PM Nsibambi explains federalism
In order to have an accurate debate on the quest for federalism in Uganda, I have been requested by many people including Members of Bulange LCI Zone A where I stay to give a working definition of federalism.
Apolo Nsibambi
In order to have an accurate debate on the quest for federalism in Uganda, I have been requested by many people including Members of Bulange LCI Zone A where I stay to give a working definition of federalism.
Federalism comes from a Latin word foedus meaning “pact†or “covenantâ€. Federalism is a territorial distribution of power between the Central (or a Common) Government and peripheral or subordinate governments under an arrangement which cannot be changed by an ordinary or simple process of central legislation. For example, the amendment of the USA written Constitution requires two thirds of both Houses of Congress (i.e. Senate and the House of Representatives) and three quarters of the 50 Federal States.
In Australia and Switzerland, the amendments to the Constitution must be ratified through the use of a referendum. The autonomy of each level of Government is guaranteed by the fact that neither central nor subordinate Government is able to amend the constitution unilaterally. It is, therefore, essential to have a written constitution spelling out the division of powers between the central and subordinate governments.
It is essential to have a constitutional arbiter. The provisions of the constitution are interpreted by a Supreme Court which arbitrates in case of disputes between central and subordinate governments.
A further characteristic of federal systems is that the matters entrusted to the constituent units (whether these powers are residual or delegated) must be substantial and not merely trivial; this, too, is a matter of degree. Another characteristic of federations is that their central organs are to some extent directly in contact with individuals, both to draw authority from them and for purposes of collecting taxes and compliance with regulations. This is a necessary distinction between a federation and looser forms of union which are sometimes referred to as confederations. The American Union under the confederation which forbade diplomatic action to the several states, acted only on the several state governments, and not at all directly on individual citizens. Both America and Switzerland found, by experience that without the direct action of the federal power upon individuals, the objectives of the federal union could not be carried out because State Governments had, in some cases different views from those of the Federal Government and furthermore, they were reluctant to displease local interests or wishes, particularly over matters in which their stake was not high.
So far, the above characteristics are sound enough in defining a federal form of government and distinguishing it from a unitary government and confederation. Professor MacMahon, however, argues, “a further essential of federalism is the equality of the constituent states, absolute as to legal status but at best relative as to such matters as size, population, and wealth… Yet the idea of equality cannot bar exceptional uses of the federal idea in such arrangements as the union of Eritrea and Ethiopia… a union that associated an entity of barely more than a million people with a country of fifteen million.â€
The federational equality of states within the federal structure of America is, for example, manifested in allowing each state to send two representatives to the Senate regardless of population.
It has been criticised as conflicting with democratic equality of the citizens within the federal whole and as a consequent potential distortion of popular majorities.
Friedrich estimates that each voter of Nevada has 135 times as much voting strength in the Senate as has each voter of New York. While the population figures have changed since Friedrich made his estimates, his statement is still substantially true.
It is true that USA, Switzerland and Australia, which are good examples where federalism is working relatively well, have equal representation in the upper chambers of the states but as Professor Wheare correctly observes, “Equal representation of the regions (or states) in the upper house is not essential logically for a government if it is to be federal, but at the same time it is often essential if federal government is to work well.
States may be reluctant to enter a federal union unless they are guaranteed some safeguard in the house of the legislature against their being swamped by more populous members of the unionâ€.
Professor MacMahon suggests that still another attribute of federal systems is that internally the member states have considerable leeway in devising and changing their forms of government and their procedures. He adds that this principle, again, does not forbid some standardisation from above, both to aid in erecting and maintaining the central organs and also to protect certain minimal institutional forms, rights, and decencies that are deemed more important than autonomy and variation among the constituent governments. While what Professor MacMahon has suggested may be a common characteristic of federal constitutions, it is not a necessary condition of federalism. Of course if the states are relatively free to change their forms of government, it may enhance their sense of autonomy.
It may be noted in passing that the Federal Government of USA guarantees to every state a republican form of Government. This is a constitutional restriction which the states have to tolerate, but it does not really deprive them of their sense of autonomy.
