Constitutionally Speaking…The unrecognizable constitution – Part 2

Last week, this column examined some of the ways in which the 1995 Constitution, almost thirty years down the road, is largely unrecognizable – in terms of both critical parts of its text, and the interpretation and application (or lack thereof ) of that document.

We now undertake the final part of this analysis, with a consideration of Chapters Ten through Nineteen of the Constitution. Chapter Ten of the 1995 Constitution envisaged the establishment of a vibrant public service, which would broadly reflect the national character; composed of the very best our society had to offer; and able to deliver for and to all Ugandans efficiently and honestly.

To this end, there was a requirement that members of the Public Service Commission be persons of ‘high moral character and proven integrity’ (Article 165 (3)), with a similar stipulation for members of the Education and Health Service Commissions (Articles 167 (4) and 169 (4), respectively).

The Public, Education and Health Service Commissions were also obliged to be independent in the exercise of their functions (Articles 166 (2), 168(2)) and 170 (2), respectively). Public officers were also specially protected – they were not to be victimized or discriminated against for performing their constitutional duties; nor dismissed, removed from office, reduced in rank or otherwise punished without just cause (Article 173).

Unfortunately, the public service today is rife with inefficiency, nepotism and all forms of corruption. As we are all aware, more often than not, the persons in particular offices usually speak the language of the top official (s), and if even the most cursory audit were carried out would usually be found to represent a dense network of relatives, friends and in-laws.

Having prioritized familial and other ties over merit, inevitably public service delivery is often severely compromised. The situation is not that much better in local governments. Chapter Eleven sought to establish an efficient, accountable and democratic local government system. Among other things, the decentralized framework had to be ‘such as to ensure the full realization of democratic governance at all local government levels’ (Article 176(2)).

In addition, there was a requirement that members of District Service Commissions be persons of high moral character and proven integrity (Article 198(3)). District Service Commissions were also obligated, in performing their functions, to conform to the standards established by
the Public Service Commission for the public service generally (Article 198(5)).

Above all, in terms of Article 201, the functions of a district government had to be exercised in accordance with the Constitution, and in such a way as not to detract from the order, peace and good government of any part of Uganda.

Again, unfortunately – as many studies over the years have demonstrated – it appears that the decentralization process was not accompanied by any serious commitment to human rights standards and democratic values (See, for instance, J Oloka-Onyango’s 2007 study ‘Decentralization without human rights?: Local governance and access to justice in post-movement Uganda’ and Henry Ojambo’s 2012 work entitled ‘Decentralization in Africa: A critical review of Uganda’s experience’).

District governments exhibit most of the corruption and nepotism reflected at the centre, with often greater levels of inefficiency, given the haphazard and unprincipled creation of districts since 1995. One of the most critical sections of the Constitution was Chapter Twelve, which dealt with defence and national security.

This was not unsurprising, given Uganda’s particularly tragic history – referenced in the preamble to the Constitution – with regard to army intrusion in the public square. Indeed, the Uganda Constitutional Commission (which was appointed in 1988 and completed its work on 31st December 1992) paid keen attention to the question of the role of the armed forces in the politics of the country.

Among other things, the Report of the Commission (also called ‘the Odoki Report’ on account of the Commission’s Chairperson, Justice Benjamin Odoki) noted: ‘People were concerned about the early reliance of civilian authorities on military power to resolve constitutional and political disputes. The military thereby gained an unwarranted role in government and exercised excessive power.

Once civilian authorities came to rely heavily on the military to remain in power, it was a relatively small step for the military to believe it could run things better on its own. Having so decided, the Constitution was seen as a minor issue to be largely ignored’ (at Paragraph 28.29).

Evidently, Uganda’s history was one in which soldiers, emboldened by arms and ammunition, treated Constitutions and constitutional arrangements as minor inconveniences. It is in light of this history that Chapter Twelve of the Constitution attempted to place important guideposts for the character and role of the security forces in Uganda.

In this regard, among other things, the Constitution required that the Uganda Peoples’ Defence Forces (UPDF), be: ‘non-partisan, national in character, patriotic, professional, disciplined, productive and subordinate to the civilian authority as established under [the] Constitution’ (Article 208 (2)). In addition, the UPDF, police, prisons, all intelligence services and the National Security Council were required to ‘observe and respect human rights and freedoms in the performance of their functions.’ (Article 221).

As important as it promised to be, the reality is that Chapter Twelve is today also barely recognizable in practice. The UPDF can hardly be said to be non-partisan, national in character or subordinate to civilian authority.

If anything, as a major four-year study conducted by researchers at the Human Rights and Peace Centre (HURIPEC) demonstrated, in many ways, the army has now largely inserted itself into, and dominates, several sectors of Uganda’s economy and public life (see Zahara Nampewo, Sylvie Namwase and others ‘Guns, bread and butter – Militarization of economic sectors and public institutions in Uganda: A socio-legal analysis’, published in May 2024).

What is even more tragic is the ethnic dimension of these developments, which the HURIPEC study correctly identified as a ‘widening ethno-military patrimonial network’. Incidentally, it was for pointing out precisely this dangerous aspect of the UPDF structure – the fact that the top echelon of the army was dominated by persons from one ethnic group – that Andrew Mwenda became the subject of the charges (sedition and promoting sectarianism) which were the subject of the litigation in Andrew Mwenda and East Africa Media Institute v Attorney General (Consolidated Constitutional Petitions Numbers 12 of 2005 and 3 of 2006).

And the downward spiral continues – exacerbated by an increasingly brazen Chief of Defence Forces, who has thus far – without any legal consequences, managed to threaten a political prisoner with death by hanging, belittle the Parliament of Uganda (and defy its summons), and display the most extreme contempt of the highest Court in the land (including through demanding that it issue a written apology to him for its decision in Kabaziguruka).

