The feeling then was that the era of coups d’état in Africa was over – and that the new challenge was as to how to identify, and address, more nuanced challenges to democratic governance, such as sham elections, illegitimate constitutional amendments and others.
Unfortunately, events over the last few months have demonstrated that this optimism might have been premature, with military takeovers in Sudan (October 2021), Mali (May 2021), Chad (April 2021), Guinea (September 2021), Burkina Faso (September 2022), Niger (July 2023) and Gabon (August 2023).
Evidently, the coup is no longer an old-fashioned vestige of a distant past – it has become a clear and present danger facing the contemporary African state. Uganda, of course, is itself no stranger to extra-constitutional changes of government. We saw them in 1966,
1971, 1979, 1980, 1985 and 1986. Indeed, this is part of the history specifically recounted in the Preamble to the 1995 Constitution, which recalls, among other things, the country’s ‘political and constitutional instability’.
It was also with this recent history in mind that Article 3 of that Constitution was framed. In terms of Article 3 (1), it is prohibited for any person or group of persons to take or retain control of the government of Uganda, except in accordance with the provision of the Constitution. Article 3 (2) goes on to provide that any person who, singly or in concert with others, by violent or other unlawful means, suspends, overthrows, abrogates or amends the Constitution or any part of it, or attempts to do any such act, commits treason and must be punished in accordance with the law.
Under Article 3 (3), the Constitution will not lose its force or effect even where its operation is disturbed by a military government. It further stipulates that as soon as the people of Uganda are able to recover their liberty from the putschists, the observance of the Constitution will be reinstated. In that event, all persons who took part in the unconstitutional change must be tried for treason in accordance with the re-established Constitution, and other laws consistent with it.
Article 3 (4) establishes, for all citizens of Uganda, the unusual combination of a ‘right and duty at all times’ to: i) defend the Constitution, and to resistant any person or group of persons who seek to overthrow the constitutional order established thereunder; and ii) do all within their power to restore the Constitution following its suspension, overthrow, abrogation or unconstitutional amendment.
In this regard, under Article 3 (5), any person, or group of persons who, acting in accordance with the right and duty established under Clause 4, resists the extra-constitutional change, ‘commits no offence’. In addition, according to Article 3 (6), where such a person referred to in clause 5 is punished for any act done in resistance of the unconstitutional change, such punishment must, on the restoration of the Constitution, be deemed void from the time it was imposed – and such person must be considered to be absolved from all liabilities attached to that punishment.
Clearly, Article 3 is an attempt to legally prevent a ‘Gabon’ happening in Uganda. The question is, is this legal attempt one which is fit for purpose? I am not too sure. At its core, Article 3 is an attempt to directly respond to the legal doctrine – the Kelsen theory (named after the Austrian legal philosopher who articulated it) – upon which the Ugandan judiciary first relied, in the famous case of Uganda v Commissioner of Prisons, Ex Parte Matovu (1966) to justify extra-constitutional changes of government.
In that case, three judges concluded that Obote’s 1966 so-called ‘Pigeon hole’ Constitution was valid in so far as it was a product of a successful revolution, which had displaced the old legal order represented by the 1962 Constitution. Essentially, the Kelsen theory can be distilled down to the notion that might equals right – a tendency reflected in the Latin maxim inter arma silent leges (‘among arms, laws are silent’).
The Kelsen theory is, however, even more pernicious than this maxim, in so far as it provides legal validation – or ‘legal legitimacy’ – to coups d’état. The challenge for the 1995 Constitution’s attempt to outlaw the Kelsen theory is that – as a legal matter – it is arguable that Article 3 might itself be deemed part of the old legal order, which might be found, under that theory, to have been swept away by a successful coup.
In Uganda’s case, it is not difficult to imagine how the courts might arrive at a conclusion of the success of a takeover. In all likelihood, if a ‘Gabon’ happened in Uganda, many of the Ministers and Members of Parliament who now proclaim loud support for the National Resistance Movement government would switch overnight and fall over themselves to declare allegiance to the new regime.
