Constitutional supremacy is not parliamentary sovereignty
Jun 01, 2004
TALKBACK<br><br>I was rather reluctant to continue the debate with Prof. Semakula Kiwanuka because the learned professor has resorted to name-calling, diatribe and invective, and because he has largely deviated from the main point at issue.
TALKBACK
By Oloka-Onyango
I was rather reluctant to continue the debate with Prof. Semakula Kiwanuka because the learned professor has resorted to name-calling, diatribe and invective, and because he has largely deviated from the main point at issue.
It has also become quite clear that the good professor’s thought processes resemble that of a rhinoceros, which can run only in straight lines.
Once a rhino is set on a particular track, there can be no deviation.
Thus, if you move away from the straight line, the rhino will be totally lost! Prof. Kiwanuka has chosen the one track of the referendum on term limits and has thus refused and/or failed to appreciate that not only is that track a wrong one, but that it will only lead him further off target and deeper into the wilderness. In sum, he doesn’t want to accept that the key issue in a country that professes to be a democracy must be the rule of law.
Even accepting his argument that the key issue in the current debate about term limits is politics and not law, the next question we must address is what kind of politics are we talking about?
I am not afraid to admit that I have no experience of what the professor calls “practical politics,†not having stood or lost in any local or national election. However, one does not have to participate in practical politics in order to tell whether the politics in question is good or that it is rotten. Quite clearly, the politics of pushing for a referendum on term limits that is manifestly unconstitutional, unquestionably qualifies for the latter.
But my response this time is not motivated by trying to get the professor to appreciate that good politics must follow the law.
Rather, Prof. Kiwanuka’s latest New Vision article (May 26, 2004, p.24) was so riddled with falsehoods, both about US history and constitutional law, as well as about the difference between parliamentary sovereignty and constitutional supremacy that it cannot be left without reply.
In this respect, there are at least two critical points that I would like to make. The first is about US history. Prof. Kiwanuka is wrong to state that the 22nd amendment emerged from the “kangaroo politics†of the Republican-dominated post-war US Congress.
As a matter of fact, the two term limit in US Constitutional law is as old as the first US President George Washington, who took office on April 30, 1789 and ruled until March 4, 1797.
At the end of his second term, there was tremendous pressure for him to stay on in office. Washington expressly refused to do so, arguing that the American revolution had been fought against the tyranny of King George III in England, and that he had not fought in the war of independence to install himself as the United States’ first monarch.
In this way, Washington established what is known in law as a Constitutional Convention or Custom (or tradition). That is an unwritten practice of constitutional law that is accepted by the person to whom the Convention applies and has been enforced for a considerable period of time. It remains a Convention until breached or broken.
Thus, between 1797 and the beginning of President Roosevelt’s third term in 1941, the Convention on two terms had been operative in US Constitutional Law and politics for an unbroken period of 144 years.
In other words, not a single one of the 29 presidents who followed Washington had disobeyed the Convention. It was because Roosevelt broke the Convention (by even standing for a fourth term in 1945), that it was decided that it should be made a firm part of the written US Constitution, hence the 22nd amendment.
This history proves that it is factually inaccurate for Prof. Kiwanuka to state that the “…target of the twenty-second amendment was President Roosevelt†and to equate that to the case of President Museveni in 2004 Uganda.
First of all, President Roosevelt died in office on April 12, 1945. Unless, the learned professor is suggesting that the US Congress was frightened of Roosevelt’s ghost, it is ludicrous to submit that the 22nd amendment was targeting him.
Secondly, for any amendment to pass in the United States, it must go through both Houses of Congress as well as be ratified by a majority of the states; in other words, it is not Congress alone, but the wider population that must effect an amendment.
The provision was actually ratified on February 27, 1951-a full six years after Roosevelt’s death, and having been through Congress and the states.
But most importantly, the second part of section one of the 22nd amendment explicitly states that the article “… shall not apply to any person holding the office of President when this Article was proposed by the Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this Article becomes operative from holding the office of President or acting as President during the remainder of such term.†The person holding office at the time the amendment was proposed was Harry S. Truman (1945 to 1953), who like Roosevelt, was a Democrat. If Prof. Kiwanuka’s thesis is correct, why would a Republican-dominated Congress have made such a concession?
Finally, Truman was succeeded by Dwight David Eisenhower (1953 to 1961), a Republican. Surely, would the Republicans not have wanted their own candidate to have been a beneficiary of unlimited terms if their only motivation was an anti-Democrat agenda?
The second point on which Prof. Kiwanuka continues to err is to assert that those of us who are opposed to the referendum on term limits are either opposed to the expression of popular sovereignty or that we support parliamentary sovereignty. As a matter of fact, since 1995, Parliamentary Sovereignty in Uganda has been superseded by Constitutional Supremacy. The former is what applies in Britain to which Prof. Kiwanuka appears to have a particular affinity.
However, it does not apply in contemporary Uganda. In other words, parliament, as is the case with every other institution or individual in the country, is subordinate to the Constitution.
That Constitution clearly lays out which institution has the power over its provisions. Because the constitution provides for referenda, it is quite clear that one cannot simply oppose referenda as such, and nowhere have I stated that I am opposed to the practice of holding referenda.
