Uganda's rugged constitutional path

To mark 50 years of Uganda’s independence, New Vision will until October 9, 2012 be publishing highlights of events and pro ling personalities that have shaped the history of this country.

Today, JOEL OGWANG brings you the intriguing story of Uganda’s constitutional building path Since the ratifi cation of the American constitution in 1788, it has been amended only 27 times in over 200 years. In contrast, the independent Ugandan state has had four constitutions since 1961.

The latest constitution, ratifi ed in 1995 has since had six amendments. “At this rate, we will have written a new Constitution by the time the country is 200 years old,” observes, a Kampala city lawyer, Caleb Alaka.

Alaka explains that Ugandans do not have a culture of constitutionalism, with each succeeding government ‘bending’ the country’s supreme law to consolidate their stay in power.

On the other hand, veteran city lawyer Peter Mulira says subject to a majority decision and with a goodwill spirit, any constitution can be amended. “Any constitution has provisions for amendment, but this cannot just be by simple majority or one person’s desire.

However, constitutionalism in Uganda has suffered a big blow. We have ingredients of a good constitution, which are not respected. I do not blame the Constitution, but our leaders,” Mulira says. Former minister Prof. Tarsis Kabwegyere in his 1995 book, The Politics of State Formation and Destruction in Uganda, says Ugandans still has a long way to go to make a constitution that is relevant to the country.

“Ugandans have never had the chance to work out a constitution that suits the conditions of Uganda,” says Kabwegyere. The intricate constitutional building process While the country seemed united in the fi ght for self rule, it appears it was simply a marriage of convenience as cracks developed even before the 1962 independence celebrations.

For instance, even in participating in the formulation of the first constitution that debutantly shot Uganda into democratisation in 1962, Buganda sought her own independence from the larger Uganda, while DP and UPC were pre-occupied with defeating each other to emerge the fi rst party to run a postindependence government.

It was, therefore, not surprising that such a rollercoaster of ambitions couldn’t find consensus back home, until the Lancaster Conference of 1961.

Indeed, Buganda got her independence on October 8, 1962, a day before Uganda’s. Buganda was also granted federal status with more political power, while the rest of the regions were to be governed under the unitary system.

With the supreme law now in place, the race to form the fi rst government was on. However, UPC chief, Apollo Milton Obote, craftily entered an accord with Kabaka Yekka (KY), forming a coalition that technically denied DP’s Benedicto Kiwanuka the chance to form the fi rst government.

Ultimately, the coalition installed Sir Fredrick Mutesa I as Uganda’s first President, albeit ceremonial, while Obote was the executive Prime Minister and, in him, rested real state power. Mulira, however, argues that the Lancaster House conference did not serve Uganda’s interests.

“In London, delegates never solved Buganda (and Uganda) issues and how the country needed to be governed,” he says. “They were interested in cutting deals and who got more votes (to form the fi rst Government).” Constitutionalism in Uganda, Mulira says, started in the 1940s when locals demanded to elect their leaders to district councils and, by 1949, the masses were electing members to the Lukiiko (Buganda Parliament), for example.

But it was not until 1962 when Sir Andrew Cohen, on his appointment as Governorof Uganda, that demand for an national constitution gathered momentum, as a wave of independence swept through Africa and Uganda. “By independence, Uganda had a democratic system. What we needed was a national constitutional order,” says Mulira. Abrogation of the 1962 Constitution The UPC-KY alliance lasted only four years. By 1966, irreconcilable differences had developed between Obote and Mutesa I leading to the abrogation of the

1962 Constitution. After the storming of the Lubiri palace by government forces, the 1962 Constitution was replaced by the infamous 1966 “Pigeonhole” Constitution. The then Attorney General, the late Godfrey Binaisa is credited with crafting the 1966 Constitution largely labelled anti-Buganda.

The constitution was adopted in a tense political environment and without debate, abolishingmonarchies. In fact, at the launch of his book, Constitutionalism and the Political History of Uganda, in 2002, retired Justice George Kanyeihamba criticisedBinaisa for superintending the abrogation of the 1962 Constitution.

In his defence, Binaisa admitted participating in the abrogation to avoid a lurking ‘bloodbath’. “Faced with the 1966 events, I had to keep the citizens and foreigners from harm,” The New Vision quoted him as saying. “I offered a solution. I told Dr. Obote that it was the only thing to do to save the country from a military take over.

I kicked out all the Ugandans from the offi ce and let the Europeans handle it so as not to leak it.That constitution saved this country. I think I did a good job.” In The Politics of State Formation and Destruction in

Uganda, Prof. Kabwegyere opines that the 1964-66 turmoil was a result of disagreement between the President and the Prime Minister over Mutesa’s combined roles as Kabaka of Buganda and President of Uganda. “That the head of state could abrogate a Constitution and replace it with one of his own choice was the severest blow at

the working of the state,” writes Kabwegyere. The 1967 Constitution In 1967, the Republican Constitution was adopted by Parliament, making it the third Constitution in fi ve years. Former Judge Okumu Wengi blames the rapid overthrow of the Constitution on the fact that the maiden 1962 supreme law was prepared from a draft Constitution prepared by English experts. “The outcome could hardly survive the social friction at home,” he writes in Founding the Constitution of Uganda, 1994.

Like in drafting the ‘Pigeonhole’ Constitution, Binaisa was also a lead fi gure in formulating the 1967 Republican Constitution that also banned monarchies after Buganda Kingdom demanded that Kampala, the capital city, be removed from its ‘soil’.

Through it, Obote elevated his position from executive Premier as of the 1962 Constitution, to executive President, taking away checks and balances created between the two positions. He also formed a unitary government, granting himself excessive authority interpreted as a move to entrench and consolidate himself in power.

However, it is this unchecked power that would present a cabinet crisis when Cuthbert Obwangor, then planning and economic development minister and others opposed Obote, accusing him of imposing all powers of state on him. He wanted a position of Prime Minister created but, instead of considering it, Obote imprisoned Obwangor.

“The Republican Constitution was not a people’s Constitution. Obote used it to solve UPC’s internal problems, but this did not help Uganda,” Mulira says. Until Obote’s first Government was overthrown by Idi Amin in 1971, Uganda continued being governed by decrees/regulations until the NRM captured power in 1986.

Fourth Constitution The 1995 Constitution, adopted during the 1994 Constituent Assembly was by and large Uganda’s fourth constitution, and a great improvement on the trio that preceded it. However, analysts still think it has shortcomings.

For instance, although findings of the Justice Benjamin Odoki’s Commission, showed that the majority of Ugandans favoured a federal system of government, this was ignored and substituted with decentralisation and the Regional Tier that remains a paper tiger to-date.