Constitutionally Speaking…The unrecognizable Constitution

On 22 September 1995, the Constituent Assembly adopted a Constitution, which subsequently came into force on 8th October of the same year.

The Preamble to that document memorializes that the people of Uganda were determined, through its adoption, to ‘building a better future by establishing a socio-economic and political order through a popular and durable national Constitution based on the principles of unity, peace, equality, democracy, freedom, social justice and progress’.

Thirty years down the road – in the ‘future’ that was envisaged in 1995 – it can hardly be said that these aspirations have been realized. Indeed, the very Constitution we now have in 2025 is virtually unrecognizable, in terms of both key aspects of its text, and in larger part regarding its application, from the document which was promulgated on 8th October 1995.

It is difficult to find a single Chapter – of the 19 Chapters in that Constitution – which has been faithfully interpreted and applied in a manner consistent with the letter and spirit of the document which President Museveni held up to loud cheers from a hopeful (and perhaps naïve) Ugandan crowd in 1995.

The very first Chapter of that document – which was suitably titled ‘The Constitution’ – provided for the sovereignty of the people (Article 1) and constitutional supremacy (Article 2), and further mandated the State to promote public awareness of the Constitution (Article 4). One would be hard-pressed to find a Ugandan today who still believes that the constitutional text has ‘binding force on all authorities and persons’ in the country in terms of Article 2 (2).

Similar challenges – the difference between text and practice – are also evident with Chapter Two of the Constitution (‘The Republic’). Some of the critical provisions in this regard were the requirement that Uganda be a secular State (Article 7) and that it be governed ‘based on principles of national interest and common good enshrined in the national objectives and directive principles of state policy’ (Article 8A (1)).

Aside from the now flagrant violation of the separation of religion from the State (even by institutions which should know better – like the Judiciary), every single day seems to bring more news of grand corruption, waste and misuse of public resources.

If one thought that questions of citizenship had been definitively settled under Chapter Three of the Constitution, one need only ask Nubians, Ugandans of Asian or Somali descent, Banyarwanda (and other similarly situated persons) of their experiences in various public offices – particularly those concerned with acquisition of National IDs, Passports and related documents.

It seems, even in the eyes of certain political actors, that some Ugandans are more or less ‘Ugandan’ than others. Unfortunately, Chapter Four – on human rights – is perhaps one of the most abused, with the rights to expression, assembly, liberty, freedom from torture and to life being particularly violated.

We know which Ugandans will be teargassed, arrested and detained for the mere attempt at peaceful protest as guaranteed under Article 29, and which ones will enjoy the full (and enthusiastic) cooperation – and even protection – of the police as they congregate.

While many parts of the Bill of Rights grant freedoms to ‘every person’, in practice, the rights and liberties stipulated under Chapter Four seem to only be guaranteed for and to ‘every supporter of the National Resistance Movement (or the Patriotic League of Uganda)’.

The situation is no better with regards to Chapter Five, on the representation of the people. It stipulated the right to vote (Article 59), and sought to establish a credible electoral commission (Articles 60- 67).

Unfortunately, this too has been whittled away, with the result that while the Constitution requires the holding of ‘regular, free and fair elections’ (Article 61 (1)(a), only the ‘regular’ component of this obligation has been observed. Elections are now regularly accompanied by widespread bribery and intimidation, violence and – all too often – the deaths of several persons. It is as if, every five years, the State goes to war with Ugandans, in a macabre ritual of forced, and forceful, legitimation.

A strong and independent legislature was promised under Chapter Six of the Constitution. The idea was that it would be a credible body, charged with making laws for the ‘peace, order, development and good governance’ of Uganda (Article 79 (1)). It was also stipulated that except as provided under the Constitution, no person or authority other than Parliament would have the power to make provisions having the force of law in Uganda (Article 79 (2)).

If one needed any more evidence of the admitted abdication of the legislative role to executive excess, it would be found it the candid words of the Deputy Speaker of Parliament, Rt Hon Thomas Tayebwa, in a session held on 5th February 2025: ‘I can tell you, there is nothing we are going to do beyond speaking.

I am being honest … in Parliament we only talk. In Parliament we cannot do anything beyond talking. We only talk. And I want to be honest to you … Here we only talk, and you should know your power is for talking and coming up with resolutions.’

