UcANDA (GE aTIONAL GED DiLocue, DRAFT BACKGROUND PAPER UGANDA NATIONAL DIALOGUE Dr. Kabumba Busingye IE) Tee OG e IAA a] CONSTITUTIONALISM 8 THE RULE OF LAW IN UGANDA ORAGANISED AND PRINTED BY: Inte Religious Counc of Uganda SH Religions for PeacecA ces cHRI DP FDC FRONASA HRW HSM HURINET-U HURIPEC IBEA Co. ice 1c IGP KAR Keca Constituent Assembly Central Broadcasting Station Commonwealth Human Rights Initiative Democratic Party Forum for Democratic Change Front for National Salvation Human Rights Watch Holy Spirit Movement Human Rights Network - Uganda Human Rights and Peace Centre Imperial British East African Company International Criminal Court International Court of Justice Inspector General of Police King’s African Rifles Kampala City Council Authority Kabaka Yekka1.0 Introduction This Background Paper assesses the Constitutional history of Uganda as a means of identifying certain critical themes and junctures that might inform current efforts to chart a more progressive way forward. In this regard the Paper traces the legal and constitutional history of Uganda from the time of the declaration of the Uganda Protectorate in 1894 to the current period. 2.0 Constitutionalism and the Rule of Law during the Early to Late Colonial Period The declaration of the Protectorate was followed by a number of ‘agreements’ with certain Kingdoms, by which the British sought to legitimize what was essentially a military conquest. These included the Buganda and Toro Agreements of 1900 and the Ankole Agreement of 1901 Invariably, these agreements were entered into after ensuring that the Kingdom in question had been militarily subdued or otherwise intimidated, For instance, the Buganda Agreement of 1900 was concluded with Kabaka Mwanga in exile, while an Agreement with Bunyoro would only be concluded in 1933, after the full suppression of the resistance in that area. It was in this context - of law following the gun ~ that the British enacted the 1902 Order in Council. This essentially was the first legal instrument for the exercise of colonial power in the Protectorate. To this extent, therefore, it was in many ways a quasi-constitutional document. The draconian nature of this Order in Council would be replicated in the laws that followed it, such as the Removal of Undesirable Natives Ordinance (1907), the Deportation Ordinance (1908), the Native Authority Ordinance (1919) In addition, the Courts would in time demonstrate their allegiance to the objectives of British imperialism, rather than any notions of constitutionalism or the rule of law. After a few early pretensions towards respect for the ‘agreements’ with the Kingdoms? judicial decisions would come to clearly reflect the will of the Executive branch of government. For example, in the 1930 case of R v Besweri Kiwanuka’® the Court had to decide which, as between the Buganda Agreement and the 1902 Order-in-Council, should prevail. In upholding the terms of the Order in Council, the Court described it as a manifestation of jurisdiction by Her Majesty, and an ‘Act of State’ which was not subject to challenge by any British Court. 1 JV Wile (1957) The story of the Uganda Agreement. See also JT Mugambwa ‘The legal aspects of the 1900 Buganda Agreement revisited’ (1987) 25-26 Journal of Legal Pluralism and Unofficial Law 243.274 2 See, for instance, Kateg! » Kabigi (1907) Uganda Protectorate Law Reports, Vol.1, 24 and Nasanai i Kibuka v A.E., Bertie Smith (1908) Uganda Protecto: 3 High Court Crim, Appl. No. 38 of 1937. ce Law Reports, Vol.1, 34Similarly, in the 1955 case of Mukwaba and Others v Mukubira and Others,‘ which contested the deportation of the Kabaka in 1953, the Court again invoked the ‘Act of State’ doctrine to avoid enforcing the terms of the Buganda Agreement. The 1902 Order in Council would be followed by the 1920 Order in Council. The 1920 Order in Council established, for the first time in the Uganda Protectorate, a sort of Parliament - the Legislative Council. The first non-European representative on the Council would be an Asian, Chinubhai Jethabai Amin, with the first African representation only being allowed in 1945, Like the 1902 Ordinance, the laws that emerged from the undemocratic Legislative Council would, predictably, reflect the power relations in that body. The post-1920 period saw the passage of the Trading Ordinance in 1938. 3.0 Movements towards Independence and a Belated Attempt at Democratic Practice The first elections in the Protectorate would be held in 1958, for representatives to the Legislative Council, Buganda Kingdom, however, boycotted these elections - preferring indirect elections with the Lukiiko as the electoral college. In February 1959, partly as a response to the Buganda electoral boycott, the Protectorate Government established a Committee tasked with considering the best form of electoral process for Uganda. The Committee was chaired by John Wild, It submitted a report in December 1959, in which it recommended that direct elections be held in all parts of the country. The Committee also recommended that these elections be held as soon as possible, and in any case not later than early 1961.5 Buganda was opposed to these recommendations and, in response, in October 1960 the Lukiiko issued a Memorandum demanding the independence of Buganda as an independent State. Indeed, on 31 December 1960, Buganda formally declared its independence from Britain The British government, however, proceeded with arrangements for elections in March 1961 as per the recommendations of the Wild Report. At this time, the most significant political parties were the Uganda National Uganda National Congress (UNC), the Uganda People's Congress (UPC) and the Democratic Party (DP). These were the parties which contested the 1961 elections. For its part, the Buganda Kingdom boycotted these elections. DP won the elections with 43 seats, with the UPC winning 35. DP’s Ben Kiwanuka therefore became Chief Minister in July 1961. In December 1960, another Commission had been established, under the leadership of the Earl of Munster, to recommend the best form of government for independent Uganda. The ‘Commission's report was released in June 1961. It recommended a federal arrangement for 4 Civil Case No.50 of 1954, (1952-6) ULR 74 5 Uganda Protectorate (1959) Report of the Constitutional Commits 1959, available at hizze//dlsedl one A058 ice/4058 of (last accessed 18 October 2018).Buganda, a