|[Home] [Help] [Databases] [CommonLII] [Feedback]|
Constitution of Kenya Review Commission
By Mutakha Kangu
A Paper Presented At The Constitution Of Kenya Review Workshop For Political Parties At Utalii College 5th - 6th November 2001
In a paper titled "Reflections on the Three Institutions of Organized society, Law and Government" [by Mutakha Kangu] it is argued that the three institutions of organized society, law and government were introduced in to the life of man not as ends in themselves but as means to an end. The end was identified as being the survival and self-preservation of the life of man through proper management and equitable distribution of resources. The role of the three institutions therefore was identified as being the proper management and equitable distribution and redistribution of resources as a means of enabling man to survive and preserve himself. In this analysis, it was emphasized that in origin and nature the three institutions among other things, are Republican in the sense that they were introduced to and always ought to serve the common good of all the members of the society concerned. They are instruments in the service of the welfare of all the members of the society concerned. As a result, an argument was put that inherent in these three institutions is the concept of constitutionalism. The institutions were introduced for the single and most important purpose of proper management and equitable distribution of resources in the interest of the common good; the common welfare.
This being the case, any attempt to direct the use of these institutions to any other purpose than service to the common good is unacceptable. The three institutions are therefore in terms of purpose subject to limitations. They are in terms of purpose subject to constitutionalism.
The paper then concludes that because of this the project and process of constitutional reform in Kenya ought to be a project in constitutional engineering. It ought to be a project aimed at not only democratizing but also constitutionalising governance so as to serve the common welfare of the people. It ought to be an engineering that can put in places, structures, formula and institutions that can add value to the project of democratizing and constitutionalising governance. Structures, formula and institutions that can add value to the project and process of proper management and equitable distribution and re-distribution of resources for purposes of survival and self-preservation of the life of man. It was concluded that all the institutions we consider for inclusion and restructuring in the new constitution and constitutional dispensation must be looked at from this value added perspective. They must not be considered for inclusion and or restructuring in the new constitutional dispensation as ends in themselves but as merely means to an end.
For this reasons, we propose to consider political parties not as ends in themselves but as means to an end. And the end itself must not be selfishly personal and tribal, but instead Republican. The end must be to democratize and constitutionalise governance. It must be to Republicanise governance. Indeed the Review Act demands as much from us by requiring that we put in place a constitutional system that will safeguard the well-being of the people of Kenya. Section 3(a) provides in this regard that;
"The object and purpose of the review of the constitution is to secure provisions therein:- (a) guaranteeing peace, national unity and integrity of the Republic of Kenya in order to safeguard the well-being of the people of Kenya. "
Political parties defined.
As if to agree with what has been posited in the introduction above, it is interesting to note that almost all the definitions that have been attempted regarding political parties have been from a functional point of view. Political parties have been defined from the point of view of the functions and purposes they serve or are meant to serve. They are in definition mere means to an end. Generally they are said to be associations of citizens through which the citizens seek to influence the affairs and process of governance. They are means through which the people express themselves and decide the system of government they want. They are viewed as movements which seek to persuade the citizens to give them a chance to run the government. Professor Peter Germer3 while discussing results of a study edited by professor Dimostris Th. Tsatsos observes that;
"---- By way of introduction he states that political parties are principal agents in the constitutional process as an expression of the fact that the people - being the sovereign according to the apex norm of all democratic constitutions - is organizing itself. '
Accordingly political parties are mere agents of the people through which the people can organize themselves. They therefore play the function of providing an organizational vehicle for the people. And because, as we pointed out in "Reflections on the three institutions of organized society, Law and government that man chose to move out of solitude in to a life of organized society as a means of enabling him to properly manage the resources and share them equitably, political parties as a vehicle through which the people can organize themselves must be viewed from this value added perspective. Talking from this economic point of view H. Rudolph describes a political party as being;
"An association of private citizens formed to promote certain political and economic beliefs and to have them adopted as government policy. '
On the other hand the German Law on political parties defines political parties7 in the following manner:-
"Parties are associations of citizens who set out to influence either permanently or for a lengthy period of time the formation of political opinions at Federal or land level and to participate in the representation of the people in the Federal parliament (Bundestag) or regional parliaments, (Landtage) provided that they offer sufficient guarantee of the sincerity of their aims in the general character of their circumstances and attendant conditions, particularly in regard to the size and strength of their organization, the number of registered members and their public image. Party members may only be natural persons. "
This German law therefore tries to define political parties in a manner that sets limits on the organizations that can have the status of political parties with all the attendant rights and obligations. In particular, it is the will to contest elections for representative assemblies at a federal and state level and the permanency of organization that characterize the definition of political parties and at the same time, distinguish them in law from short-term electoral associations, or other groupings such as trade unions and employers associations. Section 2 sets this limitations in terms of minimum periods which must not lapse before a party participates in elections and membership of the party. Sections 2(2) and (3) provide in this regard as follows:-
"S. 2(2) An organization loses its legal status as a party if it has not participated for
a period of six years in either a Federal election or a landtage election with electoral proposals of its own.
