Parliamentary corruption and the (stronger) case for ethnic-based federalism in Uganda

Last year, this column made an extensive case – over four columns in September and October – for ethnic-based federalism in Uganda.

I did not make this case lightly or flippantly. The arguments there were based on almost a quarter a century of studying Uganda’s constitutional order, and nearly one-and-a-half decades of teaching constitutional history and law at Makerere.

The revelations over the past days of excessive expenditure and corruption in the Ugandan Parliament, led by Agather Atuhaire, Jimmy Spire Ssentongo and Godwin Toko under the ‘Uganda Parliament Exhibition’ hashtag on Twitter have only strengthened the case for this.

In particular, the exhibition has demonstrated that corruption is not unique to the NRM but is a disease which afflicts Uganda’s entire body politic, with Hon. Mathias Mpuuga former Leader of the Opposition in parliament, among other MPs, being implicated in the unfolding scandal.

Quite tellingly, an initial attempt by the President of the National Unity Platform (NUP), Hon Robert Kyagulanyi, to reprimand Hon. Mpuuga has been criticized by senior NUP members, including such persons as Hon. Medard Lubega Sseggona – himself a lawyer of significant standing.

Hon Mpuuga also received significant support from his constituents in Masaka, who issued a strongly worded protest against NUP’s action against Mpuuga. In addition, perhaps predictably, we are yet to hear any calls from Bukedea for the Speaker of Parliament, Rt. Hon Anita Among, to resign.

If anything, they appear to be some of the largest beneficiaries (direct and indirect) of her money heist – going by the documents released into the public domain by the exhibitors. As Godwin Toko observed on Twitter on 6th March 2024, based on dubious final transactions apparently paid out for the Speaker’s benefit: ‘Almost all of this money is spent in the far East, Teso (especially) … Acholi and Lango got some here and there but that is it really … Western Uganda is NOT mentioned.

Save for Kasokoso, Buganda is not mentioned either … While it is easy to assume that mentions of “various areas/districts in Eastern Uganda” may include Bugisu, Busoga, Sebei, Karamoja, Bukedi etc, the East seems to mean Teso, and Teso the East.’ These revelations have elicited various responses from a number of commentators.

The Uganda Law Society (ULS) in a statement issued by its President Bernard Oundo, correctly noted the impropriety of certain payments based, in part, on Article 93 of the Constitution, and the jurisprudence of the Supreme Court, particularly the decision in the 2019 case of Parliamentary Commission v Wilson Mwesigye.

In this regard, the ULS recommended the institution of an independent Salaries and Remuneration Commission, charged with determining ‘the remuneration of all government employees and officials, including Members of Parliament’. There is much to be said for this analysis and this proposal.

Nonetheless, I do not think that it would quite solve the fundamental problem at hand. For his part, in the ‘On the Spot’ programme on NBS, of 7th March 2024, Mr. Ofwono Opondo – Executive Director of the Uganda Media Centre and the Government spokesperson – observed as follows: ‘Short of another revolution, probably even violent, I do not see that through the democracy we are building … liberalism … where people tolerate wrong because the people who are committing wrong are their relatives or their friends … You have seen what we are going through today in Parliament …’

These are serious observations, coming as they do from someone charged with communicating on behalf of the State. They are an indication of frustration and fear; as well as an admission of failure. And there is much to fear and be frustrated about.

All indications point towards the fact that the NRM revolution, which gathered momentum from 1981 to 1986, and which has been pursued in Uganda since January 1986, has effectively run its course. It has few, if any, new ideas to offer. The revolutionaries, through their spokesperson – now admit that it might be time for a new revolution – even if a violent one.

I do think that it is time for a fundamental change in Uganda’s governance. The center simply cannot hold. Indeed, concerns about the ineffectiveness of Parliament were raised as early as 2011 by Baganchwera Barungi in his book ‘Parliamentary democracy in Uganda: The experiment that failed’ which had dim predictions for the future of parliament as an institution in Uganda, based on the country’s difficult history.

In my view, in the place of a violent revolution – which might include genocide (at worst), or pogroms – this country needs governance system which would foreground and reflect more organic, resilient and respect-worthy political institutions.

I suspect that part of the challenge is that there is no real attachment to the money being stolen from stolen or misused, since it belongs to an entity – ‘Uganda’ – to which there is no real attachment.

There is, however, real attachment to the political communities which preceded the Ugandan state, some of which are listed in the Third Schedule to the 1995 Constitution. Any genuine political formation can only be founded upon such genuine and organic blocks, and it is within such truly autochthonous formations that real accountability and good governance might be achievable.

