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Constitution of Kenya Review Commission
By Hon J. F. Wapakhabulo
Uganda, has undergone a turbulent constitutional history having in effect four constitutions since independence. The constitution making process has not always followed the rules of the book as concerns democratic representation causing as a result non-observance of or at worst complete abrogation or disregard of the constitutions and in effect leading the country into turmoil.
The 1995 constitution, the supreme law of the land, is by far the most democratically made constitution having undergone a process that begun in August 1988 and ended in October 1995. This might seem long to any non-
actor in the process but considering the instability resulting from previous constitutions and the many issues at stake, it was anything but long.
I shall first delve into Uganda's past experiences in constitution making so as to bring to light the background upon which the present constitution was made.
Uganda gained independence in 1962 under a constitution drafted in London under the auspices of the British. The constitution distributed powers between the centre and the regions though in a disproportionate manner. More powers were given to Buganda Kingdom under a quasi-federal arrangement. Similar powers but on a lower scale were given to the other kingdoms of Toro, Ankole, Bunyoro and the Territory of Busoga. The remaining districts were not given quasi-federal status. With regard to the election of Members of Parliament the constitution provided for direct elections under universal suffrage except for parliamentarians from Buganda who were indirectly elected through the Lukiiko (Council) of Buganda. Members of the Lukiiko and of District councils were to be directly elected under a universal suffrage system. This constitution was a highly compromise one and as Kanyeihamba pointed out:
That the Uganda delegates did not object to these provisions is politically defensible. What was wanted was independence. The British Government could impose any terms it wished but once we were our own masters we would treat the constitution with the respect it deserved.
Needless to say. Parliament was handicapped by the federal powers that were granted to the four kingdoms and the territory of Busoga.
2. 1967 Constitutional Arrangements
In 1966 Milton Obote, the Prime Minister of Uganda, abrogated the 1962 constitution and declared himself President under an Interim constitution of 1966. The Parliament whose term of office had just expired was constituted into a Constituent Assembly to draft a new constitution for Uganda. The 1967 constitution was born out of this process. The 1967 constitution apart from extending the life of the Parliament, also declared the President then in office the President of Uganda for a term of 5 years. It also introduced major changes to the constitutional arrangements in the country.
The Kingdoms were abolished. Whereas under the 1962 constitution the Prime Minister had to be a Member or Parliament leading- a Party with the largest number or members In the House, the President under the 1967 constitution was elected Indirectly. The constitution provided that the leader of any political party whether or not that leader was a member of Parliament became the President of Uganda if his or her party obtained more than 40% of the seats in Parliament. The election of Members of Parliament was by direct universal suffrage across the entire country. Apart from the election of the president this arrangement seemed to have some democratic semblance although in actual practice the democratic principles of a free and fair election were hardly observed.
Membership to the district and town Councils was by nomination by the central government. With regard to the Civil Service, the 1967 Constitution transferred all the appointing powers from the independent Public Service Commission to the President. The Public Service Commission became purely advisory. The same arrangement was extended to employees of Local Government Councils. They too were appointed by the President. This centralization of power coupled with large-scale nationalisation of private enterprises, including the cooperative movement, made the presidency and therefore the state extremely powerful. The state became the prime mover and the sole source of patronage.
This ensured political loyalty to, and domination at all levels by, the ruling party, the Uganda Peoples Congress (UPC). Domination in the Army and the Police was ensured through purging officers from the southern part of the country, withholding promotion or giving them innocuous assignments. Other political factions such as the Democratic Party (DP) were banned and their leaders imprisoned following an attempt on Obote's life in 1969. Because of these measures, it was not found necessary to formally declare Uganda a one party state. The Uganda Peoples Congress became the sole actor in the political arena. But within the UPC itself there was no internal democracy. Because of the challenge he had experienced at the Gulu general congress of the party in 1964 necessitating his having to print new cards to disenfranchise accredited delegates opposed to him so as to impose a secretary-general of his own choice, Obote effected changes to the party constitution.
Constitutional changes were made to provide that only the office of the President of the party would be elective. All the other positions on the party executive were to be filled by a person hand-picked by the party president. These arrangements were however disturbed in 1971 when Obote lost his grip on the military in a dogfight with Idi Amin in which the latter emerged victorious. Idi Amin removed the semblance of constitutional governance left in the 1967 constitution and carried out a reign of terror over the people of Uganda. The fall of Idi Amin and the eventual re-
emergence of Milton Obote in 1980 at the head of UPC government did not help matters. Although political party activity was allowed this time, the centralized state continued and centralization of politics was carried out further through intimidation of the opposition and bribery. Many opposition Members of Parliament crossed to UPC thereby in effect recreating a one party state. Some of the vocal opposition who defied the request to cross over to UPC such as late Professor Kyesimira were locked up on tramped up charges. Professor Kyesimira was released from jail in 1985 when Obote fell again.
