As I write this article, the Minister of Justice and Constitutional Affairs/ Attorney General, Dr. Kiddhu Makubuya, is probably moving his motion seeking leave to withdraw the Constitution (Amendment) Bill, No. 2 of 2005.
This is because he wants to retable it as two or more bills in order to counter some of the very adverse criticisms to his earlier efforts. It should be recalled that the process that has culminated in the presentation of the omnibus bill to parliament originated in 2001 in an election proposal by presidential candidate, retired Col Kiiza Besigye.
Besigye had stated in his manifesto that if elected president, he would appoint a constitutional commission to advise on issues like federalism that were before the Constituent Assembly but which were not addressed or satisfactorily resolved by that body. Presidential candidate Yoweri Museveni reacted by immediately announcing the setting up of the Constitutional Review Commission under the chairmanship of Prof. Frederick Ssempebwa with specific terms of reference.
Just two months before it submitted its report to government on December 10, 2003 and after it had long completed hearing evidence from the public, the government submitted its own proposals for amending the constitution to the Ssempebwa Commission which included, for the first time, many new matters that had not featured in the Commissionâ€™s terms of reference and on which therefore it had received no evidence from the public.
In September 2004, the Government published its White Paper setting out what it intended to include in its Constitutional Bill to parliament which, as already noted, was published as a supplement to the Uganda Gazette of February 14, 2005 and which is being withdrawn now.
One of the proposed amendments to the Constitution, on which I wished to comment is clause 4 of the Bill entitled
â€œAmendment of article 1 of the Constitution.â€ It introduces additional new clauses (5) and (6) to article 1 as follows: â€œNotwithstanding article 2 or any other provision of this Constitution or of any other law but subject to article 43, where any referendum is held under this constitution, the result of the referendum shall be binding on all organs and agencies of the state an on all persons and organisations.â€
The new clause (6) seeks to make some qualifications and limitations on the sweeping powers granted to a referendum the result of which â€œshall be binding on all organs and agencies of the state and on all persons and organisations.â€
What interests me and what should interest the people of Uganda and particularly our MPs is that this new provision may well be designed and intended to be, among others, the thin end of the wedge for the establishment of a one-party state.
Readers will recall that the prohibition of a one-party state is catered for in article 75 of the constitution, which provides that Parliament shall have no power to enact a law establishing a one-party state.
The expressions â€˜party,â€™ â€˜political partyâ€™, or â€˜one-party stateâ€™ are not defined in the current constitution in which case they would most probably be given the ordinary dictionary meanings by the courts.
However, under the Political Parties and Organisations Act, parliament sought to make what appears to be a somewhat unreal distinction between political parties and political organisations although they both operate under and obey exactly the same law. Now, as readers are aware, the National Resistance Movement is registered not as a political party but as a political organisation. It is possible that some clever lawyer might argue that since the NRM is not a political party, therefore, the prohibition of a one-party state does not apply to it.
This impression is reinforced by the fact that the purported distinction between a political party and a political organisation originating in the PPO Act already referred to above has been re-created and introduced into the proposed amendments to various articles of the constitution.
Thus, the amended article 69 speaks of â€œthe multi-organisation or multiparty form of democracyâ€ while the new article 71, entitled Multi- Organisations or Multiparty form of democracy speaks of multi-organisations wherever â€œmultipartyâ€ occurs.
The interesting thing and which has put up my political antennae is that Article 75 prohibits Parliament from making a law establishing a one-party state. The article does not prohibit the people in a referendum from enacting such a law.
Nor does the article prohibit, in terms, the establishment even by parliament of a one-organisation state as opposed to a one-party state.
If you start insisting on an act of parliament that a political organisation is somewhat different from a political party, and that the two are not synonymous or near synonymous and continue making that kind of distinction in the constitutional provisions themselves, then it seems to me you are preparing the ground for establishing a one-party state. for example, this can be done by saying that the only political organisation allowed to field candidates shall be the NRM-O or even by inserting somewhere that Uganda is a one- political organisation state.
It can also be called a one-party state provided it is not parliament that enacts the law converting it into a one-party state, but it is the people in a referendum. As I said, what article 75 does is to prohibit Parliament from enacting a law establishing a one-party state. It does not prohibit the people in a referendum from doing so.
The NRM has long wanted to create a one-party state. It took the first steps in that direction in the 1995 Constitution by virtually rendering the parties impotent when the movement was in power.
It tried again in sections 18 and 19 of the Political Parties and Organisations Act which were, however, struck out by the courts as unconstitutional.
It may seek to do this again by using the machinery of the referendum. Ugandans and MPs should be warned and stop this proposed amendment to article 1 from becoming law.
One party is the sole strategy of the NRM