They might say of the current Head of State what we are told (in Mathew 26: 72) that Simon Peter said of Jesus: ‘I [did] not know the man’. Loyalty is not a currency to be found in significant supply in this country. The new Head of State’s portrait would probably quickly replace Museveni’s in all public offices, and all traces of the now ubiquitous yellow colour may suddenly disappear from view.
Who knows, Makerere University may even honour the new ‘liberator’ with its honorary Doctor of Laws (LLD degree) – the same one which was conferred on Idi Amin in 1976. Incidentally, Amin’s LLD citation noted that: ‘Field Marshal Amin has restored law and order, contained armed robbery and made Ugandans live their lives free of fear’.
No, Ugandans are certainly not to be trusted to be loyal to any one individual or family. I am not certain, either, that the Ugandan courts would depart from the Ex Parte Matovu precedent. Aside from the legal deficiency in Article 3 highlighted above (as ranged against the Kelsen theory), the reality is that there are several other legal doctrines through which a court might sanction and legitimate a military takeover.
These include: i) the doctrine of necessity (invoked in the minority by Lord Pearce of the English Privy Council in the 1969 case of Madzimbamuto v Lardner-Burke); ii) the Political Question Doctrine (traceable to an 1803 decision of United States Supreme Court in Marbury v Madison) and others. Another interesting possibility is that the courts might find, based on the language of Article 3 itself, that the successful coup plotters were in fact acting in defence of the Constitution, following its de facto abrogation in 2005 (removal of presidential term limits) and 2017 (removal of presidential age limits).
The courts may also refer, in this regard, to the consistent erosion of all other democratic limits to life presidency, and worse, the apparent attempt to establish the President’s son as heir to the ‘throne’ (alongside other members of the nuclear and extended First Family – relatives, friends and in-laws – already pervasive in almost all sectors of the country’s governance).
The courts’ decision(s) in this regard might arise from fear of the new militarists, or from a genuine belief in the legitimacy of the takeover, or a bit of both. To be clear, coups do not usually end well, and are definitely not to be gleefully welcomed. This is a point I, with two co-authors, Dr. Dan Ngabirano and Dr. Timothy Kyepa made in a book entitled ‘Militarism and the dilemma of post-colonial statehood: The case of Museveni’s Uganda’ published in 2017.
It is also one powerfully made by Dr. Moses Khisa in his 1st September 2023 column in The Monitor entitled ‘Why we shouldn’t celebrate military coups’. In the same vein, a multi-year empirical study on militarism in Uganda (2019-2023), conducted at the School of Law, Makerere University, by Dr. Zahara Nampewo, Assoc Prof Ronald Naluwairo, Professor Christopher Mbazira and Dr. Sylvie Namwase, similarly broadly concludes that militarism is intrinsically inconsistent with democratic governance.
This emerging Ugandan academic consensus notwithstanding, the apparently popular reception to recent coups in Africa is food for thought – for citizens, the legal community, political actors from all shades of the political spectrum and, especially, those who happen to currently be at the helm of the Ugandan State.
In my view, the best inoculation against coups and other extra-constitutional changes of government is ultimately through governing in a manner which demonstrates respect for the constitution and the democratic values reflected therein. Gabon is a good example in this regard. It’s former President, Ali Bongo Ondimba, cut a rather pathetic picture when he appeared in a video clip, seated in a chair, calling upon ‘all friends’ in the world to ‘make noise’ to save his flailing government.
Thus far, the ‘noise’ that has come has been made all over Africa has been more of derision of him and his family, and approbation of the coup. The lesson here, I think, is that it is difficult, if not impossible, for a leader to convince their fellow citizens to defend a constitution which one has been contemptuous of themselves.
One cannot starve a constitution to near death, then call upon the public to apprehend those guilty of its final annihilation. Ultimately, it must emerge from the recognition by those who temporarily wield power in Uganda today of a basic fact – that power is transient.
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
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