In Summary

Go beyond prescription. A good constitution must account for phenomena within its time and domain in the simplest terms possible and with the fewest assumptions to allow for flexibility. It should go beyond prescription to providing for the dynamics of a changing environment

A renowned playwright, who is abundantly gifted, contrived titles for the Ebonies’ popular plays These Things Happen, and That’s Life Mwattu. Apart from being hilarious, they were instructive. They aroused a sense of realism in the sample audience and population.

It is the contemporary constitutional dynamics that reminded me of another of such plays with the cryptic title, Conundrum; a term which until now, was absent in my English language lexicon. When I looked it up I found that it meant: “A riddle whose answer involves a pun; a question or problem having only a conjectural answer; and an intricate and difficult problem”.

One wonders which of the above best describes Uganda’s Constitutions! Interpretations of Uganda’s constitutional ‘conundrums’ have sometimes been skewed towards the interests of revved-up political and military actors. The 1962 Constitution was abrogated by Dr Milton Obote in 1966. With Mig-21 fighter planes breaking the sound barrier over Parliament, it was replaced with another in 1967. Gen Idi Amin’s military junta abolished it in 1971.

The 1995 Constitution has been amended, re-amended by Parliament many times. Combined with self-similar sundry statutory instruments and the ‘Mbale Judgements’, these have rendered generic provisions useless, but does not mean constitutions cannot or shouldn’t be amended. The crucial question is how, by whom, for what purpose and for whose benefit? After so much tampering, what percentage of the original remains? Hasn’t it reached its sell-by-date?

In my opinion, the process of forging a new socio-economic political contract; preceded by national dialogue, incorporation of decisions with a constitutional dimension that will be made, being crafted into a draft constitution, a referendum on the key provisions and promulgation of a new constitution; should have commenced yesterday!

A good constitution must account for phenomena within its time and domain in the simplest terms possible and with the fewest assumptions to allow for flexibility. It should go beyond prescription to providing for the dynamics of a changing environment. It should have provisions that anticipate political phenomena beyond those for which it is designed.

The 1995 Constitution was designed to prevent recursion of dictatorship and mayhem, which characterised the terrifying times of the 1970s and early 1980s. Reckless change is risky and can be harmful but blind conservatism is even more dangerous. Frequent constitutional changes lead to the misfortune of crushing under the weight of complexity based on anomalous and biased partisan assumptions. A constitutional amendment should offer good grounds for believing that the prediction which a provision implied might occur under specified conditions. The citizens of this country desire legislation to conform to public opinion; not public opinion to yield to peremptory legislation.
In 1787, the US Congress approved a proposed Convention to amend the Articles of Confederation. The 14th Amendment, which reaffirmed the freedoms of the Bill of Rights, was ratified in 1868. In subsequent years, a few other amendments have been added and expeditiously interpreted by the US Supreme Court.
Whereas the Uganda constitutional disputes give the impression of a conundrum, they are not inscrutable. It is every citizen’s constitutional right to petition for interpretation.

Prof Mahmood Mamdani’s analogy of using an epidemiological approach on the importance of research, is applicable to rushing a solution to constitutional conundrums. “There are two kinds of diseases; the eradicable ones like sleeping sickness or smallpox, and the ones you cannot eradicate such as yellow fever. You cannot eradicate a challenge; you manage it,” the professor contends. Resort to the Courts of Law is the civilised way of dealing with the latter.

Rather than force people into a single absolute vision about what needs to be done, Ugandans should have the right and freedom of access to many visions and truths. Isn’t the trap of knowing the truth bigger than that of ignorance? Irrationally held truths can be more harmful than reasoned legal errors. Truth is neither pure nor simple.

Mr Baligidde lectures at Uganda Martyrs University-Nkozi.