Some of them are good men, but in the name of goodness, they cause most of the suffering in the world. They’re the judges, the meddlers. And, son, never trust a man who drinks but refuses to get drunk. They’re usually afraid of something deep down inside, either that they’re a coward or a fool or mean and violent.
You can’t trust a man who’s afraid of himself. But sometimes, son, you can trust a man who occasionally kneels before a toilet. The chances are that he is learning something about humility and his natural human foolishness, about how to survive himself. It’s damned hard for a man to take himself too seriously when he’s heaving his guts into a dirty toilet bowl.’
There is much truth to this statement, and a lot in it might explain some of the current predicaments in which we find ourselves as a country. We are led by self-righteous moralists – especially in the Parliament and the Executive branches, who take themselves too seriously.
There is certainly nothing wrong with having a personal moral code. The danger is where this is accompanied by a hubris, which makes one believe not only that their own morality is superior to that of others, but that it should be imposed on those other persons, including through the force of law and state institutions.
A good example in this regard is the Alcoholic Drinks Control Bill introduced in Parliament, in November 2023, by Tororo District Woman Member of Parliament Hon. Sarah Opendi Achieng. According to its Memorandum, among other things, the Bill seeks to regulate the manufacture, importation and sale of alcoholic drinks; and to regulate the time allowed for the sale of such drinks.
To this end, Clause 14 (1) of the Bill prohibits the sale of ‘alcohol or native liquor’ before 17:00 hours and after 22:00 hours on working days, as well as before midday and after midnight on public holidays and weekends. In terms of Clause 14 (4), the punishment for any offenders would be a fine of up to UGX 20 million, or ten-years’ imprisonment, or both.
Other interesting offences created under the Bill include that of ‘packaging of alcoholic drinks in a sachet or plastic bottle’, under Clause 26 (attracting a fine of up to UGX 20 million, or five-years’ imprisonment, or both); and ‘packaging of alcoholic drinks in a package of less than five hundred milliliters’, under Clause 27 (attracting a fine of UGX 10 million, or five-years’ imprisonment, or both).
It is extremely easy to make the case for the unconstitutionality of such strange legal provisions. The 1995 Constitution recognizes that human rights are not absolute. Article 43 (1) provides that human rights and freedoms are limited by the rights of others and by the public interest. At the same time, Article 43 (2) provides that the notion of ‘public interest’ under Article 43 does not permit political persecution, detention without trial or any limitation of rights ‘beyond what is acceptable and demonstrably justifiable in a free and democratic society’ or what is provided under the Constitution.
Article 43 (2) establishes a very high test which must be met by the Sarah Opendis of this world – who would seek to use the force of law to police the morals of fellow adult citizens. It is for the person who seeks to restrict the freedoms and liberties of others to prove – to demonstrably justify – that these restrictions are of such a nature as would be consistent in a free and democratic society.
The nature of this significantly high test was perhaps best articulated by Supreme Court Justice Mulenga in the 2004 case of Charles Onyango Obbo and Andrew Mujuni Mwenda v Attorney-General, in which he observed that: ‘… the limitation provided for in clause (1) is qualified by clause (2), which in effect introduces a “limitation upon the limitation” … [T]he framers of the Constitution were concerned about a probable danger of misuse or abuse of the provision in clause (1) under the guise of defence of public interest.
For avoidance of that danger, they enacted clause (2) … In addition, they provided in that clause a yardstick, by which to gauge any limitation imposed on the rights in defence of public interest. The yardstick is that the limitation must be acceptable and demonstrably justifiable in a free and democratic society … [P]rotection of the guaranteed rights is a primary objective of the Constitution.
Limiting their enjoyment is an exception to their protection, and is therefore a secondary objective. Although the Constitution provides for both, it is obvious that the primary objective must be dominant. It can be overridden only in the exceptional circumstances that give rise to that secondary objective. In that eventuality, only minimal impairment of enjoyment of the right, strictly warranted by the exceptional circumstance is permissible.’
Justice Mulenga also broadly guided, relying in part on the dictum of the Supreme Court of Zimbabwe in the 2000 case of Mark Gova Chavunduka & Another v Minister of Home Affairs & Another that the determination as to whether the Article 43 (2) test is met includes a determination of three things: (i) the restriction must be provided for in law; (ii) the restriction must be connected to some public purpose; and (iii) the restriction must be the least restrictive means of achieving that public purpose.
