Article by the Chairperson of the Constitutional Commission on the Nature and Purpose of a Constitutionocr.en

8/11/2019 Article by the Chairperson of the Constitutional Commission on the Nature and Purpose of a Constitutionocr.en

1/38

THE NATURE

ND

PURPOSE

OF

A

NATIONAL

CONSTITUTION

A PAPER PRESENTED AT

THE KUMI/SOROTI RC DEVELOPMENT SEMINAR

HELD

T SOROTI ON 20TH

FEBRUARY

Y

THE HON MR

JUSTICE

J ODOKI

CHAIRMAN

UG ND CONSTITUTIONAL

COMMISSION


2/38

THE N TURE

ND

PURPOSE

OF

N TION L CONSTITUTION

y

the

Hon.

Mr Just ice B

J Odoki

Chairman

Uganda

Const i tut iona l

Commission

INTRODUCTION

Uganda i s

current ly

engaged in

the

process

of

making

a new

National

Const i tut ion.

I t

i s

the

declared

policy of

the

R Government

tha t a

const i tu t ion

should

not be im pos ed on the people by force_ but

tha t

the

p eo pl e t hemse lv es must be involved in the formulation

and

p rom ulg ation o f

the i r

const i tu t ion

Accordingly

_ the

Ministry

of

C o n st it ut io n al A f fa ir s

an d

the

Uganda

Const i tut iona l

Commission were

e sta bl is he d to implement

th i s

policy by giving the people of Uganda

ample

opportunity to par t ic ipa te in the

process

of making a new

const i tu t ion

so as

to come

out w ith

a popular

and

las t ing

const i tu t ion

based

on nat iona l consensus

_

and which wil l be respected an d

upheld

by

a l l the people

of

Uganda.

I t i s important to involve

the people

in

the process

of making

the i r

const i tu t ion because a

const i tu t ion should r e f l ec t

t he ir i de al s

values interes ts

and aspira t ions Unless the people embrace the

const i tu t ion

as the i r

own

bra in chi ld

they may

not respect and

safeguard i t

In

ord er fo r

the

const i tu t ion to

command

the i r loyal ty

respect obedience

an d

confidence

the people

must

identify themselves

with t hr ou gh inv olvement and

a

sense o f a ttac hm en t.

good

an d

viable

const i tu t ion

should be generally understood and accepted

by

the

people .

The

involvement of the

people

in const i tution m aking i s

therefore important in coferr ing

legi t imacy an d

acceptabi l i ty to the

const i tu t ion

I t

should

also

be mentioned

tha t

such

a

democratic and

popular method

of evolving a

const i tu t ion

serves

to

explode the

misconception commonly

held

among

African

leaders tha t the

power to

govern means

the

power

to

make

a const i tu t ion

The

r ight to

change

a const i tu t ion should remain

with the people j u s t l ike

the r igh t to

e le ct th eir leaders.


3/38


4/38

But a const i tu t ion i s not merely a se t

of

fundamental pr inciples

upon which a s ta te i s organised i s also the basic

law of

the

count ry.

In

his book

ent i t led

Const i tu t ional Law and

Government

in

Uganda Prof .

Kanyeihamba

emphasises

th i s l ega l

aspect in his

def in i t ion of

a const i tu t ion when he s ta tes :

a

const i tu t ion of a s ta te consis ts

of

the bas ic and

fundamental laws

which

the inhabi tants

of

a

s ta te

c on sid er to be essent ia l

for

the i r

governance

and

wel l being. The const i tut ion lays down po l i t i c a l

and

other s ta te

ins t i tu t ions and dis t r ibutes

powers

among

them

and puts

l imi tat ions

on th e e xe rc is e of

those

powers

From the above br ie f survey

can

define a const i tu t ion as

a se t

of basic

princip les and laws upon which

the

s ta te i s organised

and

which establ ishes

the

major o rg ans

of

government

defines

the i r

funct ions and powers and re la t ionship amongst th em and sets out

the

r igh ts and

duties

of

the

c i t izens .

A nat ional const i tut ion has therefore both po l i t i c a l and l ega l

dinlensions

In

po l i t i ca l

terms

a

const i tu t ion

i s

th e b asic

decision

of a

people

on how

wants to

l i ve .

I t

has been

described as

a

socio

po l i t i c a l

frame-work

through which

the

pol i ty agree on who

gets what

when and how

I t

i s said to define

po l i t ica l

space and

the

relat ionship between

the

s ta te and i t s c i t izens .

I t i s

a kind

of

a

power

m p

n charter

of government

I t has been d esc rib ed a s

a

soc ia l

contract or covenant

between

the

s ta te

and

i t s

subjects on

the

manner of governance and exercise of

s ta te

power.

In

legal terms a const i tut ion i s the fundamental and supreme

law of

the

country.

the i r val id i ty .

I t i s the basic law

from

which a l l laws derive

Therefore any law which

conf l icts with the

const i tut ion has no l ega l ef fec t .

supreme

over

the l eg is la ture .

A wri t ten const i tu t ion i s even


5/38

Accordingly a const i tu t ion i s regarded

as

having le ga l s an ctity or

being sacred

t

deserves th e h ig he st

respect

and

obedience

from the

l eaders

and

the people

al ike t

follows therefore

tha t

a const i tu t ion

represents the

deepest norms an d

ideals

by

which the people govern

t he i r

po l i t i c a l l i f e

3 PURPOSE ND IMPORT N E OF A CONSTITUTION

A

na ti on a l c on st it ut io n serves a

number

of important functions

n

the f i r s t

ins tance se t s out

the

pr incip les an d

values

upon

which

the

s ta te i s organised an d governed The ideals an d

aspira t ions

prOVide the co un tr y w ith

direc t ion and

a vis ion for the future and

prescr ibe the legi t imate purposes or

in te res t

which

s ta te power is

to

be

used

Secondly

a const i tu t ion provides a foundation

for

orderly

government

by

defining

and

l imi t ing the

powers

of government

agencies

t

establ i shes

checks

an d balances w ith in the

main branches of

g ov ern me nt nam ely t he E xe cu ti ve t he Legislature an d the Judic ia ry

through the doctrine of separat ion of powers

A const i tu t ion

establ ishes

government based on the ru le of law and which i s l imited

by

law

t

thus provides a l ega l basis for Governmental operations

an d makes

const i tu t ional

government poss ible

t therefore

prevents

anarch or d ic t a to r i a l government which knows

no

legal bounds


6/38

c on st itu ti on a ct s

l ike

peace

t r ea ty . I t

i s negotiated

by

a l l

the

people

including the various socia l forces I t lays down

arrangements

between

confl ic t ing

soc io pol i t i ca l

groups or

in te res t s

in order to res tore peace

s a

nat ional

soc io pol i t i ca l

framework

or con trac t binds a l l the par ts

of

the country and the people

together giving them

a

sense of

belonging

and nat ional conscienceness

and thus

consol idat ing nat ional

uni ty

const i tut ion

i s an important

democratic ins t i tu t ion .

I t i s

a

viable

ins trument

of

democrat isat ion

Through

the

establishment

of

democratic princip les and ins t i tu t ions

a

const i tu t ion provides

peaceful

means

of solving

s oc ia l c on fl ic ts

ins tead of

resor t ing to

violence or

armed conf l i c t . For this

very

reason

a

const i tu t ion is

an important ins t i tu t ion in

promoting

peaceful

change of government

by following

accep ted d emocratic

princip les fo r acquis i t ion

and

rel inguishment of

s ta te

power as

la id

down

in

the const i tu t ion .

Final ly

a

const i tu t ion

safeguards

the

bas ic

r ights

and

freedoms

of the

people by incorporat ing

a

Bi l l

of

Rights and providing

the

machinery for

the i r

enforcement through an independent judic iary and

other ins t i tu t ions .

