Constitution bill is disaster in substance
Mar 10, 2005
I congratulate the Hon. Minister of Justice/Attorney General for finally bringing the Constitution (Amendment) Bill, 2005 up for critical discussion. Unfortunately, the Bill is a disaster-both substantively as well as in the form in which it has been drafted.
OLOKA ONYANGO
I congratulate the Hon. Minister of Justice/Attorney General for finally bringing the Constitution (Amendment) Bill, 2005 up for critical discussion. Unfortunately, the Bill is a disaster-both substantively as well as in the form in which it has been drafted.
First of all, what can only be described as the katogo bill, proposes to amend or repeal at least 112 provisions of the 1995 Constitution, plus amending or replacing all six of the Schedules to the instrument. This amounts to enactment of a new Constitution, and raises serious questions about how we think of Constitutions and constitutionalism. Will our Constitutions continue as ‘works-in-progress,’ with every new government overhauling them whenever they find something in there they don’t like?
We spent four years (1989-1992) seeking views on a new Constitution and three more (1993-1995) debating it. We have spent another three (2001-2003) reviewing it, and by the time the current exercise is done, we will have spent an additional two (2004-2005) debating the proposed revisions. All in all, we will have spent 12 years debating, reviewing, and re-writing our Constitution. Quite obviously, this does not augur well for the creation of a culture of constitutionalism.
This problem is compounded by the fact that many of the proposed amendments have nothing to do with the process of political transition, and in fact could be considered a hindrance to it. Secondly, there are a number of new provisions which were not even touched upon by the Ssempebwa Commission or in the Government White Paper.
For example, the bill now has a proposal in which the President is empowered to remove the Director of Public Prosecutions (DPP) from office, when the 1995 Constitution had clearly tried to increase the independence of the office and to protect the DPP from executive control and interference. The bill also makes the proposal that the President should be consulted before a Prime Minister or Minister is censured by Parliament.
Imagine that! It is clear that so many of the amendments seek to reduce the powers of the bodies that check executive power, including the Courts, Parliament and institutions like the Human Rights Commission and the IGG.
The bill also ignores the fact that one of the main problems with the 1995 Constitution has been its length. With 287 articles, each with numerous sub-articles, the 1995 Constitution ranks among the longest constitutional documents in the world.
And yet the bill wants to increase the number of articles to over 300, adding to the potential for more tension and confusion. Over the last 10 years of its operation, conflict between different provisions and centers of power has been a serious problem. For example, the conflicts between the office of the IGG and that of the DPP and the Attorney General, not to mention the numerous conflicts between the Executive and Parliament. By adding to the provisions, we are set to increase the potential for conflict between different institutions of government. It is clear that the time allotted to such a comprehensive amendment is insufficient.
Even by the Government’s own roadmap, we are already four months behind schedule. The chair of the Electoral Commission has signaled that at this rate, Parliament will be too late to enact a satisfactory law on the election. In a nutshell, there is genuinely no time for the kind of revision envisaged in the bill, not to mention the different processes of amendment that govern each of the provisions up for change, i.e. Parliamentary vote, District Council resolution, and/or referendum, as the case may be.
At the end of the day this means that the amendment process will be rushed, and the inevitable mistakes, miscalculations and miserable provisions will plague the process as it did the 2000 Referendum, which concerned only a handful of articles. The lesson of the referendum mess was delivered through the Constitutional Court decision nullifying the first amendment to the 1995 Constitution.
The Court said that the hurried amendment had negatively ‘infected’ other provisions of the Constitution. In the instant case, many of the proposed amendments will infect various provisions of the Constitution.
For example, the attempt to prevent the Constitutional Court from ruling on so-called ‘expired laws’ will infect various powers of the Judiciary, including Arts.50, 126, and 128, to mention only a few. One could perform a similar analysis with a host of the proposals made in the bill, especially where an attempt is made to curtail fundamental human rights.
At the end of the day the katogo bill is an elaborate re-enactment of Milton Obote’s 1966 ‘Pigeon Hole’ Constitution, even if it is less crude and will take slightly longer to enact.
