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To amend or not to amend the constitution

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Added 12th October 2017 10:43 AM

It is the longest serving uninterrupted Constitution of Uganda. Our first, lasted just four years, the second 29 years, but suspended twice – first in 1971 and then in 1986.

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Bob A. Kasango is a lawyer

By Bob A. Kasango

As we celebrated the 55th Anniversary of our independence on Monday, we also marked the 22nd Anniversary of  the adoption of the third Constitution of the Republic of Uganda in the last 55 years.

It is the longest serving uninterrupted Constitution of Uganda. Our first, lasted just four years, the second 29 years, but suspended twice – first in 1971 and then in 1986. Why has the 1995 Constitution endured for so many years and why it is still a living and vital document?

Is it that our Constitution is so good that it needs no change? Was it that our Constitution makers were so far-sighted and wise that they had foreseen all the changes that would take place in the future? In some sense, both the answers are correct. It is true that we have a robust Constitution.

The basic framework of the Constitution is very much suited to our country. It is also true that the Constitution makers were very far-sighted and provided for many solutions for future situations. But no constitution can provide for all eventualities. No document can be such that it needs no change.

Then how does the same Constitution continue to serve the country? One of the answers is that our Constitution accepts the necessity of modifications according to changing needs of our society.

Secondly, in the actual working of the Constitution, there has been enough flexibility of interpretations. Both political practice and judicial rulings have shown maturity and flexibility in implementing the Constitution. These factors have made our Constitution a living document rather than a closed and static rulebook.

In any society, those responsible for drafting the constitution at a particular time would face one common challenge: the provisions of the constitution would naturally reflect efforts to tackle the problems that the society is facing at the time of making of the constitution. At the same time, the constitution must be a document that provides the framework of the government for the future as well.

Therefore, the constitution has to be able to respond to the challenges that may arise in the future. In this sense, the constitution will always have something that is contemporary and something of more durable importance.

A constitution is not a frozen and unalterable document. It is a document made by human beings and may need revisions, changes and re-examination. It is true that the constitution reflects the dreams and aspirations of the concerned society. It is an instrument that societies create for themselves.

Its permanence lies chiefly in the fact that it is couched in broad, general terms, and is capable of being adapted to changing conditions. It is impossible for human beings of one era to foresee all of the problems that would be confronted by later generations. It is not uncommon, however, for nations to rewrite their constitutions in response to changed circumstances or change of ideas within the society or even due to political upheavals.

If our Constitution had been framed like a rigid, detailed code, incapable of adjustment, it would have long ago been broken into fragments; for life has a way of disregarding forms and cannot be cast into a rigid mold. Our recent constitutional discussions have been neither highly educational nor helpful to the wider public; but they have stirred emotions that have clouded the clear course of legitimate debate. There are those who apparently regard the Constitution as embalming forever the explicit and final word of wisdom and who feel a distaste for any critical debate as to its merits or its possible defects. They have forgotten that the Constitution is a human document formulated to serve human needs; and that it is the servant and not the master of those who created it.

These discussions have centred around the amendments proposed by Raphael Magyezi, the Member of Parliament for Igara West constituency.

The gravamen of the amendment is the removal of both the lower and upper presidential age limit.

The opponents of amendment have belaboured the point that to amend this Article would be to throw the country into chaos! They urge that the Article is untested and it should be given a chance to work and that Article 102(b) is intended to be an inbuilt restraint to longevity in power.

All these arguments are shallow and hollow. The first is scaremongering, the second is deeply theoretical, the third very presumptive. There is nothing about age limits in our Constitution as it presently is that is a bar to longevity in power.  President Museveni has been in power for 31 years and some people believe this is ‘too long’. He assumed power at the age of 42 years – seven years above the present constitutional lower age limit for a President.

If one assumed power at the age of 45, under the present constitutional arrangement, they could still constitutionally stay in power for 30 years – a period those opposed to the amendment and the person of President Museveni, argue is “too long”.

So how does the retention of the upper age limit deal with longevity in power as urged by the opponents?

If one became president at the constitutional age of 35 years, they could constitutionally rule for 40 years. Is that a long time? If so, how does the Constitution in its present form limit that? This is the strongest argument being advanced by the opponents of the amendment, but it is without any factual or legal basis.

