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Ear to The Ground:
By Charles Onyango-Obbo |
Should a king, judge or president rule Uganda
June 30, 2004
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President Yoweri Museveni has rejected the decision of the Constitutional Court nullifying the 2000 referendum, which also ruled that no other mandatory referendum can be held. Museveni swears that in spite of what the judges have ruled, there will a referendum on lifting term limits, and thus effectively create a Presidency for life. And, you can be sure, there will be a referendum. The President rejected the Constitutional Court ruling because, he says, they "usurp the power of the people". We will leave it to the lawyers to argue the law. We can only say here that these kinds of positions by Presidents on constitutions in Uganda are not new. When the Uganda People's Congress government of Milton Obote overthrew the 1962 Constitution, they made exactly the same arguments as Museveni. They also argued the "doctrine of necessity", which was borrowed from the then racist minority regime in Rhodesia (Zimbabwe today), which said that sometimes overwhelming need to protect things like national security, national sovereignty justified the overthrow of a constitution. The difference is that in 1966 Obote overthrew a constitution that his government did not write. The constitution in place today, however, is a Movement constitution. In fact some uncharitable people call it the Museveni constitution. Therefore there is no law in issue, just high politics. For that reason, the significance of the President and his government's rejection of the Constitutional Court ruling must be seen in a wider political context. For example, imagine a Tanzanian contractor who owns a company called ABV Construction, and it did a job worth Shs 3 billion in Uganda and the government has delayed to pay you by two years. ABV goes to court, and the government is ordered to pay the company its Shs 3 billion. But because you have a government that does not respect court rulings, a minister or the President comes out to say that they will not honour the court order because it would not be in the national interest to pay the company. ABV built a road, and it cannot send auctioneers to grab it away. Besieged by creditors, it collapses. Other contractors in the region, will hear of this, of course. In future, they could demand that they be paid a huge chunk of the contract sum ahead (which they could themselves run away without doing the work). Or imagine the government signs a loan agreement for $ 200 milion for some project. When the repayment time arrives, the government can very easily turn around and refuse to pay - as Uganda is alleged to be doing with the over $ 100m it owes Libya. Well and good, but why should other international institutions lend to Uganda again in future if the government does not honour rules it willingly allowed to be governed by when they do not favour it? At lower levels, you could rent your house to the government and when they fail to pay, you order it to leave. It refuses. You go to court, and the judge says you should be paid your money. And the government says to hell with the judge. By the time you get to the district, the Assistant RDC will be refusing to pay for building materials he was given on credit at some corner shop in Iganga. It is accepted that poor countries like Uganda remain backward, to a large extent, because of the unpredictability of the rule of law. When business people and lending institutions are not sure that the law will protect their investment and capital, and that a President will not wake up one morning and decide that his personal whim is greater than the constitution, they go to countries where there is no such risk. Until recently, there had been a fairly high level of certainty in Uganda that decisions of courts will be respected. But now that the Movement and the President do not want to be governed that way, they still need to find a better alternative. The laws can be changed so that ministers, the President, and army generals decide. As long as the rules are known (e.g. how much do you pay to get your case heard, and when you are dissatisfied with a minister's ruling, you appeal to the President, and when you are not happy with the President you appeal to the Movement National Executive Committee etc.). This is why some dictatorships, that do not have independent courts and decisions are handed down to judges by party bureaucrats (as China was until recently), have still prospered. For when a ruling is handed down, everyone knows that the party chief and supreme leader have signed up on it. It is final, and no one, however high, can overrule it. That certainty is far better - for business, international diplomacy, and civil affairs - than the situation Uganda seems to be sliding into. But there is another alternative. Uganda can have a monarchy, where what the king - or Ssebagabe (king of kings) - says is law. But that, in the end, does not solve the problem, for how do you prevent the king from changing his mind tomorrow, and the next day, and the next one? He could, for example, allocate Mukasa a piece of land today. As soon as Mukasa has planted some crops on it, he takes it away and gives it to Mugisha. Mugisha tends the plantation, and as soon as he is about to harvest, the king changes his mind and now takes it back and harvests the crop for himself. Partly to prevent this, human beings invented laws, rules, and courts. And that is why civilised societies cling to them however bad they may be. They are always better than the rule of one "wise" man. |
© 2004 The Monitor Publications
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