Love, fear, hatred and others: Human emotion and the 1995 Constitution – Part 6

Uganda was initially created by British imperial power – forged out of force, not out of any great love but primarily for economic exploitation.

Following the grant of independence on 9th October 1962, the great challenge of our republic has been as to how to reformulate a new – and more wholesome – basis for the coexistence of its constituent communities.

Any such project would require very highly skilled, and supremely patriotic, statesmen and women. Unfortunately, our journey towards self-(re)discovery was unceremoniously interrupted, first by the trauma of the 1966 crisis and later by the coup which brought Idi Amin to power in 1971. The NRM/A bush war of 1981-1986 held out some promise for this long-frustrated national rebirth.

However, at its core, the NRM ‘revolution’ was founded on precisely the same assumptions as those held by British held in 1894 (and the years which both preceded and followed it): the idea that violence could be used to forge and maintain a cohesive political entity. The story of the NRM/A in general, and of Museveni in particular, now clearly stands as a strong caution to anyone who might still harbour the illusion that force can, by itself, be the basis for any meaningful or sustainable nation-(re)building project.

It would certainly be naïve to deny some place for the use of force in national life. There are certain circumstances where a very limited and targeted resort to force is required, perhaps even dictated, by the exigencies of the times.

This might perhaps best be captured in the terms articulated in an exchange of letters in 1842 between the United States Secretary of State, Daniel Webster, and a British Special Representative, Lord Ashburton, over what came to be known as the Caroline Affair (a dispute over the burning by the British of an American steamship, in the course of suppressing a Canadian insurrection).

In what has come to be accepted as an accurate statement of the position under customary international law, Webster observed that armed force might be used in instances demonstrating: ‘… a necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation’.

He also noted that those exercising force in such circumstances would have to show that they did ‘nothing unreasonable or excessive; since the act justified by the necessity of self-defence, [had to] be limited by that necessity, and kept clearly within it.’

These conditions – of necessity and proportionality – might provide good parameters for conceiving the very limited place for the use of force national, or indeed, international life. Instead, as we noted previously, the NRM/A and Museveni have over the years given undue pride of place to force, and those trained in its deployment, in Uganda.

The result is that we now have an army which is above civilian authority and constitutional constraints. It is an institution which has access to significant portions of the public purse (under ‘classified expenditure’), on the one hand, and little or no oversight on the other.

Who can forget, for instance, President Museveni’s command to the IGG, in 2022, not to compel soldiers and other security personnel to declare their wealth – any requirement of the law in this regard notwithstanding. Or when in May this year, he scoffed at suggestions that the Judiciary, which had ‘failed to handle pig theft’ cases, could be trusted to competently try soldiers.

The irony, of course, is that it this the same soldiers who have themselves been given the special duty, among other things, of distributing pigs under ‘Operation Wealth Creation’ and other dubious outfits. This is not to mention the undue involvement of the UPDF in fishing, agriculture, construction and several other undertakings which would ordinarily be understood as civil (and civilian) ones in a normal country.

This is not innocent – it is a logical byproduct of the glorification of force (and those with the power over life and death) over ordinary and normal civil discourse and processes. To borrow the framing of the Cameroonian historian and political theorist, Achille Mbembe, it is necropolitics – a politics of death.

It is the deliberate creation and cultivation of a culture and politics in which the power over life and death takes precedence over the power of persuasion and compromise. This is the world view which consumed Museveni from the 1960s, and it is the same world view which emboldens the Chief of Defence Forces, Muhoozi Kainerugaba, to enquire, of potential interlocutors, how many men they have killed.

It turns out that allowing, or trusting, soldiers to ‘fight for democracy’ or to ‘fight for peace’ is to be delusional. Those who take pride in the capacity of the gun to settle (or bury) disputes, are often impatient with alternative means of conflict resolution, such as the normal politics of contestation, referenda and elections.

This is why the 1995 Constitution has suffered the fate of its predecessors. Like the 1962 independence Constitution, the 1966 pigeon-hole document and the 1967 republican one, it was forged under the duress of military ‘underwriters’.

It was made, partly, out of fear. The 1962 one was crafted in the literal belly of the colonial beast (at Lancaster and Marlborough), the 1966 one was pushed though while the Kabaka’s palace smouldered and that of 1967 was forced upon a population administered under a state of emergency.

How could any of these documents be expected to constrain the power of those who authored and imposed them? This is, partly, why many parts of the 1995 Constitution ring hollow today, right from the proclamation of the power of the people (Article 1), to the requirement of the UPDF to be ‘subordinate to the civilian authority as established under [the] Constitution’ (Article 208 (2)), to entire other sections on separation of powers, the functioning of Parliament, the independence of the judiciary, modes of declaring war, conduct of international relations, regulation of the budget, the realization of human rights, succession to the presidency and others.

This is how, in 2025, the Speaker of Parliament can proudly declare that when asked by the President to jump, she only asks ‘how high’ before proceeding to do exactly what is required of her.