God save Uganda!
The writer is a lecturer, Faculty of Law, Makerere University
I congratulate the Hon. Minister of Justice/Attorney General for finally bringing the Constitution (Amendment) Bill, 2005 up for critical discussion. Unfortunately, the Bill is a disaster-both substantively as well as in the form in which it has been drafted.
First of all, what can only be described as the katogo bill, proposes to amend or repeal at least 112 provisions of the 1995 Constitution, plus amending or replacing all six of the Schedules to the instrument. This amounts to enactment of a new Constitution, and raises serious questions about how we think of Constitutions and constitutionalism. Will our Constitutions continue as ‘works-in-progress,’ with every new government overhauling them whenever they find something in there they don’t like?
We spent four years (1989-1992) seeking views on a new Constitution and three more (1993-1995) debating it. We have spent another three (2001-2003) reviewing it, and by the time the current exercise is done, we will have spent an additional two (2004-2005) debating the proposed revisions. All in all, we will have spent 12 years debating, reviewing, and re-writing our Constitution. Quite obviously, this does not augur well for the creation of a culture of constitutionalism.
This problem is compounded by the fact that many of the proposed amendments have nothing to do with the process of political transition, and in fact could be considered a hindrance to it. Secondly, there are a number of new provisions which were not even touched upon by the Ssempebwa Commission or in the Government White Paper.
For example, the bill now has a proposal in which the President is empowered to remove the Director of Public Prosecutions (DPP) from office, when the 1995 Constitution had clearly tried to increase the independence of the office and to protect the DPP from executive control and interference. The bill also makes the proposal that the President should be consulted before a Prime Minister or Minister is censured by Parliament.
Imagine that! It is clear that so many of the amendments seek to reduce the powers of the bodies that check executive power, including the Courts, Parliament and institutions like the Human Rights Commission and the IGG.
The bill also ignores the fact that one of the main problems with the 1995 Constitution has been its length. With 287 articles, each with numerous sub-articles, the 1995 Constitution ranks among the longest constitutional documents in the world.
And yet the bill wants to increase the number of articles to over 300, adding to the potential for more tension and confusion. Over the last 10 years of its operation, conflict between different provisions and centers of power has been a serious problem. For example, the conflicts between the office of the IGG and that of the DPP and the Attorney General, not to mention the numerous conflicts between the Executive and Parliament. By adding to the provisions, we are set to increase the potential for conflict between different institutions of government. It is clear that the time allotted to such a comprehensive amendment is insufficient.
Even by the Government’s own roadmap, we are already four months behind schedule. The chair of the Electoral Commission has signaled that at this rate, Parliament will be too late to enact a satisfactory law on the election. In a nutshell, there is genuinely no time for the kind of revision envisaged in the bill, not to mention the different processes of amendment that govern each of the provisions up for change, i.e. Parliamentary vote, District Council resolution, and/or referendum, as the case may be.
At the end of the day this means that the amendment process will be rushed, and the inevitable mistakes, miscalculations and miserable provisions will plague the process as it did the 2000 Referendum, which concerned only a handful of articles. The lesson of the referendum mess was delivered through the Constitutional Court decision nullifying the first amendment to the 1995 Constitution.
The Court said that the hurried amendment had negatively ‘infected’ other provisions of the Constitution. In the instant case, many of the proposed amendments will infect various provisions of the Constitution.
For example, the attempt to prevent the Constitutional Court from ruling on so-called ‘expired laws’ will infect various powers of the Judiciary, including Arts.50, 126, and 128, to mention only a few. One could perform a similar analysis with a host of the proposals made in the bill, especially where an attempt is made to curtail fundamental human rights.
At the end of the day the katogo bill is an elaborate re-enactment of Milton Obote’s 1966 ‘Pigeon Hole’ Constitution, even if it is less crude and will take slightly longer to enact.
God save Uganda!
The writer is a lecturer, Faculty of Law, Makerere University