Constitutionally Speaking... Contested citizenship

The South African Institute for Advanced Constitutional, Public Human Rights and International Law (SAIFAC), is organizing a conference on citizenship, to be held at its beautiful campus at Constitution Hill, Braamfontein, Johannesburg next week from 18th to 19th September.

The Human Rights and Peace Centre (HURIPEC), of the School of Law, Makerere University, will be providing some insights at that convening, drawing from our work on this issue over the past three decades of our existence. The conference is particularly important, given the centrality of citizenship in legal and political theory.

The notion of citizenship is critical, implicating as it does the idea of belonging and inclusion. It is for this reason that many constitutions around the world go into great detail in describing the ways in which citizenship is acquired, transmitted and, in some cases, lost. They also usually describe different types of citizenship (birth, registration, naturalization and others), and different rights and privileges which attach to each.

In some cases, duties of citizens are also stipulated. In Uganda, most of these details are stipulated in Chapter Three of the 1995 Constitution, which is solely dedicated to the issue of citizenship. At the same time, it must be emphasized that, as a general matter, human rights in any given country apply to all persons, regardless of their citizenship.

Thus, for instance, most of the rights guaranteed under Chapter Four of the Constitution are stipulated as belonging to ‘every person’ – a deliberately broad and all-inclusive phrase. However, as is the case with many other countries, there are some rights under the Constitution which are preserved for Ugandan citizens.

These include the right of access to information in the possession of the State (Article 41), the right to civic participation (Article 38), the right to vote (Article 59), the right to serve as Member of Parliament (Article 80 (1) (a)), the right to be President (restricted to citizens by birth under Article 102) and, rather inexplicably, the right to a clean and healthy environment (Article 39).

I suspect that the restriction of the right to a clean and healthy environment to Ugandans was a mistake made during the drafting or adoption of the Constitution, but that is an issue for another day.

The centrality of citizenship as an aspect of legal and political imagination requires that special attention be paid to the promotion and protection of citizenship rights.

This was powerfully articulated by the late Justice Kenneth Kakuru in his dissenting opinion the 2017 consolidated case of Male Mabirizi and Others v Attorney General, which challenged the amendment of the Constitution to remove the presidential age limit. In finding the actions of the police and army (who forcefully evicted opposition Members of Parliament from the chambers in the course of the debate and manhandled them in the process) to have violated the Constitution, Justice Kakuru emphasized the important position of the citizen in a democratic State.

Drawing upon the special treatment accorded to St. Paul as a Roman citizen, described in the Biblical Acts of the Apostles, Chapters 24 to 29, the learned Justice observed: ‘Degrading treatment of citizens by Police is unconstitutional and unacceptable ... The Constitution demands that citizens of this Country be treated with respect and dignity by all agencies of the State... The upholding of the dignity of the citizens is what makes them proud and promotes patriotism.’

Evidently, citizenship – and the rights appurtenant thereto – should be scrupulously recognized, and very jealously guarded. Unfortunately, in many instances, the citizenship status and rights of various communities and persons in Uganda have been, directly and indirectly, challenged and denigrated.

Victims in this regard have included various ethnic minorities and boarder communities, such as Nubians, Banyarwanda, Ik, and others; racial minorities, such as Ugandans of Asian and Somali descent; poor persons; women; persons with disabilities, especially those with intellectual and psychosocial disabilities; prisoners; diaspora communities; and yes, even those Ugandans who dare to love differently.

A particularly egregious example in this instance is provided by a circular issued on 15th March 2007 by the Deputy Passport Control Officer, to all officers charged with issuing passports. In it, he asserted: ‘.... any immigration officer worth his salt must be able to tell a non-citizen from an indigenous person.

The Somalis, Indians, Yemenis can never be citizens by birth unless there is an intermarriage with local communities as listed in the constitution. Thus half castes must first convince you that in their line, there is or there was an intermarriage. Short of that, let them show evidence that they were either registered or naturalized!

And the evidence is a copy of a certificate, nothing else! ... once a refugee, always a refugee whether born in Uganda or not, inclusive of all your offspring.’