Professor Wheare’s pre-occupation with the independence of the states from the Federal Government is out of date. He says, “The test which I apply for Federal Government is then simply this. Does a system of government embody predominantly a division of powers between general and regional authorities, each of which, in its own sphere, is co-ordinate with the others and independent of them? If so, that government is federalâ€.
Professor Wheare’s description of the federal principle as the “co-ordinate division of powers†between the central and regional governments, which in their respective spheres are “mutually independent†and “co-equally supreme,†is also largely shared by eminent scholars like Dicey in his Law of the Constitution and to a large extent by Freeman in his History of Federal Government in Greece and Italy.
It must, however, be noted that the demands of the modern government and the immense financial resources of the central authority has caused the replacement of the classical conception of federalism, where the independence of the states from the federal government is emphasised, by co-operative federalism. J.R. Mallory has, for example, noted that “the essence of co-operative federalism in Canada is this: While the central and regional legislatures nominally retain their separate jurisdictions over different aspects of the same subject, there is close contact and discussion between Ministers and Civil Servants of both levels of government so that even choices in legislation are the result of joint decisionsâ€. Consultation of officials on joint programs, the delegation by Parliament of regulatory functions to provincial agencies, the technique which gets around the bar against delegation of legislative authority from one level of government to another, and federal spending on matters which fall within provincial and/or municipal jurisdiction are the three major ways of co-operation and co-ordination in the Canadian federalism which Mallory cites.
Morton Grodzins also discards the classical conception of federalism in a neat way when he says, “The federal system is not accurately symbolised by a neat layer cake of three distinct and separate planes. A furthermore realistic symbol is that of the marble cake. Whenever you slice through it, you reveal an inseparable mixture of differently coloured ingredients. There is no neat horizontal stratification. Vertical and diagonal lines almost obliterate the horizontal ones, and in some places there are unexpected whirls and an imperceptible merging of colours, so that it is difficult to tell where one ends and where the other begins. So it is with the federal, state and local responsibilities in the chaotic marble cake of American governmentâ€.
When Government considered the quest for federalism in Uganda, it realised that it would be unwise to revert to the 1962 constitution under which it was only Buganda Kingdom which enjoyed a meaningful federal relationship with the Central Government.
This was so because Buganda had significant sources of guaranteed revenue under schedule 9 to the 1962 Constitution and other Provisions of the Constitution. For example, the Buganda Kingdom used to receive, by assignment fifty per cent of revenues from petrol and diesel duty and other items raised in Buganda. Because of Buganda’s special status, it was envied and hated by many parts of Uganda which applauded Prime Minister Obote as he crushed Mengo’s special status and established parity of treatment between Buganda and other areas of Uganda.
In order to avoid any area of Uganda being envied and targeted, the Government has proposed in the White Paper a Regional Tier which has significant functions such as secondary education, inter-district roads and referral hospitals. The Tier will receive the money which the Central Government was spending on the functions which have been devolved to the Regional Tier and so it was agreed that the Tiers will not have power to collect taxes. The Regional Tier requires two-thirds of Members of Parliament and two-thirds of District Councils to amend it out of existence.
In other words, the Regional Tier will be entrenched. It will be available to all parts of Uganda which need it, an arrangement which creates parity of treatment between all parts of Uganda.
Furthermore, the Regional Tier which will handle a lot of resources and functions will be predominantly managed by elected leaders who will be accountable to the people.
It is proposed that the creation of the Regional Tier should not disturb the cherished decentralisation system under which powers and functional responsibilities and resources were devolved to the districts. The function of the districts include primary education, primary healthcare, water and sanitation, feeder roads, Agricultural Extension Services. Local revenues include graduated tax, property tax, market dues, parking fees, cess and grants from the Central Government.
Federalism is a process which will not be achieved overnight. If the Regional Tier is harnessed creatively and democratically, a strong case will be demonstrated for giving it more responsibilities and resources.
The opportunity for starting a journey towards a democratic and sustainable federalism has been proposed by the White Paper. I invite people for an improvement of the definition and analysis of federalism.. We must hold a debate based on an accurate definition of federalism and other issues contained in the White Paper.