S. 2(3) Political organizations are not deemed to be parties if:-
1. Most of their members or the members of their executive committees are foreigners: or
2. The registered seat of business is located outside the preview of the present law. “
Role of Political Parties.
As the title to this paper indicates, it is proposed to argue that the role of political parties is to help democratize and constitutionalize governance as a means of ensuring the welfare of the people in the society concerned. Their role is to make governance more democratic, constitutional and republican.
They must assist in bringing about and maintaining good governance. James Madison sees the role of political parties as being:-
"To refine and enlarge the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love will be least likely to sacrifice it to temporary or partial considerations."
Political parties are therefore the means through which the citizen seeks to attain democracy. They are institutions in which the citizen places his confidence and trust and it is these objectives that they must seek to attain. Their leadership and membership as James Madison has said, ought to impel them to act not in their narrow personal and sectarian interest but instead in the interest of the entire community. They must have wisdom sufficient enough to enable them bear Republican responsibilities to the entire nation without discrimination against their none members.
When emphasizing on their importance and inalienability from democratic and constitutional governance M. Carter wrote of them in the following manner:-
"They are the indispensable links between the people and the representative machinery of government. Their role is most obvious when an election is in prospect. But in fact, they need to be continuously operative if a democratic system is to operate effectively.”
It is democratic parties that organize the vastly diversified public by nominating candidates for office and by popularizing the ideas around which governmental programmes are built. They are the vehicles through which individuals and groups work to secure political power. What differentiates political parties from interest or pressure groups is the breadth and variety of their followings and the orientation of their programmes towards issues of concern to the whole country. Because awakening interest is a more difficult task than stimulating interest in matters that obviously affect the business or family of an individual. "
Competing political parties form the basis of modern parliamentary constitutional systems. They perform functions of political leadership and control for specified periods and are answerable to the people. As organized groupings they provide alternatives upon which the life of the state can be molded and shaped. Through their mediatory function the nation is cast in the rule of the subject.
The German Basic Law is one constitution that has very elaborate provisions on the role of political parties in democratizing and constitutionalising of governance. Article 21 provides in this regard as follows:-
" 21(1) The parties shall help form the political will of the people. They may be freely established. Their internal organization shall conform to democratic principles. They shall publicly account for the sources and use of their funds and for their assets.
21(2) Parties which by reason of their aims or the conduct of their adherents seek to impair or do away with the free democratic basic order or thereafter the existence of the Federal Republic of Germany shall be unconstitutional. The Federal Constitutional Court shall rule on the question of unconstitutionally.
21(3) Details shall be the subject of Federal Laws"
But even more elaborate on this issue of the role of political parties is the German Law on political parties which at articlel which deals with the constitutional status and functions of the parties provides as follows:-
"Art. 1(1) Political parties form a constitutionally integral part of a free and democratic system of government. Their free and continuous participation in the formation political will of the people enables them to discharge the public tasks which are incumbent upon them pursuant to the Basic Law (Grundgesetz) and which they undertake to fulfill to the best of their ability.
1(2) The parties shall participate in the formation of the political will of the people in all fields of public life in particular by: -
Bringing their influence to bear on the shaping of the public opinion, inspiring and furthering political education.
