article by the chairperson of the constitutional commission on the nature and purpose of a...
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8/11/2019 Article by the Chairperson of the Constitutional Commission on the Nature and Purpose of a Constitutionocr.en
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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
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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.
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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
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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
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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
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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.
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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
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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
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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.
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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
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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.
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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
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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;
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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.
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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 ;
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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:
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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.
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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.
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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
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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
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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
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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.
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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
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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.
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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
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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.
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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?
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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?
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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.
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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.
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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