The birth of the Constitution review commission

________________

This month, New Vision is publishing a series of articles to celebrate 30 years of the 1995 Constitution, detailing the factors that have made it stand the test of time, unlike the earlier ones that were shortlived.

Today, Justice Benjamin Odoki explains the emergence of consensus on the need for a new Constitution in the early days of the National Resistance Movement (NRM).

In January 1986, the National Resistance Army (NRA) of Yoweri Museveni captured power in Kampala. A broad-based government was formed under the National Resistance Movement (NRM). It included various socio-political forces in the country. Its blueprint for running the interim administration was the Ten Point Programme, which included restoration of democracy, security, human rights and economic reconstruction under a mixed economy on its agenda.

Political party activities were suspended, and a no-party system was introduced. Its main organs were the Resistance Councils (RCs) from the village level to the national level, with elected committees. These RCs had administrative, political and judicial functions and formed the core of the NRM system of government.

In Uganda at the time, there was general agreement for constitutional reform largely because the three constitutional arrangements had been made with little input from the population, and secondly, the provisions they contained were not democratic and modern enough to answer current interests and aspirations. What was not agreed was the nature and extent of reform.

Some groups, like the monarchists/federalists, advocated the immediate restoration of the 1962 constitution that had guaranteed their cherished institutions. The multipartyists, especially the UPC, advocated for the simple amendment of the 1967 constitution, and not its complete replacement. It was the challenge of those in charge of the process to convince the different forces that, ultimately, it would be the people to decide.

Democracy is normally achieved after a protracted struggle. Such a struggle needs leadership and popular support. The NRM government had gone to the bush to fight for democracy. The government formed the vanguard to champion the structure for constitutional reform after the NRM had taken control of the country.

▪️Tracing the history of Uganda's first constitution

Therefore, at the time the NRM assumed power, there was a leadership committed to constitutional reform, as well as popular support for the process. Because the NRM government was committed to constitutional reform, it provided the resources necessary for the exercise and an enabling environment for free public participation and debate.

The preparation of a new constitution that would correct the mistakes of the past, as demanded by the people, was high on the agenda during the armed struggle by the NRM. Its vision was to see a popular constitution evolved by the people themselves that would consolidate the fundamental change in the politics of Uganda, promised on its capture of power in January 1986.

One of the basic objectives of this change was to return power to the people to take charge of their own destiny. Since a constitution was the basic decision of the people on how they wanted to live and be governed, it was absolutely necessary to involve them in the formulation of that socio-economic and political framework so that it could form a binding and acceptable social contract for their governance.

The constitution would institutionalise, regularise and legitimise the use and exercise of state power.

Secondly, since the NRM government was an interim administration committed to returning the country to a truly democratic system of government, it was necessary to ensure that a democratic constitution was put in place during the period of transition, to guarantee and promote democratic, as well as other common values and goals, upon which the people could be generally united.

Models for reform

For any programme to be successfully implemented, there must be a realistic and acceptable plan of action to define the strategies necessary for the execution of the programme.

The plan of action must be acceptable to the various stakeholders. If it is imposed, there may not be full participation in the programme. Neither is there likely to be widespread acceptance of the outcome. Uganda was faced with the challenge of designing a realistic and acceptable plan of action for the constitution-making process.

The NRM viewed its main political task after defeating Obote as the organisation of a speedy return of democratic government, and as part of laying the groundwork for returning Uganda to democratic government, the interim administration shall see to it that a new constitution based on popular will is drafted and promulgated by a Constituent Assembly elected by the people themselves.

The consultation was to be carried out by a constitutional committee which would prepare a draft constitution. Why did the NRM government adopt this model? Three options were open to the government. The first was for the government to prepare a draft constitution and present it to the legislative body of the time, the National Resistance Council (NRC)—for debate and adoption.

Such an option would have excluded the majority of Ugandans from participating in the process. The second was to convene a national conference of all the significant socio-political forces in the country to draft and adopt the new constitution, as has been done in several Francophone African countries such as Benin, Togo, Congo and Zaire (now the Democratic Republic of Congo).

This method would also have excluded the majority of the people from directly participating in the process. The third alternative was to split the process into two stages. The first would be the establishment of a committee of experts to gather the views of the people and draw up proposals and a draft constitution.

The second stage would be the establishment of an elected constituent assembly to debate and adopt the constitution. This is the methodology that has been adopted by most Anglophone countries, like Nigeria and Ghana, and to some extent in Zambia and Tanzania.

The third methodology was adopted in order to give the people of Uganda ample opportunity to formulate and promulgate a constitution of their own choice. The draft constitution would be formulated by a constitutional commission composed of experts, after collecting the views of the people, and it would be adopted by a constituent assembly consisting of representatives of the people.

This methodology would achieve two objectives. First, the constitution would be freely negotiated by the people themselves and not merely imposed upon them. Secondly, the constitution would be made not only by a few, but all Ugandans. Institutional mechanisms to manage reform:

The Constitution Commission

In 1986, the NRM government established a Ministry of Constitutional Affairs to make appropriate arrangements for the preparation of a new constitution and to oversee the process.

The first major institutional mechanism was the Uganda Constitutional Commission, which was established by Statute No.5 of 1988. The law set out the purpose for establishing the commission, its composition, and terms of reference.

The commission consisted of twenty-one members appointed by the president in consultation with the minister responsible for constitutional affairs. The members were to be appointed on the basis of personal integrity, professional skill and expertise.

The commission had a chairperson who was a justice of the Supreme Court, a vice chairperson who was a professor of political science, and a secretary who was a professor of history.

Other members were highly qualified in various fields and represented the national diversity of Uganda. Two of its members were women.

Tomorrow, Justice Odoki explains the mandate of the Uganda Constitutional Commission, and it performed.