The judiciary, the people and the death of the 1995 Constitution

The previous two columns outlined in broad strokes the several ways in which the Constitution today is unrecognizable – in terms of both its text and its subsequent application and interpretation – from the document which was promulgated on 8th October 1995.

For all intents and purposes, that Constitution is dead – or dying. This did not have to be the case – although, again, judging from the circumstances of its birth (as primarily an NRM/A document) it was perhaps doomed from the start. Certainly, it started with many obstacles laid across it path.

One of the most significant of these was the overwhelming and over- towering figure of President Yoweri Museveni who had captured power in 1986, before establishing the Odoki Constitutional Commission in 1988. For better or for worse, the whims, wishes and wiles of Museveni would have a significant bearing on the fortunes of that document – having primarily given it life, he could equally occasion and hasten its death.

Museveni’s historical role aside, his position as President made him a particularly critical factor in determining the health of the Constitution. In his 1974 book entitled ‘Presidentialism in Commonwealth Africa’ the Nigerian scholar Ben Nwabueze had already identified the danger that many African countries grappled with in their quest to realize freedom and democracy – the exertion of presidential authority which was ‘personal, permanent, mystical and pervasive’ (at page 107) and which ‘tended towards dictatorship and tyranny’ (at page 435).

Presidential power had already proved to be the bane of constitutional democracy in Africa, and Uganda had been no exception. Therefore, in terms of identifying persons or institutions of whom to be most wary with regard the survival of the young Constitution, President Museveni ranked at the very top of the list. If the 1995 Constitution was baby Jesus, Museveni was undoubtedly King Herod.

King Herod, however, would be impotent without the means of effectuating his malicious intent towards the baby Constitution. Museveni, in this regard, was uniquely placed to be destructive since he also had personal and historical control of the army (sharing this distinction with two other post-independence Heads of State – Idi Amin and Tito Okello Lutwa).

The new Constitution thus, stood little chance as against the twin challenges of presidentialism and militarism which were personified by Museveni (a man named after a World War II unit – the 7th Battalion of the King’s African Rifles).

Faced with these dangers, the baby Constitution might have correctly asked, as did the Psalmist: ‘I lift up my eyes to the hills. From where does my help come?’ (Psalm 121:1, English Standard Version) Out of the possible answers, Parliament would not be among the likely ones. It was, after all, the Parliament of Uganda which had deferred to military power when, in 1966, President Obote abolished the 1962 Constitution and replaced it with one copies of which the legislators only accessed through their pigeon-holes.

If the baby Constitution were to be protected from infanticide or death at a later stage, the most likely guardians would be: i) the judiciary; and ii) the people of Uganda themselves. Let us consider each of these in turn. To start with the Judiciary, it had itself failed the people of Uganda in the past, notably when like Parliament before it, it had validated Obote’s 1966 coup in the case of Uganda v Commissioner of Prisons, Ex Parte Matovu.

Nonetheless, some things could be said for some residual hope in this branch of government. In particular, it could be argued that the 1966 bench did not enjoy a sufficiently high degree of security of tenure – which militated against their independence. As such, it might reasonably be expected that, having secured their independence under Chapter Eight of the Constitution, the post-1995 Judiciary might be trusted – in turn – to courageously guard the integrity of that document.

This hope would echo that expressed by Courts in other contexts of ‘baby Constitutions’. In the 2009 case of Glenister v President of the Republic of South Africa, for instance, Chief Justice Pius Langa had observed that: ‘In our constitutional democracy, the courts are the ultimate guardians of the Constitution. They not only have the right to intervene in order to prevent the violation of the Constitution, they also have the duty to do so.’

Unfortunately, since 1995 – the Judiciary of Uganda has in large part abdicated its duty of defending the Constitution from the worst forms of violation, with the lowest points being their consistent validation of terribly flawed presidential and parliamentary elections, and the validation of the presidential age- limit constitutional amendment.

