The traditional or cultural leaders Bill is unconstitutional
Dec 30, 2010
THE Institution of Traditional or Cultural Leaders Bill, 2010, which was recently tabled in Parliament raises more constitutional issues than political ones. It is as well that President Yoweri Museveni has ordered a review of the Bill since this will enable the relevant minister to pay more attenti
By PETER MULIRA
THE Institution of Traditional or Cultural Leaders Bill, 2010, which was recently tabled in Parliament raises more constitutional issues than political ones.
It is as well that President Yoweri Museveni has ordered a review of the Bill since this will enable the relevant minister to pay more attention to the Constitution in bringing out a revised version.
In drafting the bill a distinction must be made between institutions that existed before the adoption of the Constitution in 1995 and those which came afterwards. Article 246 (2) of the Constitution provides that the institution of traditional or cultural leaders existing before the coming into force of the constitution shall be taken to exist in accordance with the provisions of the Constitution. In contrast, the Constitution provides that where the issue of these leaders had not been resolved by the time of adoption of the Constitution the issue shall be resolved by a method prescribed by Parliament.
The effect of this provision is twofold. First, the bill cannot introduce restrictions to the institutions which existed prior to 1995 which are not found in the Constitution. Secondly, it is only traditional or cultural leaders who came into existence after 1995 that the Bill can cater for as far as the method of their election is concerned. Any law on the subject must take cognizance of article 246 (1) of the Constitution which provides that “Subject to the provisions of this Constitution, the institution of traditional or cultural leader may exist in any area of Uganda in accordance with the culture, customs and traditions or wishes and aspirations of the people to whom it applies.†This leaves little room for the minister’s innovations.
The Constitution makes a distinction between traditional leaders or cultural leaders by using the two words disjunctively. Historically, a traditional leader was head of a geographical area with its own government such as Bunyoro, Buganda, Toro and Busoga. Within these geographical areas existed administrative structures which were run in the name of the traditional leader.
Alongside these administrative structures existed cultural structures which were subordinate to the institution of a traditional leader. Accordingly with reference to Bunyoro, Buganda, Toro and Busoga it is insensitive for the bill to talk of more than one traditional leader when providing for a titular head of a regional government.
The bill provides that a person shall not be taken to be a traditional or cultural leader unless such a person is recognised as such by the government by a notice published in the gazette. This provision runs counter to article 246 (1) discussed above and article 37 of the Constitution which provides that “every person has a right to enjoy, practice, profess, maintain and promote any culture, cultural institution, language, tradition, creed or religion in community with others.â€
The only limitation to the exercise of this right provided for in the Constitution is when the practice of a traditional or cultural institution is discriminatory against any person or if a particular practice, usage or tradition relating to a traditional or cultural leader detracts from the right of any person.
Withdrawal of recognition by government of a traditional and cultural leader cannot be final. In 1953 the British government withdrew recognition of Kabaka Mutesa II but the lukiko passed a resolution in which it recognised Mutesa as still the Kabaka of Buganda. In a court case that followed the High Court held that the Kabaka could only be removed from the throne under the customs of the Baganda. The courts are likely to follow this decision in respect of traditional and cultural leaders today.
The provision which prohibits traditional or cultural leaders from participating in partisan politics has attracted a lot of criticism. This provision should be considered side by side with article 38 of the Constitution which provides that “Every Ugandan has a right to participate in peaceful activities to influence the policies of government through civic organisations.†What the Bill prohibits in clause 13(3) is for such a leader to become a registered member of a political party, to provide a platform for promotion of political party aspirations and to allow the institution to be used for political purposes. In view of this criticism of the Bill on the issue of partisan politics has not been balanced. No one wants traditional or cultural leaders to be in partisan politics.
The bill suffers from three shortcomings. First it tries to legislate for cultural practices in a uniform manner. Secondly it fails to make a distinction between traditional leaders and cultural leaders.
