as summary, obviously, cannot do full justice to detailed report!
By J. Senyonjo
What is Federalism?
Our Proposed Federal System
Separation of Powers
The states versus the federal government
Equalization and Regional Disparities
The Presidential and Congressional System
The Rationale for the two houses
The House of Representatives
Appointment of Judges
Tenure and Remuneration of Justices and Judges
The Armed Forces
Kings and Paramount Chiefs
Uganda has been Independent for now almost 41 years. Only 4 years of this period, were relatively peaceful. With the introduction of the unitary state in 1966, instability took root in Uganda. Ugandan federalists believe that this instability is a result of the unitary system’s failure to take into account our various people’s geo-cultural diversity and need for self-determination and economic development.
During the colonial period Ugandan districts and Kingdoms were administered along their pre-colonial identities. They were each essentially autonomous states that dealt with the colonial government separately. Even though formed in 1920, the colonial legislative council was for over 20 years a strictly colonial affair with no participation of the people of the various kingdoms and districts of Uganda. In essence, the colonialists did not create a sense of belonging to the nation, Uganda. Our leaders at independence had a non-enviable task of creating a new nation with a sense of common destiny.The question was how to do it? Would it be achieved by denying the existence of divergent ethnic groups with their own long histories and methods of political organization? How would the past be bridged to create a new vibrant nation where the parts would come together to create a new whole happily without each part loosing its uniqueness and value systems dear to it? How would each region preserve the ability to shape its own development and determine its own local priorities within the context of the new nation?
In much of Africa, as in Uganda, strong centralized states were chosen over decentralized federal systems, and in much of Africa ethnic tensions threatening the nation-state prevail.Uganda’s Experience
Each successive regime, including Idi Amin’s, came promising greater freedoms, rights and economic development for the population, and each descended into anti-democratic practices. Following his revolution in the late 1960s, Milton Obote essentially introduced a one-party state. In 1971 Idi Amin took power promising that his was only a temporary caretaker government, but soon he declared himself life-President. Lule and Binaisa are said to have taken unilateral decisions without consulting the military men to whom they owed their power. The current President, Mr. Museveni promised fundamental change, but has for 17 years limited free political organization and thus constrained political development. Much of the North of the country hardly notices the promised fundamental change. The lesson in all this is that unchecked power corrupts.Our proposal
We propose a democratic federal constitution as a solution that brings the nation together, entrenches checks and balances, limiting the bad effects of absolute power, and ensures peace and economic development for all of Uganda’s regions.What is Federalism?
The American Heritage Dictionary defines federalism as a form of government in which a union of states recognizes the sovereignty of a central authority while retaining certain residual powers of government.William Riker, a federalism scholar defines it as an explicitly two-tiered system with some area of autonomy for each level of government and an explicit guarantee of that autonomy.
The independent authority of the constituent units distinguishes federalism from the unitary system and the current decentralization system in Uganda in which the lower government units are delegated power by the central government that can also take them away.The independent authority of the constituent units necessarily means that they have authority to raise their own revenues through taxes in order to meet their responsibilities.
In fact, independent taxation by the states is such a key feature of federalism that without it you essentially have no federalism.Our Proposed Federal System
Our proposed federal system and accompanying constitution have no precedent in Uganda. The 1962 constitution, even though better than all subsequent Ugandan constitutions, was not an ideal constitution. Its combination of federalism, semi-federalism and unitarism was not tenable in a country with strong ethnic rivalries and sensibilities. Our model grants federalism with equal powers to all of Uganda’s regions.We believe that a federal solution that grants federalism to only one region, or a few regions is not desirable. It will have the effect of creating even worse tensions than those in the 1960s.
It is important to note that our model was a result of three years of discussions on FedsNet, a Ugandan federalist forum on the internet based on careful study of the federal constitutions of the U.S., Germany, Canada, Australia, South Africa, Ethiopia, Switzerland and Belgium. In this discussion we will focus on a few areas of our model federal constitution.The states
We proposed a thirteen state federal system that grants federalism to all of Uganda’s major territories. The proposed thirteen states are:Acholi state, Ankole state, Buganda state, Bugisu and Sebei state, Bukedi state, Bunyoro state, Busoga state, Karamoja state, Kigezi state, Lango state, Teso state, Tooro state, West Nile and Madi state. In some of these states, special semi- autonomous districts could be created to accommodate the interests of minority groups such as the Bakonjo in Tooro. In multi-ethnic states electoral districts could be demarcated to ensure representation of all groups in state assemblies.