semi-federal arrangement for the kingdoms of Ankole, Toro and Bunyoro, and a unitary system for the rest of Uganda. In terms of elections, the Commission, crucially, recommended that direct elections to the Lukiiko be held, but that the Lukiiko should be allowed to actas the electoral college for Buganda’s representatives to the national parliament. Obote's UPC desired to enter into an alliance with Buganda Kingdom as a means of unravelling this electoral victory. This alliance would bear fruit during the constitutional conference held, at Lancaster House in London, from September to October 1961. At that conference, the UPC supported Buganda's proposal to have indirect elections for that part of the country, with the rest of Uganda having indirect elections for representatives to the national assembly. In addition, with UPC support, Buganda was assured of federal status following independence. The conference also adopted the proposal to have another round of elections before independence. In November 1961 a new political movement - Kabaka Yekka — was formed in Buganda at the urging of the Buganda Kingdom. When elections to the Lukiiko were held in February 1962, KY candidates won 65 out of the 68 seats, with DP winning only 3. In the event, the UPC-KY alliance ensured victory for Obote in the April 1962 elections, and Obote became poised to become Uganda's first post-independence leader. From June to July 1962, a final constitutional conference was held at Marlborough house in London. At this conference it was agreed that Toro, Ankole, Bunyoro and Busoga would have semi-federal status after independence, with the rest of Uganda being under a unitary system, With regard to the contentious question of ‘the lost counties’ - territories of Bunyoro granted to Buganda by the British in 1900 - this was deferred, to be settled within two years after independence, by a referendum in those counties. It should be noted that the very design of these conferences ~ Lancaster and Marlborough — was problematic, in so far as it alienated the people of Uganda from the constitution negotiation process which would determine the shape of post-independent political life Theres also evidence that the conferences were manipulated at a number of critical junctures to ensure that only those conclusions with which the British were comfortable were reached. Uganda was formally granted independence on Sth October 1962. A day earlier, on 8° October 1962, there had been a ceremony at Bulange in Mengo, where the British and Buganda officially marked the end of their long and special relationship. The independence of Uganda was granted under the Uganda Independence Order in Council, proclaimed on 2" October 1962, with the 1962 Constitution attached as a Schedule thereto. The complex arrangement under the 1962 Constitution mirrored the incomplete nation- building project that was represented by Uganda. According to Uganda's three-time Chief Justice Samuel William Wako Wambuzi , a young lawyer in 1962 he had asked the then Attorney General Dreschfield what kind of Constitution the British had left Uganda with, withthe latter's only response being: ‘The strongest will govern’ 4.0 The Struggle for Constitutionalism and the Rule of Law in Post-Independent Uganda: 1962-1986 The year 1964 would provide the first window into the tensions foreshadowed by Dreschfield’s comment. In the first place, there was an army mutiny in Uganda (along with Tanganyika and Kenya), which was only contained by the government acceding to all the demands of the soldiers related to the increment of their salaries. Secondly, the question of the ‘lost counties’ arose once again. Despite Kabaka Mutesa’s reluctance, Obote proceeded to hold the referendum in Buyaga and Bugangaizi.”In the referendum, which took place in November, the people in those counties voted to return to Bunyoro. When Mutesa refused to sign the instrument of transfer, Obote invoked a provision under the Constitution to act in his place and the countries were officially transferred. The loss of these counties appears to have been the final nail in the UPC-Buganda alliance. From that time, Buganda begun strategizing to oust Obote from power. One way this was planned to be done was through deposing Obote from the leadership of UPC, through an alliance with Grace Ibingira and others in the UPC. Obote decided to act fast to counteract these maneuvers. In February 1966, five cabinet ministers - Ibingira, Lumu, Kirya, Ngobi and Magezi —were arrested; and parts of the 1962 Constitution, relating to Presidential powers, were annulled! In March 1966 he abolished the offices of President and Vice President altogether and assumed all executive power. Later, in April 1966, during a special session of Parliament, a new Constitution was proposed and adopted. This came to be called the ‘pigeon hole Constitution’ as members of the national assembly were directed to find copies of the Constitution in their Pigeon holes, after having voted to adopt it? Under the 1966 Constitution, Obote became executive President and a unitary republic system of government was established throughout the country. This was only accomplished by the military siege outside Parliament.*® When Buganda rejected these constitutional changes, Obote ordered a raid on the Kabaka's palace at Mengo, which was led by Idi Amin. Although the Kabaka managed to escape into exile in London, the Palace was ravaged and many were killed or injured. In June of the following year, a new Constitution was passed by Parliament, in 6 SWW Wambuzi (2014) he odyssey of judicial career in precarious times: My trials and tribulations as a breetine Chief Justice of Uganda 74. 7 SR Karugice (1996) Roots of instability in Uganda 51-52. 8 ABK Kasovi (2013) The bitter bread of exile: The financial problems of Sir Falward Mateesa IT daring his final exile, 1966-1969 51 9 CLamwaka and RR Atkinson (2016) The raging storm: A reporter’ inside account of the Northern Ugan- da war, 1986-2005 25, 10 PM Mutibwa (2016) A history of Uganda: The firs 100 years 1894-1995 208, 11 Matibwa (n 10 above) 209-210. 12 SR Karugice (1996) Roots of instability in Uganda 57-58, 6which traditional institutions were officially abolished and a republican unitary system of government established.