Speaking during a dialogue on human rights and constitutionalism, Kabumba, who teaches constitutional, international, administrative law and jurisprudence at Makerere, says Uganda’s Constitution is essentially an illusion. He said that the Constitution has repeatedly failed to uphold its principles, with real-world practices often contradicting its written ideals.
He avers that the “lies” being told about the constitution and constitutionalism, especially by high-ranking public officials, are endangering the nation and threaten the foundations of democracy.
“I actually think the Constitution tells a lot of lies for many reasons. From Article 1 – “All power belongs to the people”. The Ugandans know that in this Uganda that is not quite the truth. I don’t have to deliver the point. Article 2 – “The constitution is the supreme law”. We know the supreme law. The idea that there is an independent judiciary in Uganda, we know. The idea that there is even a parliament, we know. The idea that there is even an executive, the idea that there is a budgeting process, Bank of Uganda, the governor that is independent, we know,” stated Kabumba at a recent dialogue on human rights and constitutionalism.
He says like all liars, the Constitution of Uganda tells lies probably to keep peace.
“To keep hope alive, to postpone the war for another 20-30 years. Our constitution does tell very many lies from the very first article to very fundamental things it says to certain fundamental assumptions it makes about popular justice, about democracy, about sovereignty in very many ways and in many instances, it is a book of lies,” he stated.
He further criticized the Constitution (Article 22) for failing to prevent extra-judicial killings, citing examples such as the Kasese killings of 2016 and the November 2020 protests, during which 54 people were killed. Kabumba argued that these failures have encouraged a culture of mob justice, as societal faith in legal and judicial processes continues to erode.
He says the lies under Article 22 have now been copied by some elements in society who resort to mob justice as a means of resolving disputes.
“Steal a phone or something maybe worth twenty thousand shillings you will die. You will be lynched. So we tell lies to ourselves. We tell lies about who we are. It is not only lies told at the national level. There are also lies told at societal level,” he said.
Abusive Constitutionalism?
Asked whether there is a distinction between the constitution and constitutionalism, Kabumba said that ideally, one presupposes the other. “And the absence of one might also explain the absence of the other. So constitutionalism is the practice of living up to the constitution that you made for yourselves,” explained Kabumba.
“The truth is less romantic, it is the truth of an imposed constitution during the NRM era with pre-determined outcomes, the CA [Constituent Assembly], elections for instance one day you can’t campaign on political party activities, all of you must campaign in one forum, the CA itself, the Constitutional Commission itself composed of NRM people. So the entire story of even the constitution-making is a story of lies,” he added.
Kabumba argues that the process leading to the writing of the 1995 Constitution was also flawed.
“So the document that comes out, even the preamble, ‘We the people of Uganda.’ That itself was a lie,” he restated.
He argues that the idea that the constitution was made by Ugandans is worse than manufactured consent.
“It was forced. It was coercion. So in those circumstances, it is not surprising that we have a document that tells lies. The process was problematic. It is a fruit of a poisonous tree.”
Is there hope?
Kabumba suggests that the hope is with the young Ugandans and the likes of Isaac Ssemakadde, Uganda Law Society (ULS) president who are standing up to stare the lie in the face.
“The hope is with that gentleman who is not very popular in this room. Isaac Ssemakade. The hope is in those people who have the gusts. Of course, they may say a bad word here and there. Of course, that is terrible. We condemn it but those who are condemning it with a very nice statement are quiet about Justice Kisakye. Are quiet about everyday substantial violations,” he said.
“The hope is with those Ugandans who are willing to remove the ties and courts. Maybe even all their clothes when the occasion demands it and speak truth to power,” he added.
Justice Esther Mayambala Kisaakye, of the Supreme court, recently fled the country fearing that some individuals were after her life. Ssemakadde who was recently elected as ULS president continues “turning tables” in the judiciary demanding the restoration of integrity in Uganda’s legal system.
Human rights activists say that the time between 1995 when the constitution was enacted and now has demonstrated that the promises or the aspirations in the supreme of the land have fallen short.
Sarah Kihika Kasande, a lawyer and head of office of the International Center for Transitional Justice (ICTJ) in Uganda says Uganda has fallen short of living up a breathing aspirations in the 1995 Constitution.
“Whether it is through the manipulation of the constitution for political gain, whether it is again the very institutions that were meant to be accountable, independent and adhere to the rule of law,” she said.
Kihika noted that some of the institutions meant to protect the rights of Ugandans have moved away from those roles and become instruments of repression and have usurped the sovereignty and power of the people.
“I agree that we are not at yet another critical juncture. The key elements that made the constitution strong at the time have now been removed,” she said.
inarticle} inarticle}