Constitutional law

?On 9th October 2012, UG will mark 50 years of independence. In a concise essay identify one key historical event from the 50 years period between 1935 and1985 and illustrate how it has impacted on or defined the course of constitutional development in Uganda. The impact of the abrogation of the 1962 constitution to the constitutional development in Uganda. “Convoluted” is a single word that can describe the evolution of constitutionalism in Uganda. Constitutional development in Uganda refers to the fruition of the principles of constitutionalism among the people of Uganda over the years.

This essay attempts to evaluate and explain the impact of the abrogation of the 1962 constitution of Uganda to constitutional development by critically looking at its impact on the doctrines of constitutionalism including independence of the judiciary, separation of powers, protection of human rights, rule of law as well as the role of the army to mention but a few. In 1964, according to Kristin Leefers A Worldwide Student Journal of Politics, discord within the UPC, as well as challenges from opposition parties threatened Uganda’s political development and led to massive instability.

In my opinion the abrogation of the 1962 constitution was an inevitable occurrence given its loopholes and the questions it left unaddressed such as the head of state, the federal unitary relations between Buganda and Uganda, the question of the lost counties between Bunyoro and Buganda amongst others. These discrepancies set the ball rolling for the friction between Buganda and the central government to the extent that by 1966 the Prime Minister had to discard it.

Much as some scholars argue that judging by the mental and cognitive maps of the people of Uganda, the constitution had a lacuna as regards some of the critical issues which are required for the proper implementation of the constitution. Despite the claim by Morris and Read (1966) Uganda the Development of Its Laws and Constitution, London Stevens and Sons that “perhaps more than any other modern constitution in Africa this constitution of Uganda was essentially homegrown. ”, Obote believed that the constitution was not suited for the needs of Uganda and Akena Odoko (1969) Uganda Crisis who asserts that “Obote abolished the constitution not because he loved it any less but because he loved Uganda more. ”

The abrogation of the 1962 constitution laid a background to the promulgation of the infamous 1966 interim constitution commonly known as the pigeon-hall constitution. The Attorney General of Uganda Professor Godfrey Binaisa who later in an interview in 2002 admitted to drafting the constitution said that it was the only solution to the looming anarchy that was to overrun Uganda and he says his intention was never to abolish kingdoms.

During the parliamentary session when the constitution was to be approved, Obote’s troops surrounded the parliament as a way of coercion and all the Members of Parliament where thoroughly checked before entering parliament. This was against the doctrine of parliamentary democracy and it became clear to the Uganda people that the power they had vested in their representatives had been rendered useless. This implied that the role of parliament that was to legislate or make laws for their proper governance had been overrun and Uganda was just steps away from becoming a dictatorship.

Justice Professor Dr. G. W. Kanyeihamba (2001) Political and Constitutional History of Uganda pg. 286 asserts the rule of law is not a rule as such but a collection of ideas and principles propagated in the so-called free societies to guide law makers, administrators, judges, and law enforcement agencies. Its essence is that both the rulers and the governed are equally subject to the same law of the land. In 1966 Obote declared a state of emergency and stormed the palace of Muteesa II.

More than one hundred people died during the struggle, but Muteesa II managed to escape to London where he lived the rest of his life in exile. With this development the people of Uganda were faced with the dilemma of accepting a president whose rise to power was in breach of articles 1, 18, 34 and 35 of the 1962 constitution which elevates the constitution as the supreme law of the land, established the rights to life, and inaugurated the offices of president and Vice President respectively.

The theory of the rule of law is further explained by Bracton an English scholar in the 13th century who said that “the king himself ought not to be subject to man but to God and to the law since the law makes him king…” Obote did not consider that the law he was breaking was the one from which he derived his powers and Kabaka Muteesa II in his letter to the United Nations said that I “must point it out here that the Constitution does not provide for its own suspension either in part or as a whole by Parliament or anybody, or any individual whatsoever. ” As cited by Michael Mubangizi 2010 “The Observer”.

