In the months following the announcement in June 2014 by Uganda’s president Yoweri Museveni that the government intended to ask Parliament to amend the constitution,1New Vision Uganda, “Constitution to Be Amended—President Museveni,” New Vision, June 7, 2014. more than twenty bills relating to various laws have been put forward for amendment. With about 120 amendments made so far in the nineteen years the 1995 constitution has been operative, this will be the seventh time it will have been tinkered with.2Sauda Nabukenya, “Why Constitutions in Africa Do Not Stand the Test of Time: Lessons and Perspectives from the 1995 Uganda’s Constitution,” Constitution-Building in Africa Conference, University of Western Cape, Cape Town, 2013, 4. The following are chief among the issues proposed in the cabinet draft dated April 22:3Yasiin Mugerwa, “What Government Seeks to Change in Constitution,” Daily Monitor, Uganda, June 23, 2014.
• The creation of a new independent electoral commission with new modalities for operation
• The creation of a salaries commission to harmonize wages in the public sector
• Amendment of article 26 of the constitution to allow government to acquire land compulsorily in strategic areas of the country
• Amendment of article 155 (3) to increase the president’s executive powers to make changes to budget estimates as and when he or she pleases
The announcement has prompted debate in Parliament and within the media as to whether restoration of presidential term limits will form part of the agenda, as well as discussions about the implications of the proposed amendments for Uganda and its quest for development.4Monitor Uganda Team, “Constitutional Amendments: Will MPs Restore Term Limits?” Daily Monitor, July 30, 2014.
Constitutional amendments in general call for wide consultations and participation of all people, although the mode may differ depending on the country. Yet Uganda’s constitution of 1995 provides for its amendment only through an act of Parliament,5See Uganda Constitution, 1995. even when the matters put forth are of concern to all Ugandans. Thus, the manner in which amendments are made is not participatory and does not allow for wider societal debate. Not surprisingly, at least five percent of members of Uganda’s Parliament think a thorough constitutional review must be undertaken that allows the entire citizenry to contribute to the reforms through a referendum.6Monitor Uganda Team, “Constitutional Amendments.”
Indeed, we can take the argument further and say that constitutional amendment is not sufficient to deal with the issues confronting development in Uganda. Rather, this window of opportunity should be treated as an opening for Ugandans to engage in a national conversation that seeks to answer broader societal questions: What kind of state do we have? What kind of state do we desire? How do we want the state to function? And what roles must each citizen play, as individuals and within a group, to achieve our common goals?
The Concept of the Constitution
A constitution is the foundation for governance in every modern state. It establishes the character of the government by defining the principles by and the terms on which societies can live and thrive together. In simultaneously creating, empowering, and limiting the institutions that govern society, constitutions are intimately linked to effective management of public resources for the benefit of all people, including equitable provision of public goods. Outcomes like democratic governance, economic performance, and the protection of individual and communal rights are all associated with their contents.7University College London, “What Is a Constitution?” UCL Constitution Unit, School of Public Policy, 2000. http://www.ucl.ac.uk/constitution-unit/whatis/Constitution (accessed August 27, 2014). It is thus not surprising that constitutions are often blamed for poor social, economic, and political outcomes, or that such outcomes commonly result in constitutional change.
The constitution serves three main functions. First, it generates a set of inviolable principles and specific provisions to which a functioning democracy must conform, and, second, it is a symbolic tool that defines the nation and its goals and acknowledges its diversity. Its third and very practical function is to define patterns of authority and set up governmental institutions.8Ibid.
In other words, a constitution should normally be a representation of the agreement between the people and the government on how the state is to be run and the citizenry governed. Governor Abiola Ajimobi of Nigeria noted with regard to his country’s constitutional review process in 2012 that, “in its ideal form, a constitution emanates from the people.”9Abiola Ajimobi, “Review and Reform: Key Elements and Implications of Nigeria’s Constitution Review Process,” transcript, Chatham House, London, October 5, 2012, http://www.chathamhouse.org/sites/files/chathamhouse/public/Meetings/Meeting%20Transcripts/051012ajimobi.pdf. Essentially, this means the process of constitutional amendment must also be people-led and adapted to societal changes within the environment in which it will operate. The political, historical, and social conditions in most African countries, however—of which Uganda is no exception—have barely made that possible.