However, the Constitution is very clear on which provisions will attract referenda and which will not. Simply put, Article 105(2) is not one of them, and no amount of gerrymandering, political threatening or historical distortion will change that fact.
By Oloka-Onyango
I was rather reluctant to continue the debate with Prof. Semakula Kiwanuka because the learned professor has resorted to name-calling, diatribe and invective, and because he has largely deviated from the main point at issue.
It has also become quite clear that the good professor’s thought processes resemble that of a rhinoceros, which can run only in straight lines.
Once a rhino is set on a particular track, there can be no deviation.
Thus, if you move away from the straight line, the rhino will be totally lost! Prof. Kiwanuka has chosen the one track of the referendum on term limits and has thus refused and/or failed to appreciate that not only is that track a wrong one, but that it will only lead him further off target and deeper into the wilderness. In sum, he doesn’t want to accept that the key issue in a country that professes to be a democracy must be the rule of law.
Even accepting his argument that the key issue in the current debate about term limits is politics and not law, the next question we must address is what kind of politics are we talking about?
I am not afraid to admit that I have no experience of what the professor calls “practical politics,†not having stood or lost in any local or national election. However, one does not have to participate in practical politics in order to tell whether the politics in question is good or that it is rotten. Quite clearly, the politics of pushing for a referendum on term limits that is manifestly unconstitutional, unquestionably qualifies for the latter.
But my response this time is not motivated by trying to get the professor to appreciate that good politics must follow the law.
Rather, Prof. Kiwanuka’s latest New Vision article (May 26, 2004, p.24) was so riddled with falsehoods, both about US history and constitutional law, as well as about the difference between parliamentary sovereignty and constitutional supremacy that it cannot be left without reply.
In this respect, there are at least two critical points that I would like to make. The first is about US history. Prof. Kiwanuka is wrong to state that the 22nd amendment emerged from the “kangaroo politics†of the Republican-dominated post-war US Congress.
As a matter of fact, the two term limit in US Constitutional law is as old as the first US President George Washington, who took office on April 30, 1789 and ruled until March 4, 1797.
At the end of his second term, there was tremendous pressure for him to stay on in office. Washington expressly refused to do so, arguing that the American revolution had been fought against the tyranny of King George III in England, and that he had not fought in the war of independence to install himself as the United States’ first monarch.
In this way, Washington established what is known in law as a Constitutional Convention or Custom (or tradition). That is an unwritten practice of constitutional law that is accepted by the person to whom the Convention applies and has been enforced for a considerable period of time. It remains a Convention until breached or broken.
Thus, between 1797 and the beginning of President Roosevelt’s third term in 1941, the Convention on two terms had been operative in US Constitutional Law and politics for an unbroken period of 144 years.
In other words, not a single one of the 29 presidents who followed Washington had disobeyed the Convention. It was because Roosevelt broke the Convention (by even standing for a fourth term in 1945), that it was decided that it should be made a firm part of the written US Constitution, hence the 22nd amendment.
This history proves that it is factually inaccurate for Prof. Kiwanuka to state that the “…target of the twenty-second amendment was President Roosevelt†and to equate that to the case of President Museveni in 2004 Uganda.
First of all, President Roosevelt died in office on April 12, 1945. Unless, the learned professor is suggesting that the US Congress was frightened of Roosevelt’s ghost, it is ludicrous to submit that the 22nd amendment was targeting him.
Secondly, for any amendment to pass in the United States, it must go through both Houses of Congress as well as be ratified by a majority of the states; in other words, it is not Congress alone, but the wider population that must effect an amendment.
The provision was actually ratified on February 27, 1951-a full six years after Roosevelt’s death, and having been through Congress and the states.
But most importantly, the second part of section one of the 22nd amendment explicitly states that the article “… shall not apply to any person holding the office of President when this Article was proposed by the Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this Article becomes operative from holding the office of President or acting as President during the remainder of such term.†The person holding office at the time the amendment was proposed was Harry S. Truman (1945 to 1953), who like Roosevelt, was a Democrat. If Prof. Kiwanuka’s thesis is correct, why would a Republican-dominated Congress have made such a concession?
Finally, Truman was succeeded by Dwight David Eisenhower (1953 to 1961), a Republican. Surely, would the Republicans not have wanted their own candidate to have been a beneficiary of unlimited terms if their only motivation was an anti-Democrat agenda?
The second point on which Prof. Kiwanuka continues to err is to assert that those of us who are opposed to the referendum on term limits are either opposed to the expression of popular sovereignty or that we support parliamentary sovereignty. As a matter of fact, since 1995, Parliamentary Sovereignty in Uganda has been superseded by Constitutional Supremacy. The former is what applies in Britain to which Prof. Kiwanuka appears to have a particular affinity.
However, it does not apply in contemporary Uganda. In other words, parliament, as is the case with every other institution or individual in the country, is subordinate to the Constitution.
That Constitution clearly lays out which institution has the power over its provisions. Because the constitution provides for referenda, it is quite clear that one cannot simply oppose referenda as such, and nowhere have I stated that I am opposed to the practice of holding referenda.
However, the Constitution is very clear on which provisions will attract referenda and which will not. Simply put, Article 105(2) is not one of them, and no amount of gerrymandering, political threatening or historical distortion will change that fact.