people, any constitution to be the supreme law of the land, that is, superior to and above any law enacted by the legislature, must clearly be derived from and adopted by the people.
The Uganda Law Society (ULS) appears to have had these historic principles of constitutional law in mind when they recently approved a 17-page letter to the Constitutional Commission contending vigorously that a constituent assembly other than the current National Resistance Council (NRC) and the Army Council be elected by the people to draft and promulgate the anticipated national constitution, and upon its completion, the same constituent assembly should be the body to ratify it.
With a constitution ratified by a constituent assembly elected by the people, there would be less likelihood that a captive Legislature could be ordered by a would-be dictator, such as Idi Amin, to suspend the constitution, and even if it made such an attempt, there would be no doubt as to the validity of such suspension.
The wisdom of having a constitution ratified by a constituent assembly is illustrated by the experience with the US constitution. When the proposed draft was submitted to constituent assemblies elected in the states (districts), they refused to approve it unless solemn promises were made to add a Bill of Rights. At the first session of the new government's legislature, Madison proposed the first 10 amendments, constituting the Bill of Rights, which were approved by the Legislature and referred to the states (districts) for ratification, after which they became a part of the Constitution in 1791. Thus, if it had not been for the vigilance of the states (districts) the Bill of Rights, often considered the most important part of the Constitution would have been left out!
Separation of Powers Requires a Two-House Legislature
We have already discussed how Montesquieu's separation-of-powers doctrine not only requires that the legislative, executive, and judiciary offices shall be kept for ever separate, as Thomas Jefferson said, (15. Madison, et. al., The Federalist Papers, op. cit., p. 49) but in addition that the legislative power be further separated into an upper house (Senate) and a lower house (Representatives). A two-house legislature, Madison said, would divide the trust between different bodies of men who might watch and check each other, (16. Ibid, Madison, Notes of Debate in the Federal Convention, pp. 193-195) and it would avoid the tyranny of a one-house legislature because it would act with more coolness, more system, and more wisdom than the popular branch. Hamilton called a Senate a barrier to the excess by the lower house. Jefferson also feared excesses of the legislature and wrote that an elective despotism is not the government we fought for. He believed that the upper house should be characterised as an aristocracy of the common man of integrity and good sense, who would act as a balancing wheel in the legislative process. Thus the Constitutional Convention was convinced that there was a critical need for a second chamber (Senate) that would: (1) represent superior talent and wisdom which would be obtained by establishing a minimum age of 35 for eligibility of office, and (2) attract the more contemplative and learned in the community who could revise the more hasty actions of the people in the lower house.
Some observers have suggested that if the concept of a two-house legislature was applied to Uganda, it might overcome the fear expressed by some small tribes and by less populous districts that their tiny voice in the Legislature might be permanently over-powered by the majority consisting of the larger tribes and larger districts. With each district having an equal vote in the upper house, districts with small population or minority tribes by banding together could block highly objectionable legislation being pushed by the majority. As Oliver Ellsworth, the author of the Connecticut Compromise (17. This compromise prevented the small states from walking out of the Convention; it provided that they had equal voting in the senate, but that the Lower House of Representatives would be proportionate to population) put it: Some power is given to the few to save them from being destroyed by the many. Madison argued that this same principle could permit the Senate to balance and resolve other conflicts between special interest groups, such as cotton vs cattle, agriculture vs mining, professional and commercial interests vs landed; rich vs poor, debtors vs creditors (18. Madison, Notes of Debates in the Federal Convention of 1787, op. cit. He also added: it is a misfortune of republican government ... that those who administer it may forget their obligations to their constituents and prove unfaithful to their important trust. A senate, as a second branch of the legislative assembly, distinct from and dividing the power with a first, must be in all cases a salutary check on the government. It doubles the security to the people by requiring the concurrence of two distinct bodies in schemes of usurpation or perfidy, where the ambition or corruption of one would otherwise be sufficient. No. 62 Federalist Papers, op. cit., p. 366. Madison's argument suggests a further barrier to an Idi Amin-type military coup.). In practice, the Senate has functioned this way over the past 200 years in the United States.
