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Constitutional history of Uganda

The Republic of Uganda is bordered on the east by Kenya, on the southeast by Lake Victoria, on the south by Tanzania and Rwanda, on the west by Zaire, and on the north by South Sudan. It is also predominantly Roman Catholic country with many different co existing ethnic groups. Uganda has undergone a turbulent constitutional history with up to four constitutions since gaining independence from the United Kingdom.

The Republic of Uganda is bordered on the east by Kenya, on the southeast by Lake Victoria, on the south by Tanzania and Rwanda, on the west by Zaire, and on the north by Sudan. It is also predominantly Roman Catholic country with many different co existing ethnic groups. Uganda has undergone a turbulent constitutional history with up to four constitutions since gaining independence from the United Kingdom.

Constitutional history

Before the British and Germans contended for control over the territory, Uganda had three different indigenous political systems: the Hima caste system, the Bunyoro royal clan system and the Buganda kingship system. In 1894, the British succeeded in establishing a protectorate and made the Buganda, also called the people of Buganda, administrators competent to collect taxes. A British-style high court of Uganda and an appeals court for all eastern African protectorates were established in 1902. At the same time, a special commissioner was installed to perform executive, legislative and judicial powers. In 1955, a constitutional monarchy with a ministerial government based on the British model and in 1957 political parties emerged and direct elections were held.

Uganda became an independent Commonwealth nation on October 9, 1962 under a constitution much influenced by the British. The constitution distributed powers between the centre and the regions, albeit disproportionately. The Buganda kingdom was given more powers at the expense of the other three kingdoms, namely the Ankole, Toro and Bunyoro, and the other districts. The powers granted to the four kingdoms also handicapped the Parliament, which was elected by direct universal suffrage, except for parliamentarians from Buganda who were indirectly elected through the Council of Buganda. Apart from the periodically elected Parliament, the constitution provided for a Cabinet, drawn from and responsible to Parliament, and defined the powers of major government organs, civil service and judiciary. One year later, an amendment introduced a ceremonial President to replace the Governor General as a head of state and Kabaka Mutesa became the first elected president on 9 October 1963.

The 1962 constitution was abrogated by Prime Minister Milton Obote in 1966, who declared himself President under an Interim Constitution of 1966. The Parliament was constituted into a Constituent Assembly and given a mandate to draft a new constitution for Uganda. On September 8, 1967, the new constitution came into force. It extended the life of the Parliament, declared the President then in office the President of Uganda for a term of 5 years. Other major changes by this constitution were the abolishment of the kingdoms and the introduction of a more centralized system of government. The election of Members of Parliament remained by direct universal suffrage across the entire country but the President was now elected indirectly by the Parliament. Although the system of government had some democratic semblance, democratic principles were hardly observed in practice, and Obote ruled basically with army support. Shortly after the constitution of 1967, a state of emergency was declared and Uganda slowly shifted to one-party-rule under the Uganda People’s Congress.

In 1971, General Idi Amin Dada seized power. Amin ruled the country through constitutional decrees and used the army as the main instrument of government. In 1979, Amin, too, was overthrown by a combination of Ugandan and Tanzanian forces. In the following years, the Ugandan military continued to participate actively in Ugandan political processes. In 1985 Obote was again elected president, but only to be deposed a year later by the Museveni-led National Resistance Movement – a rebel movement that had been fighting the regime for years.

On 21 December 1988 the National Resistance Council (NRC) enacted Statute No.5 of 1988 which established the Uganda Constitutional Commission and gave it responsibility to start the process of developing a new Constitution. The mandate of the Commission was to consult the people and make proposals for a democratic permanent constitution based on national consensus. In its final report of December 1992, the Commission stated that the majority of Ugandans preferred a Constituent Assembly directly elected by the people in order to be as full representative as possible and provide greater legitimacy. It proposed that an Assembly should be composed mainly of directly elected delegates plus representatives of some interest groups. The proposal was accepted by government and thus the Constituent Assembly consisted of 284 delegates elected by universal suffrage representing 214 electoral areas designated plus additional representatives of specific stakeholders. Nevertheless, some people feared that the delegates to the Constituent Assembly might tailor the constitution to suit their future political ambitions.