The writer is the Prime Minister of Uganda
In order to have an accurate debate on the quest for federalism in Uganda, I have been requested by many people including Members of Bulange LCI Zone A where I stay to give a working definition of federalism.
Federalism comes from a Latin word foedus meaning “pact†or “covenantâ€. Federalism is a territorial distribution of power between the Central (or a Common) Government and peripheral or subordinate governments under an arrangement which cannot be changed by an ordinary or simple process of central legislation. For example, the amendment of the USA written Constitution requires two thirds of both Houses of Congress (i.e. Senate and the House of Representatives) and three quarters of the 50 Federal States.
In Australia and Switzerland, the amendments to the Constitution must be ratified through the use of a referendum. The autonomy of each level of Government is guaranteed by the fact that neither central nor subordinate Government is able to amend the constitution unilaterally. It is, therefore, essential to have a written constitution spelling out the division of powers between the central and subordinate governments.
It is essential to have a constitutional arbiter. The provisions of the constitution are interpreted by a Supreme Court which arbitrates in case of disputes between central and subordinate governments.
A further characteristic of federal systems is that the matters entrusted to the constituent units (whether these powers are residual or delegated) must be substantial and not merely trivial; this, too, is a matter of degree. Another characteristic of federations is that their central organs are to some extent directly in contact with individuals, both to draw authority from them and for purposes of collecting taxes and compliance with regulations. This is a necessary distinction between a federation and looser forms of union which are sometimes referred to as confederations. The American Union under the confederation which forbade diplomatic action to the several states, acted only on the several state governments, and not at all directly on individual citizens. Both America and Switzerland found, by experience that without the direct action of the federal power upon individuals, the objectives of the federal union could not be carried out because State Governments had, in some cases different views from those of the Federal Government and furthermore, they were reluctant to displease local interests or wishes, particularly over matters in which their stake was not high.
So far, the above characteristics are sound enough in defining a federal form of government and distinguishing it from a unitary government and confederation. Professor MacMahon, however, argues, “a further essential of federalism is the equality of the constituent states, absolute as to legal status but at best relative as to such matters as size, population, and wealth… Yet the idea of equality cannot bar exceptional uses of the federal idea in such arrangements as the union of Eritrea and Ethiopia… a union that associated an entity of barely more than a million people with a country of fifteen million.â€
The federational equality of states within the federal structure of America is, for example, manifested in allowing each state to send two representatives to the Senate regardless of population.
It has been criticised as conflicting with democratic equality of the citizens within the federal whole and as a consequent potential distortion of popular majorities.
Friedrich estimates that each voter of Nevada has 135 times as much voting strength in the Senate as has each voter of New York. While the population figures have changed since Friedrich made his estimates, his statement is still substantially true.
It is true that USA, Switzerland and Australia, which are good examples where federalism is working relatively well, have equal representation in the upper chambers of the states but as Professor Wheare correctly observes, “Equal representation of the regions (or states) in the upper house is not essential logically for a government if it is to be federal, but at the same time it is often essential if federal government is to work well.
States may be reluctant to enter a federal union unless they are guaranteed some safeguard in the house of the legislature against their being swamped by more populous members of the unionâ€.
Professor MacMahon suggests that still another attribute of federal systems is that internally the member states have considerable leeway in devising and changing their forms of government and their procedures. He adds that this principle, again, does not forbid some standardisation from above, both to aid in erecting and maintaining the central organs and also to protect certain minimal institutional forms, rights, and decencies that are deemed more important than autonomy and variation among the constituent governments. While what Professor MacMahon has suggested may be a common characteristic of federal constitutions, it is not a necessary condition of federalism. Of course if the states are relatively free to change their forms of government, it may enhance their sense of autonomy.
It may be noted in passing that the Federal Government of USA guarantees to every state a republican form of Government. This is a constitutional restriction which the states have to tolerate, but it does not really deprive them of their sense of autonomy.
