By Tim Drunkenmölle (Intern in the Research Department at Foundation for Human Rights Initiative)
Jaiman Singh (Student at the University of British Columbia and intern in the Research Department at Foundation for Human Rights Initiative)
Fred Sekindi (Director Research and Advocacy and Lobbying at Foundation for Human Rights Initiative)
The armed usurpation of government in Zimbabwe draws us back to old ways of violent struggles for political power that the continent has rarely witnessed in the last decades. The recent innovation of African leaders has been the manipulation of constitutional orders to retain power. Such manipulations have been justified by the illusion of elections. Thus, in Rwanda, Uganda and the Democratic Republic of Congo, the incumbents have removed constitutional constraints on the presidency arguing that the citizens can vote them out of power, if they choose so. In the case of the Gambia, Yahya Jammeh’s refusal to give up power, after he lost the presidential elections, demonstrates the resolve of the ‘Big Men of Africa’ to hold on to power against the will of the people. All these actions have been declared unconstitutional changes of government by the African Union, yet its responses to these undemocratic acts vary.
Following the end of colonialism, many African countries experienced violent seizures of power through military coups resulting in unquantifiable loss of life. This is despite post-colonial Constitutions providing for elections as the only lawful way of transferring political power. African countries that endured bad governance in the aftermath of colonialism at the hands of African leaders sought to adopt new Constitutions that provide limitations on exercising power. Thus most Constitutions of African countries, adopted in the last 30 years provide limitations on the presidency. However, the continent has witnessed a wave of constitutional disparagements aimed at entrenching power by removing limits of the presidency.
In this context the three main challenges to democracy, good governance and stability in post-colonial Africa are military coups, failure to respect and conduct meaningful elections and amendments of Constitutions to embed monarchical rule. Recognising the instability that these challenges pose to the continent, the African Union adopted the African Charter on Democracy, Good Governance and Elections, 2007. The Charter recognises that the transition of power through a military coup or armed intervention, the overstaying in power by the incumbent government after being voted out of office and the amendment or revision of the Constitution or other legal instruments in a manner that infringes on the principles of democratic change of government as “unconstitutional changes of government”.
The Charter provides for sanctions by the African Union in all above-mentioned cases, however the response by the African Union paints a different picture. The manipulation of the Constitution to maintain power is widely ignored by regional organisations, whereas military coups as well as the prolonging of power are criticized and sanctioned. Although the military in Zimbabwe has denied orchestrating a military coup , the African Union has responded by, urging the parties to resolve the situation in accordance with the Zimbabwean Constitution as well as the African Charter on Democracy, Elections and Governance and warning the military of the possible sanctions. Similarly, the Economic Community of West African States (ECOWAS) as well as the African Union intervened resolutely when the former President of the Gambia, Yahya Jammeh, refused to accept the outcome of the presidential elections held on the 1st of December 2016.
The African Union Peace and Security Council explicitly pointed to violation of the Charter by Jammeh. In contrast, the African Union has turned a blind eye to the third method of unconstitutional change of government by means of clasping on to power by manipulating the Constitution, in countries including Burundi, Uganda, Rwanda, and Congo Democratic Republic among others. Sparked by the insatiable hunger to wield continued power, authority and wealth, African leaders, to a large extent, have successfully managed to manipulate their country’s respective constitutions to hold on to political power.
This mode of unconstitutional change of government, however, seems to be the preferred method of unlawfully holding on to power by African leaders. While Africa has rarely witnessed military coups in recent years and the refusal to hand over power by Jammeh amounts to another isolated incident, the continent has witnessed unpopular constitutional amendments in Equatorial Guinea, Gambia, Cameroon, Chad, Gabon and Togo, Burkina Faso, Senegal, Burundi, and in Uganda.
The adoption of ‘constitutional coups’, a term coined by the Human Rights Watch, as a means of retaining power without the use of military or physical force poses the biggest threat to continental stability as well democracy and good governance. Born out the struggle to end colonialism, the objectives of the African Union have now shifted to promoting peace, security, and stability on the continent; democratic principles and institutions, popular participation and good governance; and protect human and peoples' rights, among others. To achieve these aims, it must seek to confront the on-going wave of constitutional manipulation.
