Prof Joe Oloka-Onyango: Why not just abolish the constitution?

Written by Prof Joe Oloka-Onyango
Monday, 23 May 2011

Although not surprised, I was rather disturbed to hear of President Museveni’s most recent proposals on constitutional and legal reform.

The situation was made worse by the ranting of minister Kabakumba Masiko who went live on a BBC news programme on May 18, to declare that “enemies of the state”, (particularly the media), will be “dealt with” in a bid to stop what she described as the “nonsense” of free expression by organisations like the BBC, Al Jazeera, NTV and Daily Monitor.

Among the proposals for constitutional and legal reform are the introduction of new offences such as economic sabotage, the removal of bail for such an offence, as well as many others already in the Penal Code, and a whole raft of suggestions on how to tame the media—both print and electronic. For students of the history of Uganda, such suggestions must ring with an ominous air.

One of Milton Obote’s first moves after overthrowing the 1962 (independence) Constitution in 1966 was to introduce Detention-without-Trial, first of all through ordinary regulations to be enforced by the minister of Internal Affairs, and later through what was called the Public Order and Safety Act (POSA).

While we know of the more prominent victims of that law, like Benedicto Kiwanuka, Abu Mayanja and Dan Wadada Nabudere, there were literally hundreds of unknown Ugandans who languished in our jails without trial, basically from 1966 until Obote was overthrown in 1971.

It is also not too long ago that Idi Amin came to power (a mere 40 years!) with a raft of military decrees that effectively closed down the press, monopolised political space which Idi Amin occupied exclusively, and led to the complete eradication of all imaginable freedoms; from what one could dress, to what one could eat, to whom one could talk to.

The only way Amin did this was to abolish the clause in the 1967 Constitution which stated: “This Constitution is the Supreme Law of Uganda.” And again, for those who care to remember, Amin was no friend of a free press or of any other of the democratic freedoms that are today enshrined in the 1995 Constitution.

The fact is that not only are the NRM government proposals on public order management and censorship of the media overly broad, they are fundamentally unconstitutional. And they are unconstitutional not simply on account of the removal of what have come to be regarded as the basic freedoms—movement, speech, assembly and association—that the NRM government is so unhappy about, but because such restrictions will infect several other parts of the Constitution; what exactly do I mean by ‘infection’?

If the automatic right to bail is removed, it will affect several other rights, such as freedom of movement, the right to life (in its broadest sense), freedom of speech, and many others. It will also run against both the spirit and the letter of the Constitution, which reminds us to “recall our history” of tyranny and dictatorship in order not to repeat it.

The National Objectives and Directive Principles of State Policy enshrines binding democratic principles on the state. Article 3 of the 1995 constitution also prevents any unlawful amendment to the Constitution which has the effect of suspending, overthrowing, or abrogating the constitution.

In effect, the imposition of further restrictions on the rights to speak, associate and demonstrate will amount to an unlawful amendment because it will overthrow the very foundation on which the 1995 constitution was built. While recognising that all rights can be restricted, the extent of the restriction cannot be over-broadened.

A mandatory six months sentence without bail or trial for just walking to work represents the reintroduction of detention without trial, thereby violating Article 43(2) (b), while the focus on ‘economic crimes’ recalls the days of the Anti-Smuggling Unit which wreaked havoc on ordinary Ugandans.

But most importantly, the proposed amendments would offend two other cardinal principles in the 1995 Constitution. The first is that of independence of the Judiciary, which gives the Judiciary the power to determine whether the conditions of bail are adequate or not; it is not the Executive to do so.

The second principle is contained in Article 126(3) which stipulates that all organs and agencies of the state shall “… accord to the courts such assistance as may be required to ensure the effectiveness of the courts.” Introducing the amendments proposed would undermine that assistance. In sum, what the proposed amendments would do is to effectively overturn the constitution.

The author is professor of law at Makerere University and head of the Human Rights Peace Centre (HURIPEC).

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Mr.
written by Katono , May 22, 2011

Hallo Oluka

As Museveni looses popularity like any dictator he will start to fear and or assume that everyone is an enemy even his family members started with the opposition, the other day its was religious leaders, then media houses & journalists, he added on the international community & diplomats, then a told Universities dons to go and hanger now the brutality & killing of civilians & now the media is likening him Idi Amin, don't be amused when he turns against his own son thinking he wants to take the mantle from next time that's why former Ghanaian president admitted that sometime they act like they are on drugs

Now he is going to kill his own constitution but all the same his days are numbered.