The elections to the Constituent Assembly took place in March 1994. Every registered voter who did not have a criminal record and could afford the required nominators and financial deposit was able to run for office. Apart from the decisions relating to national language, land, federalism and the political system, all provisions of the draft constitution were reached by consensus. The land question in Uganda emerged when the British took land away from the communities and gave it to a few individuals and was not resolved by the Constituent Assembly. The debate about the political system, on the other hand, was rooted in the bad experience of Ugandans with political parties in the post-independence era. On this basis, a “no party” politics, also known as “movement politics”, was proposed. In this system, no one is denied the right to run for any political office of his or her choice. The stress is on personal merit and political parties are permitted to exist but are forbidden from electoral campaigning and sponsoring candidates. Movement politics were strictly opposed by multiparty supporters. As a compromise, the movement type of governance was agreed to be extended for another 5 years but at the end of 3 years a public debate should be held and after 4 years, the people of Uganda should choose between the two systems in a referendum. On the whole, the constitution making process in Uganda was highly participatory and an exercise to reconcile the society, reinstitute democracy, the rule of law and to place limits on misuse of state power.

1995 Constitution

On September 27, 1995, the Constituent Assembly adopted the new constitution. The 1995 constitution, establishes a quasi-parliamentary system of government, consisting of a President, Prime Minster, Cabinet, unicameral Parliament, Supreme Court and Constitutional Court. The preamble states that the constitution shall be based on the “principles of unity, peace, quality, democracy, social justice and progress” and includes a long chapter on “National Objectives and Directive Principles of State Policy”. Moreover, Article one of the constitution proclaims the sovereignty of the people and according to article 2, the constitution “shall have binding force on all authorities and persons throughout Uganda”. The constitution stresses the importance of the protection of human rights by stating that “fundamental rights and freedoms of the individual are inherent and not granted by the State” and guarantees specific rights and freedoms like, amongst others, the freedom from discrimination, freedom of religion, the prohibition of torture and slavery, the right to privacy, assembly and association.

In opposition to the Constitution of 1967, the current constitution contains a whole range of powers that are shared between the President, Parliament and other constitutional bodies. Amongst others, the presidential power of appointment regarding the Vice President and Ministers is subject to the approval of the Parliament and the appointment of Permanent Secretaries and heads of departments have to be made upon recommendation of the Public Service Commission. The Public Service Commission moreover has the power to appoint all other civil servants and judicial officers other than Judges of the High Court, Court of Appeal and the Supreme Court are appointed by the Judicial Service Commission. Also in other areas the power of the executive has been cut down extremely: The President no longer has the power to dissolve Parliament and in the area of legislation the Parliament can over-ride the presidential veto by two-thirds majority. The executive’s powers to borrow money are also limited since Parliament now first has to approve borrowing.

In 2000 and 2005, important referenda on the system of government took place: The first referendum favored a “no-party” system of government but was invalidated by a court ruling some years after because of procedural shortcomings, whilst the second referendum approved a multiparty system and abolished the two-term limitation on the presidency.

The Executive

As set forth in article 98, the President of the Republic of Uganda is the Head of State, the Head of Government and Commander in Chief of the Armed Forces. Presidential candidates must be citizens of Uganda, between thirty-five and seventy five years of age, and qualified to be a member of parliament. In order to be nominated, a presidential candidate must be supported by one hundred voters in at least two-thirds of all Ugandan districts. He is elected by universal adult suffrage for a five years term. In case one candidate is not able to obtain more than half of the votes cast in the first run, a runoff election takes place between the two presidential candidates who obtained the most votes. The President has precedence over all other persons in Uganda and is obliged to safeguard the constitution as well as “execute and maintain the Constitution and all laws”. Moreover, he has the power to appoint a Vice President after having obtained the approval of the legislature. To be removed, an action for “abuse of office” or certain “misconduct or misbehavior” may be enforced by one third of all the members of parliament. After a special tribunal has investigated the case, a majority of two thirds of the members of parliament has then the power to confirm the decision on the removal of the President. The Cabinet, determining, formulating and implementing the policy of the Government, is formed of the President, the Vice President, the Prime Minister and the Ministers. The total number of Cabinet Ministers shall not exceed the total number of twenty-one except with the approval of Parliament.

