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

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).

© 2016 Observer Media Ltd