1995 Constitution: How delegates entrenched human rights

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As Uganda marks 30 years of the 1995 Constitution, one of the most defining debates of the Constituent Assembly (CA) remains the discussion on human rights and freedoms.

At the time, the assembly, sitting between 1993 and 1995, laid down the foundation for the protection of rights in Uganda, even during a state of emergency.

One of the most important outcomes of the debates was the decision to set up the Uganda Human Rights Commission (UHRC). The CA passed a motion to create the body, which would be composed of a chairperson and not fewer than three members, all appointed by the President with the approval of Parliament.

The chairperson, the assembly agreed, would have to be a judge of the Supreme Court or the High Court, or a person qualified to hold such an office. Both the chairperson and the members would have to be of “high moral character and proved integrity.” They would serve for six years, with the possibility of being reappointed.

CHAPTER 5

This decision came as part of Article 76, which was debated under Chapter Five of the draft Constitution.

Another key amendment came from Omara Atubo, the CA delegate for Otuke County, who moved that Article 73(2) should provide that: “A person who is restricted or detained shall be permitted and afforded every possible facility to consult his lawyer and appear in person or his lawyer during the trial.”

The assembly unanimously supported the proposal, describing it as an important safeguard to protect the rights of detainees, especially during a state of emergency.

The CA delegates also debated the wider issue of equality and discrimination in society. In his motion, Paul Etiang, the CA delegate for Tororo County, urged the Assembly not to separate rights for women, youth and persons with disabilities from the general rights of all Ugandans.

He said: “Generally, the people of Tororo endorse the proposals in the draft constitution with regard to fundamental human rights and freedoms. They would, however, prefer that one comprehensive list of rights and freedoms be made to apply to each and every citizen regardless of sex, age and physical condition.”

COUNTERPRODUCTIVE

Etiang acknowledged that these groups had long been disadvantaged, but warned that: “While admitting that our women folk, the youth and disabled persons have been disadvantaged social groups, it would be counterproductive in the long run if special provisions for these groups are separately provided in addition to the basic human rights and freedoms proposed for everybody.”

Instead, he proposed a strong anti-discrimination clause: “Any existing law or customary practice that discriminates in letter or effect against female Ugandans, the youth or the disabled are ultra vires the Constitution.”

He explained that such a provision would be clear to all: “If the Constitution simply puts it this way, the ordinary male, who apparently is the unwitting practitioner of the discriminatory customs, will understand in the simplest clear terms that the new basic law prohibits discrimination on the basis of sex, age and so on.”

Etiang further warned that creating separate rights might backfire.

“To provide separate human rights for interest social groups will make it easy for potential culprits to continue their discriminatory acts by simply avoiding those prohibited by the Constitution while indulging in others of similar effect. Over time, the provision may invoke a backlash on the part of the adult male,” he told the assembly.

The debates showed how much the assembly struggled with the question of rights, fairness, and equality.

At the end, CA delegates entrenched chapter four of the Constitution, noting that: “The attempt to correct the present social injustices is not intended to reverse the order of social advantage but to provide for equality in society and eliminate injustices on a sustainable basis. Certain specific measures though need to be provided.”

CONSTITUTIONAL RULE

When the National Resistance Army overran Kampala under the leadership of President Yoweri Museveni, the journey to transit to constitutional rule started almost immediately with the issuance of Legal Notice No. 1 of 1986.

The legal notice established the legal framework for the NRM Government, vesting legislative powers in the National Resistance Council (NRC) and outlining the code of conduct for the NRA.

The CA, which comprised representatives elected by the people under the chairmanship of James Wapakhabulo on September 22, 1995, promulgated the Constitution effectively replacing the one of 1967. In the run-up to October 7, New Vision will publish stories that showcase the country’s progress under the Constitution.

VISION GROUP’S MAGAZINE

To commemorate the 30th anniversary of Uganda’s Constitution promulgation, Vision Group will on October 7 publish a comprehensive magazine that highlights the milestones covered under the Constitution.