Professor Wheare’s pre-occupation with the independence of the states from the Federal Government is out of date. He says, “The test which I apply for Federal Government is then simply this. Does a system of government embody predominantly a division of powers between general and regional authorities, each of which, in its own sphere, is co-ordinate with the others and independent of them? If so, that government is federalâ€.
Professor Wheare’s description of the federal principle as the “co-ordinate division of powers†between the central and regional governments, which in their respective spheres are “mutually independent†and “co-equally supreme,†is also largely shared by eminent scholars like Dicey in his Law of the Constitution and to a large extent by Freeman in his History of Federal Government in Greece and Italy.
It must, however, be noted that the demands of the modern government and the immense financial resources of the central authority has caused the replacement of the classical conception of federalism, where the independence of the states from the federal government is emphasised, by co-operative federalism. J.R. Mallory has, for example, noted that “the essence of co-operative federalism in Canada is this: While the central and regional legislatures nominally retain their separate jurisdictions over different aspects of the same subject, there is close contact and discussion between Ministers and Civil Servants of both levels of government so that even choices in legislation are the result of joint decisionsâ€. Consultation of officials on joint programs, the delegation by Parliament of regulatory functions to provincial agencies, the technique which gets around the bar against delegation of legislative authority from one level of government to another, and federal spending on matters which fall within provincial and/or municipal jurisdiction are the three major ways of co-operation and co-ordination in the Canadian federalism which Mallory cites.
Morton Grodzins also discards the classical conception of federalism in a neat way when he says, “The federal system is not accurately symbolised by a neat layer cake of three distinct and separate planes. A furthermore realistic symbol is that of the marble cake. Whenever you slice through it, you reveal an inseparable mixture of differently coloured ingredients. There is no neat horizontal stratification. Vertical and diagonal lines almost obliterate the horizontal ones, and in some places there are unexpected whirls and an imperceptible merging of colours, so that it is difficult to tell where one ends and where the other begins. So it is with the federal, state and local responsibilities in the chaotic marble cake of American governmentâ€.
When Government considered the quest for federalism in Uganda, it realised that it would be unwise to revert to the 1962 constitution under which it was only Buganda Kingdom which enjoyed a meaningful federal relationship with the Central Government.
This was so because Buganda had significant sources of guaranteed revenue under schedule 9 to the 1962 Constitution and other Provisions of the Constitution. For example, the Buganda Kingdom used to receive, by assignment fifty per cent of revenues from petrol and diesel duty and other items raised in Buganda. Because of Buganda’s special status, it was envied and hated by many parts of Uganda which applauded Prime Minister Obote as he crushed Mengo’s special status and established parity of treatment between Buganda and other areas of Uganda.
In order to avoid any area of Uganda being envied and targeted, the Government has proposed in the White Paper a Regional Tier which has significant functions such as secondary education, inter-district roads and referral hospitals. The Tier will receive the money which the Central Government was spending on the functions which have been devolved to the Regional Tier and so it was agreed that the Tiers will not have power to collect taxes. The Regional Tier requires two-thirds of Members of Parliament and two-thirds of District Councils to amend it out of existence.
In other words, the Regional Tier will be entrenched. It will be available to all parts of Uganda which need it, an arrangement which creates parity of treatment between all parts of Uganda.
Furthermore, the Regional Tier which will handle a lot of resources and functions will be predominantly managed by elected leaders who will be accountable to the people.
It is proposed that the creation of the Regional Tier should not disturb the cherished decentralisation system under which powers and functional responsibilities and resources were devolved to the districts. The function of the districts include primary education, primary healthcare, water and sanitation, feeder roads, Agricultural Extension Services. Local revenues include graduated tax, property tax, market dues, parking fees, cess and grants from the Central Government.
Federalism is a process which will not be achieved overnight. If the Regional Tier is harnessed creatively and democratically, a strong case will be demonstrated for giving it more responsibilities and resources.
The opportunity for starting a journey towards a democratic and sustainable federalism has been proposed by the White Paper. I invite people for an improvement of the definition and analysis of federalism.. We must hold a debate based on an accurate definition of federalism and other issues contained in the White Paper.
The writer is the Prime Minister of Uganda