These developments were inevitable because at independence Uganda:
1. did not have a native middle class strong enough to guide the affairs of the state in accordance with accepted democratic principles;
2. did not have civil society institutions strong enough to constitute a. check on the arbitrariness of state power;
3. was experiencing a fight for state power through factions of the elite divided on the basis of ethnicity and religion but calling themselves political parties. These fractions tended to act in a desperate and most autocratic manner.
Soon after independence, the UPC having gained power by tricking the Baganda Into joining It In an alliance, proceeded to "cleanse" some areas of the country so that those areas became Its primary power centres. Between 1962 and 1970 Milton Obote using ethnicity succeeded In destroying the Democratic Party in the northern part of the country from where he hailed, more particularly in the central north districts of Lango and Acholi. Having achieved this, Obote then through local chiefs and trickery in such areas as Teso, Bugisu, Ankole, Bukedi and Kigezi, was able to rule the country In disregard or such hostile areas as Buganda and Busoga. These two previously friendly areas had become hostile to Obote following the abolition of their kingdoms and the exiling or Imprisonment or their leaders.
The DP on its part took advantage or the extreme dislike of Obote by Baganda and the dominance of the Catholic faith in this area to also create a 'safe' centre in Buganda for Itself.
It has always been the strategy of the DP that with Buganda as a core It needs to add votes from few areas outside Buganda on account of Catholicism to take power. These two elite fractions have always remained at odds except when their existence is threatened that they come together.
3 The National Resistance Movement
The National Resistance Movement (NRM) emerged on the scene as a result of this over centralization of power and the application of undemocratic practices particularly under Obote's second regime. The 1980 elections which the DP was slated to win were massively rigged by the UPC. The NRM took up arms in protest. A fight took place on Buganda soil and Milton Obote and his allies were eventually removed from power in January 1986.13 The NRM on coming into power realized that while it had the military might it lacked administrative and political arrangements across the country. A number of measures were put in place and among these three deserve special mention.
1. a broad based government encompassing all elements of the Uganda political spectrum was established. This was intended to bring in people who if left out would create problems for the fledging administration. There was also the desire to create an atmosphere of reconciliation very crucial in a divided country.
2. the election throughout the country or local councils from the village level to the district level through participation by the people in the process. This created new power centres removing away power from the chiefs who were the sole source of authority in the villages and in the towns. This popular participation was seen as a revolutionary change as against the previous arrangement where councils at all levels were appointed by the government.
3. the establishment of a constitution making process based on principles of consultation with and participation by, the population; a measure that was both populist and revolutionary.
4 Constitution making process
The National Resistance Movement had a programme of work contained in what is referred to as the Ten Point Programme. One of those points was that on taking power the NPM would establish a mechanism that would enable the people of Uganda prepare a new constitution for themselves. To the NPM the political problems of the country were traceable to the unilateral abrogation by Obote of the 1962 constitutional arrangements and the imposition by him of arrangements that were not acceptable to a large and influential section of the population particularly the Baganda.
In 1986 on taking power the NRM issued Legal Notice No 1 of 1986. This legal notice formed the constitutional basis for the NPM government. Under it, it was provided with regard to constitution making, that the constitution - was to be debated and finalised by the National Resistance Council (NRC) working together with the National Resistance Army (NRA) . However, this arrangement was subsequently varied through a recommendation of the Constitutional Commission.
The constitution making process can be divided into a number of stages.
1. the establishment and operations of the Constitutional Commission under Mr Justice Ben Odoki.
2. The preparation for and conduct of elections to the Constituent Assembly (CA) .
3. The operations of the CA to the point of promulgation of the Constitution.
5 The Constitutional Commission
As a follow up to the provisions of Legal Notice No. 1 of 1986, the Constitutional Commission Statute was enacted by the NRC. A Constitutional Commission consisting of 22 members was established by this Statute. It was chaired by Mr Justice Benjamin Odoki, a Judge of the Supreme Court or Uganda, the highest court in the land. It was charged with the duty of gathering information from the people as to the form of governance they would like to have, analysing the views so gathered and preparing a draft constitution as a basis for the final preparation of a constitution for Uganda. After touring the country, interviewing many people and receiving written memoranda the Commission made an interim report. In this report the Commission advised the government that a majority of the people of Uganda preferred that a Constituent Assembly be elected directly by them. Indeed in the final report of the constitutional commission it was reported that:
"... the .body to officially debate the draft constitution should be as fully representative of the people as possible . . we recommended . . a new body, the Constituent Assembly, composed mainly of directly elected delegates plus representatives of some interest groups to carry out those roles on behalf of the people."
