By Fred E. Sempebwa, Associate Professor of Law, Advocate in private legal practice, Member of the Uganda Constitutional Commission (currently Chairman of Constitutional Review Commission), 1991
The Possible Measures to Safeguard the New Constitution
Why fears about the Future
The Independence Constitution
Quality of Leadership
The 1967 Constitution
A Strong but Controlled Executive
Devolution of Powers to the People
The Problem of the Army
Demystifying the Gun
The Constitution - The Necessity for a Consensus
Debate and Dialogue
Education and Inculcating a Constitutional Ethic
The selection of this topic for inclusion in the deliberations on the making of the new Constitution is itself as indication of fears about the country's constitutional future. History demonstrates that these fears are not unfounded. Disrespect for the constitutional process started with the very first Constitution. An inquiry as to why Uganda has a bad record in this respect must go back to the period when the Independence Constitution was being formulated.
Before Independence the political situation was fluid. Colonialism had created a geographical entity named Uganda but in reality Uganda as a Nation did not exist. It was a collection of ethnic entities brought together by the accident of colonialism. The kingdom areas had been allowed to retain a semblance of self-government under their kings while other areas were ruled more directly by the colonial government at the centre. Buganda was a special case. Its precolonial economic and political programmes as a result of which Buganda registered greater growth than other areas of Uganda. The pre-colonial administrative structure of this kingdom was left untouched [1] to the extent that Buganda appeared to be a nation alongside the rest of Uganda.
Indeed, for Buganda, the prospect of independence for Uganda just threatened its future existence as witnessed by its insistence that it had never been colonised and the tactics of secession [2]. Other kingdom areas had similar fears even if not as forcefully articulated by their leaders. This was the setting for the independence of Uganda as a nation.
[1] The Buganda Agreement 1900 - reduced to writing the existing structure of administration in Buganda although from then, it was subordinate to colonial authority. See also Pratt: Buganda and British Overrule - Chapter 3 and 4 (Oxford U. P. 1970).
[2] On Buganda's attempt to secede from Uganda. See Ibingira: The forging of an African Nation (Viking UPH) Chapter 5.
Independence was obtained on the basis of a constitution that was negotiated by political leaders of the time. Because of what has been stated above, these leaders represented diverging interest groups rather than the emerging nation. Their meeting point was independence. Therefore the constitution had been a necessity one of compromise in order to enable an early achievement of independence.
That the 1962 Constitution is one of compromise is not its weak point. This in fact should be its strongest point for, after all, interests must reflect some compromise. But such compromise must be a genuine attempt to reconcile the diverging interests so that the group can survive. In the case of Uganda, the compromises were far from genuine. For example, federal status was the answer to Buganda's secessionism. The other kingdom areas were also appeased by being accorded what in theory appeared to be federal status whereas the non-kingdom areas were to co-exist in a unitary state.
In reality, there was no federal status accorded to any Kingdom other than safeguarding the position of the kings. The 1962 Constitution merely offered the trappings of federalism without providing the real base, the division of powers between the federal state and the central government. The federal kingdoms could administer some services within their areas but had to wait for stipends from the central government in order to be able to do so. In this respect, the 1962 Constitution is replete with provisions for constitutional fraud [3]. Other compromises were made merely to gain advantage over political rivals without taking into account the interests of the people. Was there any genuine political goal to be achieved by compromising the principle of one man one vote as far as Buganda was concerned? Was it wise to gloss over such critical issues such as the future Head of State or the lost counties. Definitely a constitution based on fraud could not be expected to last. Very soon the expectant groups were demanding what they thought they had achieved whereas those who were all along opposed to the demands were jubilant over being able to reject the demands constitutionally [4]. This was the setting for the constitutional conflicts that started after independence and erupted in violent confrontation in 1966.
[3] For example, Buganda was supposed to have its own judiciary headed by the High Court of Buganda. But then the Constitution was drafted in such a way that the High Court of Uganda was automatically the High Court of Buganda. Buganda had no say in its composition and supervision. The same applied to the police. See article 94 and 81 (2) of the 1962 Constitution.