A similar attitude is, unfortunately, shared by many members of Parliament, judicial officers and other public officers ordinarily expected to exercise serious and conscientious judgment. As we noted in last week’s column, at this critical moment, those struggling for a new Uganda, and a genuine democratic and constitutional order, must be careful not to use–or even appear to use–the old and discredited methods which landed us into this mess in the first place.

This is why it is critically importance for the National Unity Platform (NUP) and other political and civil actors to eschew not only militarism but even tendencies towards, or the slightest appearances of, militarism.

Those who seek to offer alternative leadership for Uganda must imagine, craft and implement strategies which meet the demands of the new times, and reflect an understanding of the lessons of our history. The response to the culture – and politics – of violence and death, which appears to be the legacy of the NRM/A, must necessarily be one of non-violence, of love, and of life.

Some of these mechanisms are explored in Desire Uthman Amumpaire’s dissertation entitled ‘Non-Violent Resistance and the Law: Assessing the Efficacy of Legal and Non-Violent Methods in Uganda’s Struggle for Liberation’ (April 2025, Bachelor of Laws, Makerere University).

In it, she suggests five strategies for responding to the entrenched autocratic order in which we find ourselves today: (i) redirecting legal strategies towards movement- building rather than simply litigation; (ii) focusing on popular legal education and human rights-based civic and political literacy; (iii) utilizing subversive legality and creative compliance; (iv) building transnational legal and solidarity networks; (v) deconstructing the very notion of constitutionalism; and (vi) documentation and archiving as repression (including legal repression) as a method of resistance in itself (at pages 89-91).

In the months and years ahead, there will be several temptations to respond to increasingly naked force with counter-brutality. The more difficult challenge presented by this moment is to explore and implement a different kind of resistance – and revolution – one which gives pride of place to what is best in humanity, including, paradoxically, that which makes us most vulnerable.

In the place of the unfeeling machismo of Museveni which compels one to deny and reject any suggestion that one can be sad or ‘devastated’ at the loss of a friend, the politics of a new Uganda should be one which celebrates the tears of Robert Kyagulanyi at the burial of a citizen.

It is for the very same reason that we should intentionally choose for ourselves as heroes, those whom rogue elements have sought to torture, dehumanize and denigrate: Kakwenza Rukirabashaija, Stella Nyanzi, Eron Kiiza, Agather Atuhaire, Eddie Mutwe, Olivia Lutaaya, Kiiza Besigye and countless others.

A good example in this regard is provided by Albie Sachs, a white South African who fought against apartheid from the early 1950s until the achievement of majority rule in 1994. He suffered greatly for his stance, including being detained and tortured on a number of occasions.

This persecution followed him into exile, culminating in a car bomb attack against him on 7th April 1988, in Mozambique. Although he survived, he lost an arm and vision in one eye. A passerby was, unfortunately, killed. When some ANC fighters vowed to ‘revenge’ this attack, he instead advocated for another kind of ‘revenge’ – the achievement of freedom and democracy in South Africa, in which the rule of law and human rights would be respected and promoted (see his 1990 book entitled ‘The soft vengeance of a freedom fighter’).

He would live up to this commitment to ‘soft vengeance’ through the active role he played in crafting South Africa’s democratic constitutional order, and in serving on the inaugural Constitutional Court, whose famed decisions have not only shaped that country’s destiny but inspired – for the better – democratic practice in many other parts of the world.

The example of Sachs, like that of Mandela and many others who struggled against, and suffered under, apartheid, should remind us of the simple but extremely profound piece of advice offered by Dr. Martin Luther King Jr in a sermon entitled ‘Loving your Enemies’ delivered on 17th November 1957: ‘Returning hate for hate multiplies hate, adding deeper darkness to a night already devoid of stars. Darkness cannot drive out darkness; only light can do that. Hate cannot drive out hate; only love can do that.’

The response to the necropolitics of the class of 1986 – the politics of death (and of fear, hatred, avarice and prejudice) – must be ‘vitapolitics’: a politics which deliberately values and foregrounds life, love, freedom and humanity. In the same vein – and this is where matters might become rather complicated – it might be time to start contemplating new ways of constitutional and state (re) imagination and (re)making, aimed at deliberately and intentionally exorcising Uganda of the demon of militarism.

In a future Ugandan Constitution, for example, there might be need to include a provision which expressly forbids persons who have previously served in any armed forces or security services from taking any part in civilian government (whether this be in the Executive, Legislature or Judiciary or other public office).

Although this might appear to be too radical (I am not aware of a jurisdiction around the world which has gone to such lengths), it might be part of the antidote we need to take as a country to rid our body politic of the poison of militarism to which it has been exposed since 1894.

The writer is Senior Lecturer and Director of the Human Rights and Peace Centre (HURIPEC) at the School of Law, Makerere University, where he teaches Constitutional Law and Legal Philosophy.