This recommendation was accepted by government and Legal Notice No 1 of 1986 was accordingly amended to provide for this. A statute providing for the establishment of, and elections to, the Constituent Assembly as well as the powers and functions or that Assembly was also enacted.
The Statute provided for the composition of the Constituent Assembly. The Constituent Assembly consisted of 284 delegates representing 214 electoral areas designated, through a population quota, by the Commissioner for the Constituent Assembly. The NRA, the National Organisation of Trade Unions, the old parties which took part In the 1980 elections. National Youth Council and the National Union or Disabled People were also represented. Also Included among the delegates was one woman delegate from each of the 39 districts. The 214 delegates representing electoral areas were chosen by universal suffrage through secret ballot. The rest were elected by electoral colleges. The purpose or extending representation to these other Interest groups was to ensure that all stakeholders participated In this exercise which was very crucial to the future of the country.
The decision to finalise and promulgate the constitution through an elected body was considered more appropriate than the previous arrangement contained In Legal Notice No 1. Although the membership to the NRC had been expanded In 1989 to Include elected members, those members were elected Indirectly through colleges. This was considered not to be sufficiently representative of the people. It was also felt that a constitution coming out of the deliberations of directly elected delegates would en Joy greater legitimacy than would otherwise be the case . As defined In the Black's law dictionary, a delegate Is a person who Is delegated or commissioned to act In the stead of another.
In light of this members of the Constituent Assembly were to speak only for what the people who voted them In wanted. They were to consult members or their constituencies for their views about the Issues under discussion and not to rely on their own emotions. It was nevertheless feared by some people that the CA delegates might tailor the constitution to suit their future political ambitions. Suggestions were made that CA delegates should be disqualified from standing for election to Parliament In the first elections to Parliament under the new constitution. This suggestion was not accepted. To some degree these fears were later Justified.
For example the CA failed to resolve the land question; a sensitive Issue that has existed In Uganda since 1900 when the British took land away from the communities and vested It In a few Individuals. It was the hope of the majority of Ugandans that the popularly elected CA would through constitutional provision resolve conclusively the question of feudal land holding and absent landlords. The delegates shied away from making a bold decision regarding these matters for fear of losing votes at the ensuing parliamentary elections. They instead chose to leave the Issues to be resolved by the first Parliament elected under the new constitution.19
Similarly for populist reasons delegates from areas of the country where land Is held communally sought to protect this type of land holding which does not favour modernisation of agriculture. As a result land distribution was transferred to tribal land boards. This Is likely to negate the provisions of the constitution which say that a Ugandan is free to reside in any part of the country. The same populist approach with an eye to future elections motivated the delegates into making it difficult for the central government to access land for purposes of industrialisation.
The Constitutional Commission submitted its final report to the President on 31 December 1992 - the last day of its mandate. The report or its findings were accompanied by a draft Constitution.
6. The Constituent Assembly
The elections to the Constituent Assembly took place in March 1994. Candidature was open to any registered voter who inter-alia, did not have a criminal record and was able to raise the required nominators and financial deposit. Political parties were prohibited from fielding or sponsoring candidates.
The stress was on personal merit. To do otherwise, it was argued, would be to invite the old political squabbles and draw away people's attention from the noble cause of constitution making. Notwithstanding these restrictions on political parties, the reality on the ground was different. Many candidates identified themselves during the campaigns either with the Movement or with given political parties. At campaign meetings the electorate sought to .know from candidates whether if elected they would support extension of the movement form of governance or introduction of multi party politics.
The electorate got to know who supported what. As a. result, in the central region o? Buganda where multipartism was portrayed as a return of Obote, the overwhelming majority of those returned supported movement politics. In most of the north where Obote's UPC remains strong, the majority of those returned supported multi partism. In the western region from where President Museveni hails, all the delegates except one supported movement ideas. In the East where UPC used to be strong in some areas, multi partists made a substantial showing though a majority of the delegates from there supported movement politics. All in all out of the 284 delegates roughly 220 supported movement politics. Differences existed among the movement supporters on some issues such as land, federalism but these were either smoothened out through caucuses or were resolved in accordance with the decision making mechanism in the rules of procedure.
The Assembly first met on 12 May 1994 under the chairmanship of the Chief Justice as required by the Statute establishing it. The Chief Justice supervised the swearing in of delegates and the election of the Chairman and Deputy Chairman. These meetings took place at the Kampala International Conference Centre, a sizeable conference centre which had adequate space to house the Plenary, committees and the secretariat, although in terms of planning this was supposed to be a temporary home.
