Is there a political vacuum in Uganda?

Jun 29, 2004

Does the recent Constitutional Court ruling that the 2000 referendum on political systems was invalid and that the Movement system ceased to exist mean that the country is now in a political crisis and a vacuum at that?

By Julius Mucunguzi

Does the recent Constitutional Court ruling that the 2000 referendum on political systems was invalid and that the Movement system ceased to exist mean that the country is now in a political crisis and a vacuum at that?

Does it mean that the President, ministers, Movement Secretariat should now be scrapped, and that the other institutions that have come in place since 2000 are null and void?

Not so, says Prof. Tumwine Mukubwa, a lecturer at Makerere University’s Faculty of Law.

“It cannot be said that we don’t have a government in place or that we have an illegal government.

What the ruling says is just that the manner in which the referendum law was passed was not correct, but not the essence of the referendum itself,” Mukubwa says.

The New Vision’s company secretary, Robert Kabushenga shares Mukubwa’s view: “The fundamental issue about this ruling is that it says that the manner in which the enabling law was passed was not done properly, but it doesn’t say that the principle of holding the referendum was illegal.

“The challenge was not whether the principle of holding the referendum was correct, but whether the manner in which the enabling law was passed was correct. The ruling just says that the Referendum Act was not passed properly.”

Acting head of civil litigation, Joseph Masiko, says the court ruling should not be interpreted to mean that the Government in place is illegal because the petitioners sought to nullify the Referendum Act, not the process.

That is, the petitioners contested the law under which the referendum was held and not the referendum itself.

If the ruling were to mean that the current government, which was elected under the Movement system, is null and void, it would mean that all institutions that have come into place, including Local Councils, Parliament, and the Judiciary are illegal. This is not the case.

Dr Henry Onoria from the Faculty of Law, Makerere University, says there is nothing to do in the meantime and therefore it is necessary to recognise the actions that have taken place under the otherwise illegal regime.

The example of how President Yoweri Museveni came to power could illustrate Dr Onoria’s point.

The NRM/A came to power illegally after it overthrew a government in 1986. But lawyers argue that it would not be justifiable to say that anything that has taken place since 1986 is null and void.

Another example is a court case challenging the overthrow of Prof Yusuf Lule as president in 1979. If court ruled today that Lule was overthrown illegally, it would not make sense to say that Lule be re-instated as president, says Robert Kabushenga.

Dr. Onoria says that it would not be wise to make extrapolations of the implications without regard to the reality on the ground.

“For example, would you say that a marriage that took place after the June 2000 referendum is null and void since the registrar who sanctioned it was appointed by an authority under the Movement system of government?” Not so, he says.

Lawyers argue that the actions of the current government that can be challenged are those that take place after the ruling (Friday, June 25, 2004) because the law does not work retrospectively. And that is perhaps the reason government has been quick to lodge in an appeal.

The import of the appeal serves the goal of ensuring that nobody uses the ruling as a basis for challenging the legality of the actions of the current government.

Uganda Law Society (ULS) president Moses Adriko also says there is no constitutional crisis or political vacuum resulting from the ruling.

He says that the ruling implies that the transition from one political system to another is incomplete and that legally the 2000 referendum as provided for by Article 271 of the Constitution never took place
Article 271(3) says that a referendum to determine the political system had to be held by June 2000.

This referendum was held as per the constitutional provision and it is the one the court says was null and void.

According to Adriko, the ruling means that the time limit or deadline of June 2000 was never complied with since the referendum is now deemed not to have taken place. Therefore, the transition from the Movement system to another system must be brought to a lawful conclusion, says Adriko.

The other question that arises, according to Dr. Onoria, is what would have happened if the referendum had not taken place. He says in effect this would mean that the Movement would still be in power and that President Museveni has not started a second term.

Masiko agrees. He says that in effect, if the ruling is to be taken by what it says, that the 2000 referendum never took place, it would mean that Ugandans never chose a political system and that as such the movement system is still in place.

This means that the current government is valid and all actions that have taken place since June 2000 are binding, in which case there is no constitutional crisis or political vacuum.

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