Apart from protecting the integri ty of the human

personal i ty

the

free exercise of

human

r ight s ensures that people

can fu lly p atic ip ate in the i r

governance

and hence

control

the i r

dest iny . I t

can therefore

be

concluded

tha t

a

const i tu t ion i s an

indispensable

instrument for

good and

modern governance


7/38

ONTENTS OF A CONSTITUTION:

What then does a C o n s t i t u t i o n contain? As I said e a r l i e r on,

a C o n s t i t u t i o n s e t s out the

p r i n c i p a l organs

of the

S t a t e and

def ines

t h e i r

powers. These

organs are the execut ive, the

l e g i s l a t u r e and

the

j u d i c i a r y . The l e g i s l a t u r e

makes

law,

and

the

ju di c ia ry i n te rp re te s

and administet s

the

laws.

Within

the

executive

branch

you

have

the Presidency

whose q u a l i f i c a t i o n s

e lect ion

powers and

removal must be defined. There

are

the

Ministers

the Public

e r v i ~ e

the Armed

Forces

the

Police

and

o t h e r C o n s t i t u t i o n a l Bodies and Offices l i k e E l e c t o r a l Commission,

Public Service Commission, the Audito r G en eral, whose

functions

and powers

must be defined.

There

i s

the

l l g i s l a t u r e

or

Parl iament now c a l l e d NR whose

powers

composition, q u a l i f i c a t i o n s

fo r members and e l e c t i o n

of

members must be

s e t

out .

And

l a s t

there

i s the j u d i c i a r y

or

Judica ture c o n s i s t i n g

of

cour t s ,

judges

and

m a g i s t r a t e s

whose

j u r i s d i c t i o n or powers, apppointment, p r i v i l e g e s

a r e l a i d down to safeguard t h e i r

independence from undue

i n t e r f e r e n c e by

the

executive

or

the l e g i s l a t u r e .

A

Const i tu t ion

also

contains

provisions defining c i t i z e n s h i p

how i s acquired

and

how may

be

l o s t . There are also

provis ions s e t t i n g out the fundamental r i g h t s

and freedom s

which

are inborn and i n a l i e n a b l e

r i g h t s

of

every

human being.

These

include

the r i g h t

to

l i f e and

l i b e r t y the r i g h t to property , to

privacy etc

freedom

of

expression associat ion and of conscience

or re l ig ion freedom of

movement right

to

f ir

t r i l r ight

not

to be s ub je cte d to unhuman and degrading t reatment .

The

Const i tu t ion

t e r r i t o r i a l l i m i t s of

may

the

contain

country

p ro visio ns d esc rib in g

the

i t s o f f i C i a l or

na t iona l

language, how land i s administered,

cont ro l

of

p ub lic f in an ce ,

handling of

foreign

r e l a t i o n s l i k e t r e a t i e s

and

may also

have

D i r e c t i v e P r i n c i p l e s

of

S t a t e policy s e t t i n g

out the p o l i t i c a l

s o c i a l economic an d c u l t u r a l o b j e c t i v e s or i d e a l s

of the

nat ion.


8/38

And

l a s t l y

a

Const i tu t ion

may also

se t

out the

dut ies

of a

c i t i zen

e g to

respect

the n atio na l fla g

and

nat ional

anthem

to

r espec t

State Property to

defend

the nat ion when cal led

upon to

do

so to

defend

the Cons t i tu t ion an d to

contr ibute

to the development

of

the

nat ion

The

contents

of a par t icu la r Consitut ion may

be

dic ta ted

by

the

h is to ry of the

country

an d i t s po l i t i ca l problems A

country

which

has

emerged from war

may wish

to guarantee

peace

an d s t ab i l i t y

A

country which

has

experienced divisionism

or

separat ism

may

wish to

promote more nat ional uni ty

through a

Unitary system or

may

wish

to recognise regional autonomy

A Const i tu t ion may also

be inf luenced

by the cu l tu ra l and t r ad i t ional values of th e p eo ple This

may

lead

to

the recogni t ion

and preservation

of

cert in

a sp ec ts o f c ultu re which

are fundamental

to the wel l

being of

the

people The Const i tu t ion

must

inevi tably

be inf luenced by the

contemporary

views and aspi ra t ions

of the people

These

may ref lec t

the i r

fundamental values

an d

philosophy

of

l i f e

Today

many

Ugandans

are

yearning

for

peace

freedom unity democracy just ice n reasonable standard of

l i f e

The

new Const i tu t ion

must address

these

and re la ted

issues

5

TYP S

O

CONSTITUTIONS

In framing Const i tu t ions

various models or forms

may

be used

to ar t i cu la te the agreed values

idea ls

and pr incip les

A

country

may choose a President ia l

system

of Government ins tead of

Parl iamentary

one

Under

a

President ia l

System

of

Government

the

three

organs

of

Government

are

sharply separated

by observing

the

doctr ine of

separat ion of powers

which

keeps each

organ

in i t s own

sphere o r

re spons ib i l i ty Thus the

Pres iden t an d

h is Ministers are not members

of Parl iament The Pres ident i s normally elected nat ional ly

an d

i s

general ly accountable to the people

A good

example where

a

Pres iden t ia l

System of Government operates is the Unites States of

America


9/38


10/38

Unitary Const i tu t ion i s

almost

the opposite of a federa l

one

Under

a

Unitary

Const i tu t ion

the

s tate

is organised

as

a s ingle

unif ied government and const i tuent

d i s t r i c t s

hold power a t the

d isc re t io n of the

cen t r a l

government The cen t ra l government

i s

therefore

supreme

and

there are no subsidiary

sovereign bodies

But

the

country i s normally divided in to loca l u nits which are given

some

func t ions

to carry out on matters af fect ing the

people

di rec t ly The

1967 Const i tu t ion of

Uganda

i s a good example of a Unitary

system

of

government

while the 1962 i s

an

example though not

so good

of a

Federa l

Const i tu t ion Other examples of Unitary

Const i tut ions

are

France and ri ta in

B oth the F ederal and Unitary forms of government have advantages

and disadvantages

The

federa l system accommodates

the

i n t e r e s t s

cul tures and tr ad it io ns o f various communites in the country and al lows

loca l in i t i a t ive s fo r development

Bu t

is

an e xp en siv e system

to

operate because

of the

m u ~ t p l t y

of governments and

agencies

and

can

also

mil ta te against

n atio nal u nity

because

of divided

loya l t ies

Th e Unitary

system

i s

simple

an d

cheaper

to

m i n i s t e r ~

t al lous

fo r nat ional

planning and

al locat ion of

resources

a t nat io; a l l eve l

and

provides a focus fo r n atio na l uni ty

Bu t th i s

system can be

r ig id

and f a i l to respond

to

loca l needs thus

ki l l ing

loca l

i n i t i a t i ves

fo r

development

Because

of the d i f f i cu l t i e s

seen in

the federa l and uni tary

systems

there

i s

another

form

of

const i tu t ion

based

on

devolution

o f powers and which has basica l ly a Unitary

Government with

a strong

decent ra l i sed loca l governments

whether

a t d is t r i c t or regional levels

e g USSR Yugoslavia and Tanzania

These

forms

are

useful in studying various

systems

and

onstitut ions but

i t i s more important

to

understand the principles

and

idea l s upon

which they are

based

so tha t

on e

can address the

substance rahter than

form

of these

Const i tu t ions

or systems One

has

also

to r ea l i ze tha t what a Const i tu t ion says an d what

happens

in prac t ice are

not

always the same things


11/38

Final ly

there

i s

the question of

how

the

Const i tut ion

adopts

to changing condi t ions of

a

given socie ty Normally this

i s

taken

care of

by

making provis ions fo r amendment of the Const i tut ion by the

l eg i s l a ture Provis ions

fo r

amendment

may be r ig id o r f le xib le They

are

r ig id

i f it

i s

d i f f i cu l t to

amend

the c on stitu tio n e g by

requi r ing 3 majori ty or referendum. I t i s f lex ib le the

method

of amendment

i s

easy

by

requi r ing

a simple majori ty. A

Const i tut ion

may contain both f lex ib le and

r ig id

method of

amendment

dep endi ng on

the importance at tached

to

the pro vis io n. In this

way

s tab i l i ty and

change are harmonised

an d

the Const i tut ion re ta ins i t s bas ic

s t ruc ture

idea ls

and

author i ty

whil e recogn iz ing and

embracing change

and development fo r i t s own preservat ion and fo r

the

good of

the

so iety

serves

6. W Y O W N A N W CONSTITUTION?

Uganda

has

had

three Const i tut ions

since

it

at ta ined

nationhood.