[4] As example of quarrels over expected constitutional powers Joseph Kazairwe V. The Lukiko (1963) E.A. 472.
One must also take note of the quality of leadership at and after independence. No where was it more clear than in Uganda that when the 1962 Constitution was being drafted, local politicians were more concerned with replacing colonial rulers than with national interests. In this regard Obote's Uganda Peoples Congress (UPC) began its career by fraudulently misrepresenting concern for monarchist tendencies so as to enlist support against The Democratic Party (DP). The Mengo oligarchy was so concerned with protecting its position that they decided to destroy an imaginary Republican (Kiwanuka's DP) by siding with a real one. Later on, both DPs and Kabaka Yekka members (KYs) found no problem in crossing over to UPC so as to continue in a leadership role.
Whatever the shortcomings in the 1962 Constitution, much cannot be said of the principles of leaders who, having bent over backwardness to accomodate kingdoms, were busy scrapping them barely three years later without the slightest regard for people's wishes. Can one say much of parliamentarians who abused the confidence of the electorate by crossing to other parties without even the pretence of consultation?
We can summarise by saying that the 1962 Constitution did not work due to a combination of factors among which are that:
(i) It rested on compromises, the most important of which were conceded by negotiators who did not have the slightest intention of abiding by them
(ii) In important particulars, its provisions were just fraudulent and were bound to cause constitutional conflicts from the outset.
(iii) It left important issues unresolved.
(iv) There was lack of principled leadership which would have reshaped or revised the Constitution democratically.
The 1967 Constitution, with modifications to suit the various coups and revolutions, has survived to this day. But this is not a demonstration of constitutional stability but rather an indication of its irrelevance to the people. When it was made, even the remnants of a Parliament that could have discussed it on behalf of the people had lost its mandate. The authors themselves (Obote's Government) did not follow the letter of their constitution as they degenerated into a dictatorial regime up to 1971 when they were overthrown.
Nevertheless, the Constitution has survived to this day. It has survived because it has been regarded as irrelevant. It has been irrelevant to each successive government.
Each government found no difficulty in commending it to suit its own needs. To the people, the Constitution has been largely irrelevant as they never participated in, or even democratically authorised, its making. Except since 1986, there has been no political will to follow the Constitution's provisions guaranteeing people's rights.
More fundamentally, successive governments since 1967 were not ushered in through this particular Constitution but on the basis of military capacity to overthrow a previous regime. By this nature, a military coup or a revolution makes an existing constitution irrelevant even if the new regime decides to preserve large parts of the letter of the constitution [5]. That the existing constitution is irrelevant is mainly the reason why there is a nation-wide preoccupation today to discuss a future constitution that will be the people's constitution and relevant to our needs.
The question is how can the future constitution be safeguarded so it lasts?
This largely depends on the type of constitution evolved; is it going to be evolved in such a way that it is acceptable to the people as their constitution? Will its provisions truly reflect a national consensus? It is well known that there is now a Constitutional Commission whose task is to collect people's views on what sort of constitution they would like. If the draft, the Commission presents, reflects these views then that will be the first step to a stable constitution. It is hoped that the debates and educative seminars in the country will assist the people to be able to decide on the best way they would like to be governed in the future. As indicated, the nature of the constitution and how it is evolved are very material to answering the question raised by the topic. By way of guide on the nature of the constitution, I will comment on some of its aspects that need critical consideration if one has to avoid the pitfalls of the past.
[5] Even under the law, a successful coup d'etat or revolution is recognised as ushering in a new legal order and the government resultant from it is a valid government. See: Uganda V. Commissioner of Prisons Ex Parte Matovu (1967) E.A. and E.F. Ssempebwa V Attorney-General of Uganda. Constitution Case 1 of 1986.
A Strong but Controlled Executive
(a) Popular Election
It is for Ugandans to decide on what type of executive they would want in the future. My own preference would be for such executive to be headed by a President who shall have been directly elected by the people.