* The country would remain under a state of emergency until 25" January 1971 when Idi Amin deposed Obote in a coup d'état. Amin provided 18 reasons for the coup, which included the restrictions on democratic freedoms, corruption and the undue privileging of certain ethnic groups. The Amin regime was perhaps the lowest point of bad governance in the post independence era with hundreds of Ugandans, including the Archbishop Janani Luwum, the Chief Justice Benedicto Kiwanuka and the Vice Chancellor of Makerere Frank Kalimuzo and others, being killed by state agents. Amin would only fall in April 1979, after making the strategic error of attempting to annex a part of Tanzania. Nyerere's response did not stop at the defence of Tanzania, but extended to regime change in Kampala, Prior to taking Kampala, Nyerere assembled a meeting of Ugandan progressive forces in Moshi, in March 1979, At this meeting a new political movement - the Uganda National Liberation Front (UNLF) was formed under the leadership of Professor Yusuf Kironde Lule."* When Amin was finally defeated in April 1979, Lule was sworn in as the new Head of State. Professor Lule would, however, be deposed only 68 days later, after he attempted to effect a cabinet reshuffle without consulting the National Consultative Council (one of the organs of the UNLE established at Moshi). The NCC then chose Godfrey Binaisa as the next President, and he took office in June 1979. Binaisa would himself be subsequently deposed by the NCC in May 1980 after, like Lule, attempting to effect a cabinet reshuffle against the wishes of the key power brokers in the UNLF. Binaisa would be effectively replaced by the Military Commission, headed by Paulo Muwanga.* However, for purposes of legitimacy, the Military Commission put in place a Presidential Commission, composed of three civilians, who exercised the nominal power of the presidency.” It was in this context that preparations for the 1980 elections were undertaken. The major contenders in these polls were the Uganda People's Congress (UPC) and the Democratic Party (DP). Another contender was the recently established Uganda People’s Movement (UPM). After a very controversial and, by many accounts deeply flawed, election, the UPC was declared to have won the December 1980 elections. Obote was subsequently swom in, once more, as President of Uganda. The Obote Il regime was resisted by lingering feelings of resentment from Buganda owing to the events of 1966. It was also challenged by the NRM/A war which was launched following 13 Mutibwa (n 10 above) 211 14 See Uganda Army (1971) General and Adminitrative Order No.2 (GAO 2/1971} 15 See ABK Kasozi, N Musisi, and JM Sefjengo (1994) The social origins of violence in Uganda, 1964- 1985 126. 16 P Omach ‘Understanding obstacles to peace in Northern Uganda: Actors, their interests and strategies’ in M Bategu (ed) (2011) Understanding obstacles to peace: Actors, interests, and strategies in Arca’ Great Lakes region 278, 17 GW Kanyeihamba (2002) Constitutional and political bistory of Uganda: from 1894 to the present 197.the controversial elections of 1980."* During the course of the rebellion, the NRM/A issued a ‘ten-point programme’ which detailed a transformative vision for the country.” One of the key parts of the programme, expressed in the very first point, was the restoration of democracy in Uganda, In the event, plagued by resentment in the civilian population and in the army itself, Obote was ousted in yet another coup d'état in July 1985 by Tito Okello Lutwa, and Bazilio Olara-Okello.” The Tito Okello regime would not last long, given that the NRM/A rebellion was in advanced stages." Despite attempts at negotiations between the government and the NRM/A hosted in Nairobi by President Moi of Kenya, and the conclusion of a peace agreement in December 1985, the rebels advanced upon Kampala and captured it on 26" January 1986. In his maiden speech to the nation after being sworn in, the new President Yoweri Museveni famously promised that the NRM/A revolution would represent a ‘fundamental change’ in the politics of the country. 5. the National Resistance Movement government: 1986-present The NRM/A issued Legal Notice No.1 of 1986, under the terms of which the National Resistance Council would act as the Parliament of Uganda, with the obligation to consult with the National Resistance Army Council on critical issues. The NRM/A government was expected to be in power for three years — until 1989 — before allowing a truly democratic transition to civilian authority. However, when this critical juncture reached in 1989, the NRC voted to extend its term, and that of the broader NRM government, for another four years. Constitutionalism and the Rule of Law under Ayear earlier, in 1988, the NRC had enacted the Uganda Constitutional Commission Act, on the basis of which a 21-member Commission had been appointed to start the process of consultation towards a new national compact. It was envisaged that the constitution-making would last two years, from 1989 to 1990." Ultimately, a new constitution was only achieved in 1995, six years after the start of the process. On the one hand, there was some effort at having a democratic and participatory process in the making of the 1995 Constitution. For instance, between February 1989 to December 1992, the Constitutional Commission convened 86 district seminars; conducted sensitization fora in all 870 sub counties and reviewed 25,547 memoranda submitted from all over the 18 Mutibwa (p 10 above) 334-340. 19 YK Museveni (2007) Sowing the mustard sed: The srugee for freedom and democracy in Uganda 1 ed 221 20 Mutibwa (a 10 above) 362. 21 Mutibwa (a 10 above) 369, 22 AM Tripp “The polities of constitution making in Uganda’ in LE Miller (ed) (2010) Framing she Staten times of transition: Case studies in constitution making 161. 3country.” This was followed by countrywide campaigns to choose Constituent Assembly delegates, who debated the Commission's draft Constitution for 16 months and finally adopted the text in September 1995.