BISHOP STUART UNIVERSITY

FACULTY: LAW

NAME: MUBANGIZI JULIUS

REG NO: 23/BSU/LLB/1682

COURSE UNIT: CONSTITUTIONAL HISTORY

LECTURER: COUNSEL BYAMUKAMA ANDREW

YEAR: ONE

SEMESTER: ONE

SIGNATURE : ………………….

Idi Amin regime of 1971 destroyed constitutionalism in Uganda. He ruled by decree exercising executive
and legislative powers. All the institutions of the state were subjected to his will and wishes. It is also
alleged that he executed the chief justice, the Archbishop of the Church of Uganda, Vice Chancellor of
Makerere University and very many other innocent people. He expelled all Asians without any payment, no
adequate compensation of their property as per Remmy Kasule (Justice of the Court of Appeal during age
limit judgment)

In view of the historical reality, what institutional and rule of law measures are identifiable in the 1995
constitution to ensure that such dark and unfavourable history is not repeated in Uganda?
Constitutionalism has been defined in many ways by different writers and Scholars. However, they all
agree that the term deals primarily with power, its distribution and above all its limitation. Professor Joseph
Oloka Onyango in his book; “Judicial power and Constitutionalism in Uganda1” describes constitutionalism
as the “rule of law” which, in turn emphasizes the adherence to the established procedure and conduct in the
organization of the society. Therefore if the constitution is violated even the people’s rights are violated.

According to Wikipedia; Constitutionalism is "a compound of ideas, attitudes, and patterns of behavior
elaborating the principle that the authority of government derives from and is limited by a body of
fundamental law

The central element of the concept of constitutionalism is that in political society, government officials are
not free to do anything they please in any manner they choose; they are bound to observe both the
limitations on power and the procedures which are set out in the supreme, constitutional law of the
community.

As per the Oxford Dictionary, a decree is defined as an official order that has the force of law.

In 1971, Idi Amin Dada through a coup d’etat overthrew the Obote government and consequently, the
military head of state found it necessary to suspend the 1967 Republican Constitution starting with certain
parts of that constitution. According to George Kanyeihamba in his book “Constitutional and Political
History of Uganda from 1894 to Present” 2nd edition2 , under a Proclamation; Legal Notice number 1 of
1971 article 1 on the supremacy of the constitution, article 3 on the amendment of the constitution, article 63
on the power to make laws which was vested in the parliament and Chapters 1V and V of the 1967
Constitution were suspended. The suspension meant that the Uganda Constitution of 1967 was no longer the
supreme law of the land. Its provisions, and indeed, those of any other law of Uganda, could be overridden
by decrees passed by the military government

. Amin’s military government was thus “legitimised” by the Kelsenian principle which is to the effect that
“if a government is removed in a manner not contemplated by the law and a new ruler assumes effective
control of the country, the edicts are valid because the old legal order has disappeared and been replaced by
a new one which provides validity to the norms of the old order.” This was a doctrine of autocracy where
Amin became the supreme law of the country thereby contravening the principle of separation of power.
With all the powers vested in the hands of President Amin, the country was to be thrown into great peril by a
number of decrees. Some of Amin’s decrees are:

Decree number 5; the constitution modification decree. By this decree there was change of the military
head of state to the president. The constitution modification decree therefore officially established Amin’s

1
Judicial power and Constitutionalism in Uganda. Centre for basic research 1993. Indiana University
2
Constitutional and Political History of Uganda: from 1894 to Present, Law Africa Publishing (K) Limited, 2010.
regime as a military regime and militarism was later to be the order in every public institution. This meant
that democracy had no place in Uganda anymore, because in the face of arms the law is silent.

The Detention Decree No.7 of 1971 which allowed for indefinite detention without trial for 30 days.
Together with the military police decree of 1972 which stripped off the powers of arrest from the police to
the military, the regime presided over arbitrary arrests and imprisonment without trial.

The Suspension of Political Party Activities Decree No.14 of 1971. By this decree no one was allowed to
take part in, collect subscription for, raise funds or otherwise encourage political activities, public meetings
or processions, designed with political motives. This was against peoples’ constitutional rights of belonging,
assembly and association.

