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A Constitution is a set of rules and regulations which govern the running of a country. It is a contract under which the people of that country agree to unite together and govern themselves as one sovereign nation. It sets out the terms and conditions of that contract and the modalities of changing those terms. These terms usually include:

• the form of government;

• the relationships between the constituent entities that have united into one sovereign whole;

• the fundamental principles of the body politic;

• the various branches of government, their composition and selection, their respective functions, and relationships inter se;

• the fundamental rights and freedoms of the individual and the machinery for their enforcement;

• and the limitations that are imposed on the various branches of the government, especially the executive.

It is axiomatic that Uganda as we know it today did not exist until British colonization. It was the British who, in the process of colonization, amalgamated the entities that today constitute Uganda into one country. Prior to colonization these entities lived side by side as independent "states" with various forms of government.

Some were monarchical with centralized governments, while others were acephalous. They varied in size and in population. Their levels of social and economic development were also different. On the political front, they had attained different levels of sophistication and consciousness.

For example, some were able to negotiate special relationships with the colonial power and were thus able to continue to enjoy some degree of autonomy or internal self-government throughout the colonial era. Culturally and linguistically they were different, although in some respects some were closer to each other than to others. However, after a century of living together under one Central Government, marrying across ethnic lines, attending schools together and moving about the country freely, the people of Uganda have moved closer together than at any time before colonization. From their shared experience they have been able to slowly and imperceptibly forge a common outlook.

This notwithstanding, it can be asserted without fear of contradiction that Uganda remains a pluralistic society in many ways. Nobody is to blame for this fait accompli. The British are not to blame either, as some people are wont to blame them. If anyone is to blame it is Mother Nature!

It was accepted at the time of independence that the people who now constitute Uganda desired to be united as one sovereign nation. In translating this desire into reality the framers of the Independence Constitution took cognizance of the pluralistic nature of our society. They did not regard the distinctive systems and institutions found among the various constituent entities as a stumbling-block to the desired unity. On the contrary, they saw them as a source of strength, something on which to build a new unity.

They did not want to start the new nation with a tabula rasa. They also recognized that national unity is an organic process that grows with time. It cannot be coerced or simply decreed. National unity is a voluntary process. It needs nurture and nourishment. Nourishment can be found in mutual acceptance, mutual respect for our different ways of life, mutual confidence in one another, and tolerance of one another. These, then, are the philosophical underpins that guided the framers of the Independence Constitution. The variegated form of government that they enshrined in the Constitution was intended to accommodate the cultural and political diversity of our society. Regions that had erelong had monarchical governments continued to have them while those that did not continue with the systems familiar to them. Regions that had bargained for and were granted autonomy were given the opportunity to develop themselves according to their own desires and priorities. The framers of the Constitution recognized that Ugandans could attain the desired level of unity in diversity.

As long as the system lasted there was peace, stability, and development in all spheres of human endeavour. National consciousness was slowly but surely growing. It was a matter of great pride in those days to be identified as a Ugandan. Political parties of diverse ideological persuasions were openly and peacefully active.

The regions were agog with activities in the economic, social and cultural sphere. The courts were also busy resolving conflicts that arose out of different interpretations of the constitution; this is what is expected of a dynamic constitutional system. The rule of law prevailed. We had a sound economy, and an excellent civil service. Uganda was indeed the envy of many in the East and Central African region.

All this ended with Milton Obote's much vaunted "Revolution" of 1966. Obote unilaterally abrogated the Constitution, and thus violated the contract under which Ugandans had agreed to unite together as one sovereign nation. He dismantled the quasi-federal structure of government and set in its place a unitary dictatorship. He abolished the kingdoms and proclaimed himself President with more absolutist powers than any of the dethroned rulers had ever dreamt of having. He banned all opposition parties, juggled with human rights safeguards, abolished elections, and established a one-party system. In the name of "national unity" and with the deception slogan of "One Country, one Government, one Parliament" he ushered into the country an era of totalitarianism.

No honest person can assert that the system of government which Obote introduced in 1966 brought national unity, or social political, and economic progress. None can assert that Ugandans are more nationally conscious today than they were before the "Revolution". The contrary! The country has seen nothing but bloodshed, woe and suffering.

Economic decay, social disintegration, moral degeneration, and political chaos have been the order of the day. Since the "Revolution" the country has witnessed unparalleled ethnic polarization and animosity. I should also hasten to add that it would not be fair to blame all these ills solely on Idi Amin. No! Amin, and all his ilk after him were the progenies of the Obote "Revolution"!