* On the other hand the Constitutional Commission was dominated by NRM supporters which called into question its representativeness, The legitimacy of the process was also undermined by the facts that the constituency tours of the Commission appears to be more geared towards informing rather than consulting the people; memoranda from the sub-counties were vetted by NRM structures before being delivered to the Commission; the Commission in any case tendered to ignore memoranda which raised controversial issues; and that the Commission's questions in the course of the consultations were biased in support of positions favoured by the NRM* These challenges would feed into the design and operations of the Constituent Assembly. In terms of the Constituent Assembly Elections Act of 1993 and its operational rules, aside from the fact that political party mobilization was prohibited, candidates for the position of CA delegate were only permitted to campaign at scheduled events, organized by the government.” Aside from these challenges related to the process of making the Constitution, the substance of the Constitution itself reflected some of these deficits. On the one hand, the Constitution had a number of progressive provisions, such as those dealing with the separation of powers, fundamental human rights and freedoms, and the subordination of the army and others security forces to civilian authority. On the other hand, the Constitution included a number of problematic provisions which were inconsistent broadly with a democratic vision for the country. These included Article 269 (which severely restricted political party activities) and effectively watered down the provisions of Article 29 (on freedom of assembly, expression and association). Further, while Articles 102 and 105 (2) limited the presidency by placing providing an upper age limit for the presidency (75 years) and a restriction on the number of terms (two) respectively, neither of these were entrenched provisions under Article 260 of the Constitution. The Constitution thus created the illusion of progressive democracy without actually delivering it The 1996 general elections were conducted under the ‘Movement’ system of governance established under the 1995 Constitution. Museveni was declared winner with 74.3% of the 23 DC Moehler Participation and support for the Constitution in Uganda’ (2006) 44 (2) Journal of Madera African Studies 281 24 Asabove. 25 Tripp (n 22 above) 162 26 Tripp (n 22 above) 162-163. 27 Human Rights Watch (1999) Htile 10 demooracy available at bups:/ /wwwhrworg/legaev/ee ports/'1999 /uganda/ (ast accessed 2 November 2018) 39. 28 Am entrenched provision is one which can only be amended with both a two thirds parliamentary vote as well as by areferendum, 29 See B Kabumba ‘The illusion of the Ugandan Constitution’ AjpicLaw 27 September 2012 avail able at https:/ /africlawcom/2012/09/27 /the illusion of the-ugandan consti ‘November 2018). (last accessed 2votes, beating Ssemogerere, his closest challenger.® Three years later, in July 1999, Parliament enacted the Referendum and Other Provisions Act, which was meant to facilitate a referendum on choice of political systems. A constitutional petition against this law was filed before the Constitutional Court, which alleged, among other things, that the Act had been passed without the requisite quorum. The Court initially dismissed the petition on technical grounds, but was overruled on this point by the Supreme Court, which directed that it hear the case on substantive grounds.” To pre-empt the danger of the law being annulled, Parliament passed another law on 6* June 2000 - the Referendum (Political Systems) Act of 2000. The 2000 Act, which was passed in a record three hours, with Parliament waiving a number of procedural rules, sought to apply retrospectively to cover the referendum campaign period, which had officially started in July 1999. In the event, on 29% June 2000, the referendum was held, with 90.7% being found to support a retention of the Movement political system and 9.3% favouring a return to a multiparty system. Two months later, on 10% August 2000, the Constitutional Court declared that the 1999 Act was unconstitutional on the basis of, among others, a lack of quorum at the time of its passage. Parliament responded on 29" August 2000 by passing the Constitution (Amendment) Bill, again with several procedural rules being waived. Essentially the Bill aimed at validating the legal framework whose constitutionality had been rendered suspect by the Constitutional Court's decision. Four years later, in 2004, the Constitutional Court further decided that the Referendum (Political Systems) Act of 2000 was unconstitutional given the way in which it had been enacted, and that the 2000 referendum itself had been illegal" It was in response to this decision that President Museveni declared that the ‘major work for the judges is to settle chicken and goat theft cases but not determining the country’s destiny. To calm the heightened tension occasioned by this very public and very acrimonious clash between the Court, on the one hand, and the President and Parliament on the other, when this decision was appealed to the supreme Court, the apex Court decided that while the 2000 Act had been illegal, the referendum itself had been validly held.> In 1999 Dr Kizza Besigye, a UPDF colonel, was thrust into the political scene, after a publishing a memorandum which criticized the NRM as having veered from the Ten-Point Programme and broader agenda for political reform in Uganda. After an attempt to have him court martialed for ‘indiscipline’ he was finally permitted to retire from the army. He would go on 30 Electoral Commission, Ugandan Presidential Elections 9 May 1996 Final Results available at betp:/ wanwecorug/sites/Elee results/Nat Res 1996,pdF (accessed on 2 November 2018) 31M Bratton and G Lambright (2001) Uganda’ referendum 2000: The silent boycott Mfrobarometer Pa- per No.6, available at hetp://pdf usaid gov/pdf docs/Paadf452.pdf (last accessed 2 November 2018) 5. 32 Asabove, 33. Paul Ssemogerere and Zachary Olum v Attorney General Constivational Petition No.3 of 2000. 34 RL Ellet (2013) Pathways to judicial power in transitional States: Perspectives from African courts 147. 35 Eillet (n 34 above) 148 citing Attorney General v Paul Ssemegerere and Zachary Olum [2004] 1 23.to establish the Reform Agenda as a vehicle for the articulation of his political views and contested against Museveni in the 2001 presidential elections, also held under the Movement system, Museveni was again declared winner with 69.3% of the vote as compared to 27.8% for Besigye. After 2001, the main test for Uganda's constitutional stability and respect for the rule of law related to the term limits clause under Article 105 (2) of the Constitution. In the event, in July 2005, Parliament enacted a Constitutional (Amendment) Bill which, among others, amended this provision.