The importance of a constitution providing a further separation of power carefully balanced between the national government and the local district has already been alluded to. This requires a delegation of specific enumerated powers to the national government and reserving all other power to the districts or to the people, thereby aligning itself with the political theory of John Locke that the people are the ultimate source of all power.
The importance of establishing a separation of powers in all the areas I have mentioned cannot be overemphasized. In April, 1990, I was privileged to attend a meeting of all the Supreme Court Chief Justices of Africa in Lusaka. They were unanimous in lamenting that the inherent weakness of all constitutions in Africa was their failure to recognize a clear separation of powers. This, the Justices said, was due to the mistake of concentrating most of the power in the President who often then became a military dictator. As Madison characterized this situation, The accumulation of all power in the same hands may justly be pronounced the very definition of tyranny. The Justices further noted that a factor contributing to the excessive power of the president was the absence of a clear separation of power through the establishment of an independent judiciary. Too often, the Supreme Court Justices were appointed at the will of the President, subject to transfer or removal in his discretion at any time. The justices specifically mentioned Uganda as an example of the lack of an independent judiciary. The Convention of 1787 provided that Supreme Court Justices would serve for life, subject only to impeachment for crimes and misdemeanors. The Uganda Law Society had recommended a similar provision, subject to a retirement age limit of 70.
There should be a strong bill of rights, not only containing the traditional rights adopted in the Convention of 1787 such as freedom of speech, press, assembly, the right not to testify against one's self in a criminal trial; but the other basic human rights recognized in the united Nations Declaration of Human Rights and those now recognized by the UN Commission on Human Rights. These include the right to form political parties, the right to participate in political campaigns and debates, to participate in multi-party elections by secret ballot. These freedoms in the past three years have not only swept like wild fire across Eastern Europe, but the winds of change in the area of political freedoms are blowing across Africa as well. A joint study and report of the United States Senate and House of Representatives covering the year 1990, indicates that of the 47 African Nations studied, half have now adopted multi-party political systems. Increasingly these political rights are not only being recognized as essential to democratic government, but they are now regarded by most donor nations of the West, e.g. EEC and its members, and the United States, as preconditions to the granting of economic assistance to the less developed nations of the South. An expanded Bill of Rights should not only be listed in any constitution, but such rights should be expressly guaranteed against abridgment by either national or local government in any federal system.
The President should be elected directly by the people, and for a relatively short term, e.g. 4 years, with a limit on the number of terms. As one of the Convention delegates put it: If the President is to be the Guardian of the people, let him be appointed by the people. Originally, the US Constitution had no limit on the number of terms. However, after Franklin Roosevelt was elected to four terms, fear of dictatorship led to the 22nd Amendment in 1951 which limits the President's incumbency to two terms.
Above and beyond drafting a good constitution, the 55 framers of 1797 would encourage the leaders and citizenry of Uganda to address more vigorously the problem of corruption. In the past year, the papers each day have carried shocking stories of fraud, defalcation, embezzlement, and corruption, both in and out of government. The problem reminds us of Mark Twain's famous statement about the weather: Everybody talks about it, but no one ever does anything about it. ...
In the realm of politics, the greatest privilege of my life was to know Jack Kennedy, and to be asked by him to manage a part of his campaign for President, to see him fight a hard campaign and win against Richard Nixon, and to witness his inaugural address in January, 1961. His words are as appropriate for the people of Uganda today as they were thirty years ago for Americans:
And so my fellow citizens, ask not what your country can do for you; ask what you can do for your country.
Let every nation know ... that we will pay any price, bear any burden, meet any hardship, support any friend, oppose any foe, in order to assure the survival and the success of liberty.
The energy, the faith, the devotion which we bring to this endeavour will light our country and all who serve it and the glow from that fire can truly light the world.
Finally, with a good conscience our only sure reward, with history the final judge, let us go forth to lead the land we love, asking His blessing and His help, but knowing that here on earth God's work must truly be our own.