These are the Independence Const i tut ion of 1962

the

Pigion Hole

Const i tu t ion

of 1966 and the

Republican Const i tut ion

of 1967. The

1966

Const i tu t ion

was merely an interim one

and was

replaced by the

1967

Const i tu t ion.

The

main Const i tut ions

Uganda

has had

are

therefore

the

1962

and 1967

Const i tu t ions.

The

1962

Const i tut ion

was

abrogaged

in

1966

and replaced by the 1966 Const i tut ion.

This

l a t e r Const i tut ion

was replaced

by the

1967

Const i tut ion.

The

1967 Const i tut ion has

gone

through var ious

t r i a l s and t r ibula t ions

by

successive

regimes

but it

has survived complete abrogation till th i s day. Instead it has

suffered frequent suspensions and

amendments

since 1971. In law it

i s still th e C on stitu tio n o f

Uganda.


12/38

Current

p u bl ic o pi ni on i s sharply

divided

on which Consti tut ion

the c ou ntry sh ou ld

be governed.

There

are

three

posit ions

taken.

There

are people

who would

l ike

the

1962

Const i tut ion restored as

t was because

to

them t ha t i s the only l eg it im a te C o n st it ut io n

Ugandans

negotiated an d agreed to have.

They

argue t was

i l l ega l ly

abrogated

without

the i r consent.

There

are those

who

maintain t ha t there i s

nothing

wrong

with

the 967

Consti tut ion

on which the

co un try ha s

been governed fo r so long

an d

tha t what

i s needed i s merely to amend t to bring t in l in e with curren t

aspi ra t ions . There

a re

those

who

believe

that none

of the two

Consti tut ions

can

serve

present

da y

Uganda and

that

what

i s needed

i s to make a

new

Const i tu t ion but

pick in g ou t

what is good from

the p a s t C o n s ti tu t io n s .

These divergent p os it io ns r ev ea l

our fai lure to agree on the

soc io po l i t i ca l framework which should form

the

basis of

our

governance. In other words

there

is no nat ional consensus on

what

type

of Const i tu t ion Uganda

should have.

The lack of general

agreement has been

caused

par t ly

by

our

colonial

past

which

was

based

on divide an d ru le a policy which emphasised an d

exploited

our

ethnic

re lig io us s oc ia l an d

po l i t i ca l

differences. We

have

therefore to dis ove r

our

common interes ts

and

harness our plural ism

fo r

n a ti on b u il d in g .

The two Consti tut ions

themselves

have

not

been

spared

serious

cr i t ic isms. t i s pointed out tha t

the

1962 Const i tut ion was made

in a

hurry

and in a

foreign

country mainly for purpose o f s ec ur in g

independence. t i s argued tha t few people

par t ic ipated

in i t s

making an d

tha t

the degree of par t ic ipat ion

lacked

depth an d

fo res ig ht since po l i t i ca l awakening in the

country was low

even

among the

e l i t e . In the re su l t

some

temporary

compromises were

made re su ltin g in unholy al l iances

l ike

the UPC KY Alliance which

could

not

stand the t e s t

of time.

t fa i led to

harmonise

republicanism and monarchism

Equally

the

1967 Consti tut ion

was

not

made

under an

idea l

environment There

was

state of

emergency


13/38

1 2

Th e

term

o f

o f f i c e

o f

th e UP

Government had

ex p i red though

i s

a r g u a b l e

t h a t

had

been

ex t en d ed

i n 1966

following th e

Obote

coup

d e t a t o r r e vol ut i on a s th e High Court c a l l e d

in Matovu

Case.

I t i s t r u e t he r e wa s w i d es p read d i s c u s s i o n

o f th e C o n s t i t u t i o n a l

p r o p o s a l s i n

th e media

and i n th e N a t i o n a l Assembly b u t th e

m a j o r i t y o f th e

p eo p l e were n o t

c onsulte d on

th e d r a s t i c

changes

t h a t th e C on stitu tio n i n t r o d u c e d l i k e a b o l i t i o n

o f kingdoms

f e d e r a l i s m

and

c o n c e n t r a t i o n o f too much i n

th e P r e s i d e n t .

I t

i s

t h e r e f o r e

ma inta ine d t h a t th e 1967 was made by a fe w people

to

p r o t e c t t h e i r own i n t e r e s t s .

As r e g a r d s th e c o n te n ts o f th e C o n s t i t u t i o n s

i s

ar gued

t h a t th e

1962 C o n s t i t u t i o n

merel y endor sed

th e

h i s t o r i c a l d i sp a r i t y

in th e tre a tm en t o f d if fe re nt p ar ts

o f Uganda. Consequently

some

a r e a s had f e d e r a l s t a t u s

l i k e Buganda

o t h e r s s e m i - f e d e r a l s t a t u s

l i k e

B un yo ro T or o a nd

Ankole

ot he r s

t e r r i t o r y s t a t u s

l i k e

Busoga

an d th e r e s t

o f th e d i s t r i c t s

u n i t a r y s t a t u s . T h erefo re some a r e a s

had

s p e c i a l o r

p r i v i l e g e d s t a t u s which wa s

r e s e n t e d by th e

o t h e r s .

Th e ar r angement wa s a h o t ch p o rch

formular

which

could no t

b u i l d

a uni t e d

c o u n t r y . I t

i s f o r

t h i s

reas o n t h a t

th e

1962 C o n s t i t u t i o n

h as

been c r i t i c i s e d a s

having

m e r el y c o nf ir m ed th e c o lo n ia l o r de r.

No

wonder i n t r o d u c e d

a

West

M i n i s t e r

Model

of

government.

Th e

main c r i t i c i s m about th e 1967 C o n s t i t u t i o n i s t h a t al t h o u g h

c r e a t e d p a r i t y o f t r e a t m e n t between d i f f e r e n t d i s t r i c t s

c o n c e n t r a t e d

to o

much power i n th e P re s id e n t an d th e

C e n t r a l

Government. Th e

P r e s i d e n t who had

combined th e

r o l e s

o f

P r e s i d e n t

an d

Prime

M i n i s t e r

wa s

give n

power

to

promulgate

o rd i n an ces

when

N a t i o n a l

Assembly wa s n o t

s i t t i n g . e had

power

to ap p o i n t almost

a l l p u b l i c o f f i c e r s as th e P u b l i c S e r v i c e C om mi si on be ca m e mer ely

a d v i s o r y . T her e wa s no req u i remen t

fo r

p o p u l ar e l e c t i on

o f

th e

P r e s i d e n t . He mer ely assumed

power

i f h:l s

p a r t y

won e l e c t i o n s

L o c a l

G ov er nm en ts w er e n o t

g i v en

power to

e le c t t h ei r l e a d e r s

to

rry out development

or

dminister so i l

servi es without

d i r e c t i o n

from th e

c e n t r e . T h i s

s t r i f f l e d

l o c a l

i n i t i a t i v e s

an d

development.


14/38

13

Final ly

i s

argued

tha t

there

i s

a

need

for a new

po l i t i c a l

order in

th e c ou ntr y. Dras t ic changes have taken place in the country

since

independence.

There i s

even need

to correc t

what

went wrong

d urin g c olo nia lis m which p as t c on st it ut io ns did not correc t There

are global changes taking place throughout the

world and

Uganda

should

not be taken un aware

by

the wind of

change.

The

const i tu t ion requires

to address modern and

current issues

w hich h av e

cropped

up l ike

the

posi t ion

of the army

protect ion

of

environment s tatus

of

women

and

r ight s

of chi ldren nat ional idea ls

an d

objec t ives democrat isat ion

plural ism development

an d

so for th

There

i s therefore a need for

socio economic an d

po l i t i c a l t rans format ion. There i s a need for

a f resh s t a r t and now i s th e a pp ro pr ia te time when the government i s

seeking to introduce a

fundamental

change

in

the pol i t ics of Uganda.

7. IMS N OBJECTIVES

OF

THE W CONSTITUTION

As

you

are

no

doubt

aware

Uganda has gone

through

a very

t raumatic

his tory

since

independence. This

tragedy

has l e f t

a

multi tude of scars on the face

of

the

country and i t s

people.