The Proceedings against the Government Decree Act No. 8 1972. Under this decree, the judicial arm of
government was rendered ineffective. This was after the release of a British citizen on application for the
writ of habeas corpus. Justice Ben Kiwanuka saw no rational in detaining the suspect illegally and by
releasing him, the learned Chief Justice lost his life to the regime. By this decree the government was given
immunity ousting the jurisdiction of courts to grant relief, as regards actions for injuries resulting from
measures taken to protect the public and security, and the enforcement of discipline, law and order

The Trial by Military Tribunal Decree No.12 of 1973. This completely dismantled the jurisdiction of the
courts over civil and criminal cases in addition to ousting the supremacy of the constitution.
These and many other decrees by Idi Amin made all institutions of the state to act at the will and wishes of
the president and created a dark spot in the history of Ugandan constitutionalism

Realizing such a dark and an unfavourable history, the framers of the 1995 constitution put in safeguards to
mitigate such history repeating itself. True testament to that is the preamble of the 1995 constitution which
provides, inter alia that:

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; COMMITTED to
building a better future by establishing a socio-economic and political order through a popular and durable
national Constitution based on the principles of unity, peace, equality, democracy, freedom, social justice
and progress; EXERCISING our sovereign and inalienable right to determine the form of governance for
our country………

This preamble shows that the framers were well aware of a turbulent past and were determined to rectify
such through deliberate provisions in the new 1995 constitution of the Republic of Uganda. Some of such
identifiable measures in the 1995 constitution include the following:

A. RULE OF LAW MEASURES

Article 1 of the 1995 constitution of the Republic of Uganda as amended on Sovereignty of the people
which provides that:

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

(2) Without limiting the effect of clause (1) of this article, all authority in the State emanates from the
people of Uganda; and the people shall be governed through their will and consent.

(3) All power and authority of Government and its organs derive from this Constitution, which in turn
derives its authority from the people who consent to be governed 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 article is well entrenched by article 260 (1) (b) of the 1995 constitution which requires a referendum to
amend article 1 of the same constitution. That means it’s only the people of Uganda who have power over
article 1, not even parliament can alter this article without the will of the Ugandan people

This article cures the defect of all the state powers being vested in the president, where all organs of the state
are controlled from the centre and perform their duties in accordance to the will and wishes of the president.
In principle this cures defects of decree number 5 of 1971 which modified the constitution and made Amin
the president without a fair and free election and consent of the people of Uganda

Article 2 on the Supremacy of the Constitution which provides that;

(1) “This Constitution is the supreme law of Uganda and shall have binding force on all authorities and
persons throughout Uganda.

(2) If any other law or any custom is inconsistent with any of the provisions of this Constitution, the
Constitution shall prevail, and that other law or custom shall, to the extent of the inconsistency, be void.”

This article is also well entrenched by article 260 (1) (b) of the 1995 constitution which provides that
amendment of article 2 shall be subjected to the referendum which makes it very hard for any person or
body, including parliament to amend this article without the will of the people. This article counteracts all
the Amin decrees because they were not consistent with the Republican constitution and were not Acts of
the legislative body which is Parliament

Article 3 of the 1995 constitution on Defence of the Constitution which provides among others that;

(1) It is prohibited for any person or group of persons to take or retain control of the Government of Uganda,
except in accordance with the provisions of this Constitution.
(2) Any person who, singly or in concert with others, by any violent or other unlawful means, suspends,
overthrows, abrogates or amends this Constitution or any part of it or attempts to do any such act, commits
the offence of treason and shall be punished according to law.

(3) This Constitution shall not lose its force and effect even where its observance is interrupted by a
government established by the force of arms; and in any case, as soon as the people recover their liberty, its
observance shall be reestablished and all persons who have taken part in any rebellion or other activity
which resulted in the interruption of the observance shall be tried in accordance with this Constitution and
other laws consistent with it.