Would Hon. Mpuuga, for instance, have been treated with such leniency by the people of Masaka if the funds he had helped himself to had been allocated, and controlled by, the Kingdom of Buganda? I do not think so.

Therein lies the real solution to the contemporary challenge most recently being exposed by the Parliamentary exhibition. Indeed, the real challenge being exhibited by Agather and company are the deep fault lines which run through Uganda’s political, social and economic fabric. I have absolutely no doubt in my mind that by 2034 – at the very latest – Uganda will be run on a federal model, based in large part (if not wholly) on ethnicity.

My fear is that this may be preceded, or even precipitated, by violence – unless serious measures are taken to obviate this.

This inevitable structure (federalism, whether ethnic-based or otherwise) can, and should be, carefully midwifed including through preparing Uganda’s political and legal community for the intricate problems that will be implicated especially in the early years of such an arrangement (especially in terms of revenue mobilization and revenue sharing).

Incidentally, a call for federalism – particularly one which recognizes ethnicity as an important basis for identity – is not rooted in parochialism. One can have such federalism while at the same time continuing to work towards the achievement of genuine (rather than cynically employed) patriotism and interest-based national unity.

This is especially so where, as pointed out in the federalism series of this column in September and October last year – such federal arrangements are based on: i) a recognition of the free movement of Ugandans within those various units (as well as exercise of other vested rights); ii) an emphasis on political communion – and citizenship – rather than crude or reductionist ethnic identity (put differently, the notion of ethnic communities as political units rather than exclusionary ‘tribes’); iii) a strong bill of rights, in the federal constitution; and iv) a strong federal government, which recognizes the importance of sub-national autonomy and self-determination but which is also willing and able to assert reserved federal power and rights, including the rights of all citizens under the national bill of rights.

If anything, it is the unprincipled and ahistorical commitment to ‘Uganda’ touted by succeeding post-independence governments in Uganda which has over the years been proven to be false and cynical – the Agather-Spire-Toko parliamentary exhibition providing only the most recent evidence in this regard.

We shall continue to be reminded of what should by now be obvious – that there are several Ugandas, rather than one: whether it is Kayunga riots in 2009; or the Bafuruki question that flared up in 2001 over the election of Fred Ahabwe; or the Balaalo matter in Northern Uganda – which forced the intervention of the Chief Justice Alfonse Owiny- Dollo, and invited some to question his independence; or the question of land in Buganda; or this most recent exposé of the raid by ‘Mama Bukedea’ upon the national coffers.

We can keep dancing around this issue. We have even retained a colonial relic – the offence of promoting sectarianism (under Section 41 of the Penal Code Act) – so as to have a legal means of forcing uncomfortable conversations into these questions off the grid.

Indeed, in the 2006 case of Andrew Mwenda and Eastern African Media Institute v Attorney General (which challenged both the offences of sedition and promoting sectarianism) the Constitutional Court evidently struggled with the choice between grappling with these difficult questions, on the one hand, and burying its head in the sand.

In the end, it chose the latter. After an extensive and well-reasoned judgement finding the offence of sedition unconstitutional for offending the freedom of expression, the Court cryptically (and without even a serious attempt at justification) retained the offence of promoting sectarianism, observing: We said earlier in our judgment that we would deal with section 41 dealing with sectarianism later.

This section criminising sectarianism was made Law on the 7th December 1988 before the 1995 Constitution was promulgated. Article 274 of the Constitution saved existing laws which were in force on coming unto force of the Constitution.

It is therefore lawful. After perusing the relevant provisions of the Constitution and considering, submissions of counsel for the petitioners and respondent together with authorities referred to us, we find nothing unconstitutional about it. We decline to grant the declaration on sectarianism as prayed.

In the result the petitions succeed on sedition and fail on sectarianism’. Events following this decision have only served to show that upholding laws which discourage a robust, in- depth and frank debate into equality and inclusion in Uganda – including the most effective mechanism for giving expression to sub-national autonomy and self-determination – has not made these realities, and tensions, disappear.

This is especially so in a country where a certain community appears to have arrogated to itself the right (and perhaps duty) to help itself to national coffers as if they were an ancestral granary.

In such a scenario, are the people of Bukedea to be blamed for celebrating, rather than lamenting, when it appears that ‘Mama Bukedea’ has also tucked away something for their area in the midst of the looting spree? Similarly, can the people of Masaka be seriously (or genuinely) censured for defending the ‘son of the soil’ for accepting a ‘service award’ at least some of which might be expended in the Nyendo area?

Can these – or other communities in Uganda – be reprimanded for taking the few (and far between) opportunities which might on occasion present themselves as their ‘turn to eat’?

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.