THE REPUBLIC OF UGANDA
IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA CONSTITUTIONAL PETITION NO. 39 OF 2017
1. THE FOUNDATION FOR HUMAN RIGHTS ] INITIATIVE ] PETITIONERS
2. LEGAL AID SERVICE PROVIDERS NETWORK UGANDA ]
1. ATTORNEY GENERAL OF UGANDA ] RESPONDENTS
2. ELECTORAL COMMISSION ]
(Under Articles 137(1), (3) (a) and (b), (4) & (7) of Constitution of Uganda and the Constitutional Court (Petitions and References) Rules, S.I. 91/2005)
The Petitioners are petitioning the Constitutional Court to determine that sections 12 (a) and (b) of the Local Government (Amendment) Act, Act No. 16 of 2015, and the Election Commission guidelines for the LCI and LC II elections are in contravention of and inconsistent with various provisions of the Constitution of the Republic of Uganda which include; Articles 1 (4), 21, 33, 35, 45, 59 (1) (3) and (4), 68 (1) and 79 (1). The Petitioners are further seeking for both an interim and temporary injunction restraining the Attorney General and the Electoral Commission from conducting elections for Local Council Representatives I and II pending the hearing and determination of Constitutional Petition.
The Petition therefore seeks the following DECLARATIONS from court;
(a) THAT sections 12 (a) and (b) of the Local Government (Amendment) Act, Act No. 16 of 2015, in providing for elections of village or cell council and parish ward council by means of lining up behind a nominated candidate, their representatives, portraits or symbol is in contravention of and inconsistent with articles 1 (4), 21, 33, 35, 45, 59 (1) (3) and (4), 68 (1) and 79 (1) of the Constitution of the Republic of Uganda and thus null and void;
(b) THAT any actions conducted under the impugned provisions of section 12 (a) and (b) of the Local Government (Amendment) Act, Act No. 16 of 2015 are void ab initio and of no legal effect;
(c) THAT the Court hereby grants and issues such consequential Orders as follow from and are necessary to give effect to the Declarations in (a) and (b) above.
The on-going strike at the Office of the Directorat of Public Prosecution requires assessing the constitutional protection of the rights of suspects of crime being held at police stations, because they cannot be brought before a court law. All over the country, suspects are being held in police cells for longer than the 48 hour as mandated by the Constitution of Republic of Uganda, 1995 for various reasons one. One of the reasons cited by the police is that they need Sate Attorneys to “sanction” the file before suspects are brought before the court.
Is this the position of the law? Decoding the 48-hour rule: Article 23 (4) of the Constitution of Uganda allows for the detention of a suspect for a maximum of 48 hours for the purposes of: a) Bringing him or her before a court in execution of an order of a court; or b) Upon reasonable suspicion of his or her having committed or being about to commit a criminal offence under the laws of Uganda;
Before the expiration of 48 hours of detention, Uganda Police Force has the following legal alternatives: a) Release of the suspect if the investigation is completed and the individual is found to be innocent; b) Release of the suspect on police bond if the investigation is on-going; or c) Produce the suspect in front of a Magistrate and request that they are remanded if the investigation is on-going and there exists a risk of the detainee absconding.
Directorate of Public Prosecution (DPP) is empowered by Article 120 (2) (b) “to institute criminal proceedings against person or any authority in any court with competent jurisdiction other than the court martial”. Does this provision prohibit police from bringing suspects before the court of law if the case is not sanctioned by the DPP? The answer the this question is found in Article 20 (1) that demands all organs of government and all persons must respect rights and freedoms guaranteed by the Constitution and Article 28 (1) that protects the right to a speed trial.
Thus while the Directorate of Public Prosecution is vested with the constitutional mandate to initiate criminal proceedings, it has an overriding obligation to respect human right- Article 20 (1) and to safeguarded the right to a speedy trial – Article 28 (1). In this context, “sanction a file” is an administrative process that cannot trump constitutional rights.
Thus the police may bring a person before a Magistrate even where the file has not been “sanctioned” by the DPP. This position is rather reinforced by Article 23 (6) (b) and (c) authorises a Magistrate to remand a suspect for 60 and 180 days respectively for minor and capital offence respectively. The purpose of these provisions is to allow the state (police and DPP) to carry out investigations.
