Uganda, UK laws under pressure

May 28, 2006

Uganda’s recent constitutional process cannot be seen in isolation when, in the 21st century, the workings of the British Constitution are proving problematic, with its adequacy and legitimacy being questioned.

Uganda’s recent constitutional process cannot be seen in isolation when, in the 21st century, the workings of the British Constitution are proving problematic, with its adequacy and legitimacy being questioned.
The debate and even clamour for a Supreme Court of Britain rages, the House of Lords is shaken, even the peerage criteria has substantially changed to involve local communities. It could soon produce a Lord Watulo, Masaba, Kabushenga, Odong, Baroness Yemima Kamiti, Namono or Kyoshabire.
The British Constitution was ushered in by the glorious revolution in 1689 and has avoided the difficulties posed by armed conflict for the last 300 years.
The British Constitution can be summarised as: “a statute and fountain that is generally regarded as the highest form of law within the British constitutional structure”. The British Parliament, it is said, is a sovereign lawmaker.
Yet, in Dr Bonham’s case of 1610, Chief Justice Coke had said: “When an Act of Parliament is against common right or reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such Act to be void.”
Five years later, in Day v Savadge, Chief Justice Hobart felt able to conclude that: “Even an Act of Parliament, made against natural equity, as to make a man judge his own case, is void in itself.” Similarly, in the 1653 case of R. v Love, Kebble J had pronounced that: “Whatsoever is not consonant to the law of God, or to right reason which is maintained by scripture,….be it Acts of Parliament, customs, or any judicial acts of the Court, it is not the law of England.”
The point stressed by these cases is that there was a time in British constitutional history when it was believed that there were basic moral or political principles that could not be changed in any way at all as has been the case with Uganda’s article 105(2).
This is evidence that during its comparatively long history, the British Constitution had its fair share of criticism when its adequacy was questioned; yet it stood the test of time, proving its strength when confronted by important challenges.
Modern life demands new controls, for example Uganda has an Inspector General of Government. In Britain, in 1995, the Committee on Standards in Public Life recommended the tightening of the rules on disclosure of members’ outside interests. This has been referred to by Professor Peter Hennessy as a ‘conditional convention’.
In 1993, it was realised that new financial controls must be put in place regarding the parliamentary expenditure, a departure from the original set-up of 140 years ago.
However, to think of a radical reform is to envisage the possibility of a violent revolution, which is unlikely. The British have always shown (relatively) to adhere to the rule or supremacy of law as a guiding principle, which forms the second pillar of their Constitution.
On this issue, Dicey had an immense influence on the shapers and moulders of the British Constitution. In his concept of the rule of law, there was no room for policy manoeuvring in exercising discretionary powers.
This concept was also based on equal application of law to all members of society from the top official to the lowest citizen scale, and on the fact that not having a written constitution, the constitutional law is “the result of the judicial decisions determining the rights of private persons in particular cases brought before the courts”.
Now the rule of law is perceived as deriving from the concept of democracy, itself founded on the doctrine of “separation of powers”. However, the British line of separation of power has virtually vanished. In fact, it is arguable that the executive is the dominant component of government, stemming from the near-fusion of the executive and legislature, leaving a weak Judiciary.
But how does this compare with Uganda’s Judiciary? Take for example how judges nullified the Amendment Act. In 1999, Paul Ssemogerere and Zachary Olum petitioned the Constitutional Court in constitutional petition No.3, seeking a declaration that the Referendum and Other Provisions Act of 1999, which was passed by Parliament on July 1, 1999, was null and void on grounds that Parliament had passed it without a quorum.
Ssemogerere won the case against the Government on Ground 6, when it was contended that the majority learned Justices of the Constitutional Court erred in law in holding that they had no jurisdiction to construe one part of the Constitution as against another or the rest of it.
In the event, it could be seen that the Act held no substance because both purpose and effect are relevant in determining constitutionality; either unconstitutional purpose or an unconstitutional effect can invalidate legislation.
On the above evidence, it is arguable and indeed manifestly clear that the separation of powers between the Executive, Legislature and Judiciary is a reality in Uganda, with a truly robust and independent Judiciary unequalled by even the British system.
Indeed, the recent ruling of the Supreme Court in the “Presidential Election Petition N.001 of 2006: Rtd Col Kizza Besigye (Petitioner) versus The Electoral Commission (1st Respondent) and Yoweri Kaguta Museveni (2nd Respondent)” reaffirms the robust independence of the Judiciary.
Most law-making in USA takes place within the boundaries of the constant outline by the Constitution and a straight majority vote in a particular legislation is enough to change those parts of the law which are not regarded as fundamental to society’s welfare.
Unlike Americans and Ugandans, Britain has not accepted that her fundamental constitutional values should be safeguarded by a complex and difficult adamant process, such as was the case with article 105(2) in Uganda.
Governments have always wanted control. Indeed, the decision to reform remains theirs and it is historical and political privilege. For example, Uganda has devolved to local government, where LC5 chairmen call the shots, like devolution for Scotland and an assembly for Wales and Northern Ireland are realities.
The admiration of the British constitutional order by many prominent worldwide figures is indisputable, among whom were the French Montesquieu and Voltaire, and the claim arguably that “the undivided sovereignty of Parliament was emphasised by the glorious revolution in Britain, over 300 years ago, in 1689’’.
It is perhaps time to cease the praise songs, but the question that cannot be avoided is: If it works, why fix it? And if it doesn’t, why not? Nelson Mandela once said, “There is no easy walk to freedom anywhere.”
Ends

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