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"Ugandans are about to witness the biggest political fraud ever visited on our country and it is up to right thinking citizens to do their utmost, with the limited legal and political space to resist those who would subvert our Constitution to their whims and selfish ambitions.  We are lucky to have on our side a Constitution that will enable us to make our arguments and take a legitimate stand before the highest courts of the land and before the people of Uganda.  It is not surprising that the country is being bamboozled into an expensive and wasteful referendum by the President"
***************

----- Original Message ----- 
From: Anne Mugisha 
To: [log in to unmask] 
Cc: [log in to unmask] 
Sent: Tuesday, January 13, 2004 6:42 PM
Subject: [FedsNet] Constitutional Debate


The Editor

The Monitor

KAMPALA

UGANDA

 

Time to defend the Constitution is now!

 

The proposal to call for a referendum to decide on whether or not to lift term limits for the office of the President of Uganda has produced many constitutional experts with different sides competing to interpret the Constitution to fit their purpose.  I expect that the constitutional court will soon be called upon by the usual suspects to give their binding interpretation on the matter and lay this debate to rest.  In the meantime I will chip in with my own interpretation of the supreme law.  And while the pro-3rd term supporters have thrown their weight behind the constitutional provisions in Articles 1 and 225, I will rely on Articles 3, 4 and 5 of The Constitution of Uganda as well as Chapter 18 for the basis for my opposing arguments.

 

Ugandans are about to witness the biggest political fraud ever visited on our country and it is up to right thinking citizens to do their utmost, with the limited legal and political space to resist those who would subvert our Constitution to their whims and selfish ambitions.  We are lucky to have on our side a Constitution that will enable us to make our arguments and take a legitimate stand before the highest courts of the land and before the people of Uganda.  It is not surprising that the country is being bamboozled into an expensive and wasteful referendum by the President.  President Museveni understands the opportunity that a referendum presents in his quest to remain in office for life.  The main vehicle for achieving his goal was the Constitutional Review Commission whose stray recommendations have now been reined in and only a perfectly harmless referendum stands between Museveni and his trophy of life presidency.  President Museveni saw an opportunity to buy himself a life presidency by throwing the juicy bones of a 'guided' multi-party democracy and a weak federal system at the people in a mixed grill that Cabinet presented to the CRC.   And when the people refused to bite, the CRC was forced to swallow.  If the President succeeds in his quest, it will not be because the country was divided by the bones that were thrown at them.  

 

The President has now become the untiring advocate of the people's sovereignty and the front line fighter against any Member of Parliament or opposition leader who will dare to act as an intermediary between the people and their sovereignty.  In his visits to fund-raisers, churches, weddings and political meetings in Ankole, the message has been clear:  You the people have the power to amend the Constitution when and as you please and any leader who tells you otherwise is usurping your power.  Naturally the President does not divulge to the people all the other powers that the Constitution bestows on them and it is on those other provisions that I will dwell.

 

Under Article 3 (1) of the 1995 Constitution, it is prohibited for any person or group of persons to take or retain control of the Government of Uganda, except in accordance with the provisions of the Constitution.  Yet we are currently witnessing a clique of leaders in the Movement seeking to retain power in a manner that is not in accordance with the Constitution.  This clique of Movement leaders is trying to circumvent the powers of Parliament and amend the Constitution through a referendum. It is not by accident that the Constituent Assembly in their wisdom wrote a whole chapter dedicated to the amendment of the Constitution.  Chapter 18 was dedicated to this purpose because the people of Uganda had the bad experiences of the 60's when their Constitution was abrogated to meet the selfish interests of another clique of leaders.  The people therefore understood that amending the Constitution was a very serious matter to be occasioned by very special circumstances.  

 

Chapter 18 therefore stands as a separate chapter that would stand out in detail, accuracy and authority on the sensitive matter of amendment.  The government now finds itself in the awkward position of trying to amend the Constitution for reasons not stated in that prominent Chapter and they also propose to use means not stated in the same chapter. The real purpose that government is seeking to amend Article 105(2) of the Constitution through a referendum called under Article 225, in complete disregard of Chapter 18, is to find a way of bypassing the necessary Parliamentary votes. The President and his cohorts are not confident that they would be able to satisfy the requirement of amending the Constitution through an Act of Parliament under Chapter 18 because they would not find the required two thirds majority to support a life presidency for President Museveni.  The referendum guarantees a change without the interference of institutions that would ensure a free and fair process.  

 

So going back to Article 3(1), a group of persons have connived to retain control of the Government of Uganda and they are not doing so in accordance with the Constitution.  The opposition cannot afford to wait until after the referendum to act because by then the 'group of persons' mentioned in Article 3 (1) will have re-established legitimacy by manipulating the Constitution.  The government is acting unconstitutionally now and they must be stopped now!  The Constitution also tells us how we are supposed to deal with people who connive illegally to amend the Constitution.  Article 3(2) states that any person who, singly or in concert with others, by any violent or other unlawful means, suspends, overthrows, abrogates or amends this Constitution or any part of it or attempts to do any such act, commits the offence of treason and shall be punished according to law.  My submission therefore is that the pro-third term leaders have set themselves up for the charge of treason and it is up to the opposition to ensure that this constitutional provision is enforced.

 

Indeed in Article 4 the Constitution places on all citizens of Uganda the right and duty at all times- (a) to defend this Constitution, and in particular, to resist any person or group of persons seeking to overthrow the established constitutional order: and 
(b) to do all in their power to restore this Constitution after it has been suspended, over thrown, abrogated or amended contrary to its provisions.  We are therefore empowered by the Constitution to resist any person seeking to tamper with it by all means necessary.  The opposition has a strong case to make both to the Constitutional court and to the people of Uganda and it is indeed our duty and right to make that case now.  We must not shy away or be frightened from carrying out this responsibility since the Constitution grants us amnesty in advance for the actions that we may take to defend it.  Article 5 and 6 state that any person or group of persons who, as required by clause (4) of this article, resists the suspension, overthrow abrogation or amendment of this Constitution commits no offence and where a person is punished for any act done under that clause, the punishment shall, on the restoration of this Constitution, be considered void from the time it was imposed and that person shall be taken to be absolved from all liabilities arising out of the punishment.

 

So while President Museveni continues his country wide appeal to the population to exercise their sovereignty directly and ignore their elected leaders it is the responsibility of the opposition to awaken the masses and educate them of their other powers under the same Constitution that bestows them with that sovereignty.  It is only through delivering complete knowledge to the people that we might be able to turn the tide of dictatorship and return to the path of constitutionalism and democracy.

 

Anne Mugisha

Secretary International and Regional Affairs

Reform Agenda







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