We can therefore conclude that our laws do not prohibit the police from bringing a suspect before a court of law where the rights of the suspect are at stake such as detention beyond 48 hours. While the DPP is has the constitutional mandate to instigate criminal proceedings, “sanctioning” of a file is an administrative process that is inferior to the constitutional obligation to respect human right- Article 20 (1) and to safeguarded the right to a speedy trial – Article 28 (1).
Credit: Foundation for Human Rights Initiative
The Citizens’ Coalition for Electoral Democracy in Uganda (CCEDU) hosted by the Foundation for Human Rights Initiative (FHRI) is soliciting the services of an independent consultant, who will lead a collaborative process to draft a multi-format Communication Strategy for Uganda’s National Dialogue Process and develop campaign identity concepts, including sample visual and audio messages.
The consultant will be contracted by FHRI/CCEDU for a period of four weeks (30 days) to undertake this assignment.
Outputs and Timelines:
The Consultant will provide the following deliverables throughout the assignment:
•An Inception Report (not exceeding 2 pages) which includes consultant’s work-plan, schedule of Focus Group Discussions, list of documents to be reviewed, and an outline of the Communication strategy, to be submitted within a week after contract has been signed.
• A draft Final Communication Strategy with annexes responding to all tasks mentioned under “Scope of Work” two weeks after contract has been signed.
• Final Communication Strategy with relevant annexes (campaign identity concepts, sample messages) to be completed within the last week of the assignment. Interested firms, please submit the following to CCEDU/FHRI offices before Saturday, 28th October, 2017:
• A statement of interest and capability to undertake the assignment
• A work plan • CVs of lead consultant(s)
• A summary budget, corresponding to the work plan
The process of developing the strategy will be inclusive and consultative, taking into account the country’s regional and demographic dynamics while involving the Working Group of Six on the National Dialogue Process.
For more details, visit the full “Call for Expression of Interest” on: www.ccedu.org.ug
Citizens’ Coalition for Electoral Democracy in Uganda (CCEDU)
Plot 1111 Lulume Road Nsambya
P.O. Box 11027, Kampala, Uganda
Twelve years after Parliament amended the 1995 constitution to remove the presidential term limit, plans are in high gear to remove the presidential age limits as well. CRISPIN KAHERU, the coordinator, Citizens' Coalition for Electoral Democracy in Uganda (Ccedu), told Prisca Baike in recent interview why the coalition is determined to defend the constitution at all costs.
Before we got to this age limit amendment, there was the presidential term limit removal. As the nation’s democracy champions, what have you done about calls for restoration of term limits?
From 2012, we were involved in a countrywide campaign to rally people to support reinstatement of the presidential term limits in the constitution of Uganda and we made significant progress. That was also a resounding ‘yes’ that we need term limits brought back. Between 2012 and 2014, we traversed this country and Afrobarometer did research which concluded that people were totally in support of the term limits. We liaised with our friends in parliament and developed a private member’s bill to reinstate term limits in the constitution. The bill was delivered to the speaker of parliament and that is as far as it went. That draft bill still sits on her desk to-date and we are still waiting for the day it will make it to the order paper.
Explain to us why the age limitation clause is relevant to Uganda as a democratic nation.
The 1995 constitution had three major safeguards that were envisaged to guide the smooth and fair leadership transition in Uganda and those three safeguards included conducting regular free and fair elections every five years, the presidential term limit whereby a president could hold office for a maximum of two five-year terms and the age limitation for presidential candidates that for one to qualify to run for presidency they will be not less than 35 years of age and not more than 75 years of age. When you remove one of those three from the constitution, you are actually compromising a smooth leadership transition for the country. So, you will be left with one safety valve which is election, which can, by the way, be removed in case we allow our constitution to be amended every now and then. By the mere fact that you have removed the term limits, you need to retain at least those two provisions in the constitution that guide a smooth and peaceful transition. If you compromise any of the two that are left, that is the age limit clause and the elections, then you have nothing and we have already seen the contestation in Uganda about the elections. Immediately after elections, you have hundreds of petitions lodged into courts of laws, meaning that something is not right with the elections in Uganda, making the age limit our only functional safeguard.