Truth will out
written by Betty Long Cap , May 22, 2011

From what I read at The Observer, the Constitution has already been abolished and Ugandans live in a repressive police state with no term limits, fraudulent elections, and harsh treatment of opposition to the dictator.

And yet there is hope for a truly democratic society with enough citizens who will not be deceived, silenced, certainly not bought and willing to walk to work.




Like UK with no constitution
written by victor , May 22, 2011

You are right. Just like United Kingdom is without a constitution but they have laws and traditions agreed on and acceptable to the people.


People make Constitution
written by kebirungi akiiki , May 22, 2011

The writer is viewing the modification or the alteration of the constitution from a different angle or perspective,may be with a bias. He does not condemn the obstruction of peace, misuse of liberty, abuse of freedom causing and provoking violence.

The liberty of bail or parole should not be taken advantage of. I request the writer to observe the manner in which dissatisfaction has been expressed unlawfully, obstructin public peace.

The writer should remember that the constitution did not dictate itself but was made by the people, for the people and of the people, to protect the interests of the people of Uganda.

Policy makers who look at the crimes and compare, gather information on crimes and criminal behavior, get data of victim statistics and areas most affected by violence and criminal activity will look at the country's policing system and the punishments.

After reading reports, studies and statistical analyses written by police officers, lawyers, correctional officers and other criminologists, may be interviewing detectives, criminals and victims assessing crime scenes and courtrooms, also look at the frequency and trends of repeated crimes have right to come up with conclusions about the modification of Article 43(2)(b)in order to lessen the density, and effect of the repeated crimes on the people.


Dr Oloka flogging a dead horse
written by 2011 , May 23, 2011

Whatever is said is falling on deaf ears, I dont hope Museveni will change even if you cry yourself hoarse, it has been determined, and the EU endorsed his legality, yet we know deep down in our hearts that he has always came to power through crude means, and we cannot respect that, not even heaven will.

Secondly even Napoleon had to face defeat at Waterloo and it will come whetehr we want it to or not,everything has its time, a time to rise and a time to fall.A time to hope and a time to give up as lost.

Thirdly, as Mrs Museveni puts it, yes, he is the Biblical Moses. Do I remember Moses doing witchcraft or socery or divination. Moses infact killed the idol worshippers on the slopes of Mt Sinai after receiving the Ten Commandments.!
What an irony and a deception all along!


winds of change
written by Betty Long Cap , May 23, 2011

victor, England has an unwritten Constitution dating back to the Magna Carta. It is that tradition of rule by law that the colonists brought to America and that makes the United States the best example of democracy in the world faults not withstanding.

Consider a Constitution and Bill of Rights is above the President and higher than civil law. Violation of constitutional rights is proof of a dictatorship. Dictatorships are an open invitation to anarchy. Witness what has happened in North Africa and other Islamic countries this spring when oppressed people say no more.

With increasing demands no president indeed no country can stop the rise of fuel and food prices. What a country can do is require the President to uphold the national Constitution. Two consecutive terms and out!


@ Kebirungi
written by Jules , May 23, 2011

Yes laws are written by the people in power to keep them in power. Nonetheless- these laws will be used against people indiscriminately. Let me remind you that even apartheid SA had laws created by the people (in power) to gag ordinary citizens.

Just a word of caution be sure not to be caught on the wrong side of these ridiculous laws!!!! Oh may i remind you that the Ugandan parliament stopped to exist when all its powers were handed over to the president and as such they do not represent ordinary Ugandan but the vision of the president whatever it may be.

I believe one fine day we shall build a better Uganda based on respect of basic human rights where the law does not discriminate against those who just happen to disagree with government and are put together with murderers, rapists etc.


Oloka is right.
written by sophie nakueira , May 23, 2011

In answer to Keibirungi Akiiki, I do not see any bias in the writer's article. he is merely stating the facts and backing it with reasonable interpretation of the principles of the Ugandan Constitution.

First of all, when people excercise their right to walk it is misinterpreted as provoking violence by a political party that is increasingly losing its legitimacy by responding with violence to peaceful demonstrations.