And the Judiciary continues to dig its grave in the annals of infamy that is Uganda’s constitutional history by a lackadaisical (at best) and belligerent (at worst) approach to human rights, particularly the rights to participation, assembly, association and liberty (including in cases concerning Advocates – who are, and should be recognized as, officers of the court).

Judicial officers would do well to recall the guidance and caution contained in Lord Atkin’s powerful dissenting opinion in the 1942 English case of Liversidge v Anderson: ‘I view with apprehension the attitude of judges who on a mere question of construction when face to face with claims involving the liberty of the subject show themselves more executive minded than the executive … In this country, amid the clash of arms, the laws are not silent.

They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority we are now fighting, that the judges are no respecters of persons and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law.

In this case I have listened to arguments which might have been addressed acceptably to the Court of King’s Bench in the time of Charles I. I protest, even if I do it alone, against a strained construction put on words with the effect of giving an uncontrolled power of imprisonment to the minister.’

It seems to me that, with every passing day, Ugandan Judicial officers are ceding increasingly uncontrolled power to themselves, prison officers, security forces and other nefarious state actors. This brings us to the other potential guardians of the Constitution – we the people of Uganda.

The duty of Ugandans to defend the Constitution was stipulated in Article 3, which for the avoidance of all doubt was titled: ‘Defence of the Constitution’. In terms of Article 3 (1), it was prohibited for any person or group of persons to take or retain control of the government of Uganda except in accordance with the provisions of the Constitution.

Under Article 3 (2), any person who, singly or in concert with others, by any violent or other unlawful means, suspended, overthrew, abrogated or amended the Constitution or any part of it or attempted to do any such act, committed the offence of treason and had to be punished according to law.

According to Clause 3, the Constitution did not lose its force and effect even where its observance was interrupted by a government established by force of arms. It went on to provide that as soon as the people recovered their liberty, the observance of the Constitution had to be re-established and all persons who had taken part in any rebellion or other activity which had resulted in the interruption of the observance had to be tried in accordance with the Constitution and other laws consistent with it.

Further, under Clause 4, it was established that all citizens of Uganda had the right and the duty at all times: i) to defend the Constitution, and to resist any person or group of persons seeking to overthrow the established constitutional order (Article 3 (4)(a)); and (ii) to do all in their power to restore the Constitution after it had been suspended, overthrown, abrogated or amended contrary to its provisions.

For its part, Clause 5 was to the effect that any person or group of persons who, as required by Article 3 (4), resisted the suspension, overthrow, abrogation or amendment of the Constitution committed no offence. Finally, under Article 3 (6), it was provided that where a person referred to in Clause 5 of that article had been punished for any act done under that Clause, the punishment would, on the restoration of the Constitution, be considered void from the time it was imposed; and that person would be taken to have been absolved from all liabilities arising out of the punishment.

Here we see an elaborate – and potentially solid – constitutional basis for the robust defence of the constitutional order, notably including against anti-democratic and regressive constitutional amendments. Incidentally, Article 3 of the 1995 Constitution was not unique to Uganda.

Indeed, a very similar provision (almost word for word) was to be found in Article 3 of the 1992 Constitution of Ghana (a country which itself had had its fair share of legal and political instability, occasioned by unprincipled soldiers and politicians).

Unfortunately, in the defence of the Constitution as required by Article 3, we the people of Uganda have certainly fallen short – and in this regard perhaps the deepest condemnation belongs to those Ugandans with any sort of advantage or privilege (income, education and so on).

As Dr. Kizza Besigye correctly noted in an NBS Television interview about four years ago: ‘The elites are the most useless people we have in Uganda. Hell should reserve the hottest part for elites. They have the duty to make choices and guide the population to the truth, but they are the very people selling themselves like pancakes’.

Indeed, we have often sacrificed long-term freedom and democracy at the altar of present-day conveniences. We are the Ugandans who have taken comfort in our precarious jobs, second-hand cars and artificial peace. We have failed to protect and defend the Constitution when it was required. Unfortunately, when we need its protections the most, we shall likely find it has lost all life and vitality.

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.