The Legislature

The unicameral Parliament, a body of directly elected members to represent constituencies, has the power to make laws on any matter “for the peace, order, development and good governance of Uganda”. Members of Parliament serve for a five-year term and according to article 80 must be citizens of Uganda, registered voters and have obtained “a minimum formal education of Advanced Level standard or its equivalent”. Subsection 2 of article 80 then lists reasons disqualifying a person for parliamentary elections, such as being of unsound mind, holding an office with election responsibilities, having been declared bankrupt or being a “traditional or cultural leader” as defined in article 246 of the Constitution. Article 78 moreover stipulates that Parliament shall include one woman representative per district and a certain number of representatives of “the army, youth, workers, persons with disabilities” and certain other groups as determined by Parliament. The vice president and the cabinet ministers become ex officio members of parliament without the right to vote. Generally, bills are passed by a majority of those present and voting and must be presented to the President for assent. The President has the power to return bills for reconsideration or refuse assent in writing. If the Parliament adopts the bill a second time and presents it to the President, the President may return it once more. In order to overrule the President’s objection, the Parliament has to pass the respective bill once more by a two-thirds majority of all members. In case the President remains inactive on a bill for more than thirty days, presidential assent is presumed.

The Judiciary

Article 126 lays down that “the exercise of judicial power is derived from the people”. The constitution stresses the motion of an independent judiciary and article 127 provides for the participation of the people in the administration of justice. The judiciary consists of the Supreme Court, Court of Appeal and the High Court. The Parliament may establish further courts by law, including so called “qadhis courts”, which shall be able to hear cases regarding marriage, divorce, inheritance of property and guardianship.

The Supreme Court is the final court of appeal and consists of a Chief Justice and at least six other Justices. A case is decided by a quorum of any uneven number not being less than five members of the Court. Previous decisions of the Supreme Court are usually binding on the Court itself and all other courts. However, according to article 132, the Court may depart from a previous decision when it “appears right to do so”. When the Supreme Court hears appeals from decisions of the Court of Appeal sitting as a Constitutional Court all the members of the Supreme Court have to be present.

Regarding questions as to the interpretation of the Constitution, the Court of Appeal sits as a Constitutional Court with a bench of five of its members. The Constitutional Court, which is not expressly mentioned as a court of judicature in article 129, has the power to interpret the constitution. Any person alleging an infringement of the Constitution as laid down in article 137 may petition the Court for a declaration to that effect. The Court may then grant an order of redress or refer the matter to the High Court to investigate and determine the latter. Questions as to the interpretation of the constitution can also be referred by other courts of law.

Constitutional Challenges

In order to under-pin the democratic measures provided for by the Constitution of 1995 and hold the Ugandan government accountable to the standards defined in the Constitution and in its regional and international treaties, a Further powerful and influential civil society has to be further strengthened.

Democratic deficits are also mentioned regarding the frequent use of constitutional amendments. In a newspaper article Emmanuel Kitamirike, Executive Director of the Uganda Youth Network, alleges that “the NRM government has rendered the Constitution at par with ordinary legislation and exploited its numbers to reinforce the widely acclaimed idea of an omnipotent Executive and a rubber stamp Legislature that regards the Constitution as a mere instrument for the entrenchment of personal rule.” He adds that “if the NRM government does not check its constitutional amendment appetite, we are likely to dent constitutionalism and good governance thereby reversing the democracy dividends being experienced.”

