By DR J. Oloka - Onyango
April 27, 2004
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It was rather dishonest of Prof. Ssemakula Kiwanuka, minister of state for Luwero to begin by apologising to the late James Wapakhabulo and then going on to completely distort and misrepresent the contents of his letter on the issue of lifting term limits (New Vision, April 21, p.28). Indeed, Wapa is probably already turning in his grave at this deliberate but infantile effort to put words into his mouth, and by the blatant attempt by Prof. Kiwanuka to twist his message for political gain. Prof. Kiwanuka is a well-known historian, but in this most recent article, he has demonstrated an acute lack of historical knowledge, as much as he has confirmed a near total confusion about the law. First of all, a point of clarification for the record: I have re-read Wapa's letter, and nowhere did he state that " the courts would challenge the sovereignty of Ugandans to choose how they want to be governed and by whom?" as Prof. Kiwanuka alleges. What Wapa said in his letter was very clear, and for the sake of correcting the record it needs to be re-stated. First of all, he pointed out that the provisions on amendment of the Constitution are very concise. The Constitution can only be amended directly via the provisions of Chapter 18, and not indirectly by the referendum proposed by the Minister of Justice, Janat Mukwaya, which falls under Chapter 17. My own view on this issue is that such a referendum would in fact be unconstitutional and designed principally to intimidate and coerce members of Parliament. [In other words it would provide only "intimidatory" value]. Secondly, Wapa stated that in order to avoid political tension and drawn out arguments over the matter-ultimately involving judicial interpretation of the issue by the courts of law-it is best to follow the very clear provisions of the Constitution on how Article 105(2) can be lawfully amended. That power was vested in Parliament, which can exercise it by a two-thirds majority on the 2nd and 3rd reading of the amendment bill. It is apparent from his letter, that Wapa believed that the Movement could actually marshal the necessary majority in Parliament. Prof. Kiwanuka goes on to accuse Wapa of being among those "scared of a referendum because their views are unpopular with the voters." In this respect, a little bit of history would serve the learned history professor in good stead. The reason why the 1995 Constitution establishes what ranks as among the most elaborate mechanisms for amendment in the world was because of the fears of Constituent Assembly delegates of precisely the kind of manipulation that Prof. Kiwanuka and Ms Mukwaya want to indulge in. The 1995 Constitution provides for different levels of amendment depending upon the provision of the instrument sought to be amended. Each level of amendment is laid out in very clear language as to which institutions are to be given the task of effecting the change. The institutions involved in amendment are basically three: Parliament, the District Councils and the People (in a referendum). Secondly, the role chosen for the voters in the amendment process was carefully designed, in some cases involving their direct involvement, and in others through their chosen representatives. This explains why Article 105(1) which makes the presidential term of office five years, is amended differently from the very next Article 105(2) providing for the two term limit. In other words, different methods of amendment are provided for in respect of two articles addressing similar issues (the presidential tenure of office). Prof. Kiwanuka should ask himself why this is so. To say that the exercise of people's power is open-ended and unlimited is to demonstrate a complete and fatal ignorance of the provisions of the Constitution. Indeed, it is to negate the more than seven-year effort that went into the design of the instrument, starting with the Odoki Commission and culminating in the Constituent Assembly (CA), and the longer history of the struggle against dictatorship. Furthermore, the Constitution does not use the words "contentious," "politically significant" or "very important" in any of its provisions dealing with amendment. To invoke those words as Prof. Kiwanuka does in order to justify a referendum on term limits can only be described as "propagandist" in the very same way that Wapa argued that the term limits referendum is designed to be. A final comment needs to be made about the several examples that the learned Professor gives of referenda being held around the world. In the first instance, Prof. Kiwanuka should ascertain whether or not the referenda in Ireland (on citizenship) or on the presidential term in France in 2000 were in accordance with the Constitutions of those countries. In making the opportunistic reference to James Madison, the learned professor forgot to add that no amendment to the US Constitution has ever been effected without scrupulous attention to the detailed provisions of that Constitution. That is the key issue. The proposed referendum on term limits in Uganda has no moral, legal, or constitutional justification in the provisions of the 1995 Constitution. It may be based in sentiment, greed, desire, or even on confusion, but not in the Constitution. Wapa's appeal was simple and to the point: amend the constitution if you must, but for God's sake, follow the provisions of the Constitution as you do so. Dr Oloka-Onyango is a senior member of Makerere University's Faculty of Law |
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