The federal constitution would be the supreme law of the land, but the states would enact their own constitutions to take into account their own local governance preferences. State governors (including the Katikiro in Buganda) would be elected officials. The states would also have their own legislatures. States with strong cultural groups may have two chamber legislatures, the lower house elected on the basis of universal suffrage regardless of ethnicity, and the upper house representing cultural interests, with special representation for minority groups within a state.Separation of Powers
One of Uganda’s biggest problems has been the lack of clear separation of powers or checks on power at all levels. James Madison, one of the framers of the U.S. constitution said:“The accumulation of all power in the same hands may justly be pronounced the very definition of tyranny.”
Federal systems diffuse power to diminish the opportunities for tyranny.The states versus the federal government
In federal systems the states, in addition to ensuring a certain level of self-determination for the regions, check on the excesses of the federal government and vice-versa.As Madison put it in Federalist paper # 28, ‘Power being almost always the rival of power, the national government will at all times stand ready to check the usurpations of the state 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 either invades their rights, they can make use of the other as instruments of redress.’
Chances are that if the 1962 constitution had been truly federal giving all Uganda’s regions equal federal powers, Mr. Obote would not have been able to get away with abolishing the independence constitution because all the states would have jealously guarded their rights making it impossible to pit one region against the others.Enumerated Powers
In order to ensure the balance of power between the states and the central government, federal systems clearly enumerate legislative, taxation and fiscal powers for all levels of government, particularly the central government and the states. The responsibility for local roads, schools, and economic development would be the primary responsibility of the states. Whereas foreign affairs, national defense, banking regulation etc, would be the preserve of the central government. Both the federal government and the states shall have legislative, executive and judicial powers. The federal government’s main role would be coordination and ensuring implementation of national objectives and standards through what is called the spending power – the use of grants to assist states to provide services.The central government and the states would share many of the major taxes that now go exclusively to the central government. The local governments would retain many of their current sources of revenue since most are minor. The federal government shall make equalization transfers to ensure that all states regardless of ability to raise revenue provide comparable levels of services at comparable levels of taxation. States with revenue raising ability below a standard amount shall receive equalization payments from the federal government to bring their revenues up to that standard. Currently, according to figures from the Local Government Finance unit, less than 1% of total government transfers are dedicated to equalization. The proposed model favors a presidential and congressional system because it maximizes checks and balances. In a parliamentary system, the executive always comes from the party with the majority in parliament. Moreover, the cabinet is both a member of the executive and of parliament. In a Presidential system, the President is elected directly and is sometimes not even from the party that holds the majority of seats in parliament. The congressional system is a natural complement of the presidential system in that legislators cannot be members of the executive. Would be a civilian elected directly, and limited to two terms in office of 5 years each. The term limits are meant as the people’s check on possible dictatorship. It is not inconceivable that a dictator with excellent charisma can manipulate the sentiments of the population to elect him or her indefinitely. Hitler of Germany was a very popular and charismatic dictator who won elections, and could have continued winning them had he been not defeated.
The U.S. constitution originally had no limits on the number of Presidential terms, but after Franklin Roosevelt was elected to four terms, the 22nd amendment that limits the President to two-terms was adopted for fear of dictatorship. Many countries limit terms of their Presidents. Term limits are especially important in developing countries like Uganda where political institutions such as parties are relatively weak and are often powerless to check on the excesses of the Executive.The Cabinet
All members of the cabinet would need approval by the national assembly. The cabinet would not exceed 30 ministers, including deputies (for the 15 ministries). There shall be no Prime Minister, and no Minister of Local Government at the federal level.Congress
As mentioned earlier, our proposed model adopts the U.S. congressional system for the legislature, which would be called the congress as in the United States. The congress would have two chambers, the House of Representatives and the Senate. The states would be allocated House of Representatives seats based on their population, whereas all the states regardless of size and population would have the same number of seats in the senate. Thus the senate would provide an equal voice for each of the states of the union.The Rationale for the two houses
James Madison, one of the authors of the federalist papers, argued that a two-house legislature would divide trust between different bodies of men who might watch and check each other and it would avoid the tyranny of a one-house legislature. John Hamilton, another author of the federalist papers called the senate a barrier to the excess by the lower house. In federal systems, the two house systems is also a mechanism to ensure that the small states collectively have a means to check on the power of the larger states through the senate in which all states have equal voices.The House of Representatives