The Constitution is a living document even without fanciful judicial lawmaking. It can, with a sufficient consensus, be altered to suit the requirements of an evolving polity. Unlike the impulse of a political activist, so often urged on by a cadre of rowdy crowds, a proposal to amend the Constitution must earn substantial—indeed, super-majority—political support, sometimes requiring years of sustained effort and extended deliberation. Fleeting fads are not likely to make the grade. Which brings me to Magyezi’s proposed amendment.

I would urge abundant caution in the proposed removal of the lower age limit. A lot many constitutions of the world have similar provision, and in most, it is 30-35 years. The rationale for this is the presumption that at 35 years, one has attained sufficient life experience and emotional stability requisite in the exercise of the powers and duties of office of a president. There is a need for “presidential trust” which requires a great extent of information and stability of character. At 35, most citizens should have reached a period of life most likely to supply these advantages.

It would be absolutely ill advised, therefore, in making the argument about “discrimination” to risk the demanding office of president to the often reckless hot-headedness of youth.

The upper age limit is obviously the most contentious and it is not difficult to see why! The opponents have, by making the debate about President Museveni and not the challenges of our time, elected to play the person not the ball. The arguments are so far ideologically unconvincing and emotional.

Is there a justification for barring a 75 year old from running for office of president? I think not – both from a scientific and rational perspective. Very few constitutions around the world contain this provision anyway.

The bible teaches us in Job 12:12 thus: “Is not wisdom found among the aged? Does not long life bring understanding?”

With the advance in science (medicine) and technology, 70 is the new 40! A 2011 scientific study published in the Psychological Science journal, found that older people’s wisdom helped them outperform younger participants at taking the bigger picture into account.

The study concluded that wisdom really does come with age and that older people make better decisions than young adults who are too impulsive. The study found that people were most thoughtful and exhibited wisdom between the ages 70-89 years and began to drastically lose their thought process and control of their minds between the ages 90-95 years.

The argument, therefore, that at 75 years, one would not be fit to stand for President on account of “advanced age”, is a fallacy and figment of imagination not backed by any scientific evidence.

In management of state affairs, therefore, the experience, strategic thought and emotional stability that often comes with age must be treasured and would make for a good symbiotic relationship and mix with youth to give an explanation to the mystery of 1+1=3!

It is also true, however, that while wisdom may come with age, there is no guarantee. Oscar Wilde put it better when he said, “With age comes wisdom, but sometimes age comes alone”!

The dangers of reckless hot-headedness of youth and old age without wisdom is being played out today in the international arena with one youthful leader somewhere in the Korean Peninsula and an inexperienced old man at the helm one of the world’s most powerful nations. The two are on the brink of taking the world towards a nuclear war!

I urge Magyezi to drop the idea of removing the lower age limit and he should insert in his draft, a requirement for experience in leadership/management for a Presidential candidate. It is not enough to just be 35 or 80. Either without experience is dangerous.

The opponents, I urge, intelligent, temperate debate is the essence of free government and it would be unfortunate indeed, if the Constitution ever came to be regarded as so sacred that it could not be discussed but fought over. Brawling in Parliament in the name of defense of the Constitution shocks the conscience and is conduct lower than a snake’s belly! Constitutional debate and disputation is one that must take place in a more anodyne fashion.

Every era of our national existence has been a product of some sort of constitutional struggle. These recurring controversies are but renewals of old debates and will have their counterparts in the days to come and, indeed, so long as our nation endures. Such disputes are the by-products of the processes of growth and are evidence of life and not of decay.

There will be many historic occasions upon which the inter¬preters of the Constitution and those who seek to apply it in a practical manner come into collision. In each instance the conflict should be resolved so as to meet the requirements of the generation in which it occurs, sometimes by the drastic process of Amendment

As a nation, we should have but scant patience with those who believe that the Constitution is unamendable and we should not be moved by those who, in sheer blindness, strive to make it an unworkable document.

As we celebrate the 22nd Anniversary of our constitution, we should do so with the fervent belief that our democracy will endure, that it will justify itself in the face of the challenges of our time and that our political differences and crises can be solved within our constitutional framework.

The writer is a lawyer

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