Our

po l i t i c a l ins t i tu t ions

have been run

down our economy

has been

plundered our people

have

been bruta l ised an d improversed. Our soc ia l

services

have

been neglected and destroyed.

Peace

and s tab i l i ty have

perpetual ly eluded us. The

unity

of the people

of

Uganda

has been

undermined

by

divis ive

elements. The advancement

of

our people

has

been

hampered

by

bad

leadership

based on

greed

se lf ishness in to lerance

fact ional ism dic ta torship

and

mil i tar ism.

The

country has continued

to experience

both

po l i t i c a l and

economic

cr i ses


15/38

The new constitution i s intended to address these problems and

crises

and

reverse the trend.

Most

of the

aims and

objectives

of the

new

const i tut ion are se t out in

section

of

the

Uganda

Consti tut ional

Statute 1988. These objectives

are

as follows:

a ensure that Uganda i s an independent

and sovereign

country within i t s exist ing ter r i tory

b se t up a

free

and democratic

system

of government

that

wil l enab le th e people to enjoy the i r

basic

r ights and

freedoms;

c provide

for workable

poli t ic l

ins t i tut ions that

wil l enable

the people

to

reach general

agreement

on important issues and

provide for

change of

government in n

or erly

m nner

d

identify and divide

powers

and

duties

of

th e

Executive,

Legislature

and

Judiciary

in

such

a way

that they

can check on

and balance

each other to

ensure that

no

branch exceeds

or

abuses

the powers

given to t

e t ry to provide for a system of government which

enable s th e

people to play an active ro le in

the

governance of the i r country;

f try

to develop a system of

election

which i s

democratic free and f ir and which wil l ensure that

those

e le cte d to represent the people

in

the

National Legislature

and lower levels are true

representat ives

of the people;


16/38

g To se t up

and

provide ways of

ensuring

tha t those

who hold public

off ices and po l i t i ca l

posts are

answerable

to the

people

for

the i r

act ions ;

h

To ensure tha t the judic iary i s independent.

bove

nine objectives the

current

ident i f i ed four more goals which

the new

These are :

In addition to the

cons t i tu t ional

debate ha s

const i tut ion should

serve.

i To res tore

peace,

secur i ty and s tab i l i ty in Uganda;

i i

To

fos ter unity

and

nat ional consciousness amongst

the people

of

Uganda;

i i i To promote socio-economic development and soc ia l

jus t ice

in

th e c ountr y;

iv To promote

regional

and in ternat ional co-operat ion

and

the maintenance

of

peace

and

secur i ty in the

world.

These object ives are

noble, democratic, ju s t , humane,

dynamic,

progressive and re levant to

our

socio-economic

and po l i t i c a l

tr an sf ormation p ro ce ss . They

r a i se

important const i tut ional i s sues

which Ugandans

must

discuss f reely, frankly, object ively and

construct ively . The

challenge tha t

faces Ugandans i s to agree on how

to

t r ans la te

-these lof ty ideals and

objectives

into rea l i ty . They

are being cal led upon

to

suggest

concrete

measures

which

wi l l

ensure

t he i r

rea l i sa t ion .

so doing

they

wil l be

able to

emerge

with a

social ly

re levant

con st it ut ion t a il o red

to

the i r

needs

and in te res t s .

That

wi l l

be a

popular and

enduring

const i tu t ion

which

wi l l

provide

a

sound foundation

fo r b uild in g a

new Uganda.


17/38

TOWARDS A NEW

CONSTITUTIONAL ORDER IN

UGANDA

THE MEANING NEED

N

OBJECTIVES

OF THE

NEW CONSTITUTION

A Paper

presented by th e

Hon. Mr.

Justice

B J Odoki

Chairman

of the Uganda Consti tut ional Commission t

a Consti tut ional

Seminar

for members

of the National

Resistence Army

Council

held at th e International

Conference Centre on 8 - 10

January

1991

WH T

IS A NATIONAL

CONSTITUTION?

t

will be useful to st r t this paper

by

defining what

a

Consti tution means. Definitions can be regarded

a s n ece ssa ry

evi ls

in in tel lectu l

discussions.

They

are

necessary

because

they help

to

explain

an idea

or concept

in concise

terms.

But they

are

evils

in that they

can

be

controversial

o r con tent ious

so

that normally

there

is no general agreement on most of

them.

As such they a re u su al ly

taken to serve the interests of the user and to be rest r icted to the

context

and

circumstances

in

which

they

were

proprounded.

Therefore

they

have to be accepted

with

caution. The definition

of

a national

Constitution is

no

exception.

he word Constitution s derived

from the

verb

to constitute .

According to the Shorter Oxford Dictionary the

word consti tute

means

mong other

things to

s t

up

ordain appoint

frame form

ma ke

up

or

compose. The term Constitution

therefore l i ter l ly

means

the

action

of constituting framing or establishing something. The

same

Dictionary

however

gives

a good

general

definitaion

of

a

national

Constitution a s being

The system or

body

of fundamental principles according to

which a

nation st te or body poli t ic is consti tuted and

governed.

The above definition is more or

less

similar to the one provided by

the

Encylopaedia Britannica

which defines a Const itu tion as ;


18/38

both th e system by which a

country is

governed and th e

par t icular document or collection of documents establishing

th e basic

rules and ins t i tut ions of the pol i t ica l system.

The only new element introduced in the

second

definition

is that of

th e

form of a

Consti tut ion as

a

document. t is true that most modern

contitutions

are

now

written

following

th e example

of

the United States

in

1787 and

only a few

countries l ike

Britain and srael

have

unwr tt n

onstitut ions

In

his

book

ent i t led Modern

Consti tut ions Prof.

Wheare

introduces

yet

another

element

in

th e

definition of a

Constitution:

The

const i tu t ion

then for most

countries

in the

world

is

a

selection of

the

l eg al ru le s

which govern

the government of

that country and which have been embodied in a document.

The new element introduced

is

th e legal

character

of

the Consti tut ion

as

a

body

of

legal

rules or

laws. This

legal

aspect

or

s ta tus

of

a

Consti tut ion is an

important

character is t ic of

a

modern

const i tu t ion

which dist inguishes from a mere

pol i t ica l

charter.

Thus

Professors

Wade

and Philips in the i r well known text book

on Consti tut ional

aw

state

y a

Consti tut ion is normally meant

a document

having

a

s pe cia l l eg al s an ct it y

which

sets out

th e framework

and

principal organs of

th e

government of a

state

and

declares

the

principles

governing t he oper at ion

of those organs.

nd

Prof. Kanyeihamba

in

his

book ent i t led

Consti tut ional

aw

and

Government in Uganda

is

in

general

agreement

with

th e

two authors

when

he

writes:


19/38

3

a Cons ti tu ti on

of

a

s ta te

cons is ts

of

th e b as ic

and

fundamental l aw s which the inhabi tants

of

a s ta te

c on sid er to be

essent i a l

for the i r governance

and

well

being.

The

Consti tut ion

lays

down

po l i t i ca l

and

other

s ta t e i n st it u ti o ns and

dis t r ibutes

powers among them and

puts l imita t ions on th e e xe rc is e

of those

powers.

The l i s t of def in i t ions could

be

lo ng er b ut I

believe

tha t those

quoted

above

wil l suff ice in

leading

us

to

formulate a

working

def in i t ion of

a na ti ona l Const it ut ion . For the purpose

of

th i s paper

a Const i tu t ion can be defined

as

a

se t of

basic princip les and laws

upon which

a

s ta te

i s

organised

and which establ ishes the majo r o rg an s

of

government defines

the i r functions and

powers

and

the re la t ionship

amongst them and se ts out

the

r ights and

d uties o f the

c i t i zens .

A nat ional

Consti tut ion

has

therefore

po l i t i c a l and legal

dimensions.

In po l i t i c a l terms a Consti tut ion is the bas ic decision

of a people

on

how

wants

to l i ve . I t has

been

described as a

soc io pol i t ica l framework by which the pol i ty define who. gets

what

when

and how I t i s said to define

po l i t ic a l

space and re la t ionship

between the

s ta te and i t s c i t i zens .