Why Amending the Uganda Constitution Once Again Is Not Enough
Uganda’s constitution-making and amendment course has constantly tracked a rugged terrain. Since independence was gained in 1962, four constitutions have been instituted: in 1962, 1966, 1967, and 1995. None has satisfactorily answered the needs and aspirations of the Ugandan people; instead, each succeeding government has bent the supposed “supreme law” to consolidate its stay in power.10New Vision Uganda, “Uganda’s Rugged Constitutional Path,” New Vision, September 4, 2012. http://www.newvision.co.ug/news/634890-uganda-s-rugged-constitutional-path.html, accessed January 8, 2015. Even the 1995 constitution, highly esteemed for individual rights and liberties, institution of traditional authorities, protection of customary rights, land rights, the rights of women, and vesting all powers in the people of Uganda to be governed according to their will was by 2005 found in need of amendment.11Nicholas Opiyo, Arthur Bainomugisha, Barbara Ntambirweki, “Breaking the Conflict Trap in Uganda: Proposals for Constitutional and Legal Reforms,” ACODE Policy Research Series No. 58, 2013, http://www.acode-u.org/documents/PRS_58.pdf, accessed January 8, 2015.
Constitutional amendment is considered a rule changing process that should encompass the embracing of new values that reflect the people’s new choices.12Ibid. Amendments are expected to address past failures in governance and leadership as well as improve social, economic and political spaces on which all citizens can thrive. Political analysts, however, observe that previous amendments in Uganda’s constitution have been manipulative, transitory, and aimed at perpetuating the rule of the powers of the day.13Kanyeihamba G.W., Constitutional and Political History of Uganda: From 1894 to Present, LawAfrica Pub., 2nd Edition (2010). For instance Aili Mari Tripp tells us “it is widely acknowledged” that during the contentious and controversial 2005 amendment, “70 percent of the members of the seventh Parliament were bribed to give two-thirds of the vote required to alter the constitution to allow President Yoweri Museveni a third term,” as well as to lift presidential term limits.14Aili Mari Tripp, “The Politics of Constitution Making in Uganda,” In Framing the State in Times of Transition: Case Studies in Constitution Making, ed. Laurell Miller, 158–75 (Washington DC: United States Institute for Peace, 2010). These amendments changed the leadership and governance architecture in Uganda by entrenching personal rule, and were of detriment to constitutionalism.15Ibid. How such undemocratic governance emerged from the 1995 constitution-making process, which was believed by many to be exceptionally participatory, is not the focus here, but it is worth highlighting as the Ugandan constitutional amendment debate progresses.
The manner in which the constitutions were made and unmade, the suitability of the institutions and the processes they established, and the extent to which they are viable and acceptable have long been subjects of debate and controversy.16Joseph Oloka-Onyango, Constitutionalism in Africa: Creating Opportunities, Facing Challenges (Kampala: Fountain Publishers, 2001). For instance, Opiyo, Bainomugisha, and Ntambwireki tell us that the reports of the Constitutional Reform Commission (CRC), and in cases where public proposals where sought so as to build political consensus and ownership, recommendations were completely ignored, and legislations hurriedly passed without quorum.17Nicholas Opiyo et al. (2013). The most recent legislations such as the Public Order Management Act (2013), Anti-Pornography Act (2014), Anti-Homosexuality Act (2014), Press and Journalist Regulations (2014), Non-Governmental Organization Registration (Amendment) Bill (2013), and the pending proposal to amend article 42 of the Mining Act (2001) to take away land ownership rights from citizens into the hands of the state, are such examples of a narrowing civil engagement space and a fragile human rights, of which the same constitution is mandated to protect.