** At the same time, the NRM conceded to the holding of another referendum regarding political parties in which, this time, the strong indication was that these were now acceptable. When the referendum was held, it was found that the majority of Ugandans favoured a return to multiparty politics.” On 23% February 2006 the first multiparty elections were held since 1986. Once again, Museveni was declared winner, with 59.26% of the vote, as compared to 37.39% for Besigye, In the run up to the elections, Besigye had been subjected to harassment and intimidation, through the instrumentality of law. On 14° November 2005 he had been arrested on allegations of treason and misprision of treason. He was additionally charged with rape, relating to events which allegedly occurred in 1997. His detention would continue until January 2006. An issue that arose in this period related to whether, having been charged with such offences, Besigye could be validly nominated as a presidential candidate, According to the then Attorney General, Prof. Khiddu Makubuya, this was not possible, since, notwithstanding the presumption of innocence under the Constitution, the charges suggested that Besigye was not quite innocent.** Eventually, in dismissing the case against Besigye, Justice Bosco Katutsi would observe that the evidence before the Court had been ‘inadequate even to prove a debt; impotent to deprive of a civil right; ridiculous for convicting of the pettiest offence; scandalous if brought forward to support a charge of any grave character; and monstrous if to ruin the honour of a man who offered himself as a candidate for the highest office of this country’ This episode called into question the independence of the office of the Director of Public Prosecution and that of the Uganda Police Force. Unfortunately, these questions continue today. The results of the 2001 and 2006" elections were upheld by the Supreme Court, with 36 Every Member of Pasisment was “facilitated” with Ugx 5,000,000, ‘gatding the consciutional amendments bly to consult with their constituents ee 37 Chr. Michelsen Institute and Makerere University (2005) Leon ram the referendum for the 2006 etons: The role of Prlamon, snr, the eltcal partes and te Elko Commission Research Report availabe at hups/ /ewwwemi.no/ pa 2le= uganda /doe/CML Makerere referendum report October US.pdf last accessed 2 November 2018) 19, 38 DK Kalinaki (2014) Kigga Besgye and Uganda’ unfinished revolution 258-259, 39 Cal Rad) De: Kia Baie 1» Ugenda High Coutt Criminal Session No, 149/2008 (paraphrasing Lord Brougham) 40 Red, Col. Dr: Kigga Besigye v Ectoral Commission and Yoweri Kagnta Museveni Presidential Election Pet tion Nt of 2001 [2001] UC Al Red. Col Dr. Kigga Besigye v Electoral Commission and Yoweri Kaguta Museveni Presidential Election Petition No.1 of 2006 [2007] UGSC 4 (30 January 2007), irsignificant reservations and qualifications - mainly to the effect that while electoral irregularities had occurred, these had ‘not been so substantial’ as to affect the results of the election? In February 2011 general elections were held, and Museveni was again declared winner, with 68% of the votes. This election in particularly was marked by very low voter tumout. Indeed, a total of 5.6 million registered voters stayed home, in excess of the 5.4 million registered voters who in fact voted. Besigye did not challenge the results of this election, opting instead to resort to ‘people power’. More recently, in February 2016, Uganda held general elections in which Museveni was again declared winner, with 60.62% of the votes. 6.0 Recurrent themes in Uganda's Colonial and Post- Colonial Experience with Constitutionalism and the Rule of Law Itwould appear, from the description and analysis in Sections 2-5 above, that constitutionalism and the rule of law in Uganda have been more honoured in breach than in observance. During the colonial period, there was little attempt at true democratic practice, and what little existed invariably proved ineffectual whenever the interests of the colonial government were threatened. On all those occasions, the law proved not only a poor shield against injustice and bad governance, but in fact a veritable sword in the hands of those who wished to exert and consolidate executive power. This trend would continue in Uganda's post-independence period, notably with the 1966 showdown, and arguably reaching its zenith with Amin’s naked brutality from 1971 to 1979. In many ways, albeit in different forms and to different degrees, this trend continues unabated today. In this Section, we seek to tease out a number of overarching themes which have bedeviled Uganda's political life since the late 19" century to present, and which may account for the cycles of failed attempts at achieving genuine constitutionalism and the rule of law: i) the incomplete nation-building project; and ii) the reliance on militarism as an alternative to 42 B Kabumba ‘How do you solve a problem like “substantiality”? The Supreme Court and presi- dential elections’ in J Oloka-Onyango and J Ahikive (eds) (2017) Controlling consent: Uganda’ 2096 elections 477. 43S Arinaitwe ‘Why Ugandans are staying away from the ballot’ Daily Monitor, 15 March 2016 avail- able at _http://wwwmonitor.co.ug/Mapazines/PeoplePower/Why-Upandans-are-staying-away-from- the-ballot/689844.2653228.2115p /index.huml (last accessed 2 November 2018). 44 EM Sscrunjogi‘I won't go to court over rigging says Besigye’” Daily Monitor, 22 November 2015, available at http:/ /mobile. monitor.co.ug/News/[-wont-go-to-court-over-ripging-savs-Besigye/2466686. 965894 ch suct/i (last accessed 2 November 2018).genuine dialogue and political contestation. 