Promoting an active participation by individual citizens in political life, training talented people to assume public responsibilities.
Participating in Federal, Land and Local Government elections by nominating candidates.
Exercising an influence on political trends in parliament and government, initiating their defined political aims in the national decision - making processes and
Ensuring continuous vital links between the people and the public authorities. 1(3) The parties shall define their aims in the form of political manifestos.
1(4) The parties shall use their funds exclusively for the fulfillment of their obligations under the Basic Law and this law. '
In most democracies, the people alone are not capable of action. They need a vehicle through which they can act. Political parties are therefore that kind of vehicle. The German Federal constitutional court once had occasion to rule on this issue and said the following:-
"The political parties are the political units of action which democracy needs in order to unite the electors into groups capable of political action, only thus giving them effective influence over what happens in the state. The political parties participate in the forming of the people's political will chiefly in elections which could not in any event be carried out without the political parties. Further more, they represent links between the citizens and the organs of the state, intermediaries through which the will of the people can also be realized between elections. They assimilate the endeavors directed toward political power and its execution and shape them into alternatives from which the people can make their choice. The political parties exercise decisive influence on the occupancy of the supreme organs of the state. Where they form the parliamentary majority and support the government, they represent and sustain the main link between the people and the states political organs of Leadership. As minority parties, they form the political opposition and give it effectiveness. They influence the shaping of the will of the state through being involved in the system of state institutions and offices, in particular through exerting their influence on the decisions and activities of parliament and government. "
The Role of the Winning Party that becomes the Ruling Party
The discussion so far has already pointed out that political parties are organizations which seek to capture government and run it for a given period of time. They have been viewed as movements which seek to persuade people to give them a chance to run the government for they can best identify themselves with the aspirations and the problems of the people. Consequently, in any given elections there will quite often emerge a winning party that becomes a ruling party. This eventuality gives rise to very fundamental issues and questions of governance. For instance, and most importantly, what responsibilities does the winning party that becomes a ruling party assume? And in respect of whom are those responsibilities assumed? And what is constituted by the concept of winning or losing elections?
It is argued that the party that is elected in to power assumes certain responsibilities. It represents and embraces the confidence and trust of the people. The party must therefore strive to live up to its expectations by completely avoiding any form of abuse of power. In "Reflections on the three Institutions of Organized Society, Law and Government" it was argued that the tree Institutions of Organized Society, Law and Government were invented to serve the common welfare of all the members of the society concerned. It was concluded that the three institutions must therefore be Republican and assume and bear Republican responsibilities for the welfare of all members of the community concerned. We referred to the social contract theory and emphasized that when man saw the necessity of inventing the three institutions it was at time when it had been realized that the concept of requiring every person, for his own security, survival and self-
preservation to rely on his own personal strength an power was an inadequate way to approach self-preservation.
Human beings therefore decided to consolidate their individual strengths and power into a common and stronger power that could be used for the benefit of all the members of the society. People agreed to surrender their individual strength and power in to the hands of a single person or group of persons who were required to exercise and manage that power on behalf of the rest and for the benefit of all the rest. Thomas Hobbes elaborates on this social contractual surrender of power in the following manner:-
"The agreement of these creatures is Natural that of men is by covenant only, which is Artificial: and therefore it is no wonder if there be somewhat else required(besides covenant) to make their agreement constant and lasting; which is a common power, to keep them in power , to direct their actions to the common benefit. The only way to erect such a common power, as may be able to defend them from the invasion of foreigners, and the injuries of one another and thereby to secure them in such sort, as that by their own Industrie, and by the fruits of the earth, they may nourish themselves and live contentedly: their power and strength upon one man or upon one assembly of men, that may reduce all their wills, by plurality of voices, unto one will which is as well as to say, to appoint one man, or assembly of men, to bear person: and everyone to own and acknowledge himself to be author of whatsoever he that so beareth their person, shall act or cause to be acted, in those things which concern the common peace and safety, and therein to submit their wills, everyone to his will, and their judgments, to his judgment.