This background and experience should serve as a guide to us as we endeavour to fashion a new constitutional order. Past mistakes must be avoided. The English say: Once bitten, twice shy. The Baganda would say, Ssekawuka kaali kakulumye: bw'okalaba okadduka. The experience of other nations, particularly in Africa and Eastern Europe which are similarly circumstanced, must also be considered. They must not be brushed aside as irrelevant. They provide object lessons for us.

Form of Government

I recommend a system of government similar to the one established under the Independence Constitution. Under this system all forms of governmental activities must be substantially decentralized. Call it federal or quasi-federal. The essence of the system is that there must be two-tier levels of government: the central and regional/state. The regional/state governments are not to be subordinate to the Central Government. They are rather to be coordinate with it, deriving their powers directly from the constitution. Quite naturally the Central Government will wield more powers than the regional/state governments, since it is the government of the whole country.

The regional/state governments should have powers over a list of matters which they are capable of handling. These matters should be contained in a schedule to the Constitution and titled "Matters Exclusively reserved for the Regions/States". They should include such things as hereditary rulers and other cultural institutions, regional languages, customary law, regional/state public service, powers of regional/state ministers, local government, public holidays and festivals, primary education, primary health care, feeder roads, and local markets. The Central Government should have exclusive jurisdiction over all other matters listed in the Fourth Schedule to the Commission's draft, save for public holidays and law enforcement. There should be a third list of matters over which the central and regional/state governments would have concurrent jurisdiction.

They must, however, be a proviso that where there is a conflict between the centre and the region/state in the exercise of the powers over these matters the centre will prevail. The concurrent list which must also be the subject of a separate schedule should include such matters as law enforcement, secondary and tertiary education, health, sports, agriculture and commerce. In refining this matter, members of the Constituent Assembly might wish to refer to the formula contained in Articles 245 – 254 and Schedule Seven of the Indian Constitution.

However, whatever formula they will agree on, it must be entrenched in the Constitution. Division of powers between the centre and the regions/states is a matter of monumental importance. It must not be left to the whims and caprice of the Minister of Local Government. After all this is not a local government matter, where Parliament may delegate some of its powers to the local administrations and authorise the Minister to juggle with them as and when it suits him and his party. This is a matter of power-sharing between the centre and the regions/states and must be part of the new political covenant.

In drawing up the boundaries for the regions/state account must be taken of the following factors: cultural and linguistic affinity of the people within the regions/states, historical factors such as past administration under one provincial unit, geographical proximity, economic viability and the expressed will of the people. The regions/states must be called names that are acceptable to them. Where possible existing names should continue to be used. The regions/states need not and indeed cannot be of the same size. Their size does not detract from their juristic equality.

This is not peculiar to Uganda. For example, the Russian Federated Republic with a population of 143,000,000 inhabitants used to be an equal partner in the USSR with Moldavia with a population of only 4,000,000 inhabitants; the American state of California with a population of 23,667,764 inhabitants is an equal partner in the Union with a State of Idaho with a population of only 944,127 inhabitants.

I strongly dissent from the recommendation of the Constitutional Commission that "Uganda shall be divided into the districts which existed immediately before the coming into force of this Constitution" [article 201] and that such districts are to constitute the second level of government.

These districts are not viable entities to which full-bloom governmental powers should be granted. Whether by accident or by design these districts tend to fragment hitherto culturally and economically cohesive regions. Districts such as Rakai, Masaka, Kiboga, Kalangala, Mpigi, Mukono, Luwero or Mubende, have no distinctive cultural identity of their own to warrant being granted political autonomy.

These districts are integral units of the Buganda region/state to which they must continue to adhere and thus be able to preserve and develop their common cultural heritage. The same applies to such districts as Apac and Lira in Lango; Kamuli, Iganga and Jinja in Busoga; Ntungamo, Mbarara, and Bushenyi in Ankole; Kitgum and Gulu in Acholi; Tororo and Pallisa. These districts, and others that may be created in the future, should serve as local administrative units under that the regions/states, and no more.

Some of the many advantages of the system that I have recommended are that:

• it will decentralize power and defuse it to the people in their respective regions;

• it will enable the people to share with the Central Government the burden on governing, and enable them to participate effectively and meaningfully in the running of the country;

• it will enable them to develop their areas according to their own initiatives and perceived priorities;

• it will enable them to be left alone in matters that do not concern the rest of the country;

• it will enable them to develop their languages and to preserve their cultural heritage and identity in an united Uganda;

• it will enable them, to a large measure, to determine their own destinies; they will have none to blame but themselves if they were to lag behind;

• it will provide another potent limitation on the powers of the Central Government and act as a check on its totalitarian tendencies.