The fact of the matter is these so called proposed crimes are the workings of a desperate government. You cannot truthfully believe that the Ugandan government is proposing 6 months sentences without bail to 'protect the interests of Uganda'.

If anything they are indeed against the very principles of peace that Museveni 'brought' with him when he came into power.

Not only do these provisions serve to deter would be opposition to the NRM government, they are so broad that anything could fall within economic sabotage (this from a government that uses the country's resources as its own bank account).

But let's say these proposed provisions are indeed passed into law, how will Uganda reconcile its obligations under international law when they overlap with the very principles it seeks to abolish?


Freedom must reflect the society
written by victor , May 23, 2011

Professor Oloka Onyango is trying to stick to the British way of life and is advocating many restrictions to the constitution which is out of touch with workable governance in Uganda.

Oloka, born in UK, hence the meaning of his name should be able to see that the practising of one's right the way Besigye does is selfish. Many poor people lose the means of their meagre incomes when Besigye's hooligans destroy poorer people's property.

Most of them are not insured as Besigye practises his "rights" while these people's property is destroyed. Human rights the UK style do not cater for the rights of Ugandan poor, but the elites who have a similar standard of living as that of UK.

Look at Besigye, disobeying the police or court orders, hurling insults at his rival Museveni for defeating him, and nothing is done about it. If Museveni was also to exercise his individual human rights and insult Besigye, or take him to court every now and then, Besigye would have to pay a lot of fines, so that he would have been forced to sell off his 11 petrol stations or his Equatoria hotel or farm in Kasangati, or his fuel guzzlers to pay off the fines.

Besigye is becoming a nuisance to Uganda. He employed goons to pelt visiting African presidents with stones. The goons must have been practising their rights when they were high. This must be stopped.


Victor
written by naki , May 24, 2011

"Oloka born in the U.K.! Come on Victor! You seem to forget that the guy was raised in Uganda. Your comments erase his qualifications from which he writes his well researched article. Shame on kavuyo people like you who see no wrong in the Ugandan situation!


Reaping what we Sow.
written by Ndiwulila , May 24, 2011

Joe, Laws are not cast in stone and may be adjusted or amended to match the dynamics of a society. As a law Academic you must surely know this!

Lawyers have time and again managed to help criminals beat the Justice system because they are trained to read between the lines and take advantage of the loopholes - including technicalities, majorly for monetary gain.

It does not make sense for someone to repeatedly break the law knowing that they will get away because of weak laws, and poor facilitation. Seriously sanity must prevail.

FYI, it isn't the Judiciary or Police that makes these laws, but they always get the fallout/blame for our (society) misdeeds.

A largely undisciplined backward society probably needs so called "draconian" or "colonial" deterrence to tame their primitive ways.

I can now see perpetual lawbreakers and smart criminals cringing at the thought of 180 days "on leave".


vuvuzela could spread disease!
written by victor , May 24, 2011

Now that the disgruntled losers have reverted from 'walk to work' it is still better to say that they have hijacked the peasants' revolution.

Besigye cannot lead poor people's revolution because he is not one of them. He used his stint in NRM to enrich himself. He's a medical doctor yet he has failed to advise people that vuvuzela could spread disease. BBC, Besigye's mentors have just said so quoting a research.

Either way Besigye is still a strange bedfellow in this poor people's 'revolution' and he benefits from kavuyo more than anyone else.


will not be able to dance to the west
written by kizito , May 24, 2011

The pretender cannot do that because he will not be able to beg for money from the west. It is m7 rules change as it suits his sucking agenda !


Akiiki and Victor
written by Hairy Chest , May 24, 2011

It is obvious these two respondents must go and have a "drink or take a pill"


Was colonisation in British 'constitution'?
written by victor , May 24, 2011

Betty Long Cap, Ugandans do not need more lectures about its constitution being modelled on colonialist and imperialist countries' constitution(s).

We want to make our own constitution based on our situation, laws, traditions, economic situation, culture and so on. Was the enslavement of Africans constitutional in your country's 'Magna Carta'?

What is your interest in persisting in Western's countries' constitution(being) the model for Uganda? We're in the process of decolonization and need to get rid of those neofascists' ideas being imposed on Uganda from without.Forgive some of us; we do not know some of the meanings of what you are writing about, English being the colonial enemy's language.


