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UGANDA AT 62: THE EVOLUTION OF THE RULE OF LAW POST-INDEPENDENCE



Calvin Stewart Obita*


1.0       INTRODUCTION

"It was the best of times, it was the worst of times,"[1] Charles Dickens wrote, capturing the paradox of a society at a crossroads. As Uganda turns 62, this same sentiment echoes through the country’s legal history, a journey marked by moments of great promise and deep challenges. The pursuit of justice, fairness, and constitutional integrity has been anything but straight forward. Yet, despite the upheavals, Uganda’s legal system has survived and evolved, shaped by the trials of its past, the resilience of its people, and the steady march toward the rule of law.

Much like Dickens’ tale, Uganda's story is one of contrasting epochs, the hopeful dawn of independence, the dark shadow of dictatorship, and the enduring fight to uphold constitutionalism. To understand how Uganda’s legal system stands today, we must look back at the key milestones that have tested the country's commitment to the rule of law. From the chaotic days of the 1966 crisis to the promise of the 1995 Constitution, Uganda’s legal odyssey is both a cautionary tale and a testament to its enduring spirit.

As the nation celebrates its 62nd Independence Day, we reflect on the evolution of the rule of law, a journey that has shaped Uganda’s identity, navigating the tension between the aspirations of a young democracy and the complexities of political power .

1.1 THE 1962 INDEPENDENCE CONSTITUTION

Uganda’s first step towards self-governance began with the 1962 Independence Constitution. This was the first constitution of Uganda, and it was the product of the Uganda Constitutional Conference and took effect at the moment of independence (9th October, 1962). It established Uganda as a parliamentary democracy, with Milton Obote as prime minister; and the Kabaka of Buganda as the ceremonial president chosen from among the Rulers and constitutional heads of districts through an amendment of said constitution in 1963.[2] It was modelled after the British legal system, emphasising democracy, regional autonomy, and fundamental human rights. The 1962 constitution provided for most members of Parliament to be elected directly. The sole exception to this rule was Buganda, where MPs were selected by an electoral college made up of members of the Lukiiko (Buganda's own sub-national Parliament).[3] The Constitution sought to balance the diverse interests of Uganda’s various kingdoms and regions by recognising regional governments and preserving the status of Buganda as a semi-autonomous kingdom.[4]

However, the 1962 Constitution quickly faced challenges. Tensions between the central government and Buganda, coupled with internal political struggles, led to its abrogation in 1966. Prime Minister Obote, in a move to consolidate power, suspended the Constitution,[5] and introduced a new, more centralised legal framework, commonly referred to as the “Pigeonhole Constitution.” This marked the beginning of Uganda’s political instability, as the country shifted from a constitutional democracy to an increasingly authoritarian regime because until the moment when the Constituent Assembly was established by Parliament to enact a new constitution, Obote ruled how he pleased.

1.2 THE 1966 CRISIS AND CONSTITUTIONAL BREAKDOWN

The 1966 Crisis was a turning point in Uganda’s constitutional history. Obote’s decision to suspend the Independence Constitution led to the abolition of traditional kingdoms,[6] and the creation of a Republic under the 1967 Constitution. This new legal framework concentrated power in the executive,[7] weakening regional autonomy and abolishing the ceremonial presidency. The political crisis, which culminated in a military attack on the Kabaka’s palace,[8] symbolised the growing tension between central authority and regional powers, particularly Buganda.

The subsequent years saw the erosion of constitutional governance as Uganda descended into military dictatorship. The rise of Idi Amin in 1971 led to the suspension of the rule of law, with the Constitution becoming irrelevant in a climate of authoritarian rule.[9] Under Amin’s regime, the judiciary was sidelined, human rights abuses became rampant, and Uganda experienced one of the darkest periods in its history.

1.3 THE 1995 CONSTITUTION: A RETURN TO CONSTITUTIONALISM

Uganda’s return to constitutional governance came in 1995 with the adoption of a new Constitution under President Yoweri Museveni’s National Resistance Movement (NRM). The 1995 constitution, which remains the country’s supreme law,[10] was drafted following widespread consultations with the public[11] and aimed to create a legal framework that would prevent the abuses of the past. The preamble of the 1995 constitution states;

WE THE PEOPLE OF UGANDA: RECALLING our history which has been characterised by political and constitutional instability; RECOGNISING our struggles against the forces of tyranny, oppression and exploitation; … DO HEREBY, in and through this Constituent Assembly solemnly adopt, enact and give to ourselves and our posterity, this Constitution of the Republic of Uganda, this 22nd day of September, in the year 1995.

The focus of this constitution was that it would be the promise that Ugandans had longed for, the saving document that would put into reality the wonderfully written Articles within it. In short it seemed the horrors of the past that Ugandans had gone through were now to cease to exist.  