This perspective brings to the fore the critical argument that the current rendering of Uganda’s constitution needs a systematic and comprehensive transformation, with varying societal inputs. Past legislation amendments have constantly failed to be instruments for equitable development and full enjoyment of civil, political, social, cultural, and economic rights for all citizens. They have remained tools of manipulation aimed at perpetuating the interests of the ruling elite. Perhaps it is high time Ugandans vocally demanded for new constitutional review direction that will deliver different results for the benefit of all people.
Key Issues to Consider in Constitutional Amendment
Political and constitutional analysts have over the years given proposals for constitutional amendment and entrenchment of constitutionalism in Uganda. To this day, Uganda is still tracking a rugged terrain in constitutional making. Perhaps conversations need to shift to first of all address effectively the question of how Ugandans can live together, bearing in mind the diversity of a population created by means of a colonial control mechanism that clumped together nations and stateless communities to form so-called countries.
Like most African states, Uganda is merely a geographical expression whose inhabitants continue to live and, in part, govern themselves traditionally in ethnically formed communities, such as Acholi, Baganda, Bagisu, Banyankole, Banyoro, Basoga, Batoro, Iteso, Langi, Lugbara, Karimojong, and others. The new constitution should therefore seek avenues to meaningfully engage such diversity for effective development and resource allocation to meet the specific needs and aspirations of each of these communities.
Since gaining independence, governance has been business as usual—a continuation of colonial legacies (of inherited boundaries and authoritative systems), which by all means have persistently proved incapable of meeting the needs of such a diverse people. Although more than fifty formerly independent traditional societies have lived together since the creation of the colonial state, nationalism is still less powerful than ethnic loyalties. The inherited systems of administration are constantly manipulated by the elite, who control the state mechanisms to suit their interests and have done little to create conditions under which these diverse communities can effectively engage in societal development. This probably explains the persistent social, economic, and political tautness within the state, leading to repression, armed conflicts, and ethnic tensions. On the political level, governance has led to certain groups being marginalized by the elite’s apparent control of the means of resource allocation within the state. The result has been an us versus them democracy, where a lucky minority petty bourgeoisie class, composed mainly of one or two clusters, dominates the majority.
Secondly, constitution making is a never-ending process that must change based on circumstances. The many public issues with which Uganda is currently engaging include deepening class differences, the continual advancement of humanity (i.e. individual rights, gender equality, and social justice), increasing youth unemployment, marginal communities, armed conflicts, natural resource exploration and its associated governance challenges, poor service delivery, and overarching leadership and democracy cleavages, among others. These require new systems of engagement and participation according to pragmatic governance arrangements. Although piecemeal amendments may seem an ideal way to incorporate emerging societal issues into the constitution, experience has shown they have not been based on the need to preserve or improve on the constitution, but instead on its desecration and weakening.18Nabukenya, “Why Constitutions in Africa Do Not Stand the Test of Time.”
Thirdly, if the written constitution is to make any meaningful contribution in practice and fulfill the aspirations of the citizenry as well, leadership is crucial. Constitutional experts in Uganda observe that the problem is not in the constitution per se, but in the leaders who are supposed to execute the stipulated principles.19New Vision Uganda, “Uganda’s Rugged Constitutional Path.” An effective exchange of influence between the leaders and the led must take place through well-laid-down and internalized institutions. With the understanding that such an exchange of influence has limits, and that leadership does not reside in a person, the constitution should not only define when those in power must step down through various processes (not limited to elections), but it should also preserve its own supremacy. This also helps protect those executing the principles of the constitution, so as to avoid situations where leaders manipulate it to protect themselves at the expense of citizens.
As Ugandans we need to push for a systematic and comprehensive overhaul of the entire constitution, which in its current form is a representation of elite interests. The new constitution must rethink governance as a never-ending process of exercising power to manage public affairs and resources in a manner that allows for equitable redistribution of benefits to all. This is because all communities contribute their social, economic, and natural resources—such as land and minerals—to the sovereign existence of Uganda. The citizenry must be seen and acknowledged as key stakeholders with a voice in governance, not as subjects to the ruling authority. The constitution must clearly define and operationalize the place of the people in this regard.