The Commissioner for the Constituent Assembly had sought financing from the Treasury to renovate the parliamentary conference room within the precincts of Parliament to accommodate the Constituent Assembly. This was never to he as financing was never availed.
The 198 meetings of the Constituent Assembly were therefore held in the Conference Centre. This was a blessing in disguise because no other place within Kampala would have been as convenient in terms of meeting space and catering facilities. The Constituent Assembly Statute provided that the Assembly completes its work within a period of 4 months. This time frame turned out to be extremely inadequate and extensions had to be sought from the NRC on a number of occasions leading to promulgation of the Constitution after 17 months. The time allowed under-estimated the volume of work and the diversity of opinion that was to emerge.
The procedures of the CA were contained partly in the CA Statute and partly in the rules that were made by the Assembly. The Rules of Procedure were first prepared by a smaller committee appointed by the Chairman from among the members. The draft rules were debated extensively by the CA and eventually agreed upon. These rules were additional to those contained in the Statute.
The procedure applied in the CA fell into three broad categories as follows:
(a) Rules for the management of the meetings of the Assembly
With minor differences these rules were designed very much on the lines of the rules applicable In parliaments of the Commonwealth. To .facilitate work In this regard the rules provided for Standing Committees. There was a Standing Committee on Rules and Orders. The primary function or this committee was to keep under review the rules applicable In the Assembly, to suggest dally agenda, to the Chairman and to suggest amendments to the Statute where necessary. There was the Legal and Drafting Committee whose functions were to provide legal advice to the Assembly and Its committees on Issues referred to It either by the Assembly or the Committees, to consider proposed amendments to the draft constitution at all stages and to liaise with the Technical Committee. The Technical Committee was a Committee or experts In legislative drafting supplied by the Attorney General as required by the CA Statute.
The Standing committee on Privileges, Discipline and Welfare had the function of looking Into complaints of contempt of the Assembly, cases of Indiscipline referred to It by the Chairman and finally to make recommendations regarding facilitation of delegates and staff of the Assembly.
Care was taken to ensure that membership of these Committees consisted of all shades of political opinion In the CA. For instance strong critics of movement politics were appointed to the Legal and Drafting Committee. This was significant, taking into account that membership of these committees was by election by the Assembly through secret ballot. Deputy chairmanship of this Committee went to a strong multiparty supporter. This reflected a desire on the part of the Assembly to have the constitution drafted by a broad based body as a way of ensuring credibility and acceptability. Chairmanship of the Rules and Orders Committee went to a delegate who was strongly opposed to the idea of movement politics. This again showed the desire on the part of the Assembly to keep the idea of consensus alive.
(b) Rules for management of Business before the Assembly
In this area the Assembly took two approaches. Firstly a Business Committee under the chairmanship of the Chairman of the Assembly was established. Because of its important role in the work of the Assembly the membership of this committee consisted in addition to the Chairman of the Assembly the Deputy Chairman 39 delegates one from each district, 17 delegates representing special interest groups in the Assembly and the Chairmen of all the other committees. The role of this committee was to prepare and keep under review the work plan of the CA, monitor progress of the constitution writing process generally and coordinate the work of all the other committees.
Its sittings were not open to the public like it was the case with all the other committees. It was from the regular review of the progress of the work and the monitoring of the work plan that recommendations were made to the NRC through the Minister responsible for constitutional affairs asking for the extension of time.
The second approach was the detailing, in the Rules, of the various stages to be followed in the preparation of the constitution. It was agreed that work on the draft constitution would commence by way of a general debate followed by a Consideration Stage and then a Re-consideration Stage. During the general debate, each member was allowed 30 minutes to comment on the general principles of the draft constitution and to deliver a message from his or her constituency. The Consideration Stage provided opportunity for detailed discussion of the provisions of the draft constitution, while the Re-consideration Stage was for revisiting some provisions agreed upon in the Consideration Stage as well as fine tuning the text.
Other stages were Enactment, Certification and Notification. Enactment constituted the formal adoption of the text agreed upon in the Consideration and Reconsideration Stages. Under the Rules, enactment was to take place not earlier than 72 hours from the date of the laying on the table of the final text. Upon enactment, the rules required that the draft constitution be certified by the Chairman witnessed by the Deputy Chairman, the Commissioner for the Constituent Assembly, the Clerk to the Assembly and any delegate who wished to do so. Delegates were under no obligation to sign the text.