The Key features of the 1995 Constitution did not only strengthen the rule of law, they suggested that there would be no toleration for the vile acts that had sent the country into the dark abyss in regards to the rule of law. Some of these key features are discussed below.

1.3.1  BILL OF RIGHTS

The Constitution enshrines fundamental human rights and freedoms, including the right to life, freedom from torture, freedom of expression, and the right to a fair trial.[12] From Article 20 to Article 58 of the constitution, not only do these provisions provide for fundamental Human Rights; there is also the enforcement of human rights;[13] and even further the establishment of a Human Rights Commission specifically mandated to deal with issues in regards to human rights violations, as well as, monitoring of such violations.[14]  These provisions were a direct response to the human rights violations of previous regimes, and aimed to ensure safeguards against such violations reoccurring.

1.3.2  SEPARATION OF POWERS

The Constitution establishes a clear separation of powers between the executive, legislature, and judiciary, with checks and balances to prevent the concentration of power in any one branch of government. Article 77 establishes Parliament, Article 99 provides for the Executive Authority, and Article 126 provides for the judicial power. In Uganda the overlap between the judiciary and the executive in terms of personnel has been held to be unconstitutional because it infringes on the separation of power and the Independence of the judiciary. In Jim Muhwezi & 3 Others V. Attorney General & Anor,[15] the Constitutional Court held that it was unconstitutional for judges to serve in the executive branch without first resigning from the judiciary. According to court, 

“In our judgment the functions and powers of the IGG are incompatible with those of a judicial officer and it was a gross violation of the provisions of the Constitution separation of powers and the independence of the judiciary.

The main objective for this was to prevent the abuse of power within the different spheres of government. In the realm of the constitutional democracy, public power is subject to constitutional control. Different spheres of government should act within their boundaries.

1.3.3  JUDICIAL INDEPENDENCE

Article 128 of the constitution sought to end the trend of the fact that like other aspects of the colonial state, the judiciary at the time was specifically established to serve the ends of empire – a role it executed to the letter. This would see the creation and application of such nefarious doctrines as the ‘Act of State’, invoked in such cases as R v. Besweri Kiwanuka,[16] and Mukabwa & Others v Mukubira & Others.[17] The unfortunate example here is the Late Chief Justice Benedicto Kiwanuka who sought to defy Idi Amin, and paid the ultimate price as he was murdered.[18] The 1995 Constitution reinforces the independence of the judiciary, ensuring that courts are free from political interference. This was a crucial step in restoring public confidence in the legal system.

Despite these advances, the 1995 Constitution has been amended several times, raising concerns about the erosion of some democratic safeguards. Notably, the removal of presidential term limits under Article 105(2) in 2005,[19] and the lifting of the presidential age limit under Article 102(b) in 2017[20] have sparked debates about the long-term stability of Uganda’s constitutional democracy, and to some they even state that Uganda bears no hall marks of democracy save for superficial elections,[21] organised just to hide the fact that we have no actual input on who leads the country at the end of the day.

2.0       THE RULE OF LAW POST-INDEPENDENCE

Since independence, Uganda’s legal system has been shaped by efforts to strengthen the rule of law and ensure that government actions are subject to legal scrutiny. The judiciary has played a pivotal role in upholding constitutionalism, particularly in cases involving human rights, political freedoms, and electoral disputes. Landmark cases like Amama Mbabazi v Yoweri Museveni[22] have demonstrated the judiciary’s willingness to confront executive overreach and protect the integrity of the electoral process.

Closely related to this is the Public Order Management Act (POMA), which has often been used by the Executive to quash the rights of citizens to assemble.  On March 26, 2020, Uganda’s Constitutional Court annulled the POMA and declared all acts done under the law null and void.[23] The court ruled that the entire law was inconsistent with the 1995 Constitution of the Republic of Uganda. The court proceeded to strike down section 8 of the law for having the unconstitutional effect thereby rendering the entire law impotent. In the lead judgment, Hon. Justice Cheborion Barishaki, JA/JCC ruled that the provisions of the POMA do not pass the test set out under Article 43(2)(c) of the 1995 Constitution which requires that any limitation of rights and freedoms must be acceptable and demonstrably justifiable in a free and democratic society.

In relation to police powers, Justice Barishaki made three important pronouncements. First, he wholly rejected the notion that the police have supernatural powers to determine that a particular public gathering or protest should not be allowed because it will result in breach of peace. Secondly, he dismissed the requirement for permission or clearance from the police provided the protest or public gathering is peaceful. Thirdly, he noted that all the police need to do is to deploy its personnel to supervise the public gathering or protest and guard against the same becoming violent. He proceeded to state:

"The police have absolutely no authority to stop the holding of public gatherings on grounds of alleged possible breach of peace if such gatherings are allowed to proceed. The police’s duty is to regulate the holding of public gatherings and to ensure there is no breach of peace… The attention of the police must be directed at the individuals causing the breach of peace.”