So, what are the implications of this move by the ruling party to lift the presidential age limit especially since the Supreme court issued orders for electoral reforms following the 2016 presidential elections petition?
That is the same question here. An instruction or an order by the Supreme court is very highly respected. Any well-meaning government institution would ensure that they attend to that order but we haven’t seen that sense of urgency on the side of government to get things in order, say to institute a process through which they can have these political and electoral reforms discussed and presented to parliament. We have not heard that and we wonder what is going on. Every time we have a by-election, we see the same issues rising up; issues to do with use of money to bribe voters and violence, among others. For instance the recent Iganga Woman MP by-election was marred with lots of violence and all forms of election malpractice. That is why the Supreme court in the first place ordered for those electoral reforms and mainstreaming the role of security in the election process.
And what does this current state of affairs highlight about our electoral commission?
I maintain that the role of the Electoral Commission needs to be reflected upon to ensure that it is more inclusive, more participatory and to ensure that it lifts the confidence of the people. We have demanded that for the past so many years but nothing has been done. So, the question is: what is the executive thinking about? Right from when court pronounced itself, I think government was quick to come out and tell Ugandans that a constitution review commission was being set up.
Actually, the NRM party mentioned that as one of its commitments in its manifesto.
True. The NRM party promised that after the 2016 elections, it would institute a constitution review commission which actually tied in well with the recommendations of the Supreme court to undertake reforms. Now after the court ruling, everything has subsided but the trouble still looms. We still have bad elections, an overbearing executive whose influence is partly attributed to the electoral management body being weak. It is a combination of many issues but they can all be addressed if a comprehensive political reform process is instituted for this country.
As CCEDU, have you established the progress so far registered in regard to creating the constitutional review body?
The minister for justice keeps coming up with several excuses yet these are serious matters. Government will be required to go and appear before the Supreme court to speak about how far they have gone with implementing the reforms. What are they going to report? That they instead presented a private member’s bill on the age limit? I think for me the onus is on government. If indeed it was committed towards addressing the question of electoral reforms in Uganda, it must be proactive and it must be seen to be addressing these challenges and championing elections that bestow confidence upon its people.
What is your comment about Hon Anite’s claim recently that she and her colleagues who support the age limit removal have the army’s backing?
If you have a candidate whose campaign has been run by state apparatus and he or she wins an election, then such a leader will not bear allegiance to the voters but to the government which put him or her in that position, which is wrong. It is no wonder that a leader can confidently assure the people or the electorate that they cannot do anything about them because they have the backing of the army. Those are the security-generated politicians whose allegiance is to the people that put them in those positions rather than the voters who voted them. In other words, the voters mean nothing and the men and women who hold guns mean everything. So, as long as you have aligned yourself to the men and women who hold guns, you have everything. The voters can cry and froth; it will not mean anything. They can queue up at polling stations and vote, their votes will not count. And also, this increasing persuasion that the country rests on the base of those men and women that hold guns is actually a fallacy. This country’s bed is built on the people.
On Saturday’s Capital Gang radio show, Ofwono Opondo said majority of the people were in support of the age limit removal. How true or false is that?
I would challenge Ofwono Opondo to present his research findings because as far as I am concerned, we did a scientific survey about this issue and the results we got were overwhelmingly a ‘No’ to the removal of presidential age limits. So, if this has changed, I would be happy to be educated but as far as I am concerned, we have traversed this country and there has been a resounding ‘No’ to the question of removing the age limit. Whether learned or not learned, whether in urban or rural areas, Ugandans are saying one thing; that tampering with this particular clause in the constitution seems more about the issue of legislating for an individual rather than the people, which is against the principles of legislation. We cannot be seen or heard to be legislating or changing rules because of an individual. As a principle of lawmaking, rules are supposed to be made with respect to the interests of the people. From our survey, we have established that Ugandans do not want that clause tampered with.
Which kind of people did you involve in your research?
We spoke to various groups of people including members of parliament and 73 percent of MPs said a resounding ‘No’ to the question about the removal of age limit.