This is more than consent or concord; it is a real unity of them all, in one and the same person, made by covenant of everyman with everyman, in such manner, as if everyman should say to every man, I authorize and give up my right of governing myself to this man, or this assembly of men on this condition, that thou give up thy right to him. and authorize all his actions in like manner. This done the multitude so united in one person, is called a COMMONWEALTH, in latin CIVITAS. This is the generation of that great Leviathan, or rather (to speak more reverently) of that mortal Sod, to which we owe under the immortal god, our peace and defense.
For by this authority given him by every particular man in the commonwealth, he hath the use of so much power and strength conferred on him that by terror thereof, he is enabled to form the wills of them all, to peace at home, and mutual and against their enemies abroad. And in him consistent the essence of the common wealth, which (to define it) is one person, of whose acts a great multitude, by mutual covenants, one with another, have made themselves every one the author to the end he may use the strength and means of them all as he shall think expedient, for their peace and common defense. And he that carryeth this person is called sovereign, and said to have sovereign power; and everyone besides, his subject “
On the other hand Aquinas when emphasizing the republican nature of law as one of the three institutions talks of law from the point of view of the purpose it serves. He says law has no other purpose other than the service of the common good. He says that-
"Law strictly understood has as its first and principal object the ordering of the common good. But to order affairs to the common good is the task either of the whole community or of some one person who represents it. Thus the promulgation of law is the business either of the whole community or of that political person whose duty is the care of the common good. Here as in every other case it is the one who decrees the end who also decrees the means thereto."
On the basis of this it is argued that the act of winning and losing an election is an act by which the losing party and its members enter in to a social contract to surrender their personal strength and power into a common fund to create a stronger power.
The stronger power thus created by the act of losing elections is surrendered to the winning party to manage and exercise it on behalf of the society including the losers and for their benefit. The winning party then becomes the ruling party, by the act of winning and taking the control of the state apparatus, the winning party assumes Republican responsibilities not just to its members to their party to the exclusion of the members of the losing party or parties but to all the citizens of the country concerned. The winning party is therefore required not to use the apparatus of state which constitute the stronger common power and order the affairs of the state and government to the benefit and common good of its members only but to also serve the benefit and welfare of even members of the opposition parties that may have lost in the elections. The winning party, because of its unique position of being the ruling party must not discriminate against the members of the losing party or parties. The ruling party must realize and remain faithful to its Republican responsibilities.
The role of the losing party that becomes the opposition party.
The assumption of Republican responsibilities does not mean that the losing party itself, has no responsibilities. The opposition also has a role to play in democratizing and constitutionalising governance. In their competitive approach to issues political parties, and particularly, opposition parties play a very important role in advancing democracy and enhancing good governance. Through their constructive criticism and their presentation of alternative approaches and proposals to the running of the affairs of government, opposition parties keep the party in the government on its toes and in the process influence decision making thereby leading to good decisions and good governance.
Indeed a wise ruling party can easily and quietly take the manifestos, proposals and programmes of opposition parties; study them and where possible implement some of those proposals and programmes as if they were their own party's proposals and programmes. By so doing, the ruling party would have quietly disarmed the opposition parties. On the other hand the opposition parties, if their main interest is good governance, would have while outside government managed to bring their own ideas, proposals and programmes in to the running of the government, to the benefit of the common good of all the members of society. In this connection Sigmund Newman has commented that;
"- - - A wise democratic government will certainly absorb the most popular ideas of the opposition and even incorporate them into its own program, much to the dismay of its political opponents.”
On the other hand Erman in his "The Democratic Decologue"22, while commenting on the English political experience remarked that
"Scholars have rightly described Her majesty's opposition as the most important institution in the British parliament. By exercising watchful control over the government and protecting the democratic processes against interference, the opposition reveals one of the essential features of modern democracy, the concept of adjustment. '
The losing party or parties that become the opposition parties are therefore supposed to engage in criticism of the government not as an end in itself but as a means to an end. The end being the improvement of the quality of governance. Their criticism should be a means of achieving democratic and constitutional governance. They should aim their criticism at achieving good governance and not merely as an end in itself. The opposition parties ought to engage in constructive criticism and not merely obstruction of the ruling party in its efforts to discharge its Republican responsibilities. Consequently, much as the ruling party has Republican responsibilities to give service to all the members of the society regardless of their party affiliation, opposition parties need not shy away from government offices under the guise that being seen to associate with such offices would amount to associating with the ruling party. As such criticism of those in the opposition who associate with government offices would seem to suggest a lack of proper understanding of this theory of the Republican nature of governance.
