By
Mwambutsya
Ndebesa,
History
and Development Studies Lecturer,
Makerere
University
Wednesday,
8th November, 2017
…………………………………………………………………………………
Mr. Chairman and
members of the Legal and Parliamentary Affairs Committee, I thank you for
inviting me to share with you my opinions and perspectives on the proposed
amendments Bill (No. 2) of 2017.
Firstly, I want to make
a disclaimer that the opinions presented are mine and not those of any
organization that I am associated with. I will present as a historian but also
as someone who participated in the making of the constitution of Uganda, 1995,
as a researcher of the Constituent Assembly (CA). As a matter of fact, I was
the co-coordinator of a research team of twenty researchers attached to CA who
were drawn from different disciplinary fields.
Correcting
the impression: Mr. Chairman a wrong impression has
been given and it dominates the public space discussion that the maximum age
limit for one to be a president or to be in the office of president according
to the 1995 constitution is 75 years. I want to make it clear to this Committee
and the media here that the maximum age for a president to be in office is 80
years, and not 75 years. Article 102(b) states that a person is not qualified
for election as president unless that person is not less than thirty-five years
and not more than seventy-five years of age.
Theoretically speaking therefore a person can stand when he/she has just
become 75 years and is allowed by the constitution to remain as president until
his five year term of office ends five years later in which case he/she would
be 80 years old. The cap of 75 years is the minimum for one to stand but not to
be in office. For example, President Museveni will still be constitutionally
allowed to be in office until his term ends in 2021, but he will not be legible
to stand again because he will be above 75.
Preamble:
The preamble of the 1995 Constitution starts with the statement; RECALLING
our history which has been characterized by political and constitutional
instability. Therefore, I would like to enjoin this Committee and Parliament
as a whole, to keep this preamble
statement in mind as you consider this amendment. The preamble forms the basis
and foundation of the constitution. Therefore the important question to ask is;
will the removal of Article 102(b) cause constitutional and political stability
or instability? My position is that it will cause constitutional instability
and by extension political instability.
When we recall the
history of Uganda, we realize that Uganda is a young country that has existed
for only 123 years, 68 years under colonial rule and 55 years of independence. This
is a very young country in the history of nation formation. Therefore such a
young country is naturally characterized by weak institutions. Recalling our
history, we realize that Uganda and indeed the whole of post-colonial states in
Africa have been characterized by weak institutions. Recalling our history we
realize that Uganda and indeed the whole of post-colonial states in Africa have
been characterized by what is called the big man phenomenon or strongman syndrome.
The strongman (strong
president) phenomenon is one of the contributing factors to the slow growth and
development of state institutions in our political order. And institutions are
greater than any one individual or group of individuals when it comes to nation
building. Therefore the framers of the 1995 Constitution had this in mind when
they provided for limitations of presidential age limit. It was to cure the strongman phenomenon, and
allow opportunity for state institutions, particularly the presidency, to
develop.
The strongman
phenomenon in Africa generally has undermined, subverted, weakened and crippled
the development of strong institutions. The strongman cannot co-exist well with
strong institutions hence the need for presidential term and age limits in the
constitution. Providing for limitations in constitutions is demonstrably
justified in a democratic society. Uganda needs to shift from individual rule
to institutional rule. As former US president Barack Obama advised, Africa is
in dire need of strong institutions and not strongmen.
Another objective of
providing for age limit in the 1995 Constitution was to cure the possibility of one time having a senile president in
charge of the destiny of this country. A senile president could lead to the
disintegration of the country. It happened in Mpororo Kingdom around 1800 when
King Kahaya Rutindangyezi became senile and his Kingdom disintegrated. It
caused a constitutional and political crisis in Tunisia in 1987 when President
Habib Bourguiba became senile while still in the office of the president at 84
years until he was forcibly removed from office by his vice president.
Discrimination
vs Limitation: The mover of the age limit removal
Bill, Hon. Raphael Magyezi, argues that Article 102(b) is discriminatory and
therefore should be removed. In my opinion Article 102(b) as it stands in the
constitution is limiting and not discriminating. Actually if the grounds for
removing Article 102(b) were on the basis of discrimination, as interpreted by
Hon. Magyezi, all the three paragraphs or clauses of Article 102 should be
removed because they all provide for qualifications to be president that are
limiting, which Magyezi calls discrimination.
When I was preparing
this presentation, I searched on the internet (www.thesaurus.com/brouwse/limitation) and found that actually limitation is one of the synonyms
for qualification. A limitation is a qualification or a safeguard clause that
is allowed in constitutions and agreements. I went further to search and did
not succeed to find that discrimination is a synonym of qualification. Discrimination,
I found out, is associated with words such as prejudice and bias which I do not
think is implied in Article 102(b).
On the minimum age of
35 years; my opinion is that it is reasonable. Most constitutions that provide
for age limits have 35 years as minimum. Besides there is no president I have
found out who is below 35 years, except Kim Jong-un, of North Korea.
Basic
Structure of the Constitution: If Article 102(b) is removed on the
basis of interpreting it as discrimination, then it will have opened the
proverbial Pandora Box. According to the doctrine of the basic structure of the
constitution, there are certain articles that are fundamental and should not
just be amended through a simple process or even be amended at all because they
could destabilize and weaken the constitution, thus causing constitutional
instability that the preamble statement of recalling our history had in mind
and the objective of preserving the philosophy and ideals of the original
constitution. For example, if we interpret constitutional qualifications to
stand for president as discrimination, then the whole of Article 102 would be
required to be removed with all its constitutional ramifications. Article
246(f) would need amendment to allow traditional leaders to qualify to stand for
president. There are many articles in the 1995 Constitution that provide
qualifications for constitutional offices e.g. RDC, judges etc. If you remove
article 102(b), then the Constitution will crumble because it will form the
basis for petition after petition referring to the precedent set by amending Article
102(b). That is what I mean by destabilizing the basic structure of the
constitution when you touch 102(b).
Conclusive
advice/opinion: When there is a dilemma in making an
important public concern decision, such as whether to Amend Article 102(b) or
not, I would advise that the principle of the common good or greater good be
applied. The common good is that one which serves the many. I will explain the
common good principle in the context of constitution making, quoting the wisdom
given by great political thinkers. Aristotle
for example said that right constitutions are made in the common interests,
while wrong constitutions are made in the interest of rulers. John Locke declared that the peace,
safety and public good of the people are the ends of political society. J.J. Rousseau said that the end goal of
any state is the realization of the common good.
Now therefore, the
decision to remove or retain Article 102(b) should be based on whether the
outcome is to serve an individual self-interest or self-interests of a group of
individuals, or the common good of Uganda as a country today and the posterity.
And based on the common good principle which I subscribe to, I propose that
Article 102(b) be retained in the interest of the common good/greater good of
Uganda.
Thank you.