This was a significant provision because withholding signature by a member, as eventually 40 or so did, was not detrimental to the validity and effectiveness of the constitution. The rules required the Chairman to immediately after enactment notify the President in writing through the Minister of that fact so that the President may fix a date for promulgation of the constitution. Under section 19 of the Statute the President was required to fix by Statutory Instrument, a date for the promulgation of the Constitution. The day appointed for this purpose was to be not more than 60 days after the day on which the Assembly enacted the Constitution.
The decision to provide for general debate was extremely important in the work of the Assembly. Members were elected from across the entire country and many hardly knew each other. Many were new to "parliamentary practice" and therefore lacked confidence. There was an air of political suspicion and polarisation. The general debate which lasted over one month relaxed the atmosphere and imbued confidence among many. But this approach was also significant in developing informal groups and caucuses as delegates discovered the political inclinations of each other. With regard to the Consideration Stage the general opinion at the beginning was that the Assembly would in plenary consider the draft constitution article by article. The idea of subject committees found no favour particularly among those opposed to the movement type of politics. There was a feeling that each delegate's views should be expressed on each article or the draft constitution.
This approach was quickly found to be very slow and extremely time consuming. This realisation was discussed In the Business Committee and a recommendation was made that Select Committees should be established to handle subsequent chapters in the draft constitution.
To this end five select committees were established to handle specific areas [Chapters/Topics] as follows:
* Public Service
* Inspectorate of Government
* Leadership Code
* Boundaries of Uganda
* Defence & National Security
* Amendments to the Constitution
* Oath of Allegiance
* Presidential Oath
* Local Government
* General & Miscellaneous
* Traditional Leaders
* Representation of the People
* Transitional Period
* Directives of State Policy
Upon allocating -work to these committees the Assembly went into recess and reconvened only to receive reports of the committees. Consideration now shifted from the text of the draft constitution to the reports of the committees which included recommendations as to what should be included in the constitution. Many minority reports were presented on issues considered in committees. The approach in the plenary was first to consider minority reports on any issue and if adopted the minority position was to replace the majority view. Otherwise the majority view would hold unless successfully amended on the floor of the Assembly, In due course amendments to the recommendations of the Committees became so many and so time consuming that the Business Committee had to come in.
It was decided in the Business Committee and adopted by the whole Assembly that the Legal and Drafting Committee should first consider and synchronise all the amendments proposed on any particular provision of the report of a committee. This way many amendments were removed, and only those considered of substance were brought to the plenary. The only exception to this rule related to the determination of the political system.
Multiparty supporters in Committee 5 had reported to the chair that the Chairman of that Committee had adopted a procedure which had made it difficult for them to present their views effectively. Because of this they had walked out of the Committee, boycotting its proceedings. After listening to both sides the chair ruled that in the interest of credibility and acceptability of the final product, the issue would be reopened in the plenary as if it never went before the Committee.
(c) Rules providing for decision making in the Assembly
Because of the need to ensure maximum acceptability of the matters agreed to, the quorum was set by the Statute at not less than 2 of the total number of delegates. This did not apply to the motion for adjournment. This turned out to be very cumbersome. It was not always easy to raise 142 delegates. This was aggravated by the fact that 101 delegates were members of NRC and some of these were Ministers including the Vice President and the Prime Minister. On many occasions the Chairman had to threaten disciplinary action as a way of enforcing due attendance.
The rules also drew a distinction between decisions on procedural questions as against decisions on the substance or the draft constitution. Firstly the rules provided that every decision of the Assembly was to be by consensus. The Chairman was to determine whether or not consensus had been obtained by putting the question to the Assembly on the voices. The ruling by the Chairman could be challenged by 50 or more members and if so successfully challenged a division would be conducted. More importantly though the Statute and rules provided that with regard to decisions affecting the provisions or the draft constitution or any amendment to those provisions the motion would be carried only after it obtained the majority of not less than 2/3 of the delegates voting (subject of course to the requirements of quorum). On the other hand the motion would be lost if it was supported by less than the votes or the majority of the delegates voting. The matter would however be regarded as contentious if, upon voting, the motion was supported by the majority of the delegates but did not obtain the support of 2/3 of the delegates voting. Where a matter became contentious the rules required that a recess of not less than one week would be taken to enable the members consult their constituents before a second vote Is conducted. If upon the second vote the matter was again found to be contentious then a referendum, would be held.
The purpose of these provisions as regards decision making was to ensure that the substance of the constitution was arrived at by a decision of as many delegates as possible. At the same time it was tailored to protect the views of a substantial minority by giving- them another chance apart from bringing in the population through consultation or referendum. The rules also provided that before promulgation the President could if he disagreed strongly with any provision agreed upon in the CA call a referendum so that the matter Is decided by the voters.
