Proposed constitutional amendments and why they failed to impress

By Agather Atuhaire 

After months of outcry from the opposition and Civil Society organisations, the government on April 30 finally tabled the Constitutional Amendment Bill in parliament.

While the opposition and civil society had eyes on electoral reforms, the Bill has only one or two clauses about them. The over 40 proposals that the reform activists under their umbrella organisations, namely; the National Consultation on Free and Fair Elections, the Inter Party Organisation for Dialogue (IPOD) and the Citizens’ Coalition on Electoral Democracy (CCEDU) proposed, were all ignored. Instead, Justice and Constitutional Affairs minister Kahinda Otafiire tabled six amendments on renaming the Electoral Comminssion, tweaking the retirement age for judges, and revising the status of the Inspectorate of Government. The Leader of Opposition in Parliament Wafula Oguttu appeared stunned by the development. He immediately asked Deputy Speaker Jacob Oulanyah whether opposition could table a separate Bill to cater for the demands of Ugandans.  Oulanyah dodged the bullet and promised to first consult and return with an answer. The reactions outside parliament varied from long yawns, to contemplative looks, and shrugging shoulders. Nobody is cheering.

Amendment 1: Changing the Electoral commission

The Bill seeks to amend Article 60 of the Constitution to change the name of the Electoral Commission to the “Independent Electoral Commission”. This, the government says, is to recognise the Independence of the Electoral Commission and to enable Parliament to prescribe the composition of the commission.

The stakeholders in their proposals had asked for the overhaul of the entire EC, for an open recruitment of the commissioners, and for their tenure to be one 7-year non-renewable term. The reformers proposal was that the recruitment of the EC chairperson, the deputy, and commissioners be appointed with the participation of the public through the Judicial Service Commission.

The reactions:

Crispy Kaheeru  (CCEDO)

Citizens’ Coalition on Electoral Democracy (CCEDU) Coordinator Crispy Kaheeru says that Ugandans did not ask for a mere change of name of the EC.  They wanted a changing in its fundamentals. He says change of name of the Commission to ‘Independent Electoral Commission’ is welcome but should be further reflected in the broader issues.

“From my reading of the Bill,” said Kaheru, “it looks like the system to appoint the Commissioners remains the same, in other words, the President appoints and Parliament does the requisite vetting and approval.”

Kaheru says the reformers wanted the EC to reflect the diverse skills and social demographics necessary to ensure impartiality in managing the electoral processes.

“The proposed amendments in the Bill do not adequately insulate the Commission from some of the existing external pulls and pressures that it faces.” Kaheru said.  Kaheru said the few changes, including providing for a tribunal which President Museveni will consult before firing a member of the commission, are good.

Busingye Kabumba (Law don)

Makerere University Law lecturer Busingye Kabumba told The Independent that just adding the word “independent” to the EC without providing a transparent process of recruiting the leadership and members of the Commission is a mockery.

“That is what David Landau called abusive constitutionalism,” Busingye said, adding that President Museveni is misusing the constitution to further autocracy rather than promote liberal democracy.

Dan Wandera Ogalo (Opposition lawyer)

Renowned lawyer Dan Wandera Ogalo also was disappointed.

“The clause on amending article 60 is an insult on Ugandans”, said Ogalo, “we are taken as imbeciles and idiots. Government has rubbished the thoughts of Ugandans and the people who made extensive consultations to come up with good proposals.”

Theodore Ssekikubo (MP)

Lwemiyaga County MP Theodore Ssekikubo said it useless to propose a mere renaming when the rest of the substance remains the same. He said the

“Government has undermined the people that put in a lot of work, effort and resources to come up with proposals aimed at having a transparent Electoral Commission.”

He added: “As long as the President is still in charge of the hiring and firing of EC staff, he wields power over it and that erodes its independence”.

Amendment II: Election of Independent MPs and MPs `crossing’

The proposed amendments seeks to amend Article 72 of the constitution to require any person who intends to stand as an independent parliament candidate to be supported by the signatures of at least 1000 registered voters in the constituency or district for the case of women district representatives.

The government says this is to avoid disorganisation of political parties or organisations by members who choose to leave the party to stand as Independents.

The Bill will also amend Article 83 to introduce a new clause permitting floor crossing in parliament within 12 months before a general election.

The constitution currently requires that any member who wishes to cross from one party to another or an Independent member to join a political party to first vacate their seats in parliament.

The new proposed clause stipulates that,  “Article 83 (i) (g) and (h) shall not apply to an Independent member joining a political party or a member leaving a political party within 12 months before a general election to participate in the activities of a political party relating to a general election.”

This, observers say was done to further the interests of the NRM party. The party had the highest number of members standing as Independent candidates after many of them disagreed with the party’s 2010 primary elections. Of the 43 Independent MPs in Parliament, 38 are NRM leaning.

The idea was pitched to President Museveni by the Independent MPs during an NRM caucus retreat at Kyankwanzi in February.

The reactions:

Busingye Kabumba (Law don)

Kabumba says like all the proposals that were brought in the Bill, it is meant to serve the interests of the ruling party.

Dan Wandera Ogalo (Opposition lawyer)

“They are making a law that favours them,” Ogalo said, “Majority of the Independent MPs in Parliament are members of the NRM party.”

Theodore Ssekikubo (MP)

Sekikubo says this was a bargained position with the NRM leaning independents MPs who were at the party’s retreat in Kyankwanzi earlier this year.  “You shouldn’t amend the constitution for selfish interests,” Sekikubo cautions. He also adds that any debate on that matter will be subjudice since the case they have in court is on that particular clause.  Sekikubo and three other members; Wilfred Niwagaba, Mohammad Nsereko, and Barnabas Tinkasimire sued by NRM supporters who wanted them kicked out of parliament since they no longer ascribed to the NRM party, on whose ticket they were elected to parliament. The MPs were in 2013 expelled from NRM over indiscipline.

