Constitutionally Speaking… Gakyali mabaga – Part II

The first edition of Constitutionally Speaking was published on 2nd August 2023.

In it, I explained that the decision to write the column had been motivated by five main factors: (i) the obligation upon those persons who have obtained some advantage (whether in terms of education or other forms) to be of some use to their society; (ii) the importance of pushing back against misinformation and disinformation (especially where this is at the instance of autocratic forces within the State); (iii) the unique burden on Ugandans of my generation to do our part in responding to the challenges of the country we call home; (iv) the importance of adding my own voice to those persons, within the academia and in the wider civil society, already making a modest contribution to guiding the national conversation; and (v) the understanding that is an additional mechanism through which to discharge my vocation as a musomesa (teacher) – both in professional and personal terms.

These remain the considerations which inform this weekly labour. If I felt that those conditions had changed, I would immediately stop writing the column – because the effort required is significant, and does take away energy required elsewhere. To this end, I must annually take stock of the work done in the previous year, and assess the extent to which the self-articulated mandate still holds.

In this regard, at the start of last year, in an article entitled ‘Gakyali Mabaga’ (published on 17th January 2024), I took stock of the ground that had been covered up to that point. It was noted that, in strictly quantitative terms, by that time, about 27 articles of the 1995 Constitution had been referenced and discussed – or about 9% of that document.

Certainly, while some progress had been made, significant work still had to be done. And some work was indeed done. In the past year, 2024, this column continued to address a variety of issues germane to the health of Uganda’s constitutional order. In the course of that effort, there were certain provisions of the Constitution – already referenced in 2023 – which were again referred to in the column last year.

These include those concerning: the defence of the Constitution (Article 3); the constitutional guarantee of a secular state (Article 7); the freedom from discrimination (Article 21); the right to liberty (Article 23); the right to a fair trial (Article 28); the freedoms of conscience, expression, movement, religion, assembly and association (Article 29); the State’s obligation to take affirmative action in favour of particularly marginalized groups (Article 32); the right to civic participation (Article 38); acceptable limitations on human rights (Article 43); executive/ presidential power and authority (Article 99); qualifications of the President (Article 102); tenure of presidential office (Article 105); exercise of judicial power (Article 126); financial year planning and budgeting (Article 155); and the composition and authority of the Central Bank (Article 161).

The repetition in these instances was not intended, and can only suggest that these remained of particular concern for our constitutional context. In addition, the column also broke new ground last year, also referencing – and discussing, those constitutional provisions regarding: sovereignty of the people (Article 1); governance based on national interest and common good (Article 8A); duties of citizens (Article 17); the right to life (Article 22); the freedom from torture and cruel, inhumane or degrading treatment or punishment (Article 24); the right of women (Article 33); the rights of children (Article 34); the rights of minorities (Article 36); the prohibition of derogation from particular rights (Article 44); the composition of Parliament (Article 78); functions of Parliament (Article 79); qualifications and disqualifications of Members of Parliament (Article 80); rules of procedure in Parliament (Article 94); the office of the President (Article 98); removal of the President (Article 107); the office of the Vice President (Article 108); the office of the Prime Minister (Article 108A); the position of Cabinet Ministers (Article 113); vacation of the office of Minister (Article 116); the obligation on Parliament to make a law providing for the participation of the people in the administration of justice by courts (Article 127); independence of the judiciary (Article 128); administrative functions of the Chief Justice (Article 133); appointment of judicial officers (Article 142); tenure of office of judicial officers (Article144); establishment and composition of the Judicial Service Commission (Article 146); functions of the Judicial Service Commission (Article 147); the office of District Chairperson (Article 183); the office of Resident District Commissioner (Article 203); re-appointments and concurrent appointments (Article 253); the position of written and unwritten law in place at the time of the adoption of the Constitution (Article 273); and modification of existing law (Article 291).

Taking into account the 27 provisions covered in 2023, as well as the 31 new ones traversed in 2024, this column has now cumulatively engaged with 58 Articles of the 1995 Constitution. Again, taking a purely quantitative approach, this represents about 20% of the provisions of that document.