ADOPT THE GERMAN GOV'T STYLE!
written by OJA , May 25, 2011

I salute Professor Oloka for the few notes of enlightenment has posted. His suggestion (Why not just abolish the Constitution) is an understatement.

He should have suggested something more concrete as a lawyer, and I guess, as a guardian of true constitutionalism. Anyhow, if truly the so-called 1995 constitution was written with the hindsight to avoid the repeat of the atrocities of the past (call it our history), then what has happened, that which is happening now and still going to happen is a clear sign of a dog returning to eat its own vomit!

So, here is what I suggest: Adopt the German style of government. Let government be built by a coalition of parties whereby a single party alone has no mandate to form a government except the one with the majority votes can choose the chancellor (Prime Minister).

Finally the president is chosen by the parliament as a ceremonial figure. Why did the Germans adopt this strategy? because of their history of personality cult. Adolf Hitler was too much of a leader (dictator) so much so that his actions which sparked off the World War II and thus tarnish the image of the whole German society set the precedence for the post war German society to adopt a new form of government which I have described above.

Likewise, it would therefore help Uganda a great deal, if we avoided the type of government built around personality cult (dictatorship) and move to reduce or chop off the innate propensity of individuals who claim too much power, who in turn use it to oppress, abuse, intimidate and terrorise their own citizens and in the end also give a bad name to the entire country.


this bell calls us all
written by Betty Long Cap , May 25, 2011

victor, as Condi Rice pointed out in a congressional hearing on 9-11, the Founding Fathers did not have her in mind when they wrote the Constitution.

Neither did they have me. Not until 1920 were women given the elective franchise. Becoming a democratic society is a costly process.

I am surprised how fluent you are in English, considering you regard English as "the colonial enemy's language". You must have studied abroad to have such fluency but why fight colonialism and fail to see African dictators have served your continent no better.

victor asks, "Was the enslavement of Africans constitutional in your country's 'Magna Carta'?" No, and neither was "all men are created equal" a constitutional exclusion of women. More Americans were killed in the Civil War fighting to end slavery than all our wars before and since. A woman has yet to be elected president.

You think you can make your "own constitution based on [your] situation, laws, traditions, economic situation, culture and so on" but you are delusional. You would be the first country to do that. Uganda is not an island. To quote an Englishman:

"All mankind is of one author, and is one volume; when one man dies, one chapter is not torn out of the book, but translated into a better language; and every chapter must be so translated...As therefore the bell that rings to a sermon, calls not upon the preacher only, but upon the congregation to come: so this bell calls us all: but how much more me, who am brought so near the door by this sickness....No man is an island, entire of itself...any man's death diminishes me, because I am involved in mankind; and therefore never send to know for whom the bell tolls; it tolls for thee."

John Donne (1572-1631). http://www.phrases.org.uk/mean...sland.html





...
written by James , May 25, 2011

If this amendment was passed,it would pave way for a number of illegal detentions. Any one will set you up and accuse you of rape, economic sabotage, defilement, and the like just to ensure that you are kept away for a while...University students demonstrating against bad food would have to be kept away for months.

The media reporting about Govt's excesses would fall into the economic sabotage group. What if one is then found innocent after 6months in jail? would the law also propose heavy damages?


...
written by James , May 25, 2011

the proponents of this law should know that any one of us could fall prey to it. Don't only look at Besigye and Co. any of us could be wrongly or rightfully accused of one crime or another and denied our right to bail.

It is only when this strikes home that even the supporters will shudder in desperation. The bible says..the wicked set traps only to fall in them....


'colonial language'
written by victor , May 25, 2011

Betty Long Cap being 'fluent' in English does not exonerate it from being a colonial language. We have our own languages and if I were to speak to you in those languages you would not understand, because the colonialists did not regard them as languages of people.

The colonialists used zoological terms to define our languages. Now they are using those attitudes to stealthly tell us to adopt their constitutions to erase our identity. Remember the treaties they made our people sign! Even those women's 'things' they talk about, they are the new imperialists to 'teach' our women.

Our women can do their 'own thing' and do not need to be maids in the households in the West for those 'newly liberated' women to go to work for the first time away from being domesticated. Africans have their own way. Moreover, one does not need to go to abroad to learn English. It is right here in Uganda as the 'official' language - the colonial language!


Which bell... We beat drums!
written by victor , May 25, 2011

Again, bell ringing is not African. Rather, we talk of our drums or the drum beats. You see I am looking at everything from an African eye and that is why we need a constitution made by us and jettison most of what Betty Cap Long is trying to tell us.