The primary importance of the rule of law is the power it gives to courts when settling disputes between seemingly defenseless citizens and the mighty bureaucracy of government however when the 1962 constitution was annulled this was breached as cited in the case of Uganda v Rajat Noegy & Abu Mayanja where the defendants were accused of sedition due to an article published in the Transition magazine incriminated the government of Obote in racial discrimination whereby Mayanja argued that the reason as to why there were no Ugandan judges was because Obote had failed to find judges from his home area.

Kampala chief magistrate Mohammad Saied acquitted them on the grounds that “the offence of sedition was not designed to strangle free speech and that a vigorous and fearless press was one of the foundations of strong government. ” The government reacted by deporting both the magistrate and Mayanja to a ranch on the lake. This clearly shows the inevitable road that a country takes once there is breakdown of order as a result of the abrogation of the constitution. Under the doctrine of separation of powers, the abrogation of the 1962 constitution led to the impudence of the other arms of government.

The above mentioned doctrine emphasizes according to Justice Professor Dr. G. W. Kanyeihamba (2001) Political and Constitutional History of Uganda Pg. 288 that for a government to be efficient it has to have three arms that is , the executive to administer the state in accordance with its laws, the legislature to make new laws and alter or repeat the existing law and finally the judiciary which is concerned with the interpretation of the law and its applications by rules or discretions to facts of particular cases.

Once there is separation of powers there are checks and balances on each arm of government thus upholding the principles of the constitution. With the abrogation of the constitution the executive gained immense power and influence over the other arms of government and this resulted into laws that were made to infringe on the basic human rights as prescribed in Articles 17 to 28 of the 1962 constitution. For example the right to life was contravened when the army of Obote led by Idi Amin invaded the palace of the Kabaka of Buganda and thousands lost their lives.

After a day long battle in which the army deployed tanks and heavy artillery, it became evident that the Kabaka and his defenders with their small arms could not hold the palace against the attacking force. Fortunately, the Kabaka was able to elude capture and with the help of several loyal supporters was able to escape into exile. For the first time in Uganda's short history, the state had deliberately and systematically turned its guns on its own people.

There were also arbitrary arrests sanctioned by the state as a way of stamping out all opposition for example in response to the commission of inquiry set up by Daudi Ochieng a member of parliament into the Congo smuggling scandal that implicated the prime minister and his top commanders, Obote ordered the arrest of five of his cabinet ministers on February 22nd 1966 who included Ibingira, Magezi, Lumu, Kirya and Ngobi who were arrested during a cabinet meeting and held without trial.

When there is no separation of powers and one person wields all the power he tends to violate the very rights of the people whom he swore to serve. In relation to the above argument the abrogation of the 1962 constitution led to the erosion of judicial independence. Judicial independence pertains to the ability of the courts to make decisions in matters within their jurisdiction without fear or favor to any individual or authority. Erosion of judicial independence was cited in the Ibingira cases.

In Ibingira and others v Uganda the legality of the deportation ordinance was put in question for being in conflict with section 19 (1)(j) of the 1962 constitution which stated that “ No person shall be deprived of his liberty save as may be necessary in the execution of lawful orders. ” Initially the high court of Uganda denied the application for a writ of habeas corpus and held that the deportation ordinances were in no way inconsistent with section 28 because they were justified by section 19(1)(j).

However on appeal to the East African court of appeal, their decision was over turned because by the time of the detention of the applicants no law was yet in place and this was a clear violation of section 28 and therefore the writ of habeas corpus was allowed and they were to be released with immediate effect. In the second case of Ibingira and others v Uganda, following a decision by the East Africa Court of Appeal to release the applicants, they were transferred to Buganda where they were re-arrested under the emergency powers ( detention regulations SI 65,1996) which applied only within Buganda.

On August 20, 1966, applications in the form of summonses, supported by affidavits and numbered as Miscellaneous Criminals Applications, were made on behalf of the detainees to the High Court claiming that the further detention was unlawful and that the Regulations were ultra vires the Emergency Powers Act, 1966 and art 30 (5) of the Constitution of Uganda. The summonses were dismissed by Keatinge, J.