As it turned out the Assembly was sent to consult only once on the question of the national language. No referendum was occasioned either by the Assembly or the President.
7. The Contentious Issues
A majority of the decisions relating to the provisions of the draft constitution were reached by consensus except on the following:
* National Language
* the Political system
The National Language
A proposal was made that while english should be the official language of the country, as recommended by the Odoki Commission, Swahili should be the national language of Uganda. This proposal received mixed response. There were those who were extremely opposed to the adoption of Swahili particularly the delegates from Buganda who felt that acceptance of Swahili would marginalise Luganda The middle ground was occupied by many who did not have strong views either way. A majority of the delegates from Buganda were not prepared to sacrifice their future parliamentary careers because of Swahili. The matter was subject to a division and the result was contentious. A second vote was taken after consultations and the proposal was lost. A compromise was finally adopted which provided that English shall be the official language of Uganda but that any other language may be used as a medium of instruction in schools or other educational institutions or for legislative/, administrative or judicial purposes as may be prescribed by law. This in effect left it to Parliament to decide whether Swahili can be used in Uganda as a medium of instruction or as official language in Parliament, government offices or in the courts.
Land has always been a sensitive issue in Uganda since 1900 when the colonial administration took away land from Baganda peasants and gave it to collaborating chiefs. Part of Bunyoro was taken away and given to the Baganda who fought on the side of the British against King Kabalega of Bunyoro. In these cases the peasants became landless squatters on land. Successive administrations including Idi Amin tried to resolve this question but -without success. It was considered by many that the CA provided the opportunity to resolve the issue.
Views were expressed that a provision should be included in the Constitution revesting the land in the squatters. The Constitution would mandate the central government to pay compensation to the dispossessed landlords. Those supporting the position of the landlords took the view that a law should be enacted enabling the landlords to collect rent from the peasants under leasehold arrangements. The proposal to dispossess the landlords in favour of the squatters was defeated upon a division. The general mood in the CA was for land reform in favour of the squatters. However, the lobby by landlords who either own or have access to public media seems to have played a significant role in making the delegates take a cautious approach.
Also apart from the effects of the impending parliamentary elections, many of the delegates are now large scale land owners through purchase. Some kind of compromise was agreed upon whereby the matter was left to be resolved by the incoming Parliament within a period of two years from the first sitting of that Parliament. It was further provided that until Parliament makes such provision the squatters should not be disturbed.
The Restoration of Traditional Rulers and Federalism Before the Constituent Assembly came into place, the NRC passed a Statute restoring to the Baganda their 'kingdom. It is argued in some quarters that this move was opportunistic and designed to ensure for the NRM majority votes in the Constituent Assembly election from the Baganda. This though was not the reason nor the decision made by the NRC. There was a lot or pressure on the NRC by the Baganda.
The Baganda had always viewed the institution of the kingship as a unifying factor and a symbol of their right to culture. Now that Obote was out and the NRM had acquired power they demanded this with a vengeance such that it seemed quite clear that all they would lobby In the Constituent Assembly was a restoration or their kingdom and In turn effectively give second best to other issues to be discussed in the house.
The NRM took the view that the kings should be restored where the people so wished but without executive powers - to avoid power-centre conflicts. The NRM though was wrong in thinking the Baganda would be satisfied with just that - they wanted more. There was a strong lobby by a number of delegates from Buganda that Uganda should adopt the federal structure which existed under the 1962 constitution. In this they were supported by multipartists who seized the opportunity to embarrass the NRM which favoured decentralisation. The UPC also saw this as an opportunity to gain favour in Buganda. The motion to introduce a federal structure was hotly debated in the Assembly. This motion divided Movement supporters.
Many Movement delegates from Buganda because of the campaign pushed by the Kabaka and his traditionalists, favoured federalism which with regard to Buganda would in effect give the Kabaka executive power. The majority or Movement delegates from outside Buganda, favoured
decentralisation under a system that devolved powers and functions to the districts and beyond. The motion was defeated on the voices. This was because the motion had been moved by a UPC delegate. Because of suspicion among the NRM delegates from Buganda as to the hidden motives behind UPC sponsoring the motion even the Baganda traditionalist abandoned it.
Attempts to challenge the ruling of the chair failed to attract the required numbers. The Assembly proceeded to provide for a decentralised system of government with power distributed between the centre and the districts. The districts constituted the primary units of local government. As a compromise to federalists it was provided that two or more districts could come together under a charter on account of cultural identity or to share services.
