The peasants cannot amend Constitution on term limits
May 11, 2004
SIR— I should like to contribute to the discussion between Prof Semakula Kiwanuka and Dr Oloka Onyango specifically on the issue whether a referendum should be held to repeal article 105 (2) of the Constitution in order to remove term limits from the President’s tenure of office.
SIR— I should like to contribute to the discussion between Prof Semakula Kiwanuka and Dr Oloka Onyango specifically on the issue whether a referendum should be held to repeal article 105 (2) of the Constitution in order to remove term limits from the President’s tenure of office. I notice that in his latest foray, Prof Kiwanuka employs arguments based partly on our history (“Why we went to warâ€), partly on President Museveni’s reported fiat (“Let the people decideâ€) and partly on the location of sovereignty in the people (“Where does sovereignty lie?).
Those who have read Justice George Kanyeihamba’s judgement in the Constitution (Amendment) Act, 2000 case, and the late James Wapakhabulo’s letter to President Museveni, which were both published in the New Vision, should no longer have any doubts that Article 105(2) cannot be repealed or otherwise amended through the means of a referendum. The Minister of Justice and Constitutional Affairs, Mrs Janat Mukwaya, has admitted as much, although she says she wants a referendum in order to gauge the people’s opinion on the matter.
The point I want to make is that you cannot justify holding a referendum on term limits on the grounds that sovereignty resides in the people or that “all power belongs to the people†as many kisanja supporters say, quoting one half of Article 1 (1) of the Constitution and ignoring the rest of the sentence which says, “who shall exercise their sovereignty in accordance with this Constitution.â€
The fact of the matter is that the people exercised their power when they elected delegates to the Constituent Assembly in 1994; but when that assembly enacted the Constitution in 1995 (incidentally, without subjecting it to approval by the people in a referendum. From that date (October 8, 1995), the sovereignty (or supremacy) shifted from the people to the Constitution. Today, our sovereignty lies in the Constitution, and if the people wish to do or say anything, they can only do so in accordance as the Constitution allows them to do it. Let me give an illustration. Perhaps the most important power of the people is the power to elect the president of Uganda. But the Constitution says they can only elect him or her after every five years.
The people cannot say “we want to elect the President nowâ€, or “we want the President to stay in power for life†or “We want the incumbent president to vacate his office now.â€
Article 259 (2) provides that “this Constitution shall not be amended except by an Act of Parliament, the sole purpose of which is to amend this Constitution, and the Act has been passed in accordance with this chapter,†that is to say, Chapter 18 of the Constitution. In other words, no part of the Constitution, Article 105 (2) included, can be amended except by an Act of Parliament. Article 105 (2) cannot be amended by referendum. That being the case, the proposal by Government to hold a referendum on whether or not presidential term limits should be lifted is thus, clearly, not only ineffectual, but also unconstitutional.
Abubakar K. Mayanja
Kampala
Those who have read Justice George Kanyeihamba’s judgement in the Constitution (Amendment) Act, 2000 case, and the late James Wapakhabulo’s letter to President Museveni, which were both published in the New Vision, should no longer have any doubts that Article 105(2) cannot be repealed or otherwise amended through the means of a referendum. The Minister of Justice and Constitutional Affairs, Mrs Janat Mukwaya, has admitted as much, although she says she wants a referendum in order to gauge the people’s opinion on the matter.
The point I want to make is that you cannot justify holding a referendum on term limits on the grounds that sovereignty resides in the people or that “all power belongs to the people†as many kisanja supporters say, quoting one half of Article 1 (1) of the Constitution and ignoring the rest of the sentence which says, “who shall exercise their sovereignty in accordance with this Constitution.â€
The fact of the matter is that the people exercised their power when they elected delegates to the Constituent Assembly in 1994; but when that assembly enacted the Constitution in 1995 (incidentally, without subjecting it to approval by the people in a referendum. From that date (October 8, 1995), the sovereignty (or supremacy) shifted from the people to the Constitution. Today, our sovereignty lies in the Constitution, and if the people wish to do or say anything, they can only do so in accordance as the Constitution allows them to do it. Let me give an illustration. Perhaps the most important power of the people is the power to elect the president of Uganda. But the Constitution says they can only elect him or her after every five years.
The people cannot say “we want to elect the President nowâ€, or “we want the President to stay in power for life†or “We want the incumbent president to vacate his office now.â€
Article 259 (2) provides that “this Constitution shall not be amended except by an Act of Parliament, the sole purpose of which is to amend this Constitution, and the Act has been passed in accordance with this chapter,†that is to say, Chapter 18 of the Constitution. In other words, no part of the Constitution, Article 105 (2) included, can be amended except by an Act of Parliament. Article 105 (2) cannot be amended by referendum. That being the case, the proposal by Government to hold a referendum on whether or not presidential term limits should be lifted is thus, clearly, not only ineffectual, but also unconstitutional.
Abubakar K. Mayanja
Kampala