I t i s a kind

of

power map and

a

char te r

of

government.

I t

has been

described

as

a

soc ia l

cont rac t

or covenant between the

s ta te

and

i t s

subjects on the manner

of

the

exercise of

s ta te

power.

In

legal terms a Consti tut ion is the

fundamental and

supreme

law

of

the country.

I t

i s the bas ic

law

from

which

a l l laws

derive

th eir v al id ity . Therefore any

law which

conf l i c t s with

the Consti tut ion has no legal

ef fec t .

Accordingly a

Const i tu t ion i s

regarded

as having l ega l sanct i ty

or

being

sacred.

I t deserves

the

h ig he st re sp ect and

obedience

by

the leaders

and

the

people

a l ike .

As

can

be

seen

a Consti tut ion i s an indispensible instrument

fo r

good

governance. A Consti tut ion

provides

a

foundation

f or o rd erly

government and establ ishes

government l imited

by law and based on the

ru le

of

law. I t provides a

means of

solving soc ia l

conf l icts by

peaceful

means

through d emocratic

ins t i tu t ions . As a nat ional

soc io pol i t ica l

contract

or framework binds

the

people

together

and promotes

na t iona l

uni ty .

I t

safeguards the basic

r ights and

freedoms

of

the

people.

I t

provides

a

vis ion

for

the

future

by

incorporating

idea ls

and

aspira t ions of

the

people.


20/38

CONTENTS OF A CONSTITUTION:

What then does a Consti tution

contain?

s

I said ea r l ie r on,

a Consti tution se t s out the pr inc ipa l

organs

of

the

State and

def ines

the ir

powers. These

organs

are the executive, the

leg is la ture

and the judic iary The leg is la ture makes law, and

the

judic iary interpretes an d

administers

the laws.

Within the

executive

branch

you

have

th e

Presidency

whose

qualif icat ions

ele t ion

powers

and

removal

must

be

defined.

There are

the

Ministers

the

Public

e r v i ~ e

the

Armed

orces

the

Police and

o th er Cons ti tu ti on a l

Bodies

and

Offices

l ike

Electora l

Commission,

Public

Service Commission, the Aud ito r G en era l, whose funct ions

and powers must be def ined.

There

i s

the l ,g is la tu re o r

Parl iament now cal led NRC whose

powers

composition,

qual i f icat ions

fo r members

and

elect ion of

members

must be se t out . And l a s t there

i s

the judic iary or Ju dic atu re ) c onsis ting of courts , judges

and

magis t ra tes whose ju r i sd ic t ion or powers, apppointment, pr ivi leges

are l a id down to safeguard the i r

independence from undue

in te r fe rence by

the

executive

or

the l eg i s l a tu re

A Consti tution also c on ta in s p ro vis io ns

defining

c i t i zensh ip

how i s

acquired

and how may be lo s t There

are also

provis ions se t t ing ou t

the

fundamental r ights and freedoms which

are

inborn

and ina l i enab le r ights of every human

being.

These

include

the r ight

to

l i f e

and

l ibe r ty the

r ight to

property,

to

privacy

etc freedom of

expression

association n of

conscience

or

r e l ig ion freedom

of

movement,

r ight

to a f a i r

t r i a l r ight not

to

be s ub je cte d t o

unhuman and degrading t reatment .

The Consti tution

t e r r i t o r i a l l imi t s of

may

the

contain

country,

provis ions

describing the

i t s

of f i c i a l

or nat ional

language, how

land

i s administered, contro l of public f inance,

handling

of foreign

re la tio ns lik e

t rea t ie s and may also have

Direct ive Principles of State

p )iicy

se t t ing

out the

pol i t i ca l

soc ia l economic

and

cu l tu ra l

object ives

or

ideals

of the nation.


21/38

And l a s t l y a

Const i tu t ion

may also se t

out the

dut ies

of

a

c i t i zen e g to respect the n atio na l f la g an d nat ional anthem

to

re sp ect S ta te Property to

defend

the na tion when cal led upon

to

do

so

to defend the Const i tu t ion

and to

contr ibute

to

the

development

of the nat ion

Th e co nten ts of a

par t icu la r

Consi tut ion may

be

dic ta ted by the

h i s to ry

of

the

country

an d i t s

po l i t i ca l

problems A

country

which

has

emerged from wa r may wish to

guarantee

peace and s t ab i l i t y A

ountry

whi h

h s

experien ed divisionism

or sep r tism y

wish to

promote

more na t iona l

uni ty through

a

Unitary

system

or

may wish

to recognise

regional

autonomy A

Consti tution

may also be

influenced

by the cu l tu ra l and t r ad i t iona l values

of

the

people

This may lead

to the recogni t ion an d preservat ion of cer ta in aspects

of

cul ture which

are fundamental

to

the well

being of

the people

Th e

Consti tution

must

inevi tably

be

influenced by the contempora ry views

and asp i ra t ions

of the people

These may r e f l ec t

the i r fundamental values

an d

philosophy

of l i f e Today many Ugandans are

yearning

for peace

freedom

un i ty

democracy

ju s t ice

an d

a

reasonable standard of

l i f e

Th e new Const i tu t ion must address these an d re la ted

i s sues

3

TYPES

CONSTITUTIONS

In framing Consti tutions various

models

or forms may

be

used

to ar t i cu la te the agreed values i dea l s and pr incip les A country

may choose a President ia l system of Government ins tead

of

Parl iamentary

one

Under a

President ia l System

of

Government the three organs of

Government are sharply separated by observing

the

doc t r ine

of

separat ion of

powers

which keeps

each

organ in i t s own sphere or

re spons ib i l i ty

Thus the President and h is Ministers are not members

of Parl iament The President

i s

normally elected

na t iona l ly

and

i s

general ly accountable to the people A good example where a

Pres iden t i a l System of Government operates i s

the Unites

States

of

America


22/38

The

opposi te

i s

t he Par li ament ar y sytem or the

West

Minis ter Model

where

the Chief Executive the Prime Minis ter

i s

member of

Parl iament and so are

h is

Ministers

and

are a l l col lec t ive ly

resp on sib le to Par l iament . good example of

this

type of const i tu t ion

i s

India or the

1962

Const i tut ion of Uganda.

country m y

adopt

Republican

form of Const i tut ion or

monarchial

one.

Republicanism

r e jec t s

ru le by divine r igh t or by

monarchy or king and

advocates

tha t sovereignty l i e s with

the

people

who have the r igh t

to

choose

t he i r

leaders Most c oun tr ie s a re now

republ ics US

France

West

Germany

Kenya

Tanzania

etc

are

republ ics the other hand monarchial const i tu t ion recognises

kings o r her id i ta ry rulers as n a ti on a l l ea d er s

in

most cases as

heads

of s t a t e s

e g

in

Bri ta in Malaysia Scandinavian and

Benlux

countr ies

The 1962 Const i tut ion of Uganda

i s another

example of

monarchial

Const i tut ion because recognized

kings

not only as

t r ad i t i ona l rulers but also as po l i t i ca l ru le r s s ince any of them could

become Pres ident of th e c ou ntry .

country m y also choose federa l or uni tary Const i tut ion.

In

f e de r al C o n s ti tu t io n the powers of government are divided between

the central government and the const ituent governments

or states

in

such

way tha t

each

const i tuent

par t

i s leagal ly

independent

with in

i t s own sphere. The l eg i s l a tures of the federa l and s ta te governments

have powers

to

pass

laws

in sp ecif ied lim ite d area s But

each i s

sovereign

in i t s

own areas

though

the i r

powers

are l imi ted But

ne i the r

i s

subordinate

to

the other ; both are

coordinate .

F ed er al C ons ti tu tio n s

can be

found

where

d iff ere nt p ar ts which have

enjoyed

autonomy or independence fo r

long time

decide

to

come

together and uni te

in

s ingle

nat ion e . g. United States of America

Canada

Federa l Republic of

Germany.