The Political System
At independence in 1962 Uganda, was governed under a multiparty system. This was eroded by the practices of UPC as a ruling party such that by 1970 Uganda, was all but in name a one party state. Following the removal of Idi Amin, multiparty politics was reintroduced in 1980. But when the elections of that year were massively rigged and the DP, the victim, elected to collaborate with elections "thieves", many Ugandans became cynical about political parties. It is on this basis that Yoweri Museveni opted for "no party" politics or otherwise known as "movement politics". This is a type of politics where no one is denied the right to stand for any political office of his or her choice. Political parties are not allowed to sponsor candidates - personal merit is the rule of the game.
This is to be contrasted with a one-party state under which one's political rights are frozen unless one belongs to the membership of the only legal party. Justice Odoki's Commission sought to know from the population whether the new constitution should introduce multiparty politics or extend the movement type of politics introduced by the NRM. The majority view was that political parties were divisive and the freeze on their activities should be continued some said for as long as twenty-five years while others preferred a freeze of 10 years.
There was also the overwhelming view that the right to form political parties should be guaranteed and that Uganda should never be declared a one party state. The draft constitution recommended that the movement type of politics should be extended for another 5 years and that a referendum be held at the end of each 5 years to decide which of the two systems to be adopted. In the CA there were those who strongly supported this recommendation. Others took the view that the movement should be extended for a period of 5 years once and for all and thereafter multi parties should be brought in.
There were on the other hand multiparty supporters who were totally opposed to the inclusion of movement system in the constitution. As it was earlier pointed out this matter was hotly debated in Select Committee 5 and committed to the whole Assembly by the Chairman. In the plenary the matter was again debated and the decision was made by division. Those in favour of the reintroduction of political party activity were 68 and those against it were 199. The members present at the time of decision were 269. The motion was therefore defeated. Those in support of multi party politics walked out and refused to take part in the proceedings relating to the political system. However, there were enough delegates in the house to continue proceedings. At the end of it all some kind of compromise was agreed upon between the "moderates" and the "fundamentalists" within the movement camp. The compromise was that the movement type of governance was to be extended for another 5 years but that at the end of 3 years following the holding of elections under the new constitution, public debate for and against movement politics would be held. At the end of the 4th year a referendum would be held to give the people of Uganda a chance to choose between the two systems. The two systems were entrenched in the constitution as two forms of governance available to the people of Uganda to choose from and a procedure was established in the constitution to enable them do this from time to time.
8 Informal Groups
Along the way, and as members got to know each other's political biases and views interest groups began to develop. These developed outside the established procedures. There was one such group known as the National Caucus for Democracy (NCD) which grouped together 70 or so delegates. These believed in the re-introductlon or multi-party politics and the prevention of the .inclusion. In the constitution, or movement form of governance. This group was chaired by a senior member of the Democratic Party (DP) Mr Sebaana Kizito with a senior member or the Uganda Peoples' Congress (UPC) Mr Sam Kasajja Byakika as his deputy. Prof Dani Nabudere a member or neither or these two parties but a strong critic or the movement form of politics was secretary though In practice he was the real brain behind this caucus. This caucus played a significant role in bringing together the various political tendencies other than movement supporters and In lobbying the diplomatic community.
Indeed the American Embassy and the British High commission were bold in their opposition to the entrenchment of movement politics in the Constitution. They also expressed their dislike for the idea of a referendum to decide whether to have multipartism or the movement system. The other European Union countries particularly Germany and France expressed disapproval of the same but said it was acceptable only as a transition to multi-partism. The NCD became so effective in its work that the movement supporters were also forced to establish themselves into some form of caucus to counteract the effectiveness of the NCD.
There was another group put together by women delegates. This caucus coordinated the work of women regardless of political inclinations as well as championing the interests of other marginalised groups such as the disabled and the youth. The effect of this caucus can be seen in the fact that the draft constitution was changed to increase minimum women representation in the Parliament from 15 to 39. The membership or the youth, the disabled and the workers was also guaranteed in the future Parliament. There were some regional and tribal caucuses which chose to push regional or tribal issues but these were not very effective. The caucuses applied their own internal rules and some of them were useful in refining and concretizing proposals for consideration by the Assembly.
The diplomatic community, particularly the envoys from the western countries, brought a lot of pressure to bear on the CA against adopting a one-party type of governance. To them the movement idea was a one party state in disguise. Their moves were strongly resisted by NRM stalwarts who marshaled their troops in the CA to carry the day.
9 The Role of the Chairman and the Deputy Chairman
The Statute and the Rules of Procedure entrusted the Chairman and the Deputy Chairman with the responsibility of managing the affairs and proceedings of the Constituent Assembly. This was a very important responsibility given the diversity of opinion and delicate nature of the task hand. To ensure that the Chairman and his Deputy enjoyed the widest form of acceptance the Statute required that the Chairman and his Deputy be elected by not less that 2/3 majority of all the members of the Assembly from a list of 5 nominations presented by the President. For Chairman, I was elected on the first ballot with the required majority. For the Deputy Chairman a second ballot was necessary and Prof Victoria Mwaka was elected Deputy Chairperson.