The anarchy, bloodshed, and extreme ethnic polarization and hatred that have plagued Uganda since 1966 have been caused, not by lack of a strong government at the centre, but by too much government at that level. This must be stopped by giving power back to the people in their own regions.

In this connection, one is at a loss to discover the reasons for the internecine wars that have bedeviled the Acholi and Teso regions since the NRM came to power. If their past records are anything to go by, the leaders of the fighting factions in these regions, cannot claim to be fighting for democracy and liberty of all Ugandans. What, then, are they fighting for? Power!

They want to govern. They feel that they have been marginalized. The system of government that I recommended will give them that power, since it will create more power centres and more governmental posts. It will thus enable them to take part in the governance of the country.

Decentralization of government and the granting of local autonomy to people is the norm operating in ethnically pluralistic societies today. Witness the current turbulence plaguing the Republics of the former Soviet Union. Witness what has happened in the former Czechoslovakia and Yugoslavia! Witness what has happened in Somalia, and Ethiopia! The South Africans, under the sagacious leadership of Nelson Mandela and the African National Congress have also opted for some form of federalism that meaningfully gives power to the people in their regions.

With ever-increasing crescendo the Kenyans, too, are clamouring for federalism. Ugandans must not waver on this matter! The fact that some of the countries cited are large as compared to Uganda is not strong enough reason to reject federalism. Switzerland, with a population of 6,628,000 people, is a much smaller country than Uganda. It has a federal system of government, with 20 local divisions (or cantons) and six half divisions (or half cantons). Austria, with a population of 7,595,000 people, also has a federal system of government, with nine local divisions or landers. If federalism will enable us to have peace, stability, progress and happiness, as I contend it will, we must have it. It is worth the price!

The Legislature

It is suggested that the Constitution provide for a two-chamber national legislature. In the upper chamber will sit representatives of the regions/states. All regions/states should have the same number of representatives, irrespective of their populations. The lower chamber should consist of representatives elected from constituencies drawn on the basis of a population quota. No bill will become law unless it has been passed by the requisite majority by both Chambers.

The electoral machinery should be organised in such a way that it is independent of the executive branch and not amendable to manipulation by any person or authority. Adequate safeguards must be provided for in the constitution to ensure the independence and impartiality of the Electoral Commission. The Constitutional Commission's proposals seem to be reasonably adequate.

I would, however, suggest that no person should be eligible for appointment to the Electoral Commission if he is or has been within the preceding five years actively engaged politics. Disqualification of such a person will assist in insulating the Commission from partisan political influences.

Where elections are to be fought along party lines, it is suggested that a check be put on floor-crossings by the elected representatives, both in the national and regional/state legislatures. The practice of the floor-crossing is a betrayal of the electorate. It impedes the development of sound party politics in that it tempts ruling parties to "bribe" opposition MPs or councillors and thus create artificial "majorities" which are not matched by electoral support.

It encourages political prostitution and unprincipled politics. The Constitution must therefore provide that whenever an MP or councillor switches parties he must resign his seat and by-election must be held in his constituency. Kenya and India have such provisions in their Constitutions and they seem to be working well.

The Executive

The Constitution should provide for an office of the President who should be both the head of government and head of state. The President should be directly elected by the people at a nation-wide election for a five-year term. However, no person should be eligible to be elected as President for more than two consecutive terms. This prohibition will help in curbing personal rule and in providing another check against dictatorship.

There should also be a cabinet whose primary function should be to advise the President on the exercise of his executive function. The Constitution must oblige the President to consult the cabinet, as much as is reasonably practicable, in all matters of government policy and on other matters falling within the executive function. The president should, however, not be obliged to consult the cabinet in a matter of the appointment of ministers or in the exercise of his prerogative powers of mercy.

The President should have power to appoint, fire, designate, and assign responsibilities to cabinet members and their assistants. However, the size of the cabinet must be determined by the Constitution and by Parliament. Initially, the number of cabinet posts must be embodied in the Constitution. It is suggested that they be limited to fifteen only. With the devolution of governmental functions to the regions/states this number is adequate.

The Judiciary

An independent and impartial judiciary is indispensable in a country that respects the rule of law. Judges and magistrates must not only be independent of the executive branch but must appear to be so. Safeguards for this independence must therefore be embodied in the constitution. They should include selection by a politically neutral body such as a judicial service commission. They should also include security of tenure, fair disciplinary procedures, and secured remuneration.

Similar considerations should apply to the regional/state judiciaries.