The Centralitv of Political Parties in Governance.
The discussion so far has indicated that political parties play a very central and crucial role in governance. We have seen that political parties from time to time compete to capture the state apparatus by which they can be in a position to run the affairs of government. This being the case it is asserted that any project in constitutional engineering aimed at democratizing and constitutionalising governance with a view to achieving good governance must target political parties as well. If the main crusade is in the direction of democratizing, constitutionalising and Republicanizing governance, then political parties stand out as one of the institutions that ought to be targeted for improvement.
It becomes important and urgent to try and find out how best political parties as an institution can be improved in terms of structure and organization.
Having noted the very central role political parties play in governance, it is observed that these constitute an institution that should be given constitutional status just as the legislature, the executive and the judiciary. Political parties as an institution are very important and should be regarded as a constitutional organ that should be provided for and regulated by the constitution. It is a constitutional organ that should be clearly defined and its role and functions elaborated by the constitution in the same way the other three organs of state are handled by the constitution. The responsibilities of this organ should be clearly spelt out in the constitution. If political parties are to play a role in democratizing and constitutionalizing governance, their structure, organization and activities ought to be properly provided for and regulated by the constitution with details in a law founded on the constitution.
In many countries, Kenya included, political parties are not given clear and specific provisions in the constitution. Many countries have very scanty provisions in the constitution that do not assist in clearly defining what political parties are and what their role in constitutional governance is. For instance, the 1996 South African constitution has no specific provisions on political parties. All that it says at section 1 dealing with the founding principles is that "The Republic of South Africa is one sovereign, democratic state founded on the following values:
(a) Human dignity, the achievement of equality and the advancement of human rights and freedoms.
(b) Non-racialism and non-sexism.
(c) Supremacy of the constitution and the rule of Law.
(d) Universal adult suffrage, a national common voters roll. regular elections and a multi-party system of democratic government to ensure accountability. responsiveness and openness".
On the other hand the Tanzanian Constitution revised in 1977 does not also have detailed provisions on the issue of political parties. All it says at Section 3(1) is that:
"The United Republic is a democratic and socialist state which adheres to multi-party democracy.
3(2) All matters pertaining to the registration for and administration of political parties in the United Republic shall be governed by the provisions of this constitution and of a law enacted by parliament for this purpose".
The Tanzanian problem has however been reduced by the fact that the constitution has enabling provisions under which parliament can enact a law relating to political parties. In exercise of the powers under this enabling provision Tanzania enacted the Political Parties Act 1992. According to Chris Maina Peter of the University of Dar es salaam.
"Briefly, the Political Parties Act 1992 (hereinafter referred to as the Act) provides for the establishment of the office of the Registrar of Political Parties; forms of registration of political parties; disciplining of political parties: and other regulations governing operations of political parties. Section 4 provides for the office of the Registrar of Political Parties in the office of the Prime Minister (hereinafter referred to as the Registrar). The Registrar and his deputy are to be appointed by the President.
The main duty of the Registrar is to register political parties. In performance of his functions, the Registrar is supposed to consult the minister responsible for legal affairs from time to time. The Registrar, his deputy and other officers, working under him are protected from being sued for anything done or omitted to be done in good faith without negligence in the performance of functions under the Law.”
Under Section 7(3) of the Act it is illegal for any organization to operate or function as a political party unless it has been registered. Registration of political parties is done in two stages namely
One :Provisional registration which is followed by a full registration. There are specific conditions prescribed by the Act which are to be fulfilled in each stage of registration. For a political party to be provisionally registered it has to fulfill three basic requirements:
1. It has to have founding members who will apply for registration.
2. The application is to be accompanied by the constitution of the proposed party.
3. Its membership should be voluntary and open to all citizens of the United Republic, without discrimination on account of gender, religious belief, tribe, race, profession or occupation. In addition an organization shall not qualify for provisional registration as a political party if by its constitution or policy:
* It aims to advocate or further the interests of any religious belief or group, any tribal, ethnic or racial group or only a specific area or any part of the United Republic.