6.1 The incomplete nation-building project Political science distinguishes between a State, as a legal entity, and a nation as a political entity with shared values and ethos. Itis trite to note that the main challenge of Uganda's colonial and post-colonial history is the incomplete or failed nation-building project. This truth was acknowledged in the report of a Colonial Committee — the Wild Committee. Although the findings of this Committee have already been referenced, it is apt at this stage to set out at some greater length the pertinent observations of that Committee at the dawn of Uganda's independence. The Committee noted, among other things, as follows: Uganda is an artificial unit containing within its borders a very wide range of types of country, from arid plains to lush lakeside areas, and very different tribes with different languages and customs. These differences between the various tribes of the country are not the creation of the British Government, butitis argued that the policies followed in the administration of Uganda have done little to break down the barriers which exist, particularly between the various tribal units, but on the contrary have tended to foster them. This is the source of the claim sometimes made that it has been the British Government's aim to divide and rule in Uganda. Itis also suggested that District Commissioners in their districts and Provincial Commissioners in their provinces tend to regard their regions as isolated units. The development of the District Councils and the powers given to them on a district (and hence tribal) basis are also quoted as examples of a policy which has perpetuated the divisions of the country. Furthermore, no lingua franca exists covering the whole of Uganda; an attempt to make Swahili the lingua franca of Uganda was abandoned years ago, and the policy of promoting English has not progressed to the extent where it is of practical use as a lingua franca This lack of a lingua franca and this division of the country into tribal units present a political party seeking to operate on a national basis with formidable problems. To give only two examples, a leader of a national political party cannot meetings in all parts of the country without the assistance of interpreters; and a political party cannot publish material in one language which will be understood in all parts of Uganda. The Government itself faces all these difficulties, but is better equipped to deal with them: [Emphasis added] In this Report, which in many ways reads as a serious indictment of British colonial policy from 1894 to 1959, the British essentially admit to having failed to create a nation out of the various nationalities who were forced together in 1894 and thereafter. In this same Report, it is acknowledged that any political party seeking to mobilize at a national level would face 45 Uganda Protectorate (1959) Report of the Constitutional Committee 1959, available at https:/ /dl.wdl 07p/4058/service/4058 pdf 34-35, para 147. 13formidable problems’. It was these formidable problems that would haunt the Obote I and Mutesa, Amin, Lule, Binaisa and Tito Okello regimes, and it is these same problems and embedded tensions that have challenged the NRM regime. It is also possible to view this persistent challenge as one which would always be inherent given the inorganic nature of the State that was ‘declared’ in 1894. It essentially tried to subsume several distinct national identities into one political order, based on nothing more than a shared external and essentially oppressive force, To this cauldron would be added yet another factor ~ religion - which would in some ways create new shared identities but in other ways simply exacerbate old enmities. Through the religious wars in Buganda in the late 19" century, the Anglican faith would be established as the dominant and de facto religion of the ruling political elite, with the Catholic faith as a tolerated second-best option, Islam and later Hinduism distant third and fourth and others (including traditional beliefs) distinctly frowned upon. This religious preference would find itself into a range of colonial policy, starting from the Buganda Agreement in which significant land allocation was made to Anglican and Catholic missions, with only a paltry allocation going to Nuwa Mbogo, ‘the Mohammedan Chief’. It was these religious and ethnic conflicts that would later characterize political struggles in towards independence including all the elections from 1958-1961. For instance, the electoral result in 1958 was deemed illegitimate given the non-participation of the Buganda Kingdom, based on its own unease with the unitary tendencies of the colonial government. The 1961 election results which had handed DP’s Ben Kiwanuka victory were similarly deemed unacceptable, given the boycott by Mengo (with only 4% of eligible voters in Buganda registering)® but also due to the fact that Ben Kiwanuka was Catholic, and led a party which had been created by Catholics to counteract Anglican hegemony in the State. The complex dynamic between religion and ethnicity is also apparent in the unlikely alliance that was struck between Mengo and Obote in the aftermath of the 1961 elections. In this case- the shared Anglican faith of Mutesa and Obote, enabled tenuous cooperation, with the implicit support of the colonial government, to defeat the Catholic resurgence represented by Kiwanuka’s victory in those elections. At the same time, ethnicity would prove resilient and resurgent as the events leading up to 1964 would determine in which, when the question of the referendum in the lost counties arose, Mutesa asserted Buganda’s interests, and Obote chose to articulate the interests of Bunyoro.* When the November 1964 referendum showed a massive preference for a return to Bunyoro, Mutesa refused to perform his constitutional requirement as Head of State to 46 GSK Ibingira (1973) The forging of an African nation: The politcal and constitutional evolution of Uganda from colonial rate to independence, 1894-1962 241 47 Mutibwa (n 10 above) 168, 48 There also seems to have been an attempt by Mengo to manipulate the outcome of the referendum by deploying ge numbers of Baganda, particulasly World War II veterans to the ro counties to increase the likelihood of a vote tore )formally endorse that outcome, a task that fell to Obote as Prime Minister.” Through military means, as will be explored more in the sub-section below, in the 1966 and the 1967 Constitutions Obote forced through a vision of a unitary Uganda, at the expense of the aspirations of the nationalities within Uganda. Incidentally, although a number of regimes followed his from 1971, this status quo would remain essentially unchanged until 1993 when a form of the Buganda monarchy was restored. Religion and ethnicity would continue to play major roles after 1971, with Amin effectively carrying out a genocide against Obote's Langi ethnic group, and establishing Uganda as a quasi-Islamic state, at the expense of several other religious denominations. After his overthrow, Amin's Kakwa ethnic group was particularly targeted and oppressed. This trend would