The House of Representatives would be the lower house elected directly. Each House seat shall correspond to a physical constituency. The number of House seats shall be as practically as possible be three times the number of senate seats plus one. There shall be no room for special nominations by the executive. This arrangement preserves the independence of the legislature and maximizes checks and balances.The Senate
The Senators would be elected by each state acting as a single electorate. Each state would have four senators. All major bills originating from the House of Representatives would have to be approved by the senate. The senate would also be responsible for approving all the President’s cabinet and judicial appointments.The Judiciary
There shall be a court system at the federal and state levels. The federal courts shall handle Federal issues, while the 13 state courts shall handle local issues.Appointment of Judges
Federal Supreme Court Justices, court of appeals judges, and magistrates shall be nominated by the President, on the advice of the Judicial Service commission and shall require confirmation by the senate.Tenure and Remuneration of Justices and Judges
The justices and judges shall hold office until retirement. A judge may be removed from office only if the Judicial Service commission finds that the judge suffers from health related incapacity or is guilty of gross misconduct. The decision shall be subject to review by the senate’s judiciary committee.No judge shall be removed from office by virtue of decision taken, or opinion rendered in court. The armed forces shall be national institutions loyal to the constitution and to the people of the federal union of Uganda. The Commander in Chief of the armed forces shall be the President of the Federal Union of Uganda. Both the President and the Minister of Defense shall be civilians.
No serving military person shall be eligible to run for any political office, or to serve in congress.Congress shall have the sole power to declare war, and to allocate money to fund the military.
Internal security, intelligence and policing shall strictly be the function of the police.State Militias
In keeping with federalism’s concern about over concentration of power and checking potential tyranny, there would be state militias constituting the Army Reserve Force.Their funding and military equipment shall be established and regulated by congress.
Congress shall assign the number of Militia personnel to the states in proportion to their population. The states shall select the officers of the state militia while armed forces chiefs shall determine the professional standards.In the United States, the local state militia (the National Guard and Army Reserves) in aggregate substantially exceed the size of the national standing army. The militia’s officers are chosen by the states, and trained by them but are subject to be called by the President for war if congress approves.
The framers of the United States Constitution considered state militias as necessary to check on potential despotic powers of the central government.James Madison in Federalist Paper #46 said:
‘Let us suppose a regular army, fully equal to the resources of the country, be formed: and let it be entirely be at the control of a despotic national government; still it would not be going too far to say that the state governments with people on their side would be able to repel the danger. If the aggregate state militia are five times the size of the national army, with arms in their hands, officered men chosen from among themselves, fighting for their common liberties and united by and conducted by state governments possessing their affections and confidence, they can easily prevail.’In the case of Uganda, it is unlikely that reprehensible dictators like Idi Amin could terrorize the population with their armies for long given a united effort by state militias to resist. The states and local governments shall have independent police departments responsible for Local and State policing. There shall be a National Police agency similar to the Federal Bureau of Investigations that shall assist State police forces on request.
The National police agency shall in coordination with state police departments investigate interstate crimes, corruption, fraud and organized crime.With the combination of police forces and state militias states would be better able to protect themselves against rebel activity and cattle rustlers instead of being at the mercy of government response. In the Acholi region in 1987, the Karamojong warriors disposed the Acholi’s of their cattle with no government intervention. An Acholi police force and resident militia would have made such an event unlikely. The constitution of the Federal Union of Uganda shall only be amended with the approval of two-third majorities in both the House of Representatives and the Senate, in addition to the approval of all state assemblies representing states with a combined total of 75% or more of the population.
Amendments affecting state boundaries, their numbers and the division of powers among the various levels of government shall be inadmissible.Kings and Paramount Chiefs
Shall continue to exist in any state of Uganda where they are recognized. The kings may be constitutional, but non-executive heads of their states. The executive head in all states shall be elected leaders.All states shall maintain their respective traditional leaders. Natural resources including lakes, rivers, national parks and mountains shall be jointly managed and developed by the states in which they reside and the Federal Ministry of Environment and Natural resources. The proposed revenue sharing formula for natural resources revenue shall be:
35% to the State (or region), 35% to the Federal government, and 30% to the Federal Equalization fund for redistribution to other states. This means that the states of Bunyoro and West Nile would get to share 35% of the revenue generated from the oil from their region. Other regions with great tourism sites and potential, along with minerals shall enjoy similar benefits.