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Public Dialogue on Proposed Amendment of Article 102(b): Implications on Constitutionalism and the Rule of Law in Uganda

The panel discussion was comprised of Prof.John Jean Barya Assoc.Prof. Makerere University School of Law, Hon.Jackson Kafuzi member of Parliament, Kyaka South, Hon. Muhammed Muwanga Kivumbi member of Parliament, Butambala County,Mr. David Mafabi the presidential private secretary for political affairs, Ms. Sylvia Namubiru Mukasa Executive Director, LASPNET, Mr.Andrew Karamagi from Chapter Four, also in attendence was Assoc.Prof.Mbazira Principal School of Law, Dr.Damalie Naggita former principal School of Law, Students,staff,members of staff, civil society, media and general public.
 
Assoc.Prof. Mbazira the Principal School of Law welcomed all present on behalf of the school. He went ahead to say that Makerere University is no longer an Ivory tower, he explained it being positioned as an ivory tower meant it was outside of main stream society and it was just theoretical, he said for a while now they have been trying to change that, and that the school of law has achieved a lot in making academia relevant to society.
 
He informed participants that the school believes in constitutionalism and has a full course on constitutional law and constitutional aspects are streamed in many courses that are taught at the school i.e. admin law, human rights, gender and the law. He also said that colleagues are encouraged to main stream the constitution because it’s very relevant even on non-commercial basis. Beyond the class room he said, they believe they have very important role to play in terms of promoting the rule of law, in terms of promoting constitutionalism and also in terms of creating forums that foster debate and dialogue.
 
Alluding to a statement that was signed by the academics recently where they gave their opinions about amending article 102(b)he said, they thought it was their civic responsibility as teachers from Makerere University is fourth in Africa and number one in the country to use their highly skilled expertise in various fields including constitutional law to come up and guide the nation as we discuss matters that touch constitutionalism and law so it was decided that they should extend the debate to the general public starting in Makerere.He also said that it’s the start of a series of activities by (Public Interest Law Clinic) PILAC and NETPIL (Network of Public Interest Lawyers) not only article 102 but other issues that touch on rule of law, constitutionalism and human rights.
 
Mr. Arthur Nsereko the co-ordinator of NETPIL and the moderator of the day, then guided the discussion quoting the words of the Speaker of Parliament on 3rd Oct Tuesday, when the speaker was sending parliament into recess she said on quote” I want to remind you members that this matter touches on article 1 and article 2 of the constitution and the people need to be involved in these deliberations”.
 
Hon. Jackson Kafuzi Karugaba MP Kyaka South County reaffirmed that he is a proponent of the amendment, he said that his problem with the people who are asking why the article 102b should be amended, is that they have not sought to understand the merits of the amendment; unfortunately they say tojikwatakko (Don’t Touch It).
 
He quoted objective 2 of the constitution Democratic Principles “The State shall be based on democratic principles, which empower and encourage the active participation of all citizens at all levels in their own governance”, saying those opposed to the amendment have said no to the implements that were proposed and zeroed in to article 102(b) and by so doing have distorted the whole picture and misrepresented their intentions and turned it political.
 
He further said, that Art 183 You cannot run for LC5 chairperson unless you are 30 years of age and yet 18 years with Senior 6 certificate or its equivalent you can become a member of parliament and asked what the rationale is that a person of 18 years can run for parliament but can’t run for chairperson of a district. He pointed out that Art 21 Talks about Equality and Freedom from Discrimination however 21(5) Exclusion Clause says some amount discrimination can be permitted but the amount of discrimination that was said in 1995 the logic no longer holds, here 78% of the population are youth and it is said they cannot stand for some positions but can stand for others further questioning the rationale.
 
On the issue of 102b he said that the makers of the constitution envisaged that at some point it would be deemed fit to amend the constitution, he said the constitution accepts three types of amendment for example article 255 which spells out that Parliament may by law make provision for the right of citizens to demand the holding by the Electoral Commission of a referendum whether national or in any particular part of Uganda, on any issue.
 
Finally he urged members to argue the law as is, not as ought to be and said that we gave the authority to parliament and it is exercising its duties so we should let them do their role.
 
Hon Muwanga Kivumbi highlighted that he knows Hon.Kafuzi and Hon.Magyezi are movers of the amendment but they are not its sponsor and said it’s H.E Yoweri Kaguta Museveni. He said that in 2021 if we follow this law he will have to retire that’s why he is dealing with it decisively.
 
He said that we are dealing with a parliament which for all intent and purposes is a GMO. They created parliament that every 70,000 people should be represented by one Member of Parliament, for affirmative action every county with less than 70,000 will be represented by one person and every district should be represented by one Member of Parliament. He told members that after 2016 Elections they created counties that are used for gerrymandering which are not points of service delivery but they only serve purposes of electing a member of parliament that’s why the honorable Member of Parliament from Omoro is a member of parliament with 8,218 votes, so they created a new crop of MPs that were able to deal with this, he further wondered if Hon.Kafuzi was not a beneficiary of the same in addition he said the parliament we have now is not what the makers of the law envisaged.  
 