When all is said and done, the proverbial question is, are the ruling elite willing to go so far as to engage in an inclusive constitutional amendment process that clearly defines the terms and principles on which all publics and diversities can continue to live together and enjoy the benefit of subscribing to Uganda as their country? This remains to be seen. While attaining a constitution that reflects the common intent of all people seems a daunting task, possibility is reinforced by necessity. Uganda must do away with the limited, coercive consultations it has engaged in over the years and take a more broad-based, societal approach that allows all those capable of making informed choices to participate in the making of the new constitution. Once this is done, we can be halfway certain that the provisions of the constitution are set by us for us, with a guarantee that in its implementation we shall hold each other accountable.
In modern constitutional democracies, constitutions provide the basis on which a prosperous society is built. This, we Ugandans must not allow to elude us. But, as the saying goes, nothing good comes easy; we will have to put our shoulders to the wheel by demanding what is best for us. The conversations must not stop, and all must participate in them.
N.B. A short version of this article was published in Uganda’s Daily Monitor newspaper on August 8, 2014. See http://www.monitor.co.ug/OpEd/Commentary/Forget-piecemeal-amendments–our-Constitution-needs-an-overhaul/-/689364/2411732/-/y25tkq/-/index.html.
- 1New Vision Uganda, “Constitution to Be Amended—President Museveni,” New Vision, June 7, 2014.
- 2Sauda Nabukenya, “Why Constitutions in Africa Do Not Stand the Test of Time: Lessons and Perspectives from the 1995 Uganda’s Constitution,” Constitution-Building in Africa Conference, University of Western Cape, Cape Town, 2013, 4.
- 3Yasiin Mugerwa, “What Government Seeks to Change in Constitution,” Daily Monitor, Uganda, June 23, 2014.
- 4Monitor Uganda Team, “Constitutional Amendments: Will MPs Restore Term Limits?” Daily Monitor, July 30, 2014.
- 5See Uganda Constitution, 1995.
- 6Monitor Uganda Team, “Constitutional Amendments.”
- 7University College London, “What Is a Constitution?” UCL Constitution Unit, School of Public Policy, 2000. http://www.ucl.ac.uk/constitution-unit/whatis/Constitution (accessed August 27, 2014).
- 9Abiola Ajimobi, “Review and Reform: Key Elements and Implications of Nigeria’s Constitution Review Process,” transcript, Chatham House, London, October 5, 2012, http://www.chathamhouse.org/sites/files/chathamhouse/public/Meetings/Meeting%20Transcripts/051012ajimobi.pdf.
- 10New Vision Uganda, “Uganda’s Rugged Constitutional Path,” New Vision, September 4, 2012. http://www.newvision.co.ug/news/634890-uganda-s-rugged-constitutional-path.html, accessed January 8, 2015.
- 11Nicholas Opiyo, Arthur Bainomugisha, Barbara Ntambirweki, “Breaking the Conflict Trap in Uganda: Proposals for Constitutional and Legal Reforms,” ACODE Policy Research Series No. 58, 2013, http://www.acode-u.org/documents/PRS_58.pdf, accessed January 8, 2015.
- 13Kanyeihamba G.W., Constitutional and Political History of Uganda: From 1894 to Present, LawAfrica Pub., 2nd Edition (2010).
- 14Aili Mari Tripp, “The Politics of Constitution Making in Uganda,” In Framing the State in Times of Transition: Case Studies in Constitution Making, ed. Laurell Miller, 158–75 (Washington DC: United States Institute for Peace, 2010).
- 15Ibid. How such undemocratic governance emerged from the 1995 constitution-making process, which was believed by many to be exceptionally participatory, is not the focus here, but it is worth highlighting as the Ugandan constitutional amendment debate progresses.
- 16Joseph Oloka-Onyango, Constitutionalism in Africa: Creating Opportunities, Facing Challenges (Kampala: Fountain Publishers, 2001).
- 17Nicholas Opiyo et al. (2013).
- 18Nabukenya, “Why Constitutions in Africa Do Not Stand the Test of Time.”
- 19New Vision Uganda, “Uganda’s Rugged Constitutional Path.”