During my address to the Assembly before the ballot was taken I made it clear that though I subscribe to movement politics the future of Uganda was so important that I would exercise fairness and impartiality. I must say I stuck to this promise and by the end of the exercise virtually the total membership including multi party supporters supported my leadership. I presume it is on the basis of this that I was elected unopposed Speaker of the current Parliament of Uganda.
10 The Secretariat
The secretariat of the CA consisted of the Commissioner for the Constituent Assembly and his two deputies one in charge of administration and the other in charge of technical matters. A
Clerk to the Assembly responsible for the day to day running of the Assembly was appointed. The secretariat working hand in hand with the Technical Committee provided a very effective managerial and professional team. They facilitated the work of the Assembly with Impartiality. A Research team of over 20 professionals was appointed to carry out research on behalf of the members in various areas of interest. This also helped many delegates in providing educated and researched views.
11 The 1995 Constitution
The Constitution was promulgated on the 8th October, 1995. This Constitution differed greatly from the arrangement that was contained in the Obote Constitution of 1967. Its main features are that a whole range of powers are shared between the President, Parliament and some other constitutional institutions. For example the President appoints his Vice President and Ministers with approval of the Parliament. The same applies to the appointment of Judges, senior government officials such as the Inspector General of Police, the Commissioner General of Prisons and heads of Commissions such as the Human Rights, the Judicial Service and Public Service Commissions. There is potential for conflict between the President and the Parliament in built with the Constitution.
The President is elected to serve a term of five years unless he sooner dies or is impeached by Parliament on various specified ground or is removed for incapacity. The Parliament is elected for a term of five years. The President has no power to dissolve Parliament. Where in the area of legislation there is a stalemate Parliament can over-ride the presidential veto by two-thirds absolute majority. But as to what happens if Parliament does not marshal 2/3 majority, the Constitution does not say. The Constitution seems to assume that the two sides would act responsibly. This predicament may become more pronounced when multi-party politics is adopted. The presidential power of appointment of civil servants is limited to Permanent Secretaries and heads of departments but in any case such appointments must be made upon the recommendation of Public Service Commission.
The Public Service Commission has responsibility of appointment of all other civil servants. The Judicial Service Commission is responsible for the appointment of all judicial officers other than Judges of the High Court, Court of Appeal and the Supreme Court. Previously all these powers were vested in the President and the Commissions were purely advisory. The President exercises no power in the appointment of local government civil servants. The District Councils through their district service commissions have responsibility for that.
The powers of the executive to borrow money have been restricted such that borrowing must first be approved by the Parliament. The provisions related to decentralisation or powers and functions have been strengthened and entrenched. The chairmen or districts who are also the chief executives of those districts are to be elected by universal suffrage through secret ballot in their respective districts. The power of the central government to suspend a local government duly elected is extremely restricted. In fact it can only be exercised in extreme circumstances involving gross corruption and abuse of power.
This Constitution is also a modem one. It addresses current concerns such as the right of the child, gender, the disabled and the environment. It does not only entrench the rights already .known to many constitutions. It creates and recognises new ones such as the right to shelter, education and clean environment. The constitution guarantees the right to form political parties and out laws creation of a one party state.
This is nevertheless criticised by many who say that a ban on political party activity until Parliament has enacted a law providing- for registration and administration of political parties constitutes a breach of the right of association and assembly. Movement supporters argue that this was a recommendation of the majority of the people and is a necessary measure to phase in political party activity as the population becomes more confident. In the area of human rights, the constitution establishes a Human Rights Commission with extensive powers including powers to release detainees and to order compensation against individuals and the state for breaches of human rights. In this regard it entrenches availability of habeas-corpus even during a state or emergency.
All In all therefore the constitution making exercise in Uganda has been an exercise to heal past wounds, to reestablish democracy, the rule of law and to place limits on arbitrariness of state power. These are still but ideals. It is hoped that these ideals shall be anchored as our society modernises. Uganda has economic potential that has yet to be exploited. Uganda's problem all along has been bad politics. The NRM through the constitution has in my view addressed this issue.
The new agenda now is reconstruction and development. The indication so far is that this too is moving in the correct direction. Ugandans, unless they choose to disrupt themselves again, are confidently building what is bound to become in ten to twenty years from now, a truly modem state. Out of all this we hope to have a powerful and influential civil society which will under-pin the democratic measures provided for by the Constitution of 1995.