Introduction

Since John Rawls’ publication of “A Theory of Justice,” the notion of the “veil of ignorance” remains relevant to law-making since it has the potential to promote impartiality and justice.1 Since 1962, Uganda has adopted four constitutions: in 1962, 1966, 1967, and 1995. These constitutions have included several provisions and reforms such as the introduction, suspension, amendment, and reinstatement of certain clauses and sections. However, the constitutional reforms mentioned above are alleged to have been motivated by selfish interests, and therefore suspected to have contributed to the country’s tumultuous past.2 In this regard, the 1995 Constitution was specifically meant to correct all past mistakes – and was praised as the best, given the process it went through and the content therein.3 Unfortunately, controversies surround how the 1995 Constitution was written and subsequently amended.4 Therefore, the main question is this: how have the reforms embedded in the 1995 Constitution fared in embracing the notion of “the veil of ignorance?”

The Notion of the Veil of Ignorance

The notion of the “veil of ignorance” is attributed to John Rawls, although its roots can be traced to the works of David Hume, Adam Smith, and Immanuel Kant.5 The “veil of ignorance” is a hypothetical condition where people are expected to make or agree on decisions affecting social institutions without knowing how they will benefit or be disadvantaged by them.6 The rationale behind this is to suppress biases and selfishness in decision-making. For this reason, the “veil of ignorance” emphasizes four main elements:

  • Exercise of justice
  • Hiding knowledge of particular facts that can be used to favor certain people
  • Rationality
  • Impartiality

These four elements are responses to the danger of self-interest that characterizes social contracts, including constitution-making.7 For instance, they can entail transcendence from self-centeredness to concern for the common good. The first criticism is that the “veil of ignorance” underestimates how human nature is largely motivated by self-interest. They also believe that denying people knowledge of how a law or policy will affect them, may undermine the effectiveness of a law-making process. The second criticism is drawn from Brown, who argues that constitutions that cannot curtail short-term self-interests are unjust and therefore, more likely to be unstable.8 However, the above criticisms do not help to address the fundamental problem of pre-existing unfairness and bias in decision-making that affects social institutions. Hence, the notion of the “veil of ignorance” remains reasonable in understanding and addressing the above-mentioned problem.

The 1995 Constitutional Reforms

The 1995 constitutional reforms are rooted in the , which established the Uganda Constitutional Commission. The Commission’s mandate was to study and review the constitution for the purpose of enacting a new one.9 By 1993, the Commission had published a report that was deliberated upon by the Constituency Assembly (CA). Consequently, the new constitution was promulgated in 1995. Based on the competent Commission and the process the 1995 Constitution went through, including wide consultations across the country, it was praised as the best constitution Uganda had ever produced. For instance, the constitution was perceived to have been made by Ugandans with their interest in mind. Since then, the constitution has gone through a review, with over 250 amendments, something which characterizes reforms.

Despite the above, the processes behind the 1995 Constitution are contested by those who feel that the composition of the committee and the nature of the consultations, elections, and deliberations by the CA all lacked fairness and transparency.10 Firstly, there is a seeming disequilibrium between citizens and those in high leadership positions. This disequilibrium is rooted in the fact that those in leadership positions came to power through the use of military might. In such circumstances, there is no level ground for the common people and those in power—rather, power is tilted in favor of those in government. Tripp substantiates the foregoing view by pointing out that the appointing authority for the committee avoided members suspected to be from mainstream Opposition parties. In addition, while the committee carried out wide consultations, ideas critical of the incumbent leadership were largely ignored. The aforementioned inconsistency was accompanied by the knowledge and influence those at the helm of the process had. This suggests that the framers of the constitution were aware of how they would benefit from constitutional changes. This is evident in the fact that after the CA, almost all the key participants in the constitution-making process, including the president, later became immediate beneficiaries by 1996. This benefit was achieved at the expense of other parties, including the main oppositional party. Furthermore, there was a proposal to amend the 1995 Constitution by removing term and age limits. It was later reported that the proposal was made with full knowledge of the potential beneficiary. The provisions targeted the incumbent, whose term of office and age were approaching constitutional limits. Whereas the debates of parliamentarians and court judges, especially on the age limit, were focused on whether the amendment was consistent with the constitution, the biases in favor of the incumbent were taken for granted. Hence, to a considerable extent, the 1995 constitutional reforms seem to not have embraced the notion of the “veil of ignorance.” The implication is that such conduct compromises justice as one of the core values upon which constitutional democracy is grounded.

Conclusion

The notion of the “veil of ignorance” is very critical in constitutional reforms since it has the potential to minimize bias and unfairness. For this reason, one would expect the 1995 constitutional reforms to have embraced such a notion. However, a critical reflection reveals that the 1995 constitutional reforms, including the initial process and the amendment to remove term and age limits, were influenced by the bias and self-centredness of the political elite, and how they would benefit from constitutional reforms. As a result, the notion of the “veil of ignorance” was not embraced. This has had serious implications for the constitutional democratic governance and stability of Uganda. It undermines faith in the constitution and leaves room for conflict. In light of the above, this essay suggests building consensus based on the principles and values of integrity, justice, and beneficence, before a particular constitutional reform is made. This should include a declaration of the conflict of interest by potential beneficiaries at the center of constitutional reforms, including the president, members of the ruling party in parliament, and the technocrats in government.

Endnotes

  1. John Rawls, A Theory of Justice, Revised ed. (Cambridge: Harvard University Press 1999), 3.
  2. B. Tarsus Kabwegyere, People’s Choice, People’s Power: Challenges and prospects of democracy in Uganda (Kampala: Fountain Publishers, 2000), 118.
  3. Benjamin Odoki, “The Challenges of Constitution-making and Implementation in Uganda,” in Constitutionalism in Africa: Creating Opportunities Facing Challenges, ed. Oloka-Onyango Joe (Kampala: Fountain Publishers, 2001), 263-286.
  4. Mari Aili Tripp, “The Politics of Constitution-making in Uganda,” in Framing the State in Times of Transition: Case studies (USIP. 2010),158-175.
  5. Samuel Freeman, “Original Position,” Stanford Encyclopaedia of Philosophy, last modified on July 25, 2024, www.plato.stanford.edu
  6. Jeppe Von Platz, “The Veil of Ignorance in Rawlsian Theory,” in The SAGE Encyclopaedia of Political Behavior, ed. Fathali M. Moghaddam (Los Angeles: Sage Reference, 2017.)  889-92.
  7. John Rawls, A Theory of Justice (Cambridge: Harvard University Press, 1999), 104.
  8. Nathan J. Brown, “Reason, Interest, Rationality, and Passion in Constitution Drafting” in Perspectives on Politics. 6, no. 4 (2008): 675-89, doi:10.1017/S1537592708081851.
  9. Uganda Constitutional Commission, Statute 5 (1988), 92.
  10. Mari Aili Tripp, “The Politics of Constitution-Making in Uganda” (Cambridge: Harvard University Press, 2010), 163.
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