This column has been on a hiatus for a few weeks as yours truly tried to complete certain tasks in another role – as Research and Graduate Training Coordinator at the School of Law, Makerere University.
We were faced with a good problem – handling the largest number of candidates seeking to defend their Master of Laws (LLM) dissertations in the history of the School.
While the effort to process these LLMs is ongoing, the record number at the oral defences held on 31st October 2024 remains a testament both to the dedication and industry of the staff who taught them and supervised their dissertations, as well as to the significant potential of Makerere as a leader in research and graduate training in Uganda and beyond.
Now, to return to ‘constitutional speech’. Our last column – of 2nd October 2024 – dealt with the ethnic dimensions of Isaac Ssemakadde’s election as Uganda Law Society (ULS) president.
We suggested that the large vote share he won was not just a referendum on the place of lawyers and the legal profession in the struggle for freedom and democracy in Uganda, but was also a protest vote against real or perceived ethnic hegemony in the country (and in the legal profession, among many other economic, political and social formations).
Interestingly, that column received significant pushback from a number of quarters, including some professors at Makerere University, who felt that an enquiry into ethnicity in a matter touching on a professional body was illegitimate – even more so when it extended to an analysis of the demographics of teaching staff.
While I understand some of these concerns, I do not agree with them. What we refer to as ‘tribes’ were the political formations which predated the political entity – Uganda – which was cobbled together by the British from 1894 (in formal terms) to 1962 (also in formal terms) around the nucleus of the Buganda kingdom. In this sense, they are the ‘building blocks’ of Uganda – no less legitimate than the entity under whose framework they now operate.
Importantly, in some ways, they continue to be even more legitimate than the Ugandan State, insofar as they rely for their existence and authority not primarily on coercion (as does the State) but on bonds of genuine affinity. Therefore, ‘tribes’ are not, in themselves, problematic.
Indeed, they can be solid foundations for the development of a wider sense of kinship around Project Uganda – its own inauspicious foundations notwithstanding. However, such broader bonds of affiliation cannot be founded on deceit – or hypocrisy. They must be based on a genuine, continuing and visible effort at fairness, transparency and equity.
If everyone is to feel included in Uganda, and therefore to feel genuinely connected to that entity, there must be a deliberate effort to ensure that all the occupants of ‘Uganda House’ have a proper seat at the table. In this regard, it is cynical – and ultimately counterproductive – to preach a gospel of false ‘patriotism’ and affected ‘national unity’, on the one hand, while in fact perpetrating the crudest forms of ethnic parochialism on the other.
It is deeply immoral to proclaim a united Uganda, in which one is not allowed to see ‘tribe’; while the lived reality of many ‘Ugandans’ is a country in which no public institution has been left untouched by ethnic hegemony.
This is not only unsustainable– it is also extremely dangerous. And we were treated to a taste of this on 24th October 2024 when the Speaker of Parliament, Rt Hon Anita Annet Among was caught in a ‘hot mic’ moment, at the height of the debate on the National Coffee (Amendment) Bill, appearing to give instructions in the terms: ‘Make sure those Baganda don’t get the numbers’.
This was only a quick snippet of a brief and hurried conversation – one unluckily (for the speaker) – recorded and shared for all Ugandans to hear. One is forced to wonder, though, how many more such conversations are happening, or have happened, in the highest offices in the land – in the Judiciary, Parliament and State House.
How many such conversations are going on in the army, the police, prisons, parastatals, educational institutions and so on? In what other contexts are instructions being given to ensure that Baganda – or, indeed, other constituent communities of Uganda – do not actively participate in deciding their country’s destiny?
There are no two ways about it: the speaker’s exhortation was an illegitimate and anti-democratic move to silence, subvert and suppress the democratic voice of the dominant ethnic group in Uganda. Again, one is forced to ask: if the Baganda, who have ‘the numbers’, are being actively obstructed from translating those numbers into effective democratic campaigns, what are they expected to do?
Is the ‘imperialism’ we keep receiving presidential warnings about any less pernicious when it is perpetrated at the sub-national level? Is imperialism, colonialism – or any other ‘ism’ – any better when it is meted out by fellow Africans in closer geographical proximity to us than its more ancient perpetrators?
And if the Baganda fail in Parliament, where are they expected to turn? Ordinarily, they might turn to the Judiciary for redress. However, the current Chief Justice Alfonse Chigamoy Owiny-Dollo has also, on occasion, fallen short with regard to the navigation of ethnic sensibilities.
