Three decades later, former Chief Justice Benjamin Odoki says many provisions in the Constitution need to be given a second look because Ugandans have had 30 years of experience. The Constitution was promulgated on October 8, 1995, after it was enacted by the Constituent Assembly (CA) delegates, following close to two years of debate and deliberations. It replaced the 1967 Constitution. ‘There are many provisions in the Constitution which you may need to look at afresh,’ Justice Odoki said as he participated in a commemorative tree-planting programme to mark the 30-year milestone at the Constitutional Square in Kampala yesterday.
He added: ‘When you wrote that Constitution, you could not have known that things would work like this, could you? How could you anticipate? So now, you are seeing what is happening, make a judgment yourself, and rectify whatever you think has gone wrong. ‘I think the Constitutional review is being mooted where you will be able to say ‘this Constitution was misused by so and so and be quoted.’ Everybody who made views of us was recorded and kept in our archives.’
In 2017, Members of Parliament scrapped the presidential age limit, eliminating the 75-year age cap and lowering the minimum age to 18, enabling President Museveni, then 73, to seek another term. The move followed the removal of presidential term limits 12 years earlier, which paved the way for Museveni’s continued presidency. The initial term and age limits were put in place in the original 1995 Constitution. The 2017 amendment sparked controversy, with heated parliamentary debates and the deployment of plain-clothed Commandos from the elite Special Forces Command (SFC) being deployed in the chambers to eject some dissenting MPs from the House.
Ultimately, 317 MPs voted to pass the Bill, with 97 opposing it and two abstaining.
Justice Odoki, however, said there’s a full chapter about amending the Constitution, and he is not able to say whether it was misused or not. ‘I only wrote what I thought people had said, like when you write a judgment, according to evidence which I got at that time. I don’t have any evidence up to now as to what people want. ‘That’s why I didn’t want to even talk about the constitutional review, which I would recommend, with due respect, but it’s not my job. Yes, you need the constitutional review.’
He was also quick to caution that the Constitution should not be touched unless it is necessary.
‘There are certain provisions which, if you make, could conflict with the Constitution. That’s the problem. The amendments must be in line with the available laws.
‘We found that there is no Constitution that cannot be amended, but we only argue that it must not destroy its basic character. If they cut off your ear, you may live, but if they cut off your head, it’s a different story. So, there are certain fundamental things in the Constitution which I think should be preserved.’
The Constitution is still young
Justice Odoki noted that the framers of the Constitution had been blamed for making it ‘too detailed’, but to the contrary, it is still ‘young and growing’, adding: ‘We are still learning to see what can work for Uganda and what cannot work for it.’ ‘We were not quite sure what would work for Uganda, that’s why you can say even in a political system, we put there two systems (NRM and multiparty politics), but we didn’t know which would work better. ‘But now it’s for the people of Uganda to judge, not for the former Chief Justice or the former chairperson of the Constitutional Commission. I think you are seeing the momentum now.’
He said he has no qualms about the entire Constitution being changed, especially if the changes are being made by the people and not him, because it is not a personal judgment. On concerns that the Constitution has been used to entrench power and undermine democracy, Justice Odoki said how the Constitution is used is not his business. ‘How you are using the Constitution is not my business; you can put it in your pocket (or) in your wardrobe. That’s your business.’
Asked what he makes of the changes that have happened within the Constitution that he spent time putting together, Justice Odoki said Ugandans have the right to do whatever they want with the Constitution, and he doesn’t form personal opinions on issues of national importance. Ms Sarah Bireete, the Executive Director of the Centre for Constitutional Governance, who was in attendance, said 30 years ago, the Ugandan Constitution was adopted with a vision of a just, democratic, and a united nation, intended to provide a framework for governance that safeguards the rights and freedoms of every Ugandan.
‘It was and it is still a beacon of hope for the future, challenges notwithstanding; however, whereas there has been progress in matters regarding the rule of law, in matters regarding the conduct of people who exercise power over the citizens, there have been numerous challenges as citizens of this country.’ She cited the Constitution’s alleged failure to safeguard the fundamental rights and freedoms of Ugandans, and to resolve challenges like land conflicts and land rights, especially for the poor and the vulnerable.
Cautioned.
“We found that there is no Constitution that cannot be amended, but we only argue that it must not destroy its basic character. If they cut off your ear, you may live, but if they cut off your head, it’s a different story. So, there are certain fundamental things in the Constitution which I think should be preserved.” – Former Chief Justice, Benjamin Odoki
EC SAYS
Mr Julius Mucunguzi, the Electoral Commission (EC) spokesperson, who represented EC chairperson Justice Simon Byabakama, said since the 1995 Constitution was established, Ugandans have been able to exercise the provisions of Article 1 Clause 4 to choose their leaders through regular, free, and fair elections.