If the electoral rules are so designed that every part of Uganda would participate in electing the President, the elected leader would command national support and act confidently. In the past, the formula has been that the leader of the party that has won a majority in the National Assembly automatically assumes the position of head of the executive [6]. In actual fact as a person, he may not have national support. More significantly, that formula did not provide a basis for testing the popularity, integrity and capability of candidates for the important post of leader of the nation.
It will be reflected that in 1980, Obote assumed the Presidency even without the test of confidence in a single electoral constituency in Uganda. To whom is such a leader responsible or accountable? [7] A leader in this position will spend his time trying to grope for a constituency by providing favours to his henchmen whom he imagines to have some popular support. It will definitely be a weak leader who has to condone inefficiency and corruption in order to stay in power. He will also be an easy target of ambitious politicians who would attack him well knowing that the President has no popular support. The end result of all this is likely to be that such a leader will seek his constituency in the military with disastrous consequences to the constitution.
(b) Control on the Executive
One unfortunate aspect of the 1967 Constitution is that it concentrated powers in the hands of the President as head of the executive of the centre. There seems to be a view prevailing even among the most enlightened of political leaders that the presidency should be strong enough to take decisions without fetters of consultation. A strong executive President or head of Government is not an issue that is open to too much debate. But strong leadership is not synonymous with unlimited powers.
It makes for strong leadership to provide for checks and balances. The office of the President in the USA is perhaps the strongest in the world. But the president is required to constantly consult the people through their representatives, the Congress. Many of his important decisions are subject to approval by Congress. It is from these checks that the President draws his strength. As a directly elected President, he is aware that he commands national support. When he decides in the national interest and his decision is endorsed by Congress, it is unassailable.
The situation which we have is one in which a President can exercise his constitutional right to make a decision without consultation and then remain unsure of his actions. On the other hand there may be no open challenge to his decision because it is felt that he has the power to act. The result is that his popularity and hence his power weakens and he has to resort to unconstitutional means to demand obedience.
I would argue that in the process of evolving a Constitution, we should think seriously of checks and balances. It is high time that we agreed that power emanates from the people and that the custodians of that power are the people's representatives, Parliament. It is Parliament which should play a prominent role in governing, by supervising the executive. So far our Parliaments have been rubber-stamping legislation proposed by Government as their main activity. This should change to a more active role in checking the executive's decisions and their implementation. Of course, some constitutional innovation will be necessary to make this arrangement possible. One would have to re-think the details, e.g. the composition of Parliament, its term of office, its summoning and proroguing, its powers vis-a-vis the executive etc.
Various views can be raised on these. But the point I am trying to make is that it will be more of a people's government if the people are keeping it into check. This is one way of safeguarding it and hence the constitution on which it is based
[6] See Article 26 of the Constitution of Uganda 1967.
[7] According to that Constitution, the President is the Commander-in-Chief of the Army, he decides on its operations, he makes all appointments to public offices, he can summon and prorogue Parliament, handles foreign relations etc. The significant point is that it is only in very few instances where he is bound to seek advice and even then, he need not take it.
Devolution of Powers to the People
Devolution of powers for people's participation in affairs directly affecting them will be supported by the people and will be difficult to tamper with. The current Constitution is almost a deliberate attempt to alienate the people from governance. It provides an unduly centralised system in which almost every decision is made far away from the people. To me the 1967 Constitution is a paranoiac reaction to the political circumstances that led to the federal arrangements of 1962, the ethnic pluralism. Experience has shown that centralisation of power does not necessarily create nations out of plural societies and it has not done so in respect of Uganda. What it has succeeded in doing is to make government an entity separate from the people. Government is felt negatively as when it collects taxes or fails to have its bureaucratic economic organisation pay for people's produce.
Unless the Constitution guarantees real devolution of powers, government will never be part of the people and they will continue to be indifferent when that government is overthrown. What I am urging [for] is a system where there are local governments to which administrative and even legislative powers are devolved. The local units should be viable in terms of size and resources so that they can administer services that are within their jurisdiction. The units should have power to tax local services and an arrangement for sharing of taxes could be worked out. I am thinking of services such as education, health, community development, culture, local security, housing, local roads as some of the matters that could be appropriately handled at a local level.