But why are many of them endorsing the removal of the age limit then?
Those are, for lack of a better word, businesspeople. They know what is best for the country and some of them actually support the removal of the term limits but they are only looking out for what is in it for them. What they want is the man to stay around so that they can continue bagging as much as they can whether it is through businesses, state contracts, etcetera. These people vouching for the removal of the term limits are not doing it for the bigger interest of the country. They are doing it for their personal interests. These are people who have businesses that are in some way connected to the government; these are people who are seeing a future for themselves and not the country. But even then, President Museveni, for whom they are bidding, promised not to run for president again as soon as he clocked 75 years. If he himself said that, then why would the MPs bid for him to stay if at all they did not have vested personal interests? So, that is what happens when you have leaders whose true allegiance is not to the people, not to the nation but to the individual who put them in those positions. That is why they are not willing to go and consult their constituents about this issue. Why not discuss this issue with the people they claim elected them to those positions? Because they know that they will get a different message. For as long as we have such leaders, then the role of parliament gets greatly compromised. I know there are some excellent model members of parliament but majority of the representatives we have are totally incompetent. There are all these issues in the country, for instance women are being killed but they are not concerned. They think the age limit bill is a better deal for them.
Talking about the rampant killings of women, it has been alleged that these murders are a calculated move to divert the public from this pertinent age limit bill. What are your thoughts about this?
If you have a government that is not coming out with a proper stand about these killings and it is not showing the desired level of interest in a spate of murders that are going on, then it leaves people wondering. And whenever government fails to fulfill its mandate, the people try and fill that vacuum whether using civil ways or crude ways. If for instance there are several murders and the government which has stood on the platform of security since it came to power does not show cause that it is doing something about these murders, the people will allege what they think is right. It’s baffling that police is swift to act against and investigate people who engage in peaceful demonstrations yet when it comes to something as grave as women being killed, nothing is done about it.
To what extent does this amendment of the constitution affect our country’s democracy?
This proposed amendment will take Uganda back to the days and years when smooth and peaceful leadership transition of power especially at presidential level was something unheard of. This amendment actually resets the country to that time when we were under life presidency because once you take out that clause 102b from the constitution you have opened up the floodgates to life presidency not only for president Museveni but to also any other person that will come into that position and realize that there is a lacuna in the law which can give him or her the chance to rule until they die. Therefore, we will be talking about a monarchy and not a democratic republic. In short, that amendment is regressive and it is a bullet in this concept called democracy. It leaves a big gaping hole in our democratic fabric and this is the time for our country to rise up in fearless defence of the soul of their nation which is the constitution.
Apart from the research you conducted, what other measures have you put into place to prevent the amendment of the age limit clause?
As soon as members of the NRM party announced that they had plans to go on a countrywide tour to enlist people’s support to lift the age limit from the constitution, we swung into action there and then and you might realize that there are many voices out there against this issue. On one hand, being the voice of reason to the members of parliament who seem to be persuaded by that amendment. But also we have embarked on other actions that are intended to make Ugandans appreciate discussions that are going on in parliament and among their leaders. We have realized that many MPs who are pro-age limit removal are not taking this discussion back to their people; so, we have decided to have this conversation with their people. You might also realize that when people were availed with the phone contacts of their people, they called their MPs, sent text and WhatsApp messages in an unprecedented action that has never happened in the history of this country. We have armed people with information about the proceedings of this amendment so that they can pronounce themselves on how they want to be governed.
Finally, what are your options in the event that the age limit bill is passed by the members of parliament?
We are going to be engaging with the civil society and this is business unusual. We have a lengthy game-plan to address that. We have realized that usually when an issue comes up, we as civil society are not persistent enough in our demands. This time round, we have a full plan that heavily enlists non-conventional actions that are going to take this bill’s advocates by shock and surprise but at the same time our actions are granted by the supreme law of the land and are within the confines of the constitution. The constitution gives us the power to defend and protect it if it is going to be abrogated. Also, we are calling upon the president to come out and publicly pronounce his stand on this amendment. At the end of the day, the main subject in this debate is President Museveni; therefore, he needs to come out and tell the public whether he approves of the amendment of article 102b of the constitution or not.
Published by The Observer