They can a lso

be

found where

widely d if fe re n t t ri b es

and

peoples are

grouped toge ther under

s ingle

un i t

e g

in

Switz

eland

or Nigeria . federa l Const i tut ion m y also

ar i se out of fear of domination by sect ion of the population by

l a rge r communites i e as means of protect ing minori t ies


23/38

A Unitary Const i tu t ion i s almost t he o pp os ite

of

a federal one

Under a Unitary Const i tu t ion the s ta te

i s

organised

as

a s ingle

unif ied government an d cons t i tuent d i s t r i c t s

hold

power a t the

discret ion of

the

central government he central government

therefore supreme and there are no subsid iary

sovereign

bodies Bu t

the country i s normally divided

into

lo ca l u nits which are

given

some

functions to

car ry

out

on

matters af fect ing

the

people d i rec t ly The

1967

Const i tu t ion of

Uganda

i s

a

good example

of a Unitary system of

government while the 1962

i s

a n e xa mp le t ho ug h

not

so good of a

Federal Const i tu t ion

Other

examples of

Unitary C on sti tu tio ns are

France

nd

ritain

Both

the F edera l and

Unitary

forms

of

government

have advantages

an d disadvantages The federal system

accommodates the

in te res t s

cul tures an d t r ad i t ions

o f v ario us

communites in t he c ou ntry an d allows

loca l

i n i t i a t i ves fo r

development

Bu t

i s

an e xp en siv e system

to operate

because

of the mu l t ip l ic i ty of governments and agencies

an d

can also

mil ta te

against

nat ional unity because

of div ided

loya l t i es

The Unitary system i s simple an d

cheaper

to

administer

allows

fo r

nat ional planning an d al locat ion of resources a t n atio na l le ve l

an d provides a

focus

fo r n at io na l u nity But

th i s

system can be

r ig id

an d f a i l to respond

to

local needs thus

k i l l ing

l oca l

i n i t i a t i ves

fo r

development

Because of

the d i f f i cu l t i e s

seen in the federa l an d

uni tary

systems

there

i s

another form

of

const i tu t ion

based

on devolut ion

of powers and

which has

basical ly

a Unitary

Government with

a

strong

decentra l ised l oca l

governments whether a t d is t r i c t

or

reg ional levels

e g USSR Yugoslavia an d Tanzania

These forms are useful

in

studying various

systems

and

Cons t i tu t ions but

i s

more

important to understand

the

pr incip les

an d

i dea l s upon which they are based so tha t

one

can address the

substance

r ah te r

than form of

these Const i tu t ions or

systems One

has

also to

rea l ize

t ha t

what

a Const i tu t ion

says

and what

happens

in

pract ice are not always

the same

th ings


24/38

Final ly there

is the

question

of

how

the

Const i tut ion

adopts

to changing condi t ions

of

a given

socie ty

Normally

this is taken

care

of by making

provisions

for amendment of

the

Const i tut ion by

the

l eg i s l a ture

Provis ions fo r amendment may be r ig id or f lex ib le

They

are

r igid i f t

i s d i f f i cu l t to

amend the

co nstitu tio n e g

by

requi r ing

2 / 3

majori ty or referendum. I t i s f lex ib le i f

the method

of amendment

i s

easy by requi r ing a simple

majori ty.

A Const i tut ion

may

contain

both f lex ib le and r ig id

method

of amendment depending on

the

importance a ttach ed to

the

provis ion. In

th i s

way s tab i l i ty and

change

are harmonised and the Const i tut ion re ta ins i t s basic

s t ruc ture idea ls

and

author i ty while recognizing and embracing

change

and

development

fo r

i t s

own preserva t ion and fo r the good of the

so ie ty i t serves

4. Y O W N A N W CONSTITUTION

Uganda has had three Cons ti tu t ions s inc e t

at ta ined

nationhood.

These are the Independence Const i tut ion of 1962

the Pig ion

Hole

Const i tu t ion of

1966

and the

Republican Const i tut ion

of 1967. The

1966

Const i tu t ion was merely an interim one and

was

replaced by

the

1967 Const i tu t ion

The

main Const i tut ions

Uganda

has had are therefore

the

1962

and

1967 Const i tu t ions The

1962

Const i tut ion was abrogaged

in

1966

and

replaced

by

the 1966

Const i tut ion. This

l a t e r

Const i tut ion

was replaced by the 1967 Const i tut ion. The 1967 Const i tut ion has gone

through var ious t r i a l s and t r ibu la t ions by successive regimes but t

has

survived

complete

abrogation t th i s

day. Instead

t

has

s uf fe re d f req ue nt

suspensions

and amendments since 1971. In law t

i s st the Const i tu t ion of Uganda.


25/38

9

Current publ ic opinion is sharply divided

on

which Consti tut ion

the country should

be

governed.

There

are th ree

posit ions

taken.

There

are

people who

would

l ike

the

962

Const i tut ion restored

as

t

was

because

to them tha t i s the only l eg it im a te C o ns ti tu ti on

Ugandans negotiated

and

agreed

to have. They argue

t

was

i l l ega l ly a br og ate d w ith ou t the i r consent.

There

are those who

maintain

tha.t

there i s nothing wrong with the 967 Consti tut ion

on which

the country ha s

been goverlled for so

long and tha t

what

i s needed i s merely to amend t to bring

t

in l ine with current

aspi ra t ions . There

a re

those who believe that

none

of the two

Consti tut ions

can

serve present

day

Uganda

and

tha t

what i s needed

is to make a new Consti tut ion but picking out what is good from

the past Const i tut ions.

These

divergent

p os iti on s r ev ea l our fa i lure to agree

on

the

socio pol i t ica l

framework w hich should form

the

basis of our

governance. In other

words

there is no national consensus

on

what

type

of

Const i tut ion Uganda should have. The lack

o f general

agreement has be en caused part ly

by

our colonial pas t

which

was

based

on

divide

and

ru le a

policy

which

emphasised

and exploited

our ethnic r el ig io us s oc ia l and pol i t i ca l differences.

We

have

therefore to discover our common in teres ts and

harness

our

plural ism

for

nation bui lding.

The

two

Consti tut ions themselves have not been

spared

serious

cr i t ic isms. t i s p oin ted out that the

1962

Const i tut ion

was made

in a hurry and

in

a foreign country mainly for purpose

of

securing

independence.

I t i s

argued

tha t

few people

par t ic ipated in

i t s

making

and tha t

the

degree of part icipat ion

lacked

depth an d

fo re sig ht s ince

po l i t i ca l

awakening in the country was low even

among

the

e l i t e .

In

th e resul t some temporary

compromises were

made

resul t ing in unholy a l l iances l ike

th e UP KY

Alliance

which

could not

stand

the

t e s t of

time.

I t

fai led to harmonise

republicanism

and

monarchism.

Equally the 1967

Const i tut ion

was not made under an idea l

environment here was st t

o femergency


26/38

The

term

o f

off ice

of th e UP Government

had

expir ed though

t i s

arg u ab l e

tha t

t

ha d

b ee n e xt en de d

in

1966

f ollow ing

th e

Obote coup

d

e t a t

o r

r e v o l u t i o n

a s

th e High

Court

cal led

t

in Matovu

Case.

t

i s t rue

t h e r e wa s widespread d is c us s io n o f th e

C o n s t i t u t i o n a l

p ro p o s al s

in th e media

an d

in th e

N at i o n al

Assembly b u t th e

m a j o r i t y o f th e people

were

n ot c on su lte d on the

dras t i c

changes

tha t

th e C on st itu tio n

i n t ro d u ced l ike

abol i t ion

of

kingdoms

fe de ra lism

an d

c on ce ntr at io n o f to o much in

th e

P r e s i d e n t . I t

i s

t h e r e f o r e

mai n t ai n ed

that

th e

967

wa s

made

by

a fe w

people

to

protect the i r own in te res t s

As r e g a r d s th e c o n te n ts o f th e

C o n s t i t u t i o n s t i s

argued

tha t th e 1962 C o n s t i t u t i o n m er el y e n do r se d

th e his tor ica l

dispar i ty

in th e t re a tm en t o f

d i f fe ren t

par ts o f Uganda.