* It advocates the breaking of the union constituting the United Republic.
* It accepts or advocates the use of force as a means of obtaining political objectives.
* It advocates or aims to carry out its political activities exclusively in one part of the United Republic.
* It doesn't allow periodic and democratic elections of its leadership.
Two : The provisional registration is for a period of six months or 180 days. During this period of provisional registration, the party has certain rights. For instance, it can hold and address public meetings in any area of the United Republic for the purposes of publicizing itself and soliciting for membership. To facilitate peaceful and orderly meetings, the party is entitled to protection and assistance of security agencies of the state. The right to hold and address public meetings is subject to two restrictions namely:
1. Obligation to apply and obtain a permit of the District Commissioner of the area where the meeting is to take place.
2. During this time the party cannot put up a candidate in any parliamentary, presidential or local authority elections.
As indicated above, these meetings are purely for self- introduction. The 180 days have to be used carefully as thereafter the party has to qualify for full registration or the provisional registration will lapse automatically. The conditions for full registration are :
For an organization to be fully registered it has to have been provisionally registered first.
The organization has to obtain not less than 200 members who are qualified to be registered as voters for the purposes of parliamentary elections from each of at least ten regions of the United Republic which at least two regions should be in Tanzania Zanzibar being one region each from Zanzibar Pemba.
The party has to submit to the registrar the names of its national leaders and such leadership should be drawn from Tanzania Zanzibar and Tanzania mainland.
The party has to indicate to the registrar the location of the head office in the United Republic and postal address to which notices and other communications might be send.
Once a party qualifies for full registration and it is so registered it can then put up candidates and campaign for any candidate in any Parliamentary and presidential or local authority elections. This is over and above the right to hold and address any public meetings in any area in the United Republic,
Unlike the practice during the one party rule where branches of the party were established everywhere the Political Parties Act provides in very clear terms that
"No person shall establish form or allow to be formed any branch unit, youth or women organization of any political party in any working place, school or other place of learning”
The Political Parties Act also provides for control of funding. Parties are supposed under the law to get their funds from the following sources:-
a) Membership fees
b) Voluntary contributions
c) Proceeds of any investment, project or undertaking kin which the party has an interest
d) Subventions from the government
e) Donations, bequest and grants from any other source.
Transparency and disclosure of sources is demanded.
In Kenya similar problems exist. Section 1A which replaced section 2A provides that:
“The Republic of Kenya shall be a multi-party democratic state.”
Obviously therefore this kind of approach and treatment of political parties in a constitution is inadequate and unacceptable. Given the fundamental manner in which the activities of political parties affect governance and the role they are expected to play, it is very necessary that more detailed provisions be made in the constitution. In this regard the example of the German Basic Law and the German Law on political parties are quite instructive.
The German basic Law for instance provides for political parties at Article 21 which has already been referred to and quoted in this paper. Sub article (3) of this article provides that details about political shall be the subject of Federal laws. In compliance with this clause the German Bundestag in 1967 enacted the Law on Political Parties in which it provided for the details about the role, functions and internal organization and structure of political parties. Article 2 of this law defines political parties as being associations of citizens who set out to influence either permanently or for a lengthy period the formation of political opinion. Under this article a party loses its status as such if it does not participate in elections for a period of six years. Political parties are also not deemed to be parties if most of their members or of the executive committee are foreigners or the registered seat of the party is located outside the country.
This law on political parties makes provision about quite a number of issues. First it deals with the issue of the constitutional status of a political party. The Act also provides for the structure and organization of political parties; particularly internal organizational rules include a vertical structure dealing with written statutes and programmes, regular party conventions, elections of party organs in particular executive committees the establishment of party arbitration and powers of co-
determination by members and finally distribution of responsibilities between members and officials. Party funding is another issue that is covered by the law.
The law also makes provision about the banning of political parties. Political parties adjudged according to their aims and conduct of their supporters to be bent on harming or destroying the Basic social democratic order or jeopardizing the existence of the Federal Republic of Germany are declared unconstitutional. On an application by the Bundstag, the Bundesrat, or the federal government, the party may be outlawed by the federal constitutional court.