continue into the Obote Il regime, in which it was felt that he unfairly favoured his Langi community at the expense of other ethnic groups. Indeed, a major cause of the coup against him was the perceived favouring of Langj officers in the army over others. The immediate trigger appeared to have been his appointment in August 1984 of Smith Opon Acak, a Langi officer, as Army Chief of Staff to replaced David Oyite Ojok who had been killed in December 1983. It was felt that this promotion was manifestly unfair to Olara Okello, an Acholi officer, who was perceived to be next in line for this promotion. After 1986, the NRM regime itself had to grapple with these critical identities — which in many ways present a challenge to state authority and ordering. Like previous regimes, the NRM in some ways sought to mobilize these identities for regime survival. For instance, the timing of the restoration of the Buganda Kingdom, in 1993, while the constitution-making process was ongoing, suggested that the NRM desired to project the restoration as an NRM grant rather than the result of a national negotiation and consensus.® At the same time, the 1993 ‘restoration’ was not in fact a return to the pre-1966 position, given that what were ostensibly restored were cultural rather than political entities. In these circumstances, the 1993 restoration only slightly abated, but did not completely resolve, the historical tensions between sub-national aspirations for autonomy, on the one hand, and the power of the central government on the other. In a bid to resolve these tensions, the NRM did what a number of regimes before it had imain in Buganda - Baganehwera-Barangi (v 1 ahove) 119. In response, the government decided thatthe electoral coll would ‘only include those reystred to vote in those counties atthe prot to independence - Mutibwa (0 10 above) 195 49D Mukholi (1995) A complete guide to Uganda's fonrdh Constitution: History, polities and the law 15, 50K Armstrong (2010) Contd pac, emt ute Dixon, per and interntonl atic in Northen sande pb lished PAD Dissertation, submined to McGill Universit, availabe at tgp//digioo brarcegilca/wcaclont/ SieamCiace? fader id= 149421 1009068670 (ast accessed 2 November 2018) 68 51 Ieisko-noteworty tat the NRM/A wat had sled significa upon the backing of Buganda both in ters of the geographies location ofthe eae gue setiity Gn the Laer Teiangl) as well a in terms of an apparent spreement ‘between the NRM and (then) Prince Mawenda Muteb under whose terms, in zeturn for Bi NRM would restore Kingdoms upon assuming state power - See E Kalrande uganda monarchy “diseussed in bush" New Virion 1 June 1998, available at hip /alaiia com /sioriss/1998A61 1066 auml (last accessed 2 November 2018}. 13done — attempting to ensure that political appointments reflected various national interests. However, the NRM appears to have taken this, arguably legitimate mode of nation-building, toa more extreme level, resulting in a disproportionately large cabinet, made even larger by an additional layer of Presidential advisors who are now greater in number than the actual cabinet. However, still in a bid to reconcile these fundamental and deep-seated tensions and contradictions, the NRM adopted a strategy no previous regimes had attempted - the sub-division and allocation of districts based on ethnicity.® Invariably the creation of these districts appeared to be a quid pro quo arrangement, usually being done on the even of major political events. For instance, while between 1986 to 1997 11 new districts were created; 11 new ones were created in 2000 (a year before the 2001 elections); 22 new ones in 2005 (just before the 2006 elections) and 9 new ones in 2006, following the elections of that year? These tensions would be powerfully foregrounded in the Kabaka crisis of September 2009. The crisis was precipitated by the police's prevention of the Buganda Katikiro, John Baptist, Walusimbi, from visiting Kayunga district, ahead of the Kabaka's scheduled visit to the area, apparently to officiate at the annual Buganda youth day celebrations. In fact, the Kabaka’s visit was itself a significantly political act, given that it came in the wake of the installation of a ‘Sabanyala’ by the Banyala, a sub-ethnic group resident in Kayunga. Mengo saw this as a challenge to the Kabaka’s authority, as the Banyala, according to Mengo were part of Buganda and subjects of the Kabaka. In these circumstances, it appeared that the President had asked that the Kabaka refrain from officiating at the youth day celebrations in Kayunga, pending the resolution of this issue. The frustration of the Kabaka’s visit was therefore seen as a direct affront to the Kabaka, and this sparked off a series of violent protests in Buganda The response from the State was forceful, and by the end of the protests, more than 27 people had been killed, many others injured and more than 600 detained. Four radio stations were also shut down, allegedly for inciting sectarianism. Three would be allowed to re-open, after tendering their apologies. A fourth, the Central Broadcasting Station (CBS), owned by the Buganda Kingdom, was however only allowed to re-open after a year The Kayunga protests opened a brief but troubling window into present national feeling, and future dangers — including the possibility of a genocide on the scale of Rwanda. During the riots, persons from, or perceived to be from, Western Uganda were singled out for 52 ED Green (2010) Patronage, district creation, and reform in Uganda London Schoo! of Economies Re- search Online, Studies in Comparative International Development, 45 (1) available at he:/ /eprinesIse, acuk/30646/ (last accessed 2 November 2018) 83-103 53 DK Singiza and J De Visser ‘Chewing more than one can swallow: The creation of new districts in Uganda’ (2011) 15 Law, Demoeracy and Development 4 54 ARNsibambi (2014) National integration in Uganda 1962-2013 130-131 55 GW Lugalambi (2010) Public Broadcasting in Africa Series: Uganda 72.verbal and physical abuse, as were sections of the Asian population.