Mr. David Mafabi the presidential private secretary for political affairs another proponent of the the amendment, said Life started in Africa, Civilization started in Africa, Africa led the world, Africa’s journey has been interrupted, and we don’t have the time to go into interruptions. Africa was world leader and Africa today is at the bottom, Africa needs to retrace its journey so that it can take its place in the world community and peoples and on that journey there things that must be done by all nations and by all people.
 
He further said on that journey law serves man, constitution serves man, not the other way round, such is evidenced by history for example magna carta, France, Gen. Napoleon, the American war. At the critical juncture what were they doing in the 500 years was the crystallization of industries, crystallization of National States, and the crystallization of the new legality that espouses certain liberal views. 
 
When you come to Africa he said, you must identify where in the journey we are and in terms of Uganda we have to ask where we are and whatever impediment to that must be dealt with. He cited the rise of Capitalism in the USA and the development of Singapore, saying in this journey you must create a common economic life for all the people and on the peripheral of global capitalism, you must deal with infrastructural development, provision of electricity, energy, etc.
 
He emphasized that we must continue uninterrupted on the development policy we are on and we do not have much time for interruption and it’s the reason why he supports the amendment.
 
Prof Barya in his remarks hailed the discussion and the Principal for organizing it, he further stressed that the question at hand should not be whether the constitution can be amended or not but the question should be “why should the constitution be amended ?” and in particular why article 102(b)?
 
He concurred with Mr.Mafabi that we need development; however he disagreed with him on the account that only one man can bring forth development.
 
He referred to the Odoki constitutional review report about the age limit and term limits he reminded members that the commission took five years to consult Ugandans and in the report on term limits it was reported that in some countries had no term limits, in USA president serves two term limits, he stressed that mention was made about the disadvantage of indefinite re-election which leads to a danger of personal ambition and use of office to the secure the election to the neglect of other important duties of the state , and by general consensus a president was supposed to serve for only two terms that is 1995 constitution. Among the things pointed that were also pointed out 40 years was stated as a minimum age for a presidential candidate, the maximum age was not talked about none the less the constitutional assembly deemed it fit to add an age limit.
 
He further informed members that the kind of state we are dealing with is a neo-patrimonial state and personal rule. Such is a state which does not respect constitutionalism and rule of law and decisions are made outside the legal and constitutional processes even when institutions exist, on personal rule he elaborated that at that point the individual doesn’t see a difference between him and the state and said this is not the kind of arrangement which will help the nation to overcome underdevelopment, where we have no institution and the state has be privatized. He also said the state has not only be privatized but also personalized.
 
The learned Professor then concluded saying the whole state must not be allowed to be held hostage by one individual.
 
Ms.Sylvia Namukasa concentrated on the question whether there was a need on amendment the constitution, looking at Uganda’s population 77% and 2% are the elderly and according to the proposed amendment it’s only beneficial to the elderly who are 75 years old.
 
She questioned the haste at which it’s being amended, and also stressed that the process of legitimizing the constitution previously involved constitutional review commission, constitutional assembly and the preamble that points out that we are committed to a durable constitution. She pointed out that the Supreme Court had also made recommendations that we need to have a comprehensive amendment to direct how we should be governed.
 
She pointed out that the movers of the amendment target the issue of age as being discriminatory however but age is never in the constitution as one of the discriminatory aspects as shown by article 21 of the constitution, therefore before talking about the amendment of art 102(b) they must first amend art (21) so that even other acts like the public service act can be amended so that everyone can stay in their offices till 100 plus.
 
In her final remarks she quoted Thomas Sowell “Politics is the art of making your selfish desires seem like the national interest.”
 
Andrew Karamagi in his remarks said that at his age, he doesn’t think he can be president of this country owing to his the level of experience, temperament, exposure he pointed out that we are at level of where we are today because young men who had no prior experience of leadership held power when they were young.
 
He stated that the amendment is premised on two falsities; Article 21 which doesn’t mention age anywhere and recommendations made by the Supreme Court in the case of Amama Mbambazi Vs Yoweri Museveni, Electoral Commission and Attorney General No.1 2016 that also doesn’t stipulate amendment of art 102(b).
 
In his conclusion he said what we are seeing right now is the law of cumulative error;” the mistakes that dictatorships make don’t go away, when they make mistake one and try to resolve mistake one they create mistake two and they go on recursively and asked members not to look at the bill in isolation but should also been viewed collectively with other laws in this era of progressive progression I.e. the public order management act, the anti pornography act, the computer misuse act.