By Professor Venansius Baryamureeba, Former Presidential Candidate
The preamble to the 1995 Constitution in a nutshell captures the past, present and the envisaged future of constitutionalism in Uganda. A preamble is an introductory and expressionary statement in a document that explains the document’s purpose and underlying philosophy. In law, its the introductory part of a statute, deed or law stating its purpose, aims, and justification. The people of Uganda committed to building a better future by establishing a socio-economic and political order through a popular and durable national Constitution based on the principles of unity, peace, equality, democracy, freedom, social justice and progress. They also envisaged the 1995 Constitution to be for posterity. Since 1995, we have witnessed a series of amendments orchestrated by the executive arm of government that have left many Ugandans wondering whether the national Constitution is still popular, durable and for posterity?
What has also been apparent is the absolute lack of separation of powers between the three arms of government. Separation of powers is a political doctrine of constitutional law under which the three arms of government (Executive, Legislature, and Judiciary) are kept separate to prevent abuse of power. Also known as the system of checks and balances, each arm is given certain powers so as to check and balance the other arms of government. The Separation of Powers aims at doing one primary thing: to prevent the majority from ruling with an iron fist.
To appreciate the dilemma facing the three arms of government in Uganda today, I will quote James Madison, the 4th President of United States (US) who served from 1809- 1807. “The accumulation of all powers, legislative, executive and judiciary in the same hands, whether of one, a few, or many, and whether hereditary, self–appointed, or elective, may justly be pronounced the very definition of tyranny” (James Madison, Federalist No. 51, 1788).
In light of the above and the prevailing situation between the Executive and Legislature, I am proposing that Ugandans should demand for a Constitutional amendment that will ensure that the Executive arm of government plays no major role in amending the Ugandan Constitution.
The Executive’s only role shall be through the President who shall be limited to the ceremonial role of assenting to the constitutional amendment bill in accordance with Article 260, 261 or 262 as the case may be. This is because in African countries, Uganda inclusive it is a well known fact that constitutional instability is orchestrated by the executive arm of the government headed by the President/ Executive Prime Minister. The role that has been executed by the executive in preparing constitutional amendment bill (s) should be passed on to the Judicial Service Commission through a constitution amendment. The Judicial Service Commission should also undertake the role of the Constitutional Review Commission. The proposed constitutional amendment should provide for a minimal interval of ten years for constitutional amendment (s) to be submitted to parliament by the Judicial Service Commission.
This would ensure that in the next 100 years, the national Constitution would be amended not more than 10 times. Parliament should also strengthen its rules of procedure to ensure that a private members bill cannot be used to amend a national Constitution. The Judicial Service Commission should be the one to collect views from the citizens on any proposed constitutional amendment (s) and thereafter draft the constitutional amendment (s) bill for submission to Parliament.
The Parliament shall, within ninety (90) days after a constitutional amendment bill is presented to it by the Judicial Service Commission—
(a) pass the bill and forward it to the President for assent; or
(b) return the bill to the Judicial Service Commission with a request that the bill or a particular provision of it be reconsidered by the Judicial Service Commission.
Where a bill has been returned to the Judicial Service Commission (JSC) under (b) above, JSC shall reconsider it and if passed again by two-thirds of the members of JSC, it shall be presented for a second time to Parliament for consideration.
Where Parliament returns the same bill twice under (b) above and the bill is passed for the third time, with the support of at least two-thirds of all members of JSC, the Speaker shall subject the bill to a vote and if it fails to garner two-thirds of the vote of the members of parliament, it shall be deemed to have failed and the Judicial Service Commission shall wait for a minimum of 10 years before bringing a new bill to Parliament. In this case the role of Parliament shall be to pass or reject the constitutional amendment (s) bill at the 2nd and 3rd reading with two-thirds of all the members of Parliament. The drafting of the bill and effecting variations shall be the mandate of only the Judicial Service Commission.
The rationale for the above is to limit the role of both Parliament and Executive in amending the Ugandan constitution. The Executive and Legislature should instead focus on bills for Acts of Parliament that implement the Constitution. This will in away ensure that the national Constitution is popular, durable and for posterity.
So why is the Judicial Service Commission (JSC), the most suitable body that should be responsible for proposing amendments to the national Constitution?
First, the commissioners of the JSC are independent and have a secure tenure. This is because article 146(7)(c) of the Constitution provides that the power to removal commissioners is vested in the President, but the President may only remove a member for inability to perform the functions of his or her office arising from infirmity of body or mind or for misbehaviour, misconduct or incompetence. Furthermore, article 147(2) provides that in the performance of its functions, the Judicial Service Commission shall be independent and shall not be subject to the direction or control of any person or authority.
Secondly, the commissioners of the JSC are people of high moral and proven integrity. Article 146(5) provides that a person is not qualified to be appointed a member of the Judicial Service Commission unless the person is of high moral character and proven integrity.
Thirdly, at least five out of the eight commissions are professional lawyers with several years of experience, of whom at least three are persons qualified to be appointed as justices of the Supreme Court. Specifically, article 146(2) provides that the Judicial Service Commission shall consist of the following persons who shall be appointed by the President with the approval of Parliament—
(a) a chairperson and a deputy chairperson who shall be persons qualified to be appointed as justices of the Supreme Court, other than the Chief Justice, the Deputy Chief Justice and the Principal Judge;
(b) one person nominated by the Public Service Commission;
(c) two advocates of not less than fifteen years’ standing nominated by the Uganda Law Society;
(d) one judge of the Supreme Court nominated by the President in consultation with the judges of the Supreme Court, the justices of Appeal and judges of the High Court; and
(e) two members of the public, who shall not be lawyers, nominated by the President.
The Attorney General shall be an ex officio member of the Judicial Service Commission.
And lastly, the Judicial Service Commission as part of its functions is already interfacing with the public about law and administration of justice, and is also advising the government on improving the administration of justice. Specifically, the Judicial Service Commission as part of its functions enshrined in Article 147 (1) is already involved in:
(i) preparing and implementing programmes for the education of, and for the dissemination of information to judicial officers and the public about law and the administration of justice;
(ii) receiving and processing people’s recommendations and complaints concerning the judiciary and the administration of justice and, generally, acting as a link between the people and the judiciary; and
(iii) advising the Government on improving the administration of justice.
The Judicial Service Commission is also empowered under article 147(1)(f) to undertake any other function prescribed by the Constitution or by Parliament. So the function of being responsible for collecting views from the public and drafting constitutional amendment (s) shall be one of them.