To some degree, there have been legal attempts to address these historical and contemporary injustices. These include the specific reference to Banyarwanda, Nubians, the Ik and others as indigenous communities under the Third Schedule to the Constitution. Ugandan courts have also been vigilant in this regard. In the 2018 case of Steven Kalali v Attorney General and Electoral Commission, for instance, Judge Lydia Mugambe admonished the State for failing to respect and protect the rights of prisoners and Ugandans in the diaspora to vote.

She noted that: ‘Being a prisoner or in the diaspora do[es] not take away one’s citizenship. It follows therefore that these statuses also do not take away the rights, like the right to vote, that result from one’s citizenship under the constitution.

Whichever way I look at it, to disenfranchise these citizens is to discriminate them in contravention of article 21 of the Constitution which guarantees equality and freedom from discrimination ... The social status of being a prisoner or living in the diaspora must not be used arbitrarily to deprive them of their constitutional right to vote ...Universality of the franchise is important not only for nationhood and democracy. The vote of each and every citizen is a badge of dignity and the personhood.

Everybody counts. It binds us all in a single interactive polity.’ Similarly, in the 2019 case of Abdu Abucar Hussein and 7 Others v Attorney General Judge Musa Ssekaana robustly pushed back against the insular and parochial vision of Ugandan citizenship asserted in the Deputy Passport Control Officer’s March 2017 circular.

The learned Judge observed: I entirely disagree with this assessment made by the Deputy Passport Control Officer in his circular as the Constitution is very clear as to who a citizen by birth is ... [I]n the circumstances of this case, the defendant did not adduce any evidence claiming that the plaintiffs acquired their documents fraudulently but rather relied on the circular issued by the Deputy Passport Control Officer who seemed to base his position on the plaintiffs colour rather than the constitutional provisions thus being discriminatory and unfair to the plaintiffs ... The circular issued to give guidance is very erroneous, skewed and gives whims to immigration officers to determine citizenship by looking at skin colour based on indigenous Ugandans which is extremely dangerous, derogatory and discriminatory.’

These are important developments. Nonetheless, much more must be done – including through intentional and consistent political and civic education – to promote a fuller understanding and appreciation of the critical notion of citizenship as a foundation for our attachment to the State and to each other.

It is for this reason that a number of utterances made by the leader of the National Unity Platform (NUP), Hon. Robert Kyagulanyi – at various times since 2020, and most recently during his ongoing national tour – which subtly and sometimes brazenly challenge President Yoweri Kaguta Museveni’s citizenship, are most unfortunate.

I think in this regard of that famous dictum by Judge John Bosco Katutsi who, in dismissing the rape charges brought against Dr. Kiiza Besigye in 2005, noted that that evidence adduced before the court had been: ‘...inadequate even to prove a debt; impotent to deprive of a civil right; ridiculous for convicting of the pettiest offence; scandalous if brought forward to support a charge of any grave character; and monstrous if to ruin the honour of a man who offered himself as a candidate for the highest office of this country.’

Persons who offer themselves for the highest office in Uganda inevitably attract certain special protection and consideration. By the same token, they thereby assume certain special burdens – and responsibilities. They are called upon to unify, not divide; to exercise moral leadership, not light the fires of populist animus.

A shining example in this regard is provided by the late United States Senator, John McCain who in the thick of the 2008 presidential campaign defended then-Senator Barack Obama’s status as a US citizen, in the face of a racist woman who had referred to him as ‘an Arab’.

A person who aspires to lead this deeply divided and tense country of ours – to contest the highest office in the land – should be the last person to contest the citizenship of an individual who has been so instrumental, for better or for worse, in shaping the fortunes of Uganda for about the last half century.

For, if the citizenship of such an individual would be vulnerable to challenge under a NUP government, whose citizenship would be safe?

The writer is senior lecturer and acting director of the Human Rights and Peace Centre (HURIPEC) at the School of Law, Makerere University, where he teaches Constitutional Law and Legal Philosophy.