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Compromise is everything in constitutional matters

By Vision Reporter

Added 18th May 2009 03:00 AM

AS we approach the general elections in 2011, politicians of all hews in the central region are falling over each other in their attempt to appear as the champions of the federal cause.

AS we approach the general elections in 2011, politicians of all hews in the central region are falling over each other in their attempt to appear as the champions of the federal cause.

By Peter Mulira

AS we approach the general elections in 2011, politicians of all hews in the central region are falling over each other in their attempt to appear as the champions of the federal cause.

In daily radio discussion programmes a new crop of leaders tell us how federo will enable us to tax ourselves in order to banish poverty, to elect to public office only those who are not traitors, to get back “ebyaffe” and many other things which misrepresent the concept of federalism.

When the Americans developed a new system of government they called federalism in 1787, their aim was to preserve the 13 state’s independence which they had won against Britain against encroachment by a central government they had earlier created in 1777 under the Articles of Confederation and Perpetual Association which united the states in a loose confederation.

Under these Articles the confederate Parliament or Congress could not levy taxes, individual states could restrict commerce within states, states could issue their own currency, the national executive was not independent of Congress and there was no national judicial system.

In other words the Articles allowed the states to retain their sovereignty over governmental functions not specifically relinquished to the central government and the central government was at the caprice of the states. This did not please a group of reformers known as the federalists who campaigned for a sufficiently effective central government and to replace the confederation with a federation. In this they were opposed by the anti-federalists who preferred strong states against a weak central government.

The result of the reformers’ efforts was the American constitution which was adopted at a convention in Philadelphia on September 17, 1787 which established the first federal system based on two levels or tiers of government in which each level enjoyed unchecked or sovereign authority and thus was born for the first time the idea of dual sovereignty in which the independent states surrendered part of their sovereignty to a central or federal government.

In this way sovereignty was to be exercised at both levels through three branches of government namely the executive, the legislature and the judiciary. Having settled the functions and responsibilities of each level of government through compromises the agreed arrangements were then reduced into a written constitution which ensured that neither the central nor state governments would encroach on the jurisdiction of the other and made it difficult to amend the arrangements casually at least where sovereignty was concerned.

Four features define the idea of American federalism. First, the existence of two or more independent and sovereign states. Secondly, agreement by these states to unite in a federation in which they surrender part of their sovereignty to an overarching government. Thirdly, a written constitution in which the terms and conditions of the union are specified and lastly since the states retain their sovereignty the terms of its exercise are contained in each state’s constitution which must not conflict with the national constitution.

It ought to be added that under this model the system of local government is established under the state constitutions. Without any of the above features there cannot be federalism although the federal models themselves may differ from country to country as examples of the former British dominions of Australia, Canada and India demonstrate.

In the dominions’ case sovereignty resided with the metropolitan parliament in London although the dominion governments themselves enjoyed internal self-government and in turn their colonies or provinces enjoyed considerable autonomy. Upon independence sovereignty was devolved to the dominions under acts of the British parliament to be shared between the centre and the periphery.

Since federalism implies the idea of independent states within a federation it follows that countries which are already governed under a unitary system can only convert to federalism after going through an act of dismembership of their institutions which can lead to disunity of purpose.

For this reason since the last world war a new system of returning autonomy to the regions without disrupting the basic characteristics of the state evolved through devolution of power and responsibility from the centre to the regions in which sovereignty is not shared as such.

Spain is a good example of a case where devolution satisfied the autonomous aspirations of the people. After 40 years of General Franco’s dictatorship, the country’s 1979 constitution offered a political framework from the centralist set-up inherited from Franco by creating the autonomous communities system.
Under this system, devolution to nationalities and regions has been carried out at different speed but with the intention that at the end of the process there will be no distinction between historical and newly created communities.

Historically, Spanish rulers have faced demands of cantonalism or federalism whose cause dates back to 1479 when the joint rule of King Ferdinand and Queen Isabela over the territories of Castille and Catalonia (formerly Aragon) brought different communities under a common crown.

The tension between the two regions with different political traditions and institutions was intensified when in 1621 an order was made to abandon any commitment to internal diversity within the Spanish state. The resulting over-centralisation of state functions led to heightened tensions between the communities.

By the end of the 19th century, Catalonian nationalism had grown to such an extent it started to demand autonomy as a federal state until the onset of Franco’s 40-year dictatorship which suppressed such demands. After many twists and turns Catolonia got its autonomy under the Statute of Autonomy of 1979. This was followed by the Basque country which got its autonomy also in the same year.

The constitution devolved power differently in order to enable newly created regions to catch up with the historicals but regardless of the variations in the speed of devolution all communities are similarly structured with an executive and legislature.

What we learn from these three national examples is that compromise is everything in constitutional matters. The time has come for the federo debate to be put to rest and accept what is feasible just like the Catlonians and Basques in Spain, the Scottish in Britain, the Flemish in Belgium as well as the northern region of Italy all of which settled for devolution having demanded independence and federalism for ages.

It must be appreciated that the American model of federalism cannot be applicable to Uganda because we do not have independent sovereign states which would surrender their sovereignty to a federation government.

Neither is the “dominion” model feasible because it is unlikely that Parliament will ever pass a law under which national sovereignty will be shared with regions. Only the Spanish model of devolution is feasible for Uganda and the constitution has already conceded it.

The writer is a lawyer

Compromise is everything in constitutional matters

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