You began by quoting scriptures, then proposing a British model of constitution, now Western women's lib! What if we came to your country, imagining you were not from Africa, and we violently told you to adopt our language, and a constitution based on our African ways of life or situation and called it 'universal human rights' would you agree without a fight?

What if we from Africa came to Europe and claimed the place is fallow without people, and renamed a town or village there Nakulabye and abolished the local name? Would you take it on bended knees? What if I told you from today start worshiping Mukasa, or Lubale and changed the name of Thames river to Nyanja Nalubale, probably you would be very happy with us? From here we can have a little dialogue!


rantings or ramblings
written by Betty Long Cap , May 25, 2011

"If a man loses pace with his companions, perhaps it is because he hears a different drummer. Let him step to the music which he hears, however measured, or far away." Henry David Thoreau wrote in Walden.

victor, do you really want the western world to leave you alone to march to your own African drummer? When you get sick, do you seek medical intervention with pharmaceuticals developed in the west or do you go to your local healer for herbs?

How many HIV/AIDS positive Ugandans are alive today because of American medicines and foreign aid?

Do you ever drink Coca Cola or Pepsi? As much as he hated the land of the Infidels, Osama bin Laden would have both sodas delivered to his "home away from home" in Pakistan.

America does not hesitate to borrow from European countries and native Indian tribes to name cities, rivers, even states e.g. the town of West Lafayette, city of Los Angeles, the river Cuyahoga, and the state of Louisiana. We even borrow Arab names such as Medina and Memphis with no shame or guilt.

Perhaps the difference is America is a melting pot of people groups while indigenous people marry within their own tribe and generation and want to preseve their unique culture unadulterated by outside influence even if it means extinction.

Can any country expect to have a democracy when tribal self-interests eclipse national. I suspect democracy can coexist with a tribal social system if there are strong constitutional safeguards against long-seated dictatorships but that has yet to be proven because dictators abolish term limits.

How much of a debt do Afro-Americans have to African brothers who sold their forefathers into slavery? In the sixties we heard demands for reparations but isn't there enough guilt to spread on three continents and both races.

How many north African Arabs can trace their ancestory back to kidnapped Europeans along the Atlantic coast and then sold at the slave auctions in Algiers?

Wer zuletzt lacht, lacht am besten.










Betty, go home!
written by victor , May 25, 2011

Yes. We want to be left alone and not be told how to write or rewrite our constitution. You say we sold our brothers into slavery, what about the slave raids your forefathers organised and the forts they built to herd Africans before shipping them away from home and stopping them from speaking their languages?

If you are so kind why don't you talk about the people that the slave riders dumped in the sea when there were storms? Did our forefathers travel to Europe or America to bring slaves?

And who mistreated our brothers and sisters in America, and treated them like commodity until this day? Is it we Africans doing that? Betty, just go home! We are not going to listen to you! What debt do we have?

Do you mean from your DEAD AID? We don't need it. Who brought AIDS to Africa? Or small pox? Who cares about your Coca Cola or Coke full of cocaine? When we are sick we have our indigenous medicine first and foremost. Betty, take your crap with you.

You country has to pay reparations to Africa for stealing our people's labour to develop foreign lands.


tribal self-interest?
written by victor , May 25, 2011

When the Irish tribe and the English tribe fight each other and use their witchcraft aginst each other, we have not accused them of anything.

Instead, we have left them to 'do their thing' and we have not intervened to 'civilize' them to bring our African way of life upon them by force. When Columbus was killing the native Americans and setting dogs to bite them that is something even you Betty Long Cap should 'enlighten' other cultures about, and not only talk of Coca Cola and Pepsi. We have our Mwenge Bigere and Malwa for drinks which we cannot compare with those items you mentioned.


Los Angeles?
written by victor , May 25, 2011

Los Angeles is a Spanish name. The Spanish had renamed this area after taking it from the native Americans. Then the Anglo Saxons took it by force after a war with the Spanish.

How did you borrow this name? Cuyahonga is a native name of a native place by native people. How do you borrow a native name of a place? Betty you are an imperialist. We have to guard against your type. You are very restless! In the same way, are you trying to abolish African ethnic groups or nationalities or nations? What are you talking about? And your purpose?