In a ruling delivered on February 1, 2011, the Constitutional Court held that a Members of Parliament elected as party flag bearer cannot stand for election on another party’s ticket or as independents without first resigning his seat. The same applies to a Member of Parliament elected as an independent who seeks to switch to a political party. The ruling sent 78 Members of Parliament out of Parliament. The ruling has its basis in article 83 of the Constitution which states that:

“A member of Parliament shall vacate his or her seat in Parliament (a) if that person leaves the political party for which he or she stood as candidate for election to Parliament to join another political party or to remain in Parliament as an independent, or (h) if, having been elected to parliament as an independent candidate that person joins a political party.”

In light of the Kampalans vote for mayor in March 2011, lawyers debated the question as to whether article 83 strictly deals with MPs seeking to stand for reelection to Parliament or whether the article applies even when Members of Parliament are contesting for other offices, and in the latter case affecting two mayoral race aspirants – Michael Mabikke and Erias Lukwago. The strict interpretation seems to have taken precedence since Lukwago was elected the mayor of Kampala in March 2011.

The International Bar Association in its Human Rights Institute Report from 2007 observes “real threats to judicial independence in political cases”. The organization states that although “Uganda’s current government is to be commended for bringing a degree of peace and stability (…) judging the Government by the poor standards of previous regimes is not the proper benchmark against which to assess its performance.” The threat of the President to suspend judges even though not having the constitutional power to do so and the intimidation of individual members of the judiciary would go beyond the legitimate criticism of court decisions and suggest executive control over the courts. In 2005 and 2007, government forces in and around the High Court further increased the climate of fear in the Judiciary. The lack of resources and infrastructure puts further strains on the judicial system in Uganda. Moreover, the procedure for appointments of candidates for judicial offices in the IBAHRI’s opinion lacks transparency. The use of military courts to try civilians is a further matter of concern. Also, so called ‘safe houses’, special detention centers, are reported to still be in use, thereby infringing a range of fundamental rights guaranteed by the Constitution, including the right to personal liberty (article 23), the prohibition of inhuman treatment (article 26), the right to a fair hearing (article 28).

System of Government

BranchHierarchyAppointmentPowersRemoval
Executive
President
Cabinet
Elected by universal adult suffrage for a five-year term
  • Consisting of the President, Vice President and certain number of Ministers
  • Ministers appointed by the President with the approval of Parliament from among members of Parliament or persons qualified to be elected members of Parliament
  • Head of State, Head of Government
  • Commander-in-Chief of the Defence Forces
  • “Fountain of Honour”
  • Taking precedence over all persons in Uganda
  • Executing and maintaining the Constitution and all laws
  • Safeguarding the Constitution and the laws
  • Promoting the welfare of the citizens
  • Appointing Ministers
  • Protecting the territorial integrity
  • Declaring a state of emergency in consultation with the Cabinet
  • Determining, formulating and implementing the policy of the Government
  • Performing other functions as conferred by the Constitution or law
  • Upon expiration of 5-year term
  • Upon death or resignation
  • Upon removal as specified in article 107
  • Upon revocation of the appointment by the President
  • Upon resignation
  • Upon disqualification to be a member of Parliament
  • Upon death
Legislative
Parliament
Directly elected for five-year term
  • Passing bills
  • Appointing standing committees
  • Calling Ministers or other officials to submit a report or give evidence
  • Under certain circumstances enforcing the attendance of witnesses, compelling the production of documents and issuing a commission or requesting to examine witnesses abroad
  • Upon expiration of 5-year term
  • Upon resignation
  • Absence from fifteen sittings of Parliament without permission
  • Upon dissolution of Parliament
  • If the requirements for election are no longer met because of disqualification as stated in article 80
  • In case of violation of the Leadership Code of Conduct and decision by the appropriate tribunal
  • Recall by the electorate
  • Upon leaving the political party for which the member stood as a candidate
  • Upon joining a political party if elected as an independent candidate
  • Upon appointment as a public officer
Judicial
Supreme Court
Constitutional Court
  • Consisting of the Chief Justice and not less than six other Justices
  • Appointed by the President acting on the advice of the Judicial Service Commission and with the approval of Parliament
  • Consisting of a bench of five members of the Court of Appeal
  • Appointed by the President acting on the advice of the Judicial
  • Hearing cases as the final court of appeal
  • Chief Justice being responsible for the administration and supervision of all other courts; issuing orders and directions to the courts necessary for the proper and efficient administration of justice
  • Deciding questions as to the interpretation of the Constitution
  • Granting redress where appropriate
  • Upon age prescribed for retirement, unless decided otherwise as stipulated in article 142(2)
  • Upon retirement
  • Upon attaining the age of seventy years
  • On attaining such other age as may be prescribed by Parliament by law
  • Upon removal as specified in article 144(2)
  • Upon end of period of the appointment
  • Upon age prescribed for retirement, unless decided otherwise as stipulated in article 142(2)
  • Upon retirement
  • Upon attaining the age of seventy years
  • On attaining such other age as may be prescribed by Parliament by law
  • Upon removal as specified in article 144(2)
  • Upon end of period of the appointment