This article gives power to the 1995 constitution even in the face of overthrow of a legitimate government
by use of violent means like Coup D’etat or a rebellion. The framers of the 1995 Constitution were alive to
the need to have certain provisions of the Constitution secured by expressly entrenching them with clear
provisions of the Constitution such as article 3 entrenched by clause (3) above. It means that the 1995
constitution continues to have force even in the midst of interruptions and any such person who violates it
faces treasonable charges, and the people can resist such unlawful change of government. Therefore it
regulates violent conduct against a sitting government. This article in principle counters Legal Notice
Number 1 of 1971 which suspended the articles of the 1967 constitution of Uganda without going through
proper procedure of constitutional amendments

Article 20 on Fundamental and other human rights and freedoms which states that;

(1) Fundamental rights and freedoms of the individual are inherent and not granted by the State.

(2) The rights and freedoms of the individual and groups enshrined in this Chapter shall be respected, upheld
and promoted by all organs and agencies of Government and by all persons.
This article cured excesses of decree No. 14 of 1971 which suspended political party activities and public
meetings, decree No. 7 of 1971 which provided for indefinite detention without trial for 30 days and decree
No 35 of 1972 which permitted the Minister of information to prohibit publication of Newspapers. These
decrees infringed on fundamental human rights like right to association, right to a fair hearing and right to
information

Article 21 on equality and freedom from discrimination

(1) All persons are equal before and under the law in all spheres of political, economic, social and cultural
life and in every other respect and shall enjoy equal protection of the law.

(2) Without prejudice to clause (1) of this article, a person shall not be discriminated against on the ground
of sex, race, colour, ethnic origin, tribe, birth, creed or religion, social or economic standing, political
opinion or disability.

This article remedy acts of discrimination as was the case with expulsion of Asians basing on race and
economic grounds
Article 22 on protection of right to life which provides that:

(1) No person shall be deprived of life intentionally except in execution of a sentence passed in a fair trial
by a court of competent jurisdiction in respect of a criminal offence under the laws of Uganda and the
conviction and sentence have been confirmed by the highest appellate court.
This articles cures excesses of extra judicial killings such as the one of Archbishop of the church of
Uganda, the chief justice, the Vice chancellor of Makerere University among others (as per Justice
Remmy Kasule in his Judgment in constitutional Appeal No 49 of Male Mabirizi & others v Attorney
General of 20173)

Article 44 on prohibition of derogation from particular human rights and freedoms which provides
that:

Notwithstanding anything in this Constitution, there shall be no derogation from the enjoyment of the
following rights and freedoms—

(a) freedom from torture and cruel, inhuman or degrading treatment or punishment;

(b) freedom from slavery or servitude;

(c) the right to fair hearing;

(d) the right to an order of habeas corpus.

This article is well entrenched by article 260 (1) (b) of the 1995 constitution which provides that amendment
of article 2 shall be subjected to the referendum which makes it very hard for any person or body, including
parliament to amend this article without the will of the people. This article counters many of the decrees of
Amin which had no regard to human rights. In particular is decree Number 8 of 1972; The Proceedings
against the Government Decree Act No. 8 1972. This was after the release of a British citizen on
application for the writ of habeas corpus, which also put the then Chief Justice Ben Kiwanuka in bad books
with the regime

Article 69 on Political systems which provides inter alia that:

(1) The people of Uganda shall have the right to choose and adopt a political system of their choice through
free and fair elections or referenda.

This article is also well entrenched by article 260 (1) (b) which requires a referendum for article 69 to be
amended. This article was inserted to remedy the excesses of the president imposing his/ her own political
system which is not chosen by the people of Uganda like what happened in the Amin regime

Article 74 on Change of political systems by referenda or elections which provides that;

(1) A referendum shall be held for the purpose of changing the political system—

3
CONSTITUTIONAL PETITIONS Nos. 49 of 2017, 3 of 2018, 5 of 2018, 10 of 2018, and 13 of 2018.
 This article provides for the will of the people in changing the political system and ensures that the
system cannot just be changed without the will of the people

Article 75 on prohibition of one-party State which provides that:

Parliament shall have no power to enact a law establishing a one-party state.