Consequently

some

a r e a s

had

federal s ta tus

l ike

Buganda

o t h e r s

s e m i - f e d e r a l s ta tus

l ike

B un yo ro To ro a nd

Ankole

o t h e r s

t e r r i to ry s ta tu s lik e

Busoga

an d th e r e s t

o f th e

dis t r i c t s

u n i t a r y

s t a tus

Therefore

some

a r e a s

ha d

spec ia l

o r

pr ivi leged s ta tus

which

wa s r e s e n t e d by

th e

o t h e r s .

Th e arrangement wa s a hot c hporc h

formul a r

which

c oul d

n o t b u i l d

a u n i t e d co u n t ry . t

i s

fo r th is r eason tha t the 1962 C o n s t i t u t i o n

has

be e n cr i t i c i sed

as

having

merely

confirmed

th e

c o lo n ia l o rd er .

No wonder t

i n t ro d u ced

a

West M i n i s t e r Model of

government.

Th e main cr i t ic ism a bout th e 1967

C o n s t i t u t i o n i s tha t

although

t c r e a t e d

par i ty o f treatm en t

between

dif ferent

dis t r i c t s t

c o n c e n t r a t e d too much power in th e

P r e s i d e n t an d

th e C e n t r a l

Government.

Th e

P r e s i d e n t who h ad c om bi ne d th e

ro les of

P r e s i d e n t

and Prime

M i n i s t e r

wa s gi ve n power

to

promulgate

or dinances

when

N a t i o n a l

Assembly

wa s

n ot s i t t ing

e

ha d power

t o

appoint a l mos t

a l l

p u b l i c

off icers

as

the

P ub lic S erv ic e

Commision

became

merely

a d v i s o r y . There was no

re qui re me nt

fo r popular elect ion

o f

th e

P r e s i d e n t . e

me re l y assumed

power i f

his p a r t y won elect ions

Loc a l

G ov er nm en ts w er e

no t gi ve n power to e lec t th eir l e a d e r s to

rry

out development or dminister so i l

servi es

without

d i rec t ion from

th e

c e n t r e .

This s t r i f f l ed local in i t i a t ives an d

development.


27/38

Final ly

i s

argued

tha t

there

is

a

need

for

a new

po l i t i ca l

order in the

country.

Dras t ic

changes

have taken place

in the

country

s ince

independence. There

is

even

need

to

correct what

went wrong

during colonial ism which past Const i tu t ions did not correc t There

are globa l changes

tak ing place

throughout the world,

and

Uganda

should

not be

taken

unware by

the wind of

change. The

const i tu t ion

requires to ddress modern ssu s nd urrent ssu s whi h h ve ropp ed

up

l ike the posi t ion of

the army, protect ion

of

environment, s ta tus

of

women and r igh ts

of

chi ldren nat ional

ideals

and object ives

democrat isat ion,

plural ism,

development

and

so for th There

i s

therefore a need fo r socio-economic and

po l i t i ca l t ransformation.

There

i s

a

need fo r

a

f resh

s t a r t

and

now

i s the

appropr ia te time when

the Government i s seeking to in troduce

a fundamental

change

in

the

po l i t i c s of

Uganda.

5.

IMS

N

OBJECTIVES

OF THE

NEW CONSTITUTION

In

framing

the

new

Consti tut ion

the

Government

has given

ce r ta in

broad

guidel ines which

form

some

of

the fundamental

pr incip les and

obj ect ives

of

the new

Const i tu t ion These

are

contained in

sect ion

of

the

Uganda Const i tu t ional Commission Sta tu te and are as

fol lows:

a

To

ensure tha t Uganda i s

an

independent and

sovereign

country

within

i t s exis t ing

t e r r i to ry ;

b

To se t

up

a free and democratic system

of government

which

wi l l enable the

people

of

Uganda to

enjoy the i r

bas ic r igh ts and freedoms;

c

To

provide fo r

workable

po l i t i ca l

ins t i tu t ions

tha t

wi l l enable

the people to

reach

general

agreement

on

important

i ssues and

provide

fo r change of government

in

n

orderly

m nner


28/38

d To identify

and

divide

powers and

duties of the

Executive, Legislature and

Ju dic ia ry in

such a way

that

they

can check

on

and

balance

each

other to

ensure

th t no

br nch exceeds or buses the powers given

to t

e To

try

to provide

for

a system of government which enables

the

people

to play an active

ro le in

the

governance

of

their

country

f

To try to develop a system of

election

which i s

democratic

free

and

fa i r and which wil l ensure that

those

elected

to represent

the people in t he Nat iona l Legislature and

lower

levels are t rue

representat ives of the people;

g o se t up

and

provide ways of ensuring that

those

who

hold

public off ices

and

pol i t ica l

posts

are answerable

to

the

people for the i r actions;

h

To ensure that the judiciary i s independent.

In

addit ion to the nine objectives specif ical ly se t out in th e

Statute , wish to add the following

five

aims which

believe

th e

new Consti tut ion should

endeavour

to achieve:

i To

restore

peace,

security and

s tab i l i ty in Uganda;

i i o foster

unity

and

nat ional consciousness amongst the

people of Uganda;

i i i o promote socio-economic development

and

social

jus t ice

in the country

iv o establ ish

measures

that are designed t o s af e- guard

the

Constitution

and the creation of a culture of

Constitutionalism

v To promote regional and internat ional co-operation and

respect

for internat ional law.


29/38

3

a Guarantee

National

Independence

and

Ter r i t o r i a l

Integr i ty:

The

f i r s t object ive of the new Const i tu t ion i s to guarantee the

na t iona l independence and t e r r i t o r i a l in tegr i ty

and sovereignty

of

Uganda.

Although

Uganda may have acquired only flag

independence

in

1962,

nevertheless

did

re co ver th e r ight to

sel f -determinat ion which

i s h ighl y c he ris he d.

The r ight of

Uganda to

exi s t as

a nat ion s ta te

capable of deciding on i t s own af fa i r s including i t s po l i t i c a l and

e onomi systems without interferen e

n

ire tion from

outsi e must

be

careful ly guarded.

Secondly there is a need to keep Uganda

as

one

peaceful and united t e r r i t o r i a l

ent i ty and

not to allow

disentegrate

or any

par t

of

annexed by

a foreign power. The ro le of the army

in

main tain in g th e t e r r i t o r i a l

in tegr i ty i s wel l recognised especially

agains t external aggression. But the

army

has

played and

continues

to p lay crucial ro les

in

the pol i t ics

of

Africa.

The type

of

army

w

should

have and the ro le i t should play in the

future

pol i t ics of

Uganda i s

one

of the

Const i tu t ional

issues

to be determined.

b

Promote National Unity and Consciousness:

The question of nat ional unity i s a

major p roblem

facing Uganda.

The quest ion i s

r e la ted

to the process of nation-building.

The

t e r r i t o r i a l

shel l known as Uganda was put together during the

colonia l period out of many dif ferent nat iona l i t i es or t r ibes .

The

colonia l regime

encouraged the

dif ferences

between the

various

nat iona l i t i es through t he i r

policy of divide

and rule .

Many Post

colonia l le ad ers e xp lo ite d such differences based on

t r i be rel igion

and other s e ct ar ia n p r ac ti ce s to a cq uire and

r e ta in

power.

ow can

w

t rans la te the current desire of

uni ty in d iv ers ity

into r ea l

terms?

ow can we evolve new pol i t ics which avoids divis ions

based on ethnic or

rel igious difference?

ow can

w

promote

our

diverse

cul tura l values

without

causing conf l icts with nat ional

aspi rat ions and

modern

rea l i t i es?


