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Part 2: Uganda’s Dred Scott v Sandford: Unpacking the real constitutional damage wrought by the decision in Fox Odoi and Others v Attorney General

Last week, this column outlined, in broad strokes, the special notoriety of the United States Supreme Court in the 1857 case of Dred Scott v Sandford and promised to explain the several, and significant, ways in which the 203-page decision of five justices of the Ugandan Constitutional Court in Fox Odoi and Others v Attorney General and Others (2024) mirrors that old, unfortunate and terrible judgment.

The present column begins this explanation, starting with the court’s finding with regard to the right of Ugandans to meaningfully and actively participate in their own governance. In Fox Odoi, the Constitutional Court held that there had been no violation of the right to public participation in legislative processes – notwithstanding the fact that the Parliament’s Committee on Legal and Parliamentary affairs spent only a total of 6 days (actually technically only about 3 and a half days) in taking presentations from the public on the proposed law.

In reaching this conclusion, the Court adopted a very strange approach to the interpretation and application of Articles 1, 8A (read together with Objective II (i) of the National Objectives and Directive Principles of State Policy), 36 and 38 of the 1995 Constitution.

It might be helpful, for present purposes, to briefly outline the contents of these provisions. In the first place, Article 1 (1) of the Constitution proclaims that all power belongs to the people of Uganda who shall exercise their sovereignty in accordance with the Constitution.

The Constitution also emphasizes that all authority in the State emanates from the Ugandan people, who must be governed through their will and consent (Article 1 (2)); that all power of the government and its organs derive from the Constitution, which in turn derives its authority from the people who consent to this governance in accordance with the Constitution (Article 1 (3)); and that the people must express their consent on who shall govern them and how they shall be governed through regular, free and fair elections of their representatives or through referenda (Article 1 (4)).

Further, under Article 8A (1) of the Constitution, it is specifically asserted that Uganda must be governed based on principles of national interest and common good enshrined in the National Objectives and Directive Principles of State Policy (‘the National Objectives’).

In this regard, Objective II (i) of these National Objectives is to the effect that the State must be based on democratic principles which empower and encourage the active participation of all citizens at all levels in their own governance.

This provision is buttressed by Article 38, which guarantees to every Ugandan citizen the right to participate in the affairs of government individually or through their representatives in accordance with law (Article 38 (1)) and further protects the right of every Ugandan to participate in peaceful activities to influence the policies of government through civic organizations (Article 38 (2)).

Finally, on this particular point, one must have regard to the provisions of Article 36, which specifically provides that minorities have a right to participate in decision-making processes and that their views and interests must be taken into account in the making of national plans and programmes.

The essence of the above provisions is to emphasize the location of power in Uganda – as residing in citizens – and to assert the right and duty of these citizens to actively participate in their own governance. These provisions are not redundant. They are based on a painful history (both colonial and post-colonial) in which the citizens of Uganda were denied the fundamental right of self-governance and self- determination.

They are informed by a past in which a national parliament for the Uganda Protectorate was only established in 1920 (twenty-six years after the formal establishment of the British Protectorate over Uganda in 1894); and, even then, in which Africans were only allowed as representatives in 1945.

These provisions are also rooted in a history in which Africans in Uganda were only allowed the vote in 1958 (only four years to the grant of independence in 1962); and in which parliamentary representation and democracy in the post-independence era have been observed more in breach than in practice (including the nine years, from 1971-1979, in which President Idi Amin suspended Parliament and ruled Uganda by decree).

The combined effect of this difficult history was to deprive Ugandans of any real experience of the full meaning and power of constitutional citizenship – and of the confidence that accompanies that special status. I can think of no better way to articulate the extent and significance of this diminished confidence than to refer to the vivid description, rendered by Judge Lugakingira in the Tanzanian case
of Rev. Christopher Mtikila v Attorney General (1993).

While referring to the situation of Tanzanians at that time, the powerful observations apply with equal force not only to Ugandans in the 1995 moment (and since), as they do to many Africans and other oppressed persons all over the world: ‘...over the years since independence Tanzanians have developed a culture of apathy and silence.

This, in large measure, is a product of institutionalized mono- party politics which in its repressive dimension, like detention without trial, supped up initiative and guts. The people found contentment in being receivers without being seekers.’

The description here is one of citizens who lack the confidence to act like citizens – who are content to look on while others do as they will, lacking any ‘initiative and guts’. It is a description of passive, almost sullen, citizens. It calls to mind the terrible picture of Africans contained in Rudyard Kipling’s 1899 poem, ‘The White Man’s Burden’, in which Africans are described as: ‘...new-caught sullen peoples’.