It may be noticed that I am avoiding the use of labels such as federalism because these have become emotive terms due to our constitutional history. It is possible for the constitution to guarantee people's participation in Government without the use of labels.
Now, what would meaningful devolution of powers involve? It will involve democracy at the local level. The people should elect their local leaders so that these are accountable to the people. The centre should never interfere in this democratic process. The elected local leaders should be free to act in the interests of their areas provided that:
They do not act outside the jurisdiction conferred by the Constitution, and their actions are not against the national interest. I invite the reader to give more thought to this. Again my feeling is that popular people's governments at a local level close to them and providing the services they really need cannot be easily tampered with. Not so an alien one at the centre.
Should you want a practical demonstration of alien government, just travel to one of the remote corners of Uganda such as Bundibugyo. Careful inquiry will reveal that the people do not take Government at Kampala seriously. Their contact with Government is when its agencies carry away people's produce such as coffee for which payment is usually a problem. In Bundibugyo, were it not for a Government run hospital, which, due to socio-cultural and communication problems, is underutilised anyway there would be little evidence of central government services. Yet, the people of Bundibugyo, properly organised behind their own governmental set-up, and allowed to marshall some of the local resources, could do a lot to improve their conditions through minimal direction from the centre. Would they not fight for a constitution that guarantees this set up?
The army has played a prominent role in politics (negatively and positively). In Uganda, truly, political power has emerged from the barrel of the gun especially so since 1966. Since it is the army that has been the instrument of overthrowing constitutions, it must be a subject of serious thought.
Colonial political education led us to see the army as an entity which is shaped by socio-political circumstances different from those that shape other social forces. Recall the King's African Rifles (KAR) image of the army as a well polished brass band that stayed in Jinja but came occasionally to play music and march so as to entertain the public. This is the image at independence until the army mutinied.
When the army mutinied in Tanzania, politicians realised that it was a significant social force. They then consciously began a process of assimilating the army into the body politic! A new army was recruited, properly trained and politised to understand Tanzania's problems and the means chosen to solve them. It came to understand the nature of politics and what was involved in trying to break out of under-development.
In Uganda, Obote treated the army as the prodigal son and started courting it for his selfish political interest. Whereas the army remained in barracks, isolated from the body politic, in reality since 1966 it became the basis of political power until it grabbed that power in 1971. After Amin's overthrow, the army remained at the centre of power and we have witnessed the militarisation of politics up to this day. Obote used to challenge his political opponents in 1980 to show their military commanders who participated in fighting as a demonstration that political groups without fighting forces had no future. Up to this day one hears very articulate references to the uselessness of politicians who are not backed by forces [8].
Our problem is to find a solution to this militarisation of politics as well as mark out a role for the army. For the moment I will deal with the latter.
It is no longer relevant to cast the army in its colonial role as a department of government that has to be political. For Uganda, a national army recruited on the basis of the individual's education and good behaviour rather than on sectarian grounds cannot be gainsaid. But beyond this, political education is a necessity. An army that is aware of the country's problems, an army that can appreciate why it cannot be accorded adequate salaries and equipment, will be in a better position to seek civil rather than military solutions. I personally believe, that there should be an interim period in which the army as an institution should continue to be in some policy making bodies provided rules can be set in such a way that the army is not made to take sides in a plural political system. It would be inappropriate for the army to sit and debate in a partisan parliament for they would be forced to appear to be taking sides with one political group against another.
Our army is slowly withdrawing from matters of internal security. In the absence of political disorders which it is currently busy quelling, the army would be dangerously idle unless its role is recast substantially. The army should be trained to engage in productive work. In this way, soldiers will be able to provide for themselves better terms of service while at the same time acquiring skills which they can use gainfully on discharge.
Production is also a way of assimilating the army into the national effort so that they become conscious of the country's problems and more significantly, they can acquire values that grow out of production. Is it not a pity that in the wars that Uganda has gone through, our armies have taken it as part of military operations to destroy both private and public property in full ignorance that this was their own property they were destroying.
It is also high time that the army was involving in national reconstruction. They could be involved in building or repairing public utilities such as roads. In this way, it is hoped that the army will come to regard itself as a productive arm of government whose special military skills would be available only when the national sovereignty is in danger.
