Three years before the end of his second term in 2006, President Museveni moved to remove Article 105(2) of the 1995 Constitution, which limited presidents to two terms. Despite promising in 2001 that his 2001-2006 term would be his last, he sought a third term, or ‘kisanja.’
James Wapakhabulo, former Speaker and chair of the Constituent Assembly, warned Mr Museveni in a November 2003 letter about the plans to scrap term limits. Wapakhabulo, removed as Speaker in 1998 for his principled stance, died in March 2004. Museveni replied over a month after his burial, revealing his intentions to remove the term limits. Frederic Musisi brings you the President’s letter published in this newspaper on May 12, 2004.
I am writing in respect of a letter written to me by the late Hon. Wapakhabulo dated 19 November 2003 that was leaked to the Press by some individual we shall find out more about.
By the time this letter was published in the press, I had not seen it yet. Apart from what I read in the paper, I saw the original letter on 26th April 2004. One of my legal officers, Mr Kashilingi, summarised it on 24th March 2004, although the letter was written on 19th November 2003.
Hon. Wapakhabulo is now dead, and I cannot answer him. However, I am writing to all of you so that you know my views in connection with certain aspects of the irrational and desperate efforts by those who, it seems, have been scheming a long time to usurp the authority of the people and reverse the gains ushered in by the 26th of January 1986.
When I read the late Wapakhabulo’s letter, I find a lot of politically and, possibly, legally incorrect positions. On page three (8) of the letter, the author refers to his conversation with the Solicitor General who pointed out to him that ‘since the Article had ‘become contentious, it was only right at other provisions of the Constitution such as Clause one which provides that all power belongs to the people and Clause four (4) which provides for the right of the people to express their will and consent as to who shall govern them are called in to resolve the issue.
Surprisingly, the deceased dismisses this by saying that what is contentious is not the forum but the proposal itself. In fact both are contentious.
This is because, to some people, this matter is so important at it should be resolved by the ultimate authority in the land – People In my opinion, as a resistance fighter, there is nothing wrong (of course) with Parliament being empowered to amend a particular Article of the Constitution.
What is very wrong, however, is for somebody to argue, as I have seen people exhausting themselves in the press, that there are certain areas of the Constitution that are no-go areas for the people and only a monopoly of Parliament. This is amazing and outrageous.
This letter goes on say as follows: ‘The results of such a referendum held under that proposed law to determine the question of whether Article 105 (2) should be repealed, even if favourable, has propaganda value only but nothing else’ Really !!
This is amazing. To whom does the country belong – to the people or Parliament? MPs are servants of the people. How can someone equate them with the latter or even say that the former are higher than the latter.
My whole life, as you know, has been in the struggle for liberation of the masses from oppression and marginalisation. These arguments are part logic that seeks to usurp the hard-won authority the Movement gave to the People. Article 83 (1) (g), for instance, provides that, in case Uganda is under a multi-party system, a Member of Parliament elected on a ticket of a certain party cannot ‘cross the floor’ as they used to do in the 1960s and join another side in Parliament. He would lose his seat and go for fresh elections. This was an attempt to avoid the mistakes of 1960s leaders betraying the people who elected them. It is amazing, therefore, that certain circles in the Movement are trying to do the same in new ways.
There is no way the population can demand the right to pronounce themselves on any important issue and the Parliament of Uganda denies them that right. Worse still, there is no way a referendum can be held and the people pronounce themselves on an issue but that popular decision is only ‘of propaganda value’.
This would be a counter-revolution against the authority of the people and I cannot associate myself with such an act. What, then, would be the legitimacy of such a constitution. There was Apartheid Constitution in South Africa until 10 years ago, constructed and defended by Apartheid lawyers, such a constitution, however, had no legitimacy.
When a constitutional or legal arrangement pays more attention to philosophically irrational procedures rather than the basic, genuine aspirations of the people, it loses legitimacy in the eyes of the people; it loses legitimacy and then it is ignored.
When it is ignored by the masses, the legal gymnasticians are powerless to enforce their illegitimate arrangements. Have we not seen this with mob justice in our villages? Instead of having an easily understood procedure, if you construct an obscure procedure that excludes the aspirations of the people, you risk rendering that legal arrangement illegitimate.
The Resistance Movement that I have led for the last 34 years has a clear philosophy on this. It is: ‘All power belongs to the People’. The framers of the 1995 Constitution (where some of us were not) should have at every turn and corner, ensured this principle. If they did not, as the late Wapakhabulo seemed to be saying in his letter, that was their failure, to put it mildly.