%* Following this crisis, the government passed the Institution of Traditional or Cultural Leaders Act of 2011, as a legal attempt to ensure that the power of traditional leaders remained cultural rather than political” 6.2 Reliance on militarism as an alternative to genuine dialogue and political contestation The illegitimacy inherent in the colonial project of artificial statehood necessitated the use of violence to hold such States together. This was no different in Uganda. The army in Uganda was thus created as an instrument of colonial power, for colonial purposes rather than as a safeguard for the democratic aspirations of Ugandans. This reality was implicit in the name of the force formed in 1902 — the King's African Rifles (KAR).** Asa deliberate colonial policy, the KAR in Uganda was also non-representative in composition, being composed mainly by Sudanese soldiers and persons from Northern Uganda. This forced a dichotomy in which the elite bureaucracy was composed of persons from Southern Uganda while the military was composed on persons from Northern Uganda. This could only breed fear, suspicion and resentment between the two groups. With the dawn of independence, the stage was set for conflict and turmoil in which the army would occupy an inordinate stage in the political arena, It is, indeed, significant in this regard that two of Uganda's leaders after independence - Idi Amin and Tito Okello ~ had a background of service in the KAR. Faced with this poisoned chalice, Uganda's immediate post-independence leaders failed to do the hard work required to reconstitute a viable State out of the competing sub-national visions and aspirations for autonomy. Instead, as the British had done before them, they resorted to the military as the primary, basic and foundational means for the resolution of political questions ~ a reality which remains a feature of Uganda's governance today. This is evident in the watershed 1966 moment, in which Obote opted to overthrow the Constitution by force of arms, rather than to deal politically with the looming internal challenge within his party arising from the Ibingira-Mengo alliance. This would be extended by Amin in the 1971 coup and would continue from then on with a series of extra-constitutional changes of government culminating in the present NRM government which took power in January 1986. It is significant, in this regard, that Article 3 attempts to outlaw extra-constitutional changes of power. However, as Uganda's history demonstrates, this legal provision, by itself, 56 Nsibambi (a 54 above) 130. 57 The realty of this distinction, in practice, emains tenuous. 58H Moyse-Bartltt (1956) The King African Rifles: A study in the military bistry of East and Central Acs, 1890-1945 129, 59 Moyse-Bartlett (a 58 above) 136. 60 See KA Appiah 1d IU. Gates Je (eds) 2010) Empat of Aas 97.may prove to be an insufficient shield to the continuing danger of the resort to the military as an alternative form of regime change. Ona more positive note, the 1995 Constitution attempted to - legally subordinated the army and other security forces to civilian authority. At the same time, however, the army retained a role in public, and political, life, particularly through the provision for army representatives in Parliament. This was justified, at the time, as being permitted by the ‘Movement’ system of governance, in which politics would not be conducted along party lines. As such, according to this argument, the army presence in Parliament could allow for this limited political involvement ~ as ‘listening posts’ - without the taint of partisan politics. In any case, even with a return to multipartyism in 2005, this representation was retained, with the result that, the army representatives have been involved in outrightly partisan politics, and in those cases invariably voting with the NRM party. As the same time, army officers who have dared to express dissenting views have been harassed, including those who, as Members of Parliament, enjoy privileged communication. ‘Agood example in this regard is the case of (then) Brigadier Henry Tumukunde, who in 2006 was hounded out of his seat as an army representative after expressing views deemed to be against the interests of the NRM party. He was eventually charged before the Court Martial, which convicted him of acting in a manner contrary to the good order and discipline of the army and strongly reprimanded him. In addition to involvement in parliamentary politics, the army has been gradually infused in many other areas of civilian and other roles not traditionally exercised by serving army officers. The police force has, for instance, for long been subjected to army leadership - from 2001 with the appointed of (then Major General) Katumba Wamala as Inspector General of Police (IGP), to the long service of Kale Kayihura in the same role (from 2005) until his recent replacement by a career police officer. Even then, the role of Assistant IGP has been retained by a serving army officer. A similar trend has been apparent with the appointment of (the now late) General Aronda Nyakairima as Minister of Internal Affairs in 2013, and the appointment, in 2017, of General Katumba Wamala as Minister of State for Works." 7.0 Conclusion Itis apparent, from Uganda's history (recent and more dated), that constitutionalism and the rule of law have been observed more in their breach than in their obedience. This paper identifies the fundamental challenge in this regard as being the failure of the various constituent documents (from the 1902 Order in Council to the 1995 Constitution) to 61 This trend is compounded by the perception and reality chat, especially in the highest echelons the army in domi- nated by persons from Western Uganda, notwithstanding: (Constitution that the army be national in iadequately deal with the complexities presented by the different societies which make up Uganda. In addition to these ethnic and socio-cultural differences have been other forms of difference, particularly religious. In the absence of a constitutional order which duly took into account this difference, the political order has historically relied on force to keep the state together ~ a feature of the country’s governance from the colonial period to the present. At the same time, as Uganda's history has demonstrated time and again, military force is not a sustainable means of state — and more importantly nation - building Instead, the constitutional and legal order, if itis to be respected, must be able to take into account, rather than discount or ignore — the reality of ethnic and other forms of difference — and craft a political, social and economic framework which best allows for human flourishing in this complex and multi-layered society. 08 (), 1995 Consttation,