Constitutional reform in Uganda: the new approach.

The political antecedents of the new constitution are well known and need not be detailed here.(1) Suffice it to say that Uganda was, in the 1970s and 1980s the next thing to hell on earth.(2) The country's political, economic and social institutions lay in ruins while the so-called state security agencies harassed, tortured and killed an untold number of innocent people.(3) There then followed a series of coups which brought in a succession of unstable and short-lived governments which came to an end in 1986 when, following a six-year `bush war'. the National Resistance Army -- consisting partly of young men and child soldiers -- deposed the then government and installed its commander, Yoweri Museveni, as President and leader of a broadbased government, under the umbrella of the National Resistance Movement (NRM). Thus having unconstitutionally assumed power and well aware of the country's controversial constitutional history, the NRM government was minded not to follow in the footsteps of its predecessors. In particular, it was determined to break the cycle of violence and, like many Ugandans, it believed that the cause of the country's political, economic and social problems was the lack of `a good constitution'.(4)

It was felt that such an instrument would, if promulgated, provide the basis of good and democratic governance that had eluded Uganda since 1962. Much store was thus placed on constitutionalism. Such views, are, of course, not new; they were equally strongly held by the authors of the independence constitution. They too believed in the magical features of such model instruments.(5) However, as the events and political turmoil of the last thirty years vividly indicate, constitutional arrangements alone are not enough. The reign of terror which Idi Amin and Milton Obote inflicted on the hapless people of Uganda was in spite of and not because of the 1967 constitution, under which they held power. The problem was that the 1967 Obote constitution, like its 1962 colonial counterpart, assumed the existence of `settled political and economic conditions and a broad consensus on social values'(6) Which were and are, to this day, still absent. Worse still the constitution was expected `to foster a new nationalism, create a new national unity out of diverse ethnic and religious communities' which characterized Ugandan society, `prevent oppression and promote equitable development, inculcate habits of tolerance and democracy and ensure capacity for administration'(7) in an economically and politically less-developed country.

Moreover, it is now self-evident that some of the tasks which the constitution was called upon to discharge were not only contradictory, but in a multi-ethnic country they were frequently divisive. Indeed, President Yoweri Museveni castigates the Uganda People's Congress (UPC) and the Democratic Party (DP), the country's two leading political parties, on precisely similar grounds. He has thus, over the last ten years, restricted political party activity and has persistently argued that the two political parties -- being `sectarian and divisive' -- were responsible for the country's political and economic ills. Hence, his `movement' type of government which, at first, was all embracing but which later increasingly became less so.

Yet rather ironically the NRM government over which Museveni presides has as its long term objective the restoration of political parties and is keen to return the country to constitutionalism and democratic rule. It can safely be assumed therefore that it, too, regards a well-crafted constitution as a panacea for all the political problems the country has had to contend with since independence. The basic political principles of the NRM and its `bush-war' rhetoric are in line with this thinking, and were summarised as follows:

Dictatorship has bedevilled our country for too long, and it is the wish of our people, and the pledge of the NRM, that this evil should be wiped from Uganda once and for all. In the history of every nation there comes a time when the clamour for democratic rights is so great that there can be no peace and no stability unless there is also democracy. Uganda is at such as point.

At this point in our history, without democracy there can be no peace and no stability. Without peace and stability there can be no economic development and no prosperity. Thus, if only for this reason, the struggle for democracy is a crucial one.

But there is another reason, too. The NRM believes that it is the inalienable right of all peoples to freely choose their government and determine the manner of that government. Rigged or manipulated elections are an insult to the people, and a sure recipe for instability, conflict and upheavals. Constitutions imposed on the people by guise, wile or force cannot be the basis of stable and peaceful governance of men.

It will be one of the primary duties of the NRM government to effect a swift but systematic return to democratic government after toppling the Obote regime.(8)

It was some time, however, before any attempt was made to bring about these fundamental changes, and it was not until pressure was brought to bear on the leadership of the NRM that steps were made to institute constitutional changes. Even then the arrangements for effecting these reforms were made unnecessarily cumbersome and protracted.

So, whether the movement for constitutional reform was influenced by these considerations, or whether it was driven by aid conditionalities, the fact of the matter is that in 1988 the NRM government embarked upon a root and branch reform of the constitution; the details of which are the primary concern of this study.(9) The focus of attention will be the work of the Constitutional Commission, its proposals and by way of conclusion we shall examine and evaluate some of the salient features of the new constitution.

The Constitutional Commission

The NRM, having waged and won `a protracted people's war against tyranny on a platform of restoring democracy and personal freedoms' was, as indicated earlier, anxious to demonstrate that theirs was not yet another coup d'etat for the benefit of the elite rather than the masses. They aimed to do this by the restoration of constitutionalism and the rule of law.(10) To that end, a bill setting up the requisite legal framework was eventually presented to the legislature towards the end of 1988 when it was freely and critically debated, passed and, after receiving the presidential assent, came into force on 21 December 1988. Having stated its raison d'etre, the Act made provision for the establishment of a 21-member Constitutional Commission, with widely drawn terms of reference. More specifically, the Commission was to study and review the existing constitutional arrangements with a view to making proposals for the enactment of a national constitution that would, inter alia, guarantee the country's independence and territorial integrity, the fundamental rights and freedoms of the individual, the independence of the judiciary, the establishment of a free and democratic system of government, a free and fair electoral system including viable political institutions at both local and national levels, the observance of the doctrine of the separation of powers and the principles of the public accountability by the holders of public offices and political posts.(11)

For the purposes of carrying out its mandate and before formulating a draft constitution, the Commission was to seek the views of the ordinary citizen through the holding of public meetings, debates, seminars and workshops throughout the country.(12) It was hoped that this would `stimulate public discussion and awareness of constitutional issues'(13) thus enabling the people to participate in the making of their own constitution and, arguably, having been actively involved, the people would respect and uphold the new constitution and in the long run prevent its subversion. The Commission was to complete its work within two years, but if necessary, the Minister had power to extend its tenure of office as he saw fit.(14) The Commission's part in the constitution-making process was, as noted earlier, merely advisory; it was to submit a report, including a draft constitution, to the Minister for his consideration. The enabling legislation, interestingly enough, was silent on the question of the promulgation of the new constitution. How and by whom this …