This is also an entrenched article that trims the powers of parliament on political systems. This article
ensures that the people exercise their original legislative power through a referendum to choose a political
system of their choice

Article105 on tenure of office of a President which provides that;

(1) A person elected President under this Constitution shall, subject to clause (3) of this article, hold office
for a term of five years.

(2a) A bill for an Act of Parliament seeking to amend this clause and clause (2) of this article shall not be
taken as passed unless— (a) it is supported at the second and third reading in Parliament by not less than
two thirds of all Members of Parliament; and (b) has been referred to a decision of the people and approved
by them in a referendum.

(3) The office of President shall become vacant— (a) on the expiration of the period specified in this article;
or (b) if the incumbent dies or resigns or ceases to hold office under article 107 of this Constitution

This article sets out the period of a presidential term of office and can only be amended through a
referendum and therefore the presidential term of office cannot easily be altered as evidenced in the age
limit case; Male Mabirizi Kiwanuka & others v Attorney General
CONSTITUTIONAL PETITIONS Nos. 49 of 2017, 3 of 2018, 5 of 2018, 10 of 2018, and 13 of 2018.

Article 128 on Independence of the judiciary which provides inter alia that;
(1) In the exercise of judicial power, the courts shall be independent and shall not be subject to the control or
direction of any person or authority.
(2) No person or authority shall interfere with the courts or judicial officers in the exercise of their judicial
functions.
(3) All organs and agencies of the State shall accord to the courts such assistance as may be required to
ensure the effectiveness of the courts.
This article is also well entrenched through article 260 (1) (b) which requires a referendum to amend this
article, and it is a remedy to the Trial by Military Tribunal Decree No.12 of 1973 which completely
dismantled the jurisdiction of the courts over civil and criminal cases in addition to ousting the supremacy of
the constitution.

Some of the institutional measures identifiable in the 1995 constitution are

 1. Creation of the Uganda Human Rights Commission

This is provided for under article 51. This article states inter alia that;
(1) There shall be a commission called the Uganda Human Rights Commission. (2) The commission
shall be composed of a chairperson and not less than three other persons appointed by the
President with the approval of Parliament.

The functions of this commission as provided under article 52 among others are:

(a) to investigate, at its own initiative or on a complaint made by any person or group of persons against the
violation of any human right;

(b) to visit jails, prisons, and places of detention or related facilities with a view to assessing and inspecting
conditions of the inmates and make recommendations;

(c) to establish a continuing programme of research, education and information to enhance respect of human
rights;

(d) to recommend to Parliament effective measures to promote human rights, including provision of
compensation to victims of violations of human rights or their families;

Provision for the Parliament of Uganda

This is provided for under article 77. This article states inter alia that;

(1) there shall be a Parliament of Uganda. (2) The composition and functions of Parliament shall be as
prescribed by this Constitution.

The functions of parliament are provided under article 79 of the 1995 constitution as:

(1) Subject to the provisions of this Constitution, Parliament shall have power to make laws on any matter
for the peace, order, development and good governance of Uganda.

(2) Except as provided in this Constitution, no person or body other than Parliament shall have power to
make provisions having the force of law in Uganda except under authority conferred by an Act of
Parliament

Therefore it is the mandate of Parliament alone to make laws for good governance of Uganda

Creation of the Judicial Service Commission

This is provided for under article 146 of the 1995 constitution. This article states among others that:
(1) There shall be a Judicial Service Commission. (2) The Judicial Service Commission shall, subject to
clause (3) of this article, consist of the following persons who shall be appointed by the President with the
approval of Parliament…..

The functions of this commission as provided under article 147 among others re:

(a) to advise the President in the exercise of the President’s power to appoint persons to hold or act in any
office specified in clause (3) of this article, which includes power to confirm appointments, to exercise
disciplinary control over such persons and to remove them from office;
(b) subject to the provisions of this Constitution, to review and make recommendations on the terms and
conditions of service of judges, other judicial officers and staff of the judiciary appointed in accordance with
article 148A of this Constitution;