Applying this formula to the terribly patronizing law proposed by Hon Sarah Opendi, it is clear that while it might meet the first two tests, but it would fall flat on the third. In so far as the proposed restrictions are sought to be contained in a law, the first test is met. As to the second test, generally speaking, the restrictions she suggests to our general enjoyment of life in Uganda can be generally be linked to some broad public purpose, that is to say, public health.
Indeed, the Memorandum to the Bill notes that ‘the harmful use of alcohol causes a high burden of disease and has significant social and economic consequences’ and that ‘[a]lcohol consumption has been found to be associated with decreased risk of overall mortality and a number of chronic non-communicable diseases, including coronary artery disease, diabetes mellitus, congestive heart failure, and stroke’.
There is certainly no arguing with this, such that the second test is easily met. Nonetheless, the restrictions fail to meet the third, and most critical, third test – the requirement that the restrictions be the least restrictive means of achieving the intended public purpose (public health in this case).
Can anyone seriously suggest that the fines of UGX 20 million and jail terms of up to ten years are reasonable ways in which to control the consumption of alcohol in Uganda? Can this laudable purpose not be achieved through public awareness campaigns, conducted over radio, television, social media and other media? In any case, can it seriously be suggested that adult Ugandans should not have the capacity to make informed choices regarding the lifestyles they adopt – in full knowledge of the consequences (in terms of health and otherwise) of such choices?
If this law is to pass, containing as it does such ludicrous provisions, what is to stop another overzealous member of Parliament from introducing the Pork (Ribs, Skewers and Kikalaayi) Control Act; or the Chips (and Ketchup) Control Act; or the Soda Control Act?
After all, using the very justification stipulated in the Memorandum to Hon Opendi’s Bill, is it not the case that all these food items cause ‘a high burden of disease’ and that they have ‘been found to be associated with decreased risk of overall mortality and a number of chronic non-communicable diseases, including coronary artery disease, diabetes mellitus, congestive heart failure, and stroke’?
Obviously, any one of these Bills would be ridiculous – adult human beings have the right to make decisions regarding their lives, including the right to make bad decisions. It is not for a lawmaker, based on their own arbitrary moral or other determinations, to seek to control the lives of others using the threat of UGX 20 million fines or ten-years’ imprisonment.
And yet, this is precisely the spirit behind a whole slew of laws, past and present, introduced in the Ugandan Parliament. We have a political class which seems to be more obsessed with controlling and determining the private and personal lives and choices of citizens, rather than grappling with the more serious and grave public questions of governance that they would be expected to concern themselves with. In the particular case of Opendi’s Bill it is quite easily to put figures to the economic injury the law would occasion.
According to data provided by the Uganda Alcohol Industry Association (UAIA) in their engagements with Parliament and the Ministry of Finance; the proposed restriction on working hours would affect about 1.3 million jobs, not counting another 6.3 million Ugandans who obtain their livelihood as distributors, grain growers, owners of entertainment venues and so on.
Uganda would also stand to lose about UGX 1 trillion, currently generated from alcohol-related revenues. Unfortunately, it is not clear that these considerations – which immediately make sense to the ordinary Ugandan – animate the minds of those who seem intent in seeing their personal values adopting in public policy and legislation.
The other unfortunate tragedy is that this political class is enabled in their folly by a citizenry which is easily distracted by the diversions and scapegoats periodically offered up by politicians whenever it appears that public scrutiny into governance is becoming too hot for comfort.
In the coming months and years, I suspect the words of German pastor Martin Niemöller will become even more relevant to the situation of human rights and civil liberties in Uganda: ‘First they came for the socialists, and I did not speak out – because I was not a socialist.
Then they came for the trade unionists, and I did not speak out – because I was not a trade unionist. Then they came for the Jews, and I did not speak out – because I was not a Jew. Then they came for me – and there was no one left to speak for me.’
Last year, the moral brigade passed the now infamous law, while the majority of Ugandans cheered. Now the brigade has come for alcohol – whose consumption is a most treasured national pastime, and the public seems to be distracted and unconcerned as to the real implications for civil liberties that this law portends (leaving the Uganda Alcohol Industry Association to struggle alone). The question is, who – or what – will the moral brigade target next?
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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