For their part, Chapters Thirteen and Fourteen of the Constitution provided for the Inspectorate of Government and a Leadership Code of Conduct, respectively. The Inspectorate of Government was supposed to be a very serious body – charged with, among other things, eliminating and fostering the elimination of corruption, abuse of authority and of public office (Article 225 (1)(b)), and promoting fair, efficient and good governance in public offices (Article 225 (1)(c)).

It was also given wide jurisdiction, covering ‘officers or leaders whether employed in the public service or not’ (Article 226). In addition, it was required to be independent in the performance of its functions and not subject to the direction or control of any person or authority (Article 227). This was complemented by provisions for the enactment of a Leadership Code of Conduct which, aside from requiring leaders to periodically declare their incomes, assets and liabilities, would also prohibit dishonest and corrupt conduct by public officials
(Article 233).

In addition to the Inspectorate of Government established under Chapter Thirteen, Chapter Fourteen also established a Leadership Code Tribunal (Article 235A). The independence and efficacy of the Inspectorate and Tribunal have, like most other institutions in Uganda, been gradually eroded by the twin evils of presidentialism and militarism (among other factors).

Although there are certainly some mid-level cases of corruption periodically targeted and resolved, in large part higher-level corruption (with the widest, deepest and gravest impact) remains unabated. As the inimitable Judge John Bosco Katutsi (at the time Head of the Anti- Corruption Court) famously complained while sentencing Engineer John Bagonza on 29th June 2010: ‘This court is tired of trying tilapias when crocodiles are left swimming.’

And the crocodiles have continued to swim, often with the ostensible knowledge and approbation of the highest office. A notable indication in this regard was provided when the President in a letter dated 24th April 2022 ordered the Inspector General of Government, Ms. Beti Kamya, not to compel soldiers and other security personnel to declare their wealth (a requirement under the Leadership Code).

A similar disconnect – between law and practice – is evinced by Chapter Fifteen of the Constitution, which dealt with land and the environment. This part of the Constitution sought to provide clarity regarding land ownership (Article 237); of the ownership and use of minerals (Article 244) and protection of the environment (Article 245).

As with Chapters Thirteen and Fourteen, a combination of factors – including (as the above-cited HURIPEC 2024 study details) the inordinate intrusion of members of the armed forces – continue to contribute to extra-legal land grabbing; misuse of wetland resources (accompanied by politicized enforcement of applicable standards) and lack of transparency regarding the exploitation of mineral and other natural resources.

The same fate befell Chapter Sixteen, which concerns the institution of traditional or cultural leaders. Among other things, it stipulated that the institution of traditional or cultural leader could exist in any area of Uganda in accordance with the culture, customs and traditions or wishes and aspirations of the people to whom it applied (Article 246(1)).

It is strange – and perhaps quite telling – that while in most societies in Uganda which historically had traditional or cultural leaders these have since been restored, the Omukama of the Kingdom of Nkore (of which President Museveni would be a subject himself ) remains unrecognized. Conversely, while Article 246 (3)(e) forbids incumbent traditional leaders from joining or participating in partisan politics, there have been several instances, since 1995, in which the strong indication appeared to be that this would prohibition would only be enforced where such leaders supported opposition political parties.

Chapters Seventeen (dealing with general and miscellaneous matters) and Nineteen (on transitional provisions) have not been spared the pattern of half-hearted or ineffective implementation. Among other things, Chapter Seventeen included provision for a Disaster Preparedness and Management Commission (Article 249) – which has not been accompanied, in practice of the slightest evidence of preparation for, or serious management of, disasters (as the Kiteezi landfill collapse in 2024, and the subsequent – and most predicable – methane explosion at the same site this year demonstrate).

There has been similarly lackluster application of the potentially powerful provision, in Chapter Nineteen, for pre-1995 laws to be ‘construed with such modifications, adaptations, qualifications and exceptions as [might] be necessary to bring [them] into conformity with [the] Constitution’ (Article 273 (1)).

By all indications, the 1995 Constitution is dead – or dying. On another occasion, later this year, we shall try to answer the question as to who killed the 1995 Constitution. Nonetheless, a large part of the answer to this question must be found in the treatment, since 1995, of one of the most critical parts of that document – Chapter Eighteen (which provided for the modes of its amendment, from Articles 258 to 262).

Several years ago, during the parliamentary debate which heralded the passing of the 1967 Constitution, Hon. Abu Mayanja had presciently observed that: ‘We should not change our Constitutions in the way some men change their shirts. The Constitution should be a document of great sanctity. We should respect it and we should abide by it.’

Similar views were captured in the above-cited Odoki Report which noted, at Paragraphs 28.2 to 28.3 as follows: ‘In their views submitted to us, people have been quick to connect the political instability, social turmoil and violence which have been experienced in Uganda since the 1966 crisis to the manner in which successive regimes have arbitrarily dealt with the national Constitution without consulting the people. To the successive regimes, the Constitution has not enjoyed the respect, significance and a sense of sacredness which are due to it … the vast majority of Ugandans expressed the belief that unless the new Constitution being made is effectively safeguarded … there would be little meaning in wasting a lot of resources, both human and financial, to its making… The Commission is convinced that the issue of safeguards and amendment of the new Constitution is one of the most important aspects of the new Constitution.’

Unfortunately, since 1995, various stakeholders – the army, the President (one of the chief beneficiaries of the killing of the document), Parliament, and the Judiciary – have failed to safeguard Chapter Eighteen, and by extension, the entire Constitution itself, from manipulation, mutilation and murder. As the thirtieth ‘birthday’ of the Constitution approaches in October this year, we must unfortunately also start to write its obituary.

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.