Thirdly it is unconstitutional in many ways. It is safer to operationalise article 246 of the constitution by adopting a law which repeats its provisions lock, stock and barrel.
The author is a lawyer
THE Institution of Traditional or Cultural Leaders Bill, 2010, which was recently tabled in Parliament raises more constitutional issues than political ones.
It is as well that President Yoweri Museveni has ordered a review of the Bill since this will enable the relevant minister to pay more attention to the Constitution in bringing out a revised version.
In drafting the bill a distinction must be made between institutions that existed before the adoption of the Constitution in 1995 and those which came afterwards. Article 246 (2) of the Constitution provides that the institution of traditional or cultural leaders existing before the coming into force of the constitution shall be taken to exist in accordance with the provisions of the Constitution. In contrast, the Constitution provides that where the issue of these leaders had not been resolved by the time of adoption of the Constitution the issue shall be resolved by a method prescribed by Parliament.
The effect of this provision is twofold. First, the bill cannot introduce restrictions to the institutions which existed prior to 1995 which are not found in the Constitution. Secondly, it is only traditional or cultural leaders who came into existence after 1995 that the Bill can cater for as far as the method of their election is concerned. Any law on the subject must take cognizance of article 246 (1) of the Constitution which provides that “Subject to the provisions of this Constitution, the institution of traditional or cultural leader may exist in any area of Uganda in accordance with the culture, customs and traditions or wishes and aspirations of the people to whom it applies.†This leaves little room for the minister’s innovations.
The Constitution makes a distinction between traditional leaders or cultural leaders by using the two words disjunctively. Historically, a traditional leader was head of a geographical area with its own government such as Bunyoro, Buganda, Toro and Busoga. Within these geographical areas existed administrative structures which were run in the name of the traditional leader.
Alongside these administrative structures existed cultural structures which were subordinate to the institution of a traditional leader. Accordingly with reference to Bunyoro, Buganda, Toro and Busoga it is insensitive for the bill to talk of more than one traditional leader when providing for a titular head of a regional government.
The bill provides that a person shall not be taken to be a traditional or cultural leader unless such a person is recognised as such by the government by a notice published in the gazette. This provision runs counter to article 246 (1) discussed above and article 37 of the Constitution which provides that “every person has a right to enjoy, practice, profess, maintain and promote any culture, cultural institution, language, tradition, creed or religion in community with others.â€
The only limitation to the exercise of this right provided for in the Constitution is when the practice of a traditional or cultural institution is discriminatory against any person or if a particular practice, usage or tradition relating to a traditional or cultural leader detracts from the right of any person.
Withdrawal of recognition by government of a traditional and cultural leader cannot be final. In 1953 the British government withdrew recognition of Kabaka Mutesa II but the lukiko passed a resolution in which it recognised Mutesa as still the Kabaka of Buganda. In a court case that followed the High Court held that the Kabaka could only be removed from the throne under the customs of the Baganda. The courts are likely to follow this decision in respect of traditional and cultural leaders today.
The provision which prohibits traditional or cultural leaders from participating in partisan politics has attracted a lot of criticism. This provision should be considered side by side with article 38 of the Constitution which provides that “Every Ugandan has a right to participate in peaceful activities to influence the policies of government through civic organisations.†What the Bill prohibits in clause 13(3) is for such a leader to become a registered member of a political party, to provide a platform for promotion of political party aspirations and to allow the institution to be used for political purposes. In view of this criticism of the Bill on the issue of partisan politics has not been balanced. No one wants traditional or cultural leaders to be in partisan politics.
The bill suffers from three shortcomings. First it tries to legislate for cultural practices in a uniform manner. Secondly it fails to make a distinction between traditional leaders and cultural leaders.
Thirdly it is unconstitutional in many ways. It is safer to operationalise article 246 of the constitution by adopting a law which repeats its provisions lock, stock and barrel.
The author is a lawyer