Hon. Justice Barishaki, JA/JCC expressed concern with the actions of the Executive and Legislative arms of government to re-introduce similar unconstitutional provisions in the POMA.

However, the judiciary’s independence has not been without challenges. In politically sensitive cases, there have been concerns about judicial interference and intimidation. An excellent case in point is the July 2024 March to Parliament,[24] where it was properly communicated to the police officers and widely reported in the news that citizens had chosen to exercise their right under Article 29 of the Constitution to protest. These individuals were merely carrying placards with messages they wanted the government to heed, and peacefully walking to Parliament, not to even mention that there are some who were even arrested so many kilometers from Parliament. Instead, they were bundled up and charged with inconveniencing public peace.


The fundamental question here is “Were these citizens inconveniencing public peace or were they actually exercising their constitutional right to protest?” Factually speaking there is no protest that will not cause an inconvenience, but the framers of the constitution were alive to this fact when Article 29 was incorporated in the constitution. The judiciary further compounded the issue by remanding these individuals, despite judicial officials being fully aware that the arrested individuals had the right to protest.


On 2 September 2024, Uganda witnessed nude protests as citizens demanded for among other pressing issues, accountability for the preventable Kiteezi landfill collapse, which resulted in over 18 deaths and displaced families.[25] While the protests highlighted urgent governmental failures, they also exposed the judiciary’s continued inability to fully defend citizens’ constitutional rights under Article 29, which guarantees freedom of expression, assembly, and association. The Constitution does not explicitly define how protests should be conducted, leaving room for state authorities to suppress unconventional demonstrations, such as nude protests, under the guise of protecting public morality. Instead of robustly defending citizens’ rights to dissent, the judiciary often sides with state power, restricting freedoms rather than upholding them. This pattern of judicial failure undermines the Constitution’s core protections and erodes public trust, leaving citizens disillusioned when seeking justice and accountability through protest.

Additionally, the executive’s dominance in certain areas of governance has sometimes overshadowed the principle of separation of powers. These challenges, along with concerns about corruption, continue to affect the full realisation of the rule of law in Uganda.

3.0 CONTEMPORARY CHALLENGES TO CONSTITUTIONALISM

As Uganda reflects on 62 years of independence, it is important to recognise the ongoing challenges to upholding the rule of law. While the 1995 Constitution provides a strong foundation, recent political developments have highlighted concerns about the erosion of democratic safeguards.

3.1       POLITICAL INFLUENCE

The executive’s influence over institutions such as the judiciary and the Electoral Commission (EC) has raised questions about the extent to which legal and political processes are truly independent. The fact that the President even though with the approval of Parliament selects and appoints judicial officers,[26] as well as, the EC Chairperson,[27] it leaves a lot to be desired whether such officials when faced in moments when they have to go against him for the good the country, they would as per circumstances when we have seen the clash, more often than not they take the President’s side.

3.2       HUMAN RIGHTS CONCERNS

Despite constitutional protections, Uganda continues to face criticism for its handling of political dissent, freedom of the press, and civil liberties, especially during elections and periods of political unrest.

The infringement of rights such as freedom of expression and assembly remains a concern, particularly in periods of political tension. Ensuring that these rights are respected is critical to safeguarding Uganda’s democracy and preventing the backsliding into authoritarianism that marked earlier decades.

3.3       AMENDMENTS TO THE CONSTITUTION

The removal of presidential term and age limits has sparked concerns about Uganda’s commitment to maintaining constitutional checks on executive power, with critics arguing that these amendments undermine democratic principles. The further proposals by the Justice and Constitutional Affairs Minister in his Constitutional Amendment Bill 2024 which seeks a shift from presidentialism to parliamentarism takes away the power of the people by universal suffrage to determine their President and leaves it to the minority.[28] This is a front to Article 1 of the constitution that states:

1)    All power belongs to the people who shall exercise their sovereignty in accordance with this Constitution …

4)    The people shall express their will and consent on who shall govern them and how they should be governed, through regular, free and fair elections of their representatives or through referenda.

This Bill has nothing that shows that the people of Uganda choose to forego universal suffrage for college voting and, as such, we only keep entering deeper into the myriads of constitutional destruction.

Basing on the living tree doctrine, the constitution is a living document that should grow with its people and I do not dispute this fact. However, the amendments that have occurred to this constitution have essentially robbed it of its spirit and what remains is a shell of a document that was meant to make for as Ugandans a new way. In the words of George Santayana, “Those who cannot remember the past are condemned to repeat it.”[29] We as Ugandans are certainly on this path unless fundamental change occurs.

