“Whenever there is uncertainty as to how the incumbent will leave power, those who are opposed to his stay and the citizenry will mobilise to get rid of the uncertainty. This has been building over time,” says Dr Ronald Naluwayiro, a senior research fellow at Advocates Coalition for Development, a governance issues NGO.
Naluwayiro, who has done extensive research on legal perspectives to peace and security in the Great Lakes region, says in a recent interview: “If there is an attempt to remove the age limit, it being the only option legally provided to guarantee a peaceful transfer of power, it is not surprising to see this standoff which, by the way, is going to heighten.”
HISTORICAL CONTEXT
The Observer’s examination of how Article 102(b) came to be inserted into the Constitution reveals that it was intended to pre-empt political instability prompted by lack of procedure for a peaceful transfer of power.
On page 320 of the report of the Constitutional Review Commission, which collected views across the country ahead of the drafting and promulgation of the 1995 constitution, it is noted that most Ugandans were concerned about lack of provisions for orderly succession.
“Even though the past constitutions have made provisions for the tenure of office of government and the democratic mechanisms for handing over power to a new elected government, these have never been observed.
Where leaders did not appear to be prepared to hand over power after free and fair elections, they have been violently resisted. The culture of clinging to political office was criticised in many of the submissions we received. Even extension of the term of office of NRM by the NRC [National Resistance Council] was condemned by some as undemocratic,” the report notes.
And so, Ugandans proposed the limitation of presidential terms because, as the report notes: “the overwhelming majority view from the memoranda is to limit the term of office of the president. The general consensus is two terms…There were people that suggested that the constitution should fix the maximum age of a president. The fear is that at a certain age, say; above 80 years, a president may be senile.”
The commission’s work ran over three years; from February 1989 to December 1992. It held 86 district seminars; attended educational fora in 870 sub-counties; returned to each sub-county to collect oral testimony and written memoranda; analysed 25,547 memoranda; organised regular media discussions; before preparing the draft constitution, which was considered by the Constituent Assembly (CA).
The commission noted that 70, 75, 80 had been suggested as the maximum age limit for one to become a president. The CA approved the two- term limit and set the maximum age at 75 years.
Prof Joe Oloka-Onyango, a constitutional law scholar at Makerere University, told The Observer in a recent interview that these were part of the foundation of Uganda’s constitution.
“This is the basic structure of the constitution. To understand it better, you read the preamble where the wording is clear in recognising that the context of the enactment was informed by the fact that our past was characterised by political instability; lack of clear transfer of power being one of them,” said Oloka-Onyango.
ENTER MUSEVENI
Whereas the constitutional guarantees seemed to suggest that Uganda was now on a journey towards constitutionalism, in 2005, parliament lifted the presidential term limits to allow President Museveni stand for a third term. Twelve years later, parliament wants to remove another limit to ostensibly accommodate Museveni in 2021.
Some NRM supporters claim Museveni’s exceptional personality cannot be wished away.
In an article published by The Observer last week, Kampala minister Beti Kamya argued that “the edge that President Museveni has over most people is that he is an all-round exceptional…sitting with President Museveni every week in cabinet, I am constantly amazed at his knowledge base and intellect in sciences, arts, world affairs, history, geography, archaeology, etc…His knowledge, stamina, resolve and resilience are matched by his wisdom, wit, calmness and tolerance.”
However, other historicals way back in 2005 opposed the lifting of term limits. Museveni’s childhood friend, the late Eriya Kategaya, wrote in his book, Impassioned for Freedom: “I trusted President Museveni whenever we agreed on what to do but the kisanja [third term] project has shaken my faith in him. It is not only President Museveni who has shaken my faith and trust in leaders but some of my colleagues in cabinet are equally guilty. It seems the survival instinct overrides everything else”.
Kategaya warned that the lifespan of any man is shorter than that of a country.
“If the Movement cannot produce another leader, then we have failed. That is what has killed the old parties. I first heard of [Milton] Obote as leader of UPC in 1961 when I was in Senior One…The Movement should avoid that feudal mentality of treating someone like a king; otherwise, we are not democrats,” Kategaya noted.
In a further interview with veteran journalist, Joachim Buwembo, Kategaya noted that he hates the thinking that Museveni is indispensable: “Where did Museveni come from? He came from the people of Uganda. I am sure the people can produce another Museveni…Is Museveni, God forbid, going to live forever?”
The lifting of the term limits forced senior cadres like Amanya Mushega, Miria Matembe, Maj Gen Mugisha Muntu, Maj John Kazoora and Bidandi Ssali to part ways with Museveni.
In their autobiographies, Bidandi, Sam Njuba and Kazoora all lambasted the president for clinging onto power.
ABOUT AGE LIMIT
Promoters of the age limit bill say that since amendment of the constitution is legal, Ugandans should be allowed to choose who governs them however old.
“If voters do not want a particular person to lead them or they are tired of his/her governance style, they will reject that person at the time of elections and vote them out,” a paper prepared by this group reads in part.
But legal scholars remind them that there are universally accepted standards for constitutional amendment.
“Constitutions world over are amended to improve accountability of those holding power, or to make institutions stronger or promote individual freedoms. In the instant case, we have been amending our constitution to enable one person to stay in power and by doing that we have weakened even the institutions that must provide checks and balance,” Naluwayiro said.
Prof Oloka-Onyango said a constitutional coup is underway.
“The proposed amendment is the last nail to this. This tinkering with the constitution has fundamentally destroyed the character of the constitution. The basic structure of the constitution is destroyed,” Oloka said.
The basic structure principle, which finds its expression in most of the constitutional law cases reported from India and South Africa, was developed by the Supreme Court of India in the case of Kesavananda Bharati v. the State of Kerala. The court held that certain features of the constitution of India are beyond the powers of amendment by India’s parliament.
This principle has since been applied outside India in judicial analysis to determine whether particular constitutional amendments conform to the structure of a respective constitution.
In a book titled, ‘Comparative Constitutionalism and Good Governance in the Commonwealth’, the authors argue that due to the constitution’s vulnerability to retrogressive amendment, the principle enables judicial involvement in tackling ‘political’ questions and protecting fundamental constitutional provisions.
“The basic institutional structure…must remain intact and thus parliament could not amend the constitution’s essential or basic structure, even through a formal constitutional amendment process, because this would amount not just to its amendment but to its replacement by a new document,” reads the book.
Dr Christopher Mbazira principal, school of law at Makerere University, says the alternative would be to restore presidential term limits.
“But even that proposal is not tenable because it serves no political dividend because it would, by necessary implication, still serve the goal of extending President Museveni’s power extension project,” said Mbazira.
LOOSE SAFEGUARDS
Strictly speaking, lifting the age limit article by parliament would be legal under chapter 18 of the constitution, which empowers parliament. However, in their book titled, ‘Militarism and the Dilemma of Post-Colonial Statehood’, constitutional scholars Busingye Kabumba, Dan Ngabirano and Timothy Kyepa, speak to the context.
“…the proverbial devil was in the detail…Importantly; these two provisions were not among those entrenched under Article 260, that is to say, whose amendment would require not just a two thirds parliamentary vote but also the approval of the people of Uganda through a referendum.
Through this sleight of hand, the NRM ensured that these otherwise important safeguards and assurances for political transition at some point, would remain open to future amendments, provided they could secure a two thirds majority in parliament.”
skakaire@observer.ug