The Constitution (Amendment) Bill, 2015: An Analysis
This publication was authored by: Center for Policy Analysis
Abstract / Summary
It is presumed that the intention of a constitutional amendment process would be to address loopholes in the Constitution, either arising from oversight in the initial drafting process or from developments and lessons drawn over the years with a view to have a Constitution that represents the aspirations and concerns of the people of Uganda. Proposals for amendment are therefore intended to restore, remove or introduce key provisions that are deemed to be critical to this end. The framers of the Constitution (Amendment) Bill state its object as seeking to amend the Constitution of the Republic of Uganda in accordance with Articles 256 and 262 of the Constitution; to change the name of the Electoral Commission to the Independent Electoral Commission; to prescribe a procedure for the removal of members of the Independent Electoral Commission, similar to the procedure of removal of judicial officers; to increase the retirement age for Justices and Judges; to provide for the Judicial Service Commission to appoint certain staff of the judiciary; to provide corporate status for the Inspectorate of Government; to provide for the establishment of city land boards; to provide for a salaries and remuneration Board; and for related matters. It should be said from the onset that these proposals are hardly anywhere near the numerous concerns that have been raised by the people of Uganda over the past few years. Amendment of Chapter Five of the Constitution – Representation of the People (Amendment of Article 60(1)) This proposal seeks to amend the name of the Electoral Commission to read the Independent Electoral Commission (hereinafter referred to as IEC). Whereas the said amendment of the title/name of the IEC (as proposed by many stakeholders) is commendable, engaging in mere nomenclature is not enough. We ought to be mindful of the fact that the independence of the said IEC is not contained in its name but in its very composition, operations and track record. A lot of criticism has been levied against the qualifications, appointment and method of work of the IEC. To prescribe a procedure for removal of members of the Commission without addressing ourselves to improvements in the mode of appointment falls short of addressing the mischief intended. Many proposals have been made to the effect that the way in which the Commissioners of the IEC are appointed is very crucial in gauging the independence of the IEC. It is therefore recommended that more emphasis is placed on this area. A detailed schedule to this effect is recommended. One that delineates the qualifications of individuals who have preferably been apolitical - or who have not been overtly involved in competitive politics. This is discussed further below The Bill does not stipulate a clear procedure on the identification of the persons to serve as or to be appointed as members of the Commission. This is bound to create mixed feelings among participants in the electoral process as to the transparency of the appointment process whose confidence is critical to the credibility of the Commission, the electoral system and the outcome of any election. Since the Office of the President is occupied by a person who will be declared as winner of polls conducted by the IEC, it is advised that the President should not be involved in the process of appointing the members of the IEC. This is because such leverage gives the President an opportunity to appoint people who would be loyal to the occupant of the Office of the President. It is proposed a schedule is created to the Electoral Commission Act which shall include the details just like it was done for the Independent Electoral And Boundaries Commission Act No. 9 of 2011 of Kenya. We could propose that a Selection Committee selected by say, the Judicial Service Commission or by the Chief Justice in consultation with the Speaker of Parliament and the Leader of Opposition in Parliament would be more appropriate. This Selection Committee would then make recommendations for appointment, which would then be vetted by a select Committee of Parliament for scrutiny. The duly vetted members would then be subjected to parliamentary debate and only swear in before the Chief Justice of the Republic of Uganda This process would promote transparency and fairness. Amendment of Chapter Six of the Constitution – Legislature Clause 2 of the Bill which seeks to amend Article 72 ignores the fact that there are members of the public who would want to stand as independent candidates from the onset. The requirement to be supported by at least one thousand registered voters in either the constituency or district prevents such members, who have not had the opportunity to participate in political party primaries from being able to stand a fair chance. Secondly no time frames are given within which registered voters should be gathered. This means that the clause is open for abuse since the proposed IEC can easily use unfair time lines. It is proposed that the article/clause includes the fact that a fair and reasonable time frame be given. Clause 3 of the Bill seeks to amend the constitution to require the registrar of every court which declares the seat of an Members of Parliament vacant to submit a copy of the judgment of the court to the clerk of Parliament within 10 days after declaration and to require that a by-election is held within sixty days after the Independent Electoral Commission has received notification of the occurrence of a vacancy from the Clerk to Parliament is fair and reasonable. Clause 4 of the Bill which seeks to amend article 83 to provide for a member of Parliament to vacate his or her seat where the member ceases to be a member of the political party or organization for which he or she stood as a candidate for election to Parliament is premature since the matter is before the Supreme Court of Uganda for consideration. This clause should be dropped all together in the spirit of the doctrine of separation of powers. In any case the Bill does not clearly state what the word “ceases” means