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FedsNet Submission to Prof. Ssempebwa CRC - Summary |
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Comprehensive FedsNet Submission to Prof. Ssempebwa's CRC as summary, obviously, cannot do full justice to detailed report! By J. Senyonjo Introduction 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. 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. 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. 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 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. 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. 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. 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. Equalization
and Regional Disparities 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
Presidential and Congressional System 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. 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. 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 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
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. 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. 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. 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. 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. |
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