[8] In 1979 and after until his overthrow, Obote made it clear that he owed his second coming to military might. The vote, if ever he won it, was not significant.
One reason why Ugandans have been subdued is because of the mystery surrounding the gun. For a long time people holding guns have been able to get what they wanted from the people by creating terror. As we discuss constitutional reforms, we should think seriously about military training for every able bodied Ugandan. This will assist in demystifying the gun. With a big reserve of the trained population, it will be easy to mobilise against anyone who tries to trample on a constitution that has been agreed upon by the people.
In some countries, people are free to bear arms not only to guard against criminals but also to be able to rally quickly against a tyranny. In Uganda, a lot of education must go on before people could be allowed to bear arms freely. Otherwise there could be real chaos.
The Constitution - The Necessity for a Consensus
The lesson from the past is that we need to have a constitution and not merely a document with high sounding phrases. For example our past constitutions, the documents, have carried high sounding chapters about the protection of human rights which were useless in practice. It is precisely because those constitutions did not embody a national consensus. The constitution is actually the people's consensus and the document is mere evidence of this consensus. How is this consensus to be reached? It is suggested that this will have to be through debate and dialogue plus the inculcation of a constitutional ethic in the people.
The consensus can be reached first of all through debate and dialogue. Some people have been doubtful about the usefulness of the current seminars and debates organised by the Constitutional Commission. These constitute an important aspect of evolving a constitutional consensus. The process of debate in which people take positions and argue for them passionately but freely is in itself commendable.
It is extremely important in the ongoing exercise of formulating constitutional instruments not merely to collect people's views. This is a mechanical exercise which could be handled by expert statisticians. A future constitution should not be views gathered statistically. The constitution should be the embodiment of a national consensus. How this consensus is evolved is itself a constitutional process. It is in this process that people become aware that points can be put across and positions won through debate and dialogue rather than through conflict. Through debates, the spirit of compromise can be nurtured. Experience shows that part of the country's problems arose because there was no spirit of compromise. Disregard of other people's views and wishes is dangerous. If some views and wishes are inimical to the public good then, rather than dismissing them, a free discussion aimed at convincing the supporters of those views to abandon them is the only mark of civilisation.
It is also through debate that a national consensus will emerge. A lasting constitution is not a mere piece of document even if it carried elaborate guarantees. A constitution is really the acceptance of the people for basic principles regarding the rights of citizens and the conduct of government vis-a-vis the people. This is not brought about by a beautiful document but through consensus.
Education and Inculcating a Constitutional Ethic
All the suggestions in this paper are subject to one basic condition; that a spirit of constitutionalism is evolved among the people of Uganda. When you visit developed nations with stable constitutions and you raise a question about the possibility of a coup or a constitution being disregarded or overthrown, they look at you with utter bewilderment. That possibility is just unimaginable. There, doing things by the established order is just a part of life.
How can Uganda develop a constitutional ethic? It would be assuming too much that our past troubles have taught us a lesson. Though current events do not provide evidence of learning from the past, subconsciously past suffering should contribute to awareness in the future.
In an underdeveloped country like ours, there must be active steps towards developing a constitution ethic. The first is to teach all Ugandans some elementary civics. In the schools, right from the earliest level, the syllabus should include a study of the nature of government, its duties to the citizens, people's rights and how they are safeguarded, that is, a simple treatment of the constitutional set up and why it is so important to respect it.
From the earliest, the ethics of respecting the political order must be inculcated into Ugandans. It should eventually be a mode of life. In doing this, we shall not be unique. In some other countries, the first lesson to children is their belonging to their nation, respect for the national flag, emblem, anthem and government.
It is also necessary to inculcate into every citizen a sense of responsibility towards fellow citizens. The years of misrule have had a devastating effect on this responsibility. Right now few Ugandans care until trouble is at their doorstep. They fail to realise that keeping silent, as the rights of some other Ugandans are being violated is the surest way of nursing fascism. If a constitutional ethic is not inculcated in the minds of Ugandans, there is no future for constitutionalism in this country.