Notably, in March 2022, at a vigil at the home of the late speaker Jacob Oulanyah, he made a number of pointed remarks, warning that certain Baganda who had protested in the United States were ‘lumpens’ and ‘wicked’ and were leading Buganda down an ‘abyss’. He further warned that the Acholi would take long to forget the perceived affront against them; and that there would be a ‘price to pay’ in the long run in the context of Ugandan politics: ‘One day Buganda will produce a national leader [and] they will fail to sell that national leader…’
In addition, he referenced the fact that ‘an ethnic leader of one of the groups’ had at one time been flown abroad to obtain treatment at the expense of the State. To his credit, a few days later, on 28th March 2022, the Chief Justice did something that, thus far, Rt. Hon. Anita Among appears incapable of doing: he apologized, in a written statement, to the Kabaka of Buganda for the ‘wrong and inappropriate reference’ to him.
Then, on 31st March 2022, the Chief Justice – accompanied by Olara Otunnu (former UPC president) and Ralph Ocan (retired High Court Judge, who incidentally presided over the Buganda riots case in 2004) – met with the Katikkiro of Buganda Owek. Charles Peter Mayiga to make further amends.
While the Chief Justice’s fence-mending was important, it does not quite take way the reality of a broken fence. And little is done to suggest a strengthening of that fence when, a daughter of Buganda – Supreme Court Justice Esther Kisaakye – remains in an unconstitutional grey area of uncertainty: neither allowed to retire, nor formally removed from office under the terms envisaged under Article 144 of the Constitution.
It is even more problematic, for the integrity of this fragile and brittle fence, that Justice Kisaakye’s troubles appear to have arisen in the course of the determination of a petition lodged in the Supreme Court by a national leader from Buganda – Hon. Robert Ssentamu Kyagulanyi – challenging the results of the 2021 presidential elections.
The lingering taint from the mishandling of that presidential petition, and the continued shabby treatment of Justice Kisaakye – among many other things – point towards a Judiciary ill-at-ease with itself, and increasingly incapable of contending with the various complexities presented by Project Uganda.
The Uganda Project requires political leaders, and Judges, who are not shy to ‘see’ ethnic difference, but who nevertheless, recognize that the management of that difference is a legitimate part of democracy and state-building. While in some contexts, justice must be blind – in others, justice can only be true justice when it sees, and responds to, difference – with a view to mitigating, or eliminating, discrimination and, where necessary, implementing affirmative action to redress historical imbalances (as required, among other things, by Article 32 of the Constitution).
Our politics – and our judicial system – must enquire into numbers, not to suppress and silence persons and groups, but to give voice to them within our fragile and really nascent multi-ethnic democracy. To be sensitive to numbers is not to be, as a certain long-serving president is wont to say, ‘obscurantist’.
To have these sensibilities is to respond to the imperative, under Article 43 of the Constitution, to realize a liberal democracy (‘a free and democratic society’). Moreover, in the liberal democracy envisaged under the Constitution, it is not only those who ‘have the numbers’ who are entitled to have their voices heard and respected. In terms of Article 38, each and every Ugandan citizen – even as a single individual – has the right to participate in the affairs of government, and to participate in peaceful activities to influence the policies of government.
Further, even those groups and communities who in their aggregation still do not have ‘the numbers’ are guaranteed space, voice and a seat in ‘Uganda House’. This is the essence of Article 36, which is to the effect that minorities have a right to participate in decision-making processes and which requires that their views and interests be taken into account in the making of national plans and programmes.
And here again, is where as a country, we are continuing to reap the poisonous fruit of the precedent set in that pernicious April 2024 decision rendered by the Constitutional Court of Uganda of Fox Odoi and Others v Attorney General and Others. In that case, among other things, two procedural issues were placed before the Constitutional Court: i) the conduct of the Speaker during the debate on the impugned Bill; and ii) the passage of the Bill without meaningful and adequate public participation.
In both instances, the Court’s decision reflected a failure to appreciate and give life to the high constitutional principles they were requested to engage with – in particular the importance of having laws passed in a manner that allows all voices to be heard (however few, and however unpopular the ideas they wish to espouse), free of intimidation and in an unbiased atmosphere.
Indeed, at Page 36, Paragraph 91 of that ignominious decision, the Constitutional Court essentially said that groups which do not ‘have
the numbers’ need not be allowed the constitutional right (under Articles 1, 36 and 38 of the Constitution) to meaningful consultation and participation.
We should not be surprised, then, that an emboldened Speaker can now confidently instruct that a certain group be prevented from giving full expression to their democratic voice. This is how democracy dies: having shredded the Constitution to throw out the voices of those ‘without numbers’, what is there to now stop the Speaker from turning on those ‘with numbers’?
As ‘those Baganda’ say: ‘Mpaawo atalikaaba’ (the closest English equivalent I can think of are John Donne’s lines: ‘Therefore, send not to know/For whom the bell tolls,/It tolls for thee’).
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.
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