4.0       CONCLUSION

As Uganda celebrates 62 years of independence, the journey of the rule of law reflects both the triumphs and trials of the nation’s legal and political evolution. The 1995 Constitution remains a key pillar in the country’s legal framework, offering hope for the protection of rights and the independence of the judiciary. However, the struggle to uphold constitutionalism is ongoing, and the challenges of executive overreach, political influence, and the protection of human rights remain at the forefront.

Looking ahead, Uganda’s continued commitment to the rule of law will be essential in shaping its future. The principles enshrined in the 1995 Constitution must be vigilantly defended to ensure that the country’s legal and political institutions serve all citizens, in the spirit of justice, fairness, and equality. As the nation moves forward, its ability to protect the gains of the past and confront the challenges of the present will determine the strength of its democracy for generations to come.


 

 


*           Fourth Year Law Student at Makerere University, and Editor-in-Chief at Lawpointuganda.

[1]           Charles Dickens, A Tale of Two Cities, Book the First (1859) Chapter 1.

[2]           Morris and Read, Uganda, the Development of its Laws and Constitution (1966) 87-201.

[3]        Mukholi David, A Complete Guide to Uganda's Fourth Constitution - History, Politics and the Law (Fountain Publishers, 1995).

[4]        G.N Uzoigwe, Uganda and Parliamentary Government (The Journal of Modern African Studies. 21 (2) 1983) 253–271 available at <https://www.jstor.org/stable/160775> [Accessed on 8 October 2024]

[5]        H. F. Morris, The Uganda Constitution, (Journal of African Law Vol 10 (2) April 1966) 112–117.

[6]           Jørgensen Jan Jelmert, Uganda: A Modern History (Croom Helm, 1981).

[7]           Ibid n(4).

[8]           Ibid n(4).

[9]           Ibid n(3).

[10]         Article 2 of the 1995 Constitution of Uganda.

[11] Constitutionnet, Constitutional history of Uganda available at <https://constitutionnet.org/country/uganda> [Accessed on 8 October 2024]

[12]         Chapter Four of the 1995 Constitution of the Republic of Uganda.

[13]         Article 50 of the Constitution.

[14]         Article 52 of the Constitution.

[15]         Constitutional Petition No. 10 of 2008.

[16]         (1937).

[17]         CIVIL CASE NO. 50 OF 1954 ULR 74.

[18]       Kiwanuka killing, attacks on courts haunt Judiciary (Tuesday, April 23, 2019) available at <https://www.monitor.co.ug/uganda/special-reports/kiwanuka-killing-attacks-on-courts-haunt-judiciary-1821534> [Accessed on 9 October 2024]

[19] Ten years later revising term limits drama of 2005, <https://www.monitor.co.ug/uganda/news/national/ten-years-later-revisiting-term-limits-drama-of-2005-part-i-1617652> (Accessed on 9 October 2024]

[20]       Scrapping presidential term limits sets Uganda on course of Instability available at <https://africacenter.org/spotlight/scrapping-presidential-age-limits-sets-uganda-on-course-of-instability/> [Accessed on 8 October 2024]

[21]       “Fewer Ugandans think their last election was free and fair” reported Online via  <https://www.newvision.co.ug/category/news/uganda-ranks-high-among-african-countries-in-NV_175195> [Accessed on 8 October 2024]

[22]         Amama Mbabazi v Kaguta Museveni & 2 Ors [2016] UGSC 4 (26 August 2016).

[23]       POMA: Uganda court annuls public order law available at <https://chapterfouruganda.org/articles/2020/03/29/poma-uganda-court-annuls-public-order-law#:~:text=On%> [Accessed on 8 October 2024]

[24] Kampala Demonstration: 27 protesters charged in court available at <https://www.newvision.co.ug/category/news/kampala-demonstration-27-protesters-charged-i-NV_192691> [Accessed on 8 October 2024]

[25]       Kiteezi garbage collapse was disaster waiting to happen (Monday, August 12, 2024) avaialble at, <https://www.monitor.co.ug/uganda/news/national/kiteezi-garbage-collapse-was-disaster-waiting-to-happen-4722506#story> [Accessed on 8 October 2024]

[26]         Article 142 of the Constitution of Uganda

[27]         Article 60(1) of the Constitution of Uganda.

[28]       Political parties poke holes in Mao’s Constitutional Amendment Bill 2024 (Tuesday, September 24, 2024) available at <https://www.monitor.co.ug/uganda/news/national/political-parties-poke-holes-in-mao-s-constitutional-amendment-bill-2024-4774008> [Accessed on 8 October 2024]

[29]         The Life of Reason, 1905.

*          

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