Was this an attempt by the framers of the 1995 Constitution to usurp the power of the People or was it negligence? This is the more reason, therefore why we should now rectify those mistakes of the CA, if any. After all, this is a Constitutional review. These irrationalities shall be reviewed. The people’s authority must be unambiguously in the saddle of Uganda’s Stale affairs.
I was surprised that the author tried to mix up political matters with judicial matters. On page two (2) of his letter, he talks of Article 126 (2) which talks about Judicial power deriving from the people. He asks as follows: ‘Can the people hold a referendum under Article 255 to ‘sideline the jurisdiction of any Court of law in the judicial system?’
Article 105 (2) talks about political issues, which arc a more direct responsibility of the people than the judiciary. The people are the one? Who elect the President, Members of Parliament (MPs), Local Councils (LCs), etc. They do not elect judges. The judges belong to the professional cadreship like doctors, accountants, etc. Nevertheless, even those are a concern and therefore responsibility of the people. If they so mismanaged their professional role and, some of them do quite often, the people, either indirectly or directly, could be called upon to resolve the impasse.
Article 126 (1) says that the judges will exercise their powers in accordance with norms and aspirations of the people. Nevertheless, it was no problem for one of the judges to decide that publishing of ‘false news’ is legal’! Among all the tribes of Uganda to tell a lie about somebody or something is an offence. You must kuhoonga-paying a fine to gain forgiveness. However, since elements of the judiciary are, in effect violating the Constitution with impunity, the situation may so negatively accumulate that a crisis between the people and those foreign-minded Courts develops. It will, obviously, be resolved in favour of the people. Nobody can stop this as long as the pro-people NRM leaders are in charge of the State. If they were not, a real crisis would develop. You all remember when people were being murdered in Kampala with impunity by criminals. Most of the killers were criminals who had been released from jails by the Courts! Using my authority as Commander-in-Chief of UPDF, I used a section of the Armed Forces Law [NRA Statute 1998 (UPDF ACT CAP 305)] to defend the people.
This law says that even if some-body is a civilian but is found with a piece of equipment ordinarily reserved for the army, he will be treated as if he was a soldier and could, therefore, be tried by Court Martial. That is how the people of Kampala were saved from criminal terrorism. I actually ‘sidelined’ part of the civilian Court system in order to save the people.
The purpose is to serve the people not to serve the Courts, the President or Parliament. Before i referred the criminals to the court martial, I had referred the concern to some lawyers who told me that such an arrangement would not be appropriate because ‘Somebody could not be a judge in his own cause’. ‘A judge in his own cause’!! The thieves were killing civilians mainly. How then would soldiers in a Court Martial be ‘judges in their own cause’? I held off for two years and the situation continued to deteriorate for the Kampala dweller.
When I thought more about the issue, I ignored the advice of lawyers: I authorised Wembley and the trying of the criminals equipped with firearms by a Court Martial. There were some whimpers among the legal gymnasticians. Since those whimpers had no legitimacy among the people anymore, they were ignored.
The law here is about democratic legitimacy in fulfillment of the wishes and aspiration of the masses. Nevertheless, I do not believe that the present Constitution is fundamentally anti-people. Otherwise, we should have mounted, long ago, a political resistance against those anti-people provisions.
It seems that the main problems lie with the biased interpretations by the prejudiced lawyers and judges. The most beautiful Article of this Constitution is Article 1 (1): ‘All power belongs to the people’. This was the whole purpose of our carrying the gun for 13 years (1971-1979. 1981-1986).
In fact, this is why some of us have been enthusiastic supporters of this Constitution. There is no other Article of this Constitution, which says anything similar to this.
There is no Article, which says: ‘All powder belongs to Parliament; or All power belongs to the President; or All power belongs to the Judiciary.’ Article 99 (1) says that ‘all Executive power belongs to the President.’ It does not say. ‘All power belongs to the President’. It only confines itself to the ‘Executive power’.
Therefore, the problem is caused by the biased judges and lawyers who do not have a scale of legitimacy in their heads. Who has got the most legitimate authority in the land? Obviously, the people! All other authorities in the country (President; Parliament and Judiciary) derive their authority from the people (Article 1 (3).
I, however, heard that one of the Judges (or was it a cluster of them) ruled that all Articles of the Constitution are equal. This is incorrect. Article 1, (1) is above all the other Articles. If this has not been clear to the various Authorities, then this Constitutional Review process must clarify that. If there were no cloudy spectacles worn by those who interpret the present Constitution in a manner designed to dilute or eliminate the people’s authority, even this Constitution would be adequate. Given the propensity towards diluting ‘or even usurping people’s authority, the season for clarification, once and for all time, has arrived.
Yoweri K. Museveni
PRESIDENT
cc: Honourable Cabinet Ministers.
cc: Honourable Ministers of State