Additional evidence in this regard might be located in the thoroughly undisguised contempt exhibited by the President’s son Muhoozi Kainerugaba (currently the Chief of Defence Forces), who in mid-January this year referred to the Parliamentary Defence and Internal Affairs Committee as ‘clowns’ as he defied their summons to him.

For its part, Chapter Seven of the Constitution provided for a strong, but accountable executive branch, headed by the President. Indeed, the President was required to execute and maintain the Constitution and all laws made under it (Article 99 (2)) and to abide by, uphold and safeguard the Constitution and laws of Uganda (Article 99 (3)).

The Chapter included a section on Uganda’s international relations (historically a mess, including at its lowest point, a situation when our Head of State, Amin became the spokesperson for a group of hostage-takers). To this end, the Chapter provided guidance on the nature of our diplomatic representation (Article 122) and procedures for the declaration of war (Article 124).

Thirty years down the road, instead of an accountable President we have an imperial one – a monarch – complete with a Queen (currently Minister of Education), and Crown Prince (the Chief of Defence Forces). The King even issues Amin-like Decrees (known as Executive Orders) and casually disregards decisions rendered by the courts of law (including the recent Supreme Court decision in Kabaziguruka), feeling himself above such small inconveniences.

And the Crown Prince is increasingly messing up all semblances of a coherent foreign policy, threatening all kinds of intended wars via his X (formerly Twitter) account – with already significant instances of frayed international relations. Chapter Eight of the 1995 Constitution dealt with the Judiciary of Uganda.

This third branch of government was supposed to recognize its power as being derived from the people of Uganda, and to be exercised in a manner consistent with the norms, values and aspirations of those people (Article 126 (1)). Indeed, Parliament was specifically required to make a law providing for the participation of the people in the administration of justice (Article 127).

Further, justice was not to be delayed (Article 126 (2)(b)) and substantive justice was to be administered without undue regard to technicalities (Article 126 (2)(e)). Overall, the Judiciary was required to be robust and independent (Article 128), including significant protections for the appointment, qualifications and tenure of judges (Articles 142 to 144).

Instead, as this column laboured for most of last year to articulate, we have a weak, inefficient, largely corrupt and almost completely dysfunctional judiciary – now apparently at war with the bar (represented by the Uganda Law Society) and often even with the general public who suffer most from its excesses and shortcomings.

We have a judiciary in crisis – on trial in the court of public opinion. Even in those instances when it rises to the challenge, rouses itself from its slumber and delivers unexpected justice – as in Kabaziguruka – the results of its previous capitulations continue to haunt it, and all of us.

Lest it be forgotten, it was the Judiciary (the Constitutional Court and the Supreme Court), which validated the final nail in the coffin of the 1995 Constitution, when in the Male Mabirizi cases, it sanctioned the 2017 amendment to Article 102 (b) and opened the door to Museveni’s life presidency.

Alongside the previous removal of the term limits (Article 105 (2)) in 2005, this amendment sealed the downward spiral of our democracy – leaving the door open for untrammeled militarism and autocracy. Put simply, in Kabaziguruka, the Judiciary attempted to shut the constitutional stable door after the horse of military and family rule had long bolted.

With an ever- emboldened Executive, we can only expect more ‘Acting Judges’ to be appointed (as another group was last week, notwithstanding a definitive Constitutional Court declaration from 2022 asserting the unconstitutionality thereof ), and perhaps even more Judges in exile (where Justice Esther Mayambala Kisaakye remains, for fear of her life).

It is the same situation with the Chapter on Finance (Chapter Nine), which contained elaborate provisions for the management of the public purse (Articles 152 to 164). Instead, classified expenditure and supplementary budgets continue to be routinely abused, and a significant amount (USD 17 million) was even brazenly stolen from the Central Bank in November 2024.

No doubt the thieves were partly emboldened by the absence of a substantive Governor of the Central Bank – a position which was inexplicably, and inexcusably, left open for over three years after the demise of its last occupant (only being filled this week with the promotion of Michael Atingi-Ego to the role).

This is not to mention Uganda’s burgeoning public debt, which stood at UGX 94.9 trillion as of June 2024, and about one third of domestic revenue going towards debt servicing. Is this the better socio-economic order envisaged by the Constituent Assembly in 1995?

In the column next week, we shall conclude our examination of the ‘unrecognizable Constitution’ with an examination of Chapters Ten to Nineteen of that document, and the difference between their text, on the one hand, and their interpretation and application on the other.

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.