Timeline

1500Bito dynasties of Buganda, Bunyoro and Ankole founded by Nilotic-speaking immigrants from present-day southeastern Sudan.
1890 Britain and Germany sign treaty giving Britain rights to what was to become Uganda.
1894 Uganda becomes a British protectorate.
1900 Britain signs agreement with Buganda giving it autonomy and turning it into a constitutional monarchy controlled mainly by Protestant chiefs.
1921 Uganda given a legislative council, but its first African member not admitted till 1945.
1958 Uganda given internal self-government.
October 9, 1962Uganda becomes independent with Milton Obote as prime minister and with Buganda enjoying considerable autonomy.
1963 Uganda becomes a republic with Mutesa as president.
January 25, 1964Unsuccessful army mutiny.
19661962 Constitution abrogated and replaced with Interim Constitution after confrontation between Prime Minister Milton Obote and Sir Edward Mutesa, President of Uganda and Kabaka of Buganda. Milton Obote ends Buganda's autonomy.
1967 New constitution vests considerable power in the president and divides Buganda into four districts.
January 1971 Coup d’etat by Idi Amin.
1976 Idi Amin declares himself president for life and claims parts of Kenya.
1979 Tanzania invades Uganda; Amin flees the country; Yusufu Lule installed as president, but is quickly replaced by Godfrey Binaisa.
1980 Binaisa overthrown by the army. Milton Obote becomes president after elections.
1981-1986Civil strife with the National Resistance Movement (NRM), seeking to overthrow Obote.
1985 Obote deposed in military coup and is replaced by Tito Okello.
1986 National Resistance Army rebels take Kampala and install Yoweri Museveni as president.
1993 Museveni restores the traditional kings, including the king of Baganda, but without giving them political power.
1995 New constitution legalizes political parties but maintains the ban on political activity.
1996 Museveni returned to office in Uganda's first direct presidential election.
2000 Ugandans vote in favor of continuing Museveni's "no-party" system.
2005 JulyParliament approves a constitutional amendment which abolishes presidential term limits. Referendum leads to a return to multi-party politics.
2006 FebruaryPresident Museveni wins multi-party elections.
2007 SeptemberState of emergency imposed after severe floods cause widespread devastation.
2009 NovemberRights activists condemn proposed anti-homosexuality Bill, which would prescribe execution for some gay people.
2009 DecemberParliament votes to ban female circumcision.
2010 MarchUganda's main opposition party accuses President Museveni of installing his son Lt Col Kainerugaba Muhoozi as his successor.
2010 JunePublic prosecutor opens corruption investigation against Vice-President Gilbert Bukenya, Foreign Minister Sam Kutesa and several other officials.
2010 AugustNational Resistance Movement primary elections for parliamentary and local candidates suspended amid irregularities.
2010 October Constitutional Court quashes treason charges against opposition leader Kizza Besigye.
 Outcry as The Rolling Stone newspaper publishes names and pictures of men identified as gay. Homosexuality is illegal.
2011 February Museveni wins his fourth presidential election despite allegations of vote-rigging.

Bibliography

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