Evidently, it still remains the case that Gakyali Mabaga – there is so little that has been done, and there is so much left to do. Now, more than ever, as critical values of human society come under new strains and tensions at home and abroad, it is critical that more, not less, people, engage in productive public discourse, whether this is through the pages of The Observer or through other media.

Younger Ugandans, especially, might not yet realize it, but 2025 is a particularly pivotal moment. Abroad, there are a number of critical indications which point to a breakdown of the global rules-based order established in the wake of the Second World War. This has immediate, medium and long-term implications for the prospects for peace and stability in Africa and Uganda.

If one needed any evidence for this, one need only look at developments in the Democratic Republic of Congo (DRC) over the past few days, with the real possibility of an all-out war between DRC and Rwanda.

The abdication of global leadership by major world powers, as they turn inward and, in some cases, even give in to their worse national impulses (including racism, anti-immigrant sentiments, anti-Muslim prejudice etc) also means less attention to Africa, and more room for our dictators to do to us what they will.

This may explain the casual confidence with which the President’s son, and current Chief of Defence Forces (CDF) Muhoozi Kainerugaba set a date and a place – via a 16th January 2025 post on X (formerly Twitter) – for the execution by hanging of Rtd Col Dr Kizza Besigye [apparently as ‘the tree of traitors’, in Gulu, on 9th June, which is celebrated as Heroes’ Day).

A day later, he again casually, via the same medium, brought the execution date forward (to 9th May 2025), following what he termed as provocation by the Parliamentary Committee on Defence (their crime apparently being to have had the effrontery to summon him to explain his disturbing Tweets). Unfortunately, I fear that 2025 will see only more ghoulish developments – in word and in deed.

The looming election season aside (itself being only another dangerous addition to an already explosive powder keg), 2025 is also the year in which the 1995 Constitution makes 30 years – the lifespan of a generation. It is a most opportune year – constitutionally speaking – to reflect on how and why this Constitution failed to live up to the promise that underpinned its formulation and adoption.

Its Preamble memorializes that it was made by the people of Uganda ‘recalling [their] history which ha[d] been characterised by political and constitutional instability’ and ‘committed to building a better future by establishing a socio-economic and political order through a popular and durable national Constitution based on the principles of unity, peace, equality, democracy, freedom, social justice and progress’.

Clearly, those tasked – or (more accurately) who tasked themselves – with bringing the full promise of that document to life gravely failed in this sacred endeavour. In so doing, by the very standard set under the Preamble to that document, they have betrayed our past and failed our collective future.

To slightly paraphrase the words of the character Mosese in Francis Imbuga’s 1976 play Betrayal in the City: ‘It was better while we waited. Now we have nothing to look forward to. [They] have killed out past and are busy killing our future.’

I wish I could end on a note of hope. But, as it is said, hope is a fool’s errand. The year 2025 will likely be a very dark, bleak and terrible one for us all. At a personal level, it has already been a bad one – my paternal cousin, Eron Kiiza (whose mother is the younger sister of my late father) is held in Kitalya prison for no other reason than robustly defending his client – Rtd Col Dr Kizza Besigye in terms envisaged under Article 28 of the Constitution.

If there is any hope to be located in this year, and in the years to come, it is to be found in the action of such persons as Eron Kiiza, and countless other younger Ugandans determined not to sit by as bush men (and women) from the class of 1986 cynically celebrate ‘liberation day’ all the while keeping the country and the dreams of its people hostage indefinitely.

In terms of setting the tone for the inevitable struggles of 2025 and beyond, I can do no better than close this column with the words of Eron Kiiza, Kitalya Prisoner No.002/2025, written on 10th January 2025 to the Ugandan public: ‘Greetings, Eron Kiiza (002/25) greets you. I am healing. Strong in spirit.

Freedom is everything. I am a prisoner of conscience. I am here because of standing up for freedom, for civilians wrongly tried in military tribunals contrary to the law. I will leave here and join you soon, stronger.’

Dear reader, make no mistake. We are all prisoners. It is only the size of our jails that differs. It is thus equally incumbent upon us all to struggle for our collective liberty. Freedom is, indeed, everything.

The writer is Senior Lecturer and Acting Director of the Human Rights and Peace Centre (HURIPEC) at the School of Law, Makerere University, where he teaches Constitutional Law and Legal Philosophy.