In Uganda under the 1995 constitution a so-called partyless system is being followed. What the Museveni government calls the movement system. In his book the "Sowing of the Mustard Seed" President Museveni argues that Africa and Uganda in particular is not ripe for a system of political parties.
He argues that interests around which ideas of political parties can revolve have not yet developed. He further adds that drawing from the experience in the Obote days and subsequent regimes political parties in Uganda are formed on the basis of tribal and religious lines. For that reason he has strenuously resisted any attempt to introduce political parties in Uganda.
However the constitution of Uganda recognizes that at one point or another Ugandans may want to have political parties. For that reason provision has been made in the constitution for both the movement system and the party system. Article 69 provides that:
“69(1) The people of Uganda shall have the right to choose and adopt a political system of their choice through free and fair elections or referenda.
(3) The political systems referred to in clause (1) of this article shall include:-
(a) The movement political system.
(b) The multi-party political system; and
(c) Any other democratic and representative political system”
Having made provision for both the movement system and the party system the constitution goes further and makes detailed provision about what is constituted by both movement and party systems and how each is to be run when it is in use. Regarding the movement system article 70 provides as follows:-
“70(1) The movement political system is broad based, inclusive and non-
partisan and shall conform to the following principles:-
a) Participatory democracy:
b) Democracy, accountability and transparency:
c) Accessibility to all positions of leadership by all citizens:
d) Individual merit as a basis for election to political offices.
70(2) Parliament may:-
a) Create organs under the movement political system and define their roles; and
b) Prescribe from time to time, any other democratic principle of the movement political system, as it may consider necessary.”
c) On the other hand the constitution provides for a party system under articles 71, 72, 73, 74 and 75 in the following manner:-
"71 A political party in the multi-party political system shall conform to the following principles :-
a) Every political party shall have a national character:
b) Membership of a political party shall not be based on sex, ethnicity, religion, or other sectional divisions:
c) The internal organization of a political party shall conform to the democratic principles enshrined in this constitution;
d) Members of the national organs of a political party shall be regularly elected from citizens of Uganda in conformity with the provisions of paragraphs (a) and (b) of this article and with due consideration for gender:
e) Political parties shall be required by law to account for the sources and use of their funds and assets;
f) No person shall be compelled to join a particular party by virtue of belonging to an organization or interest group.
72(1) Subject to the provisions of this constitution the right to form political parties and any other political organizations is guaranteed.
(2) An organization shall not operate as a political party or organization unless it conforms to the principles laid down in this constitution and it is registered.
(3} Parliament shall by law regulate the financing and functioning of political organizations.
73(1) Subject to the provisions of this constitution, but notwithstanding the provisions of paragraph (e) of this clause.
(1) At article 29 and article 43 of this constitution, during the period when any of the political systems provided for in this constitution has been adopted, organizations subscribing to other political systems may exist subject to such regulations as parliament shall by law prescribe.
(2) Regulations prescribed under this article shall not exceed what is necessary for enabling the political system adopted to operate.
75(1) A referendum shall be held for the purpose of changing the political system•'-
a) If requested by a resolution supported by more than half of all members of parliament,' or
b) If requested by a resolution supported by the majority of the total membership of each of at least one half of all district councils: or
c) If requested through a petition to the Electoral Commission by at least one-tenth of the registered voters from each of at least two-thirds of the constituencies for which representatives are required to be directly elected under paragraph (a) of clause (1) of article 78 of this constitution.
(2) The political system may also be changed by the elected representatives of the people in parliament and district councils by resolution of parliament supported by not less than two thirds of all members of parliament upon a petition to it supported by not less than two thirds majority of the total membership of each of at least half of all district councils.
(3) The resolutions or petitions for the purposes of changing the political system shall be taken only in the fourth year of the term of any parliament.
75 Parliament shall have no power to enact a law establishing a one-party state.l
The discussion in this paper clearly shows that the issue of political parties is going to take centre-stage in the on-going constitutional review process. Parties need to be regarded as constitutional organs that should be provided for by the constitution.