in light of the previous debates on this issue. Amendments to Chapter Eight – The Judiciary The proposals herein that relate to appointing staff to the judiciary are welcome. However, there doesn’t seem to be any reason as to why High Court judges should be asked to retire at seventy and not seventy five years since they are as useful as those of the Appellate Courts. There have been arguments that security of tenure and its counterpart, a compulsory retirement age, are key protections for judicial independence. These provisions enable the fearless performance of judicial functions by freeing Judges from concerns about their future term of office. The framers of the Bill should have also involved provision on the supremacy of court orders to emphasize respect for court orders as well as enhance the independence of the Judiciary. Amendments to Chapter Thirteen - The Inspectorate of Government Amendment of Article 223 giving the Inspectorate of Government corporate status to strengthen its independence in accordance with Article 227 is a positive step. The Bill should have also included a clear proposal relating to vetting of the Inspector General of Government (IGG) on renewal of contracts to avoid ambiguity. It would have been worthy to redefine the role of the IGG, clearly marking the scope of operations to avoid duplication and overlap of roles between the different anti-corruption agencies as well as those of the DPP. Recent cases before the Courts of law – like the one involving the standard gauge railway – clearly show that it is important to clearly delineate the roles of all these institutions. Amendments of Chapter Fifteen of the Constitution – Land and Environment Clause 10 of the Bill seeks to introduce a new article 241A to provide for the establishment of City land boards. However there doesn’t seem to be any justification for these city land boards since the District land boards perform the same functions. Amendment of Chapter Seventeen of the Constitution - General and Miscellaneous Establishment of a Salaries and Remuneration Board to address discrepancies and ensure relativity of salaries is a welcome proposal since it will be responsible for determining all salaries, allowances and benefits issuing out of the Consolidated Fund. The Bill is rather sketchy as there are a myriad of other issues proposed that should have been taken into account to guarantee effective legal governance of our State and ultimately the Rule of Law. It more or less speaks louder in its silence, against the key issues it should have addressed. Other proposals - Enshrining the Independence and establishing a Corporate Status for the Directorate of Public Prosecutions It is proposed that the Bill should propose to enshrine corporate status for the Directorate of Public Prosecutions (DPP) in light of the fact that there have been acrimonious relationships between the DPP and the Attorney General’s Chambers. The very reasons fronted for the establishment of corporate status of the IGG should be made for the DPP. This is because there will be situations where the DPP might seek to prosecute a member of the AG’s chambers or the AG himself and yet is unable to represent itself in a court of law in the event that the AG’s chambers seeks to sue the DPP. Further, recent court decisions barring the DPP from carrying out its constitutional mandate make it imperative that the office be protected. The DPP should be accorded as much status as the AG. It is certainly unwise for the courts to bar the AG’s chambers from giving legal advice or representation to its client – government. Similarly, this should not be the case for the DPP. Prevention of Civil Servants from contesting for political office before resigning 90 days from the date of registration Article 80 (4) of the Constitution as amended by the Constitution (Amendment) Act 11 of 2005 reads as follows:- “(4) Under the multiparty political system, a public officer or a person employed in any Government department or agency of the Government or any body in which Government has controlling interest, who wishes to stand in general election as a Member of Parliament shall resign his or her office at least ninety days before nomination day” This Article prejudices those public officers or persons employed in any Government department from standing for office since it is not assured that such officer shall be guaranteed success. As such the nation misses out of candidates who would be able to make their contribution to the nation. Given the existing partisan nature of most public officials in Uganda, it it would be worth considering such officers taking leave without pay so that they can come back to their jobs in the event that they do not win as the government practice is usually to reappoint them to other positions. Inclusion and stipulation for protection of all categories of rights A holistic inclusion and stipulation of protection of all categories of rights in keeping with all treaties Uganda has ratified is critical. The right to health for instance should be recognised as an explicit and independent right in the Constitution as even Courts of law when presented with opportunities to apply Article 45 have failed to pronounce themselves on the matter. Attempts to pursue the right to health, as an independent right, through the courts, in order to hold State actors to account have thus far been futile. The right to access the highest attainable standard of physical and mental health must be expressly guaranteed under Chapter 4 of the Constitution. Other jurisdictions have included these rights in their Constitutions and have litigated on them. The above are but a few of the several other proposals that have been documented and proffered for consideration in the constitution amendment process; which proposals have not been addressed by the Bill.  Save for the recent landmark decision in which the right to health was declared justiciable in Uganda by the High Court in Center for Health, Human Rights and Development and 4 others vs. Nakaseke District Local Administration - Civil Suit No. 111 of 2012  Article 41, 43 and 55 of the Rwanda, Kenya and Burundi Constitutions.