, holding that the Government had not acted in bad faith in bringing the appellants to Entebbe and not releasing them immediately and hence referred to Article 30(5) of the 1966 constitution. In my opinion this ruling was a desperate attempt by the judiciary to retain some sort of order when there was none and in a way appease the Executive for their earlier decision made in the first case.

The executive found a way of influencing parliament to pass laws to overturn the decision of the court through passing the Deportation Validation Act that prohibited the compensation of the 5 detainees for any legal action they were to bring against the government for their illegal detention regardless of any order by the court. I relation to the above, the case that annihilated any vestige of judicial independence was that of Uganda v commissioner of prisons, ex-parte Matovu in 1966.

In this case the constitution was brought to trial as to whether it was valid or not. The applicant was arrested under the Deportation Act on May 22, 1966, and then released and detained. Again on July 16, 1966, under Emergency legislation which was brought into force after his first arrest. On August 11, 1966, the applicant was served in prison with a detention order and a statement specifying in general terms the grounds for his detention pursuant to Article 31(1) (a) of the Constitution of Uganda.

Between February 22, and April 15, 1966, a series of events took place which resulted in a resolution of the National Assembly abolishing the 1962 Constitution of Uganda and adopting another referred to as the 1966 Constitution. Prior to this the President and Vice-President of Uganda were deprived, contrary to the 1962 Constitution, of their offices and divested of their authorities by the Prime Minister with the consent of his cabinet. After the 1966 Constitution was adopted a state of public emergency was declared and the Emergency Powers (Detention) Regulations 1966 were made.

The court dealt with the procedural issues and investigated its own status under the new constitution and in conclusion the courts were duty bound to uphold the constitution and in order to justify the legality of the constitution the courts referred to the general theory of the state advanced by Hans Kelsen an Austrian Professor which stated that “if government is removed in a manner not contemplated by law and a new ruler assumes effective control of the country , the edicts are valid because the old legal order has disappeared and been replaced by a new one which provides validity to the norms of the old order.

” In this case the old order was the old regime and the old norms referred to the 1962 constitution. This case set the model for the intervention of the military in this country i. e. whoever came with military force would be accepted so long as they were successful. It meant that a revolution in law is when you get a new government coming in through extra constitutional means and legitimizing itself by establishing a constitution that supports its existence.

That later allowed Amin’s leadership, Uganda National Liberation Front, Tito Okello Lutwa and Yoweri Kaguta Museveni The abrogation of the 1962 constitution set a precedent that law is completely irrelevant in the face of true force. Violence is the supreme authority from which all the superpowers derive their powers and legitimacy and rules are completely irrelevant in the face of true force and in today’s context it has been validated and recognized.

. This implies that whoever has the support of the army has the control of the nation. This has kept on reiterating in our constitutional history with Amin whom Obote entrusted with the mantle of army Commander toppling Obote’s government after a coup de tat after which he tried to consolidate his power by ensuring a loyal military by eliminating all Obote sympathizers from the army and putting only his henchmen in positions of power.

Obote came back to power through the use of force, Tito Okello Lutwa , Yoweri Kaguta Museveni the current President of Uganda also came into power through the use of an army. The lesson was learnt from the Kabaka crisis of 1966 whereby Muteesa was plotting a coup de tat and wrote a letter to the queen, the British High Commission in Uganda as well as Gailey and Roberts gun manufacturers soliciting for guns but in vain. This shows that both Obote and Kabaka Muteesa where bound to fight each other for power and it was just a question of when and who would attack first.

“An army is a nation; it is one of the vices of our age “according to Alfred de Vigny (1797-1863) Servitude et Grandeur Militaries. By virtue of the fact that when Obote used force to overthrow the Kabaka and nothing was done to him enabling him to set up an efficient government, Uganda saw it as a lesson and that is why Uganda has not had a successful and peaceful transfer of power in the past 50 years since independence.