30/38

n we evolve national language to promote our

unity

nd

national

i den t i ty?

ow should we determine who i s

or

should

be

a

Ugandan

ci t izen? There i s a need to

promote factors

which can enhance unity

and

nat ional consciousness drawing

on

ou r

common

his tory cul ture

economic

rea l i t i e s

and other common in teres t s Therefore we

have

to ident i fy our common in te res t s tha t bind us together as

Ugandans,

bui ld new national ethic and vis ion and agree on new soc ia l

contract based on pr incip led

compromises and

genuine

in te res t s

The

process of nat ional bui ld ing wi l l be fur ther advanced

by

building t ru ly

nat iona l in s t i tu t ions promoting

national

reconci l iat ion

and

r ehabi l i t a t ion and

ensuring

even development and equitable d is t r ibu t ion

o f n atio na l resources

c

Establ ish Democratic

System

of Government:

The

Const i tut ion should

establ ish

a free and

democratic

system

of government

tha t

wil l g uar an tee th e fundamental

r ights

and freedoms

of the

people

of

Uganda. In

Const i tu t ional

theory democracy goes hand

in hand

with

human

r ight s Democracry

has been

defined

as a

government

of

the

people

by

the people an d by the

people .

i s a philosophy

of po l i t i ca l

organisa t ion. In terms of Uganda

what

type of demcoracy

should be es tab l ished? Is

Parliamentary or representat ive democracy

or

i s

par t ic ipa tory

or

popular democracy

or

i s

both? I t i s well

known tha t

in Western l i be ra l

democracies

emphasis i s placed on

representa t ive democracy. In Uganda

there

is

a

young an d thr iv ing

popula r

system

of

par t ic ipa tory

democracy through

the

R System.

What

i s

the fu tu re

of

th i s

type of

democracy and

how

wi l l

re la te

to

po l i t i c a l

par t ie s

i f

they

form

par t

of fu ture

po l i t i ca l organisa t ion

in the

country?

Pol i t i ca l par t ie s have

played a

controvers ia l

role

in the

pol i t i cs of

Uganda. What i s the fu ture

of

pluralism

or

mu lt i par ty

po l i t i c s

in Uganda? Why

has

genuine democracy evaded

Ugandans even under

mult ipar ty

po l i t i ca l system?


31/38

Democracy i s

on e

of

the most important

const i tut ional

i ssues

facing

Uganda.

s

has been said dpmocracy i s f requen t bed-fe ll ow

o f c on st it ut io na lism

i f

not

law ful spouse Constitutionalism i s

gheor y conce rn ed with l imited governmenr and ind iv idual r ight s both

of

which are

a t t r ibutes of

democratic

government. Other

elements

of

const i tu t ional i sm

include accountabi l i ty of government

through

periodic

ele t ions

rule

of law separation of

powers and an

independent judic iary The

c ha ll en ge o f Ugandans

i s to

f ind

formular

which wi l l re turn power to the

people

to f ree ly choose the i r l eaders

and

e ff ec ti ve ly p a rt ic ip a te

in

the

government,

in

order

to

f o r e s t a l l

dic ta torship

and

v io la t ion of

the i r bas ic

hum n r igh ts In addit ion

the new

Const i tu t ion

must also address the issue

of

the form of

government. The form m y be uni tary

federal or

based on

devolut ion

of

powers

or

decentra l isa t ion The form of

government

i s maj

or

question tha t the people

of

Uganda have to agree upon in order to

consol ida te

our

na t iona l unity while a t the s me t ime allowing the

various

areas and regions some freedom or autonomy to develop

t hemse lv es a s best as they c an t hro ug h l oca l i n i t i a t i ves

d

Create

Democratic Ins t i tu t ions

fo r

Establ ishing Consensus:

The

new

Const i tu t ion should

create

viable ins t i tu t ions which

wi l l

ensure m ximum consensus

n

order ly succe ss ion of

Government

This i s very important

goal .

There i s

need

for po l i t i ca l

ins t i tu t ions which

are

democrat ical ly

elected

and tha t are accountable

to the

people. These ins t i tu t ions must be cap ab le o f representing the

views

of

the

people

effec t ive ly They must provide forum and

o pp ortu nity fo r

discussion debate

and allow market

place

of ideas to

f lou r i sh

They must mirror the

peoples views on

given

issues

a t

given

t imes . Indeed the Const i tut ion is also re qu ir ed to develop system

which

wi l l

ensure peoples

par t ic ipa t ion

in the governance of the i r

country.


32/38

Consensus i s the idea t h a t s o c i e t y s

widely

shared views sh ou ld

g iv e c on te nt to

the

C o n s t i t u t i o n . I t means

widely s ha red fundamental

v lues

or

ommon

n t r s t s ~

t

s

referen ce to

th e

people

ne

of

the reasons why Uganda

has

not had p o li ti ca l s ta b il it y

has been

the f a i l u r e to

obtain

consensus from the

people

on how to re so lv e the

p e r e n i a l s oc ia l c on fl ic ts which i n most cases have been

resolved by

r e s o r t to

v io lence . I t

i s

therefore

a

g r e a t

challenge to the people

of

Uganda

to device

p o l i t i c a l i n s t i t u t i o n s

which can provide a peaceful

medium of solv ing these

c o n f l i c t s th ro ugh con sens us . The

p o l i t i c a l

i n s t i t u t i o n s the

people

of Uganda agree

on must

be

capable

o f e nsu rin g

peaceful change

of

government.

e)

Develop Free and

F ai r E le ct ora l

System

This leads

m

to the

next bas ic goal

which

i s

to develop a

democratic

free

and f a i r e l e c t o r a l

system

t h at w il l

ensure t r u e

peoples

r e p r e s e n t a t i o n

i n the l e g i s l a t u r e and a t

other l e v e l s .

F a i r and

free

e l e c t i o n s i s one of the

fundamental

instruments

of

guaranteeing

democracy an d peaceful change of government. Claims about r igging

of

e l e c t i o n s

account

fo r

a

high percentage of

m i l i t a r y

coup

d

e t a t s

and

c i v i l - w a r s

i n A f r i c a . The

people o f

Uganda

must

address t h i s i s s u e

to evolve a genuine

democratic

system which i s free

of

corruption fraud

and manupulation

of

the masses. What

type

of e l e c t o r a l system

should

be

establ ished? ow should

e l e c t i o n s be

conducted

and by what

a u t h o r i t y or i n s t i t u t i o n ?

What

safeguards should be b u i l t

i n t o

the

system t o ensure f a i r - p l a y

an d i n t e g r i t y of

the process?

f )

Safeguarding

Basic

Human

Rights:

Ugandans have

i n the

recent

past experienced some

of

the g r o s s e s t

v i o l a t i o n s of human r i g h ts i n

Afr ica .

This i s not because

b a s i c

r i g h t s

and fundamental

freedoms

were not recognised i n the Const i tut ion but

because f i r s t the r u l i n g regimes a t the t ime did l i t t l e to safeguard

and p r o t e c t them an d the people were too weak and ignorant to f i g h t

f o r them.


33/38

How

should

the

new

Const i tut ion

address

this

issue?

How should

the

bas ic

r ights

be

protec ted and

enforced?

How can we address the causes

which led

to

the i r violat ion? What

ins t i tu t ions

should be es tabl i shed

for

th i s

purpose?

Do

we need a permanent uman

Rights Commission,

or

a uman

Rights Court or

a Consti tut ional

Court?

What about

the

content

of

r ights?

Do we

need

to

include special r ights

for

women

children and other

disadvantaged

groups?

g

Guarantee of Judicial Independence

The

new

Const i tut ion should guarantee the independence of the

jud ic ia ry Independence of

the

Judiciary

is a c orn ersto ne o f any

democratic government. W ithout there is no ru le of law and

without

the ru le of law basic r ights cannot be

enforced.

The independence

of the

Judiciary

also enables meaningful

jud ic ia l

review to

take

place,

tha t

i s

the power of the courts

to rule

on the

Const i tu t ional i ty

of

laws

and governmen t

actions

The

Commission

wil l

be a nxio us

to

receive

views

on what

measures

should

be

incorporated

in

the

Const i tut ion

to

ensure

tha t the judic iary remains independent and adminis ters

jus t ice

impar t ia l ly to

a l l Ugandans without

fear or

favour.

What type of

j ud i c i a l

ins t i tu t ions

and

judges

do

we need in

Uganda?

How can we

ensure

tha t jus t ice

is not

only

done

but

is

seen to be

done?

How can

we make jus t ice more

access ible ,

cheaper,

s impler

and speedier?

h Establ ish Separation of Powers and Provide Checks and Balances:

The

new

Const i tut ion

should recognise and

demarcate

the divis ion

of re spons ib i l i ty

among

s ta te

organs

of the executive, the legis lature

and the jud ic ia ry and to

create checks

and

balances between

Documents

Article by the Chairperson of the Constitutional Commission on the Nature and Purpose of a Constitutionocr.en