Amendment III: Making the Inspectorate of Government (IGG) a body corporate

The Bill seeks to amend Article 223 to give corporate status to the Inspectorate of Government. This, the government says, is to strengthen its independence. This amendment was mooted in the Inspectorate’s reports to parliament. The IGG said not being a body corporate has continuously hindered the progress of civil cases it handles.  In their reports of 2010, 2012 and 2013, the IGG argued that the cases where it is party, it is represented by the Attorney General and that in the matters where the AG has a different opinion; cases have been brought to an abrupt conclusion by settlement or withdrawal.

The IGG, Irene Mulyagonja in 2013 told the Legal and Parliamentary Affairs Committee that the IG’s work has been hindered because various government agencies and departments interfere with its investigations and quash its reports.

Legal experts say the amendment will address the contentions between the IGG and Attorney General.

The reactions:

Busingye Kabumba (Law don)

“That is the only progressive amendment in an otherwise problematic bill,” said Kabumba. He says the clause is important since it will allow the Inspectorate to defend itself in court.

Dan Wandera Ogalo (Opposition lawyer)

“The clause is good; however, it wouldn’t be necessary if the government appointed professional Attorney Generals.

“That issue wouldn’t rise if we didn’t have AG’s like Nyombi who give political opinions on legal matters.”

Amendment IV: City Land

The Bill seeks to introduce a new article in the constitution; 241A to provide for the establishment of city land boards.

Currently, the constitution provides only for District Land Boards in Article 240 and 241. The city land boards will be responsible for holding and allocating land in the cities and the registration and transfer of interests in land and dealing with all other matters connected with land in the cities.

The reactions:

Theodore Ssekikubo (MP)

“City land boards for what?” Ssekikubo asks, “We already have many bodies concerned with land matters. Why do you want to continue creating land boards when the existing ones have failed to solve land issues?”

Bashir Twesigye (Civic Response on Environment and Development)

Land rights activists are more concerned about the timing. The Executive Director of Civic Response on Environment and Development Bashir Twesigye told journalists that the amendments on land should not be handled together with Electoral Reforms because they need to be given more thought and extensive consultations.

Amendments V: Salaries and Remuneration Board

The also seeks to introduce another article in the constitution; 247A to provide for the establishment of a Salaries and Remuneration Board. This is to establish an independent central body that will be responsible for determining all salaries, allowances, and benefits of all public officers and other persons whose salaries and benefits are paid from the consolidated fund.  There has been outcry over discrepancies and unfairness in the salaries and remuneration of public officers. Many say this was long overdue.

Dan Wandera Ogalo (Opposition lawyer)

Ogalo says although this might have been put there to divert attention from electoral reforms but it is a welcome and important amendment.

“It is not fair for Musisi to earn 40 million while a professor or medical doctor earns three million,” Ogalo said.

Wilson Owere (Workers Union)

But the Chairman General of the National Organisation of Trade Unions (NOTU), Usher Wilson Owere, says this amendment will not help if the government does not introduce a minimum wage.

“You can’t harmonise salaries before you set a minimum wage,” he says, “what system of management is that where they begin from the bottom?”  Owere wants government to reorganise or even establish a full-fledged ministry of Labour and Employment if it wants to address the concerns of workers.

Amendment VI: On the Judiciary

The Bill also seeks to amend Article 131 (2) to adjust the composition of the Supreme Court while hearing constitutional appeals. The constitution requires that constitutional appeals be heard by the full bench of the Supreme Court of seven members.

The number of Supreme Court Judges was, however, raised on recommendations of parliament from seven to 11. Government wants the article amended to maintain that appeals from the constitutional court are heard by seven Judges of the Supreme Court and not the entire bench of 11 saying it will not be practical.

The Bill also seeks to amend Article 144 to increase the retirement age of Supreme Court judges raised from 70 to 75 years and High Court judges from 65 to 70 years.

The Bill will also see Clause 147 of the constitution amended to include other members of staff of the judiciary among the category of persons of whom the Judicial Service Commission (JSC) may review and make recommendations regarding the terms and conditions of service.

Another Article; 148A, will be introduced to provide for the JSC to appoint, discipline, and remove certain staff of the Judiciary as may be prescribed by parliament.

Currently all the staffs of the Judiciary who are not judicial officers are appointed by the Public Service Commission under Article 172.

Reactions:

Members of the Legal fraternity welcome this. They say this will strengthen the Independence of the Judiciary.

Busingye Kabumba (Law don)

“The proposal is problematic since it suggests that there are no young competent Ugandans to become judges”.

Dan Wandera Ogalo (Opposition lawyer)

“The amendment is a good idea. Uganda lets ladies and gentlemen with vast experience retire when they are still strong and able to serve.”

Elias Kisawuzi (Judiciary)

The Judiciary’s spokesperson, Elias Kisawuzi, said that the amendment will solve the problem of inadequate judges at all levels of the judiciary.

“In the legal profession, the older you grow the more knowledge and experience you get,” he said.

He adds that the judges that are retired in Uganda get deployed in other places because of the experience and knowledge they have.

“Why do you think justices like Katustsi, Zehurikize and Odoki have gotten employment in other places after retiring here?” he asked.

He also said that the amendment to have the JSC hire, fire, and discipline other workers of the judiciary not just judges will improve the Independence of the judiciary.

He said it has been a challenge for the leadership of the Judiciary to work with junior members of the staff when they are hired by a different body.  “You can’t control or discipline workers you don’t hire.”