The constitutional provisions – in Articles 1, 8A (together with Objective II (i) of the National Objectives) 36 and 38 – were meant to encourage active and confident, rather than sullen and passive, citizenship. They were directly informed by a sad and painful history, and were born in the blood, sweat and tears of generations of Ugandans.

They represent an attempt to restore to Ugandans the dignity, power and responsibility that ordinarily should come with the status of citizenship. It is for this reason that the decision in Fox Odoi - in finding 6 days of selective and hurried consultations by a Parliamentary Committee (which included in some cases 24 hours’ notice to invitees) to have constituted adequate ‘public participation’ – is extremely unfortunate, and even dangerous.

It is noteworthy, in this regard, that in terms of Rule 129 of the Rules of Procedure of the 11th Parliament of Uganda (Statutory Instrument No.30 of 2021) – made under the authority of the Article 94 (1) of the Constitution – after a Bill is read for the first time in Parliament, it is referred to an appropriate Committee (Rule 129 (1)), which is then allowed up to 45 days within which to examine it and make all necessary consultations with regard to it (Rule 129 (2)).

Why would a Committee of Parliament, which is allowed up to 45 days (almost one and a half months) within which to carry out consultations with a wide variety of Ugandans and hear their various views and opinions, be allowed to get away with a most perfunctory process aimed at excluding as many of those citizens as possible?

In sanitizing the tragicomic approach to consultation adopted by Parliament’s Committee on Legal and Parliamentary affairs, the Constitutional Court in Fox Odoi ignored significant progressive pronouncements reached by courts in other jurisdictions, notably Kenya and South Africa. In British American Tobacco Kenya PLC v Cabinet Secretary for the Ministry of Health and 2 Others (2019), for instance, the Supreme Court of Kenya correctly observed, among other things, that: ‘Public participation must be real and not illusory.

It is not a cosmetic or a public relations act. It is not a mere formality to be undertaken as a matter of course just to “fulfill” a constitutional requirement. There is need for both quantitative and qualitative components in public participation.’

Similarly, the Constitutional Court of South Africa in the case of Doctors for Life International v Speaker of the National Assembly (2006) observed that: ‘[T]he duty to facilitate public involvement must be construed in the context of our constitutional democracy which embraces the principle of participation and consultation ... the duty to facilitate public involvement will often require Parliament and the provincial legislatures to provide citizens with a meaningful opportunity to be heard in the making of the laws that will govern them. Our Constitution demands no less.’

In ignoring these progressive trends in jurisprudence, the five justices of the Constitutional Court in Fox Odoi suggested, in part, that those decisions had been reached on account of peculiar and specific provisions in the Constitutions of those countries, such as Section 72 (1) (a) of the South African Constitution (1996) or, presumably, Articles 10 and 196 of the Kenyan Constitution (2010).

However, this view is clearly untenable if one compares – even in the most cursory manner – the South African and Kenyan Constitutions, on the one hand, and the Constitution of Uganda, on the other. Section 72 (1) (a) of the South African Constitution, for example, simply provides that the National Council of Provinces must ‘facilitate public involvement in the legislative and other processes of the Council and Committees’.

For its part, the Kenyan Constitution simply refers to the national values and principles of governance as including democracy and participation of the people (Article 10 (2)(a)) and also mandates County Assemblies to ‘facilitate public participation and involvement in the legislative and other business of the assembly and its committees’ (Article 196).

Are these provisions really any different from the provisions of our own 1995 Constitution? Does a reading of the clear text of Articles 1, 8A (together with Objective II (i) of the National Objectives), 36 and 38 of the 1995 Constitution suggest that there is somehow no requirement
for real, meaningful and effective public participation in governmental (including legislative) processes guaranteed to the citizens of Uganda?

To borrow the language of the South African Constitutional Court in Doctors for Life: ‘does the Ugandan Constitution demand any less than its brother (or sister) Constitutions’?

We shall answer these and related questions in the column next week, as we continue our exploration of the Constitutional Court’s decision with respect to public consultation (including the implications this has already had – and will doubtless continue to have – for Uganda’s experiment with democracy).

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.

Comments

-2 #1 Sirlee 2024-05-22 10:11
This is one of the most un-inspiring, un-informative and boring pieces I have ever read - and my disappointment is aggravated when I know that it’s written by my cherished Doc - Kabumba.

There is really nothing much being communicated via this piece.
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0 #2 Lakwena 2024-05-24 18:56
Quoting Sirlee:
This is one of the most un-inspiring, un-informative and boring pieces I have ever read - and my disappointment is aggravated when I know that it’s written by my cherished Doc - Kabumba.

There is really nothing much being communicated via this piece.


But Sirlee, your limited and/or lack of comprehension of such a highbrow subject, does not automatically translate into a boring rumbling on your part.
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