Radio Rhino
UGANDA PEOPLES CONGRESS
NATIONAL SECRETARIAT
UGANDA HOUSE
KAMPALA
12 May 2005
Is the referendum necessary?
By Jimmy Akena
Before we can even ask whether the Referendum is a necessary evil, we must first ask other pertinent questions. Some of the fundamental questions surrounding the referendum which need urgent answers are:
- How and if the so-called Movement Political System was ever adopted?
- Is it correct to hold referenda on God given personal to holder fundamental rights and freedoms?
- Does the Movement Political System exist in Law and in fact?
- What would be the reasonable cut-off point for any such referenda?
Despite the arguments that the Movement Political system was "freely" adopted by the people of Uganda in a referendum held in the year 2000, I contend that this was not the case. Firstly, the Law under which the Referendum was supposedly held was flawed. The Movement position that the Supreme Court reversed the position of the Constitutional Court concerning the Referendum is not honest in that the Supreme Court upheld the Constitutional Court's position but then decided to uphold the result of the "null and void" Referendum seeing as this could lead to chaos, since the position of the Movement Government and subsequent actions done by the Movement Government would have been adversely affected. To put it simply the Supreme Court gave the Movement Government a small opening to correct their mistakes and ensure that Uganda is governed under the Rule of Law and not of men. Quite obviously the NRM Government have not listened.
Secondly, the so-called Movement System had long been imposed on the people of Uganda and that this was not done in accordance with the 1995 Constitution which demands that "the people of Uganda shall have the right to choose an adopt a political system of their choice through free and fair elections or referenda". The fact of the matter is that the Movement Political System was imposed by Legal Notice No. 1 of 1986 and has continued to monopolise the political space through means of violence, intimidation and deceit.
Legal Notice No. 1 of 1986 states that the National Resistance Army "took over the power of the Government of the Republic of Uganda and vested those powers in the National Resistance Council" and as I stand here today, I can categorically state without any fear of contradiction that those powers are yet to be returned to the people of Uganda to exercise in accordance with their conscience. At the time of taking these powers from the people of Uganda and vesting these powers in an organ of the NRM, which had no legal definition except in what can be called the NRM/NRA Constitution (attached) which described the National Resistance Council (NRC) as the "Legislative organ of the Revolution at National level". The Constitution of the NRM/NRA also laid out the principle objectives of the so-called "REVOLUTION" which included "THE ESTABLISHMENT, BY FORCE IF NECESSARY OF A ONE PARTY "POPULAR DEMOCRACY" IN UGANDA UNDER THE NRM". What has therefore happened in Uganda is that through a series of changes purely on a semantic level, we have gone from a one Party dictatorship, to a broad-based no-party "system" of governance and then to the Movement Political System, where the essence of the system of governance has only changed in name but not in substance.
Every dictatorship tries to usurp the power of the people through the enactment of bad or unjust laws. Therefore it is not sufficient to talk about the rule of law without qualifying or examining the said laws. Apartheid for example was a political system which accorded different treatment to different people according to race. The Apartheid Governments followed the bad laws which disenfranchised the majority of the citizens of South Africa. In the case of Uganda under the NRM, the bad laws were designed to give different treatment to citizens according to their political beliefs.
Since the NRM/NRA put in their Constitution as the primary objective the "REMOVAL OF UPC/OBOTE'S DICTATORSHIP BY FORCE OF ARMS" I would like to challenge any member of the NRM to single out a single law or Constitutional article which would qualify the 2nd UPC Administration to be described as a dictatorship which needed to be fought by force of arms. The whole ruse of supposedly writing a new Constitution without ever really pointing out what was wrong with the existing Constitution was in actual fact a major deception to entrench the NRM dictatorship when the only major Constitutional issue worth seriously looking into was Federalism.
In the elaborate and expensive pretence, the NRM went to great length supposedly compiling views of the citizens of Uganda in a situation where only the NRM was allowed to operate in the country. Their problems came about in trying to legalise their desires. Therefore in 1993 when the NRC enacted the Constituent Assembly Statute, the UPC immediately filed a case in the High Court challenging the Elections Rules. The main thrust of the case centred on Section 11(2) of the Elections Rules which stated:
The UPC challenged this section of the law as it was in direct contradiction to then existing Supreme Law of the Land i.e. the 1967 Constitution which stated:
"18. (1) Except with his own consent, no person shall be hindered in the enjoyment of his freedom of assembly and association, that is to say, his right to assemble freely and associate with other persons and in particular to form or belong to trade unions or other associations for the protection of his interests.
"(2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this article..."
Clearly the Constituent Assembly Statute sought to deny the citizen the right to participate in the governance of his/her country through political associations of his/her own choice. The High Court ruled that these suppressions of the citizen's fundamental rights were TEMPORARY and that the Constituent Assembly will address the suppressions. The Constituent Assembly never addressed them but instead entrenched suppression in the 1995 Constitution.
Another important point of note is that the Constituent Assembly Statute essentially gave the NRM about a third of the seats through specially elected representatives even before the first ballot was cast. The legal challenge against the Constituent Assembly Statute was only the first of many legal battles which have culminated in our being able to assemble here today and talk about some remaining vestiges of dictatorship in the laws of our land.
Interestingly, it would not have been legally possible to hold the referendum of 2000 nor the one planned for July under the 1967 Constitution because of a very important phrase preceding all the fundamental rights and freedoms which was removed in the 1995 Constitution. The phrase is that "Except with his own consent, no person shall be hindered in the enjoyment of his freedom of.." This vitally important phrase takes cognisance of the fact that fundamental rights and freedoms are personal to holder and cannot be subject to votes or whims of others but are to be exercised by the individual in accordance with individual's own consent.
After the ruse of making new Constitution for Uganda; the powers belonging to the people of Uganda to form their own Government which the NRA "took" and vested in the NRC were not returned to the people of Uganda but instead Article 263 of the 1995 Constitution provided that:
- Notwithstanding anything in this Constitution, the Government of the National Resistance Movement existing immediately before the coming into force of this Constitution, in this Chapter referred to as "the NRM Government" shall
- continue is office until a new government is elected in accordance with this constitution;
- as far as possible, exercise its functions in such a manner and with such modifications as are necessary to bring them into conformity with the provisions of this Constitution.
Article 271 of the 1995 Constitution then went further to state that:
- Notwithstanding anything the provisions of article 69 of the Constitution, the first presidential, parliamentary, local government and other public elections after the promulgation of this Constitution shall be held under the movement political system.
Where article 69 provides the mode of adopting a system of governance as "free and fair" elections or referenda and the operative words are free and fair.
In other words article 271 ensured that the 1996 'elections' were held under a 'system' where the "power of the Government of the Republic of Uganda" would remain vested in the hands of the 'Legislative organ of the NRM at national Level'. What followed was the recreation of the Legislative organ of the NRM at national level through the Movement Act 1997 which conscripted all members of Parliament, members of Local Government at District level and other public servants into the National organ of the NRM in total disregard to article 20(2) of the world's foremost authority on human and peoples rights, namely the UN Universal Declaration of Human Rights which states that "No person may be compelled to belong to an association." The Movement Act went further to create a state funded political Party whereby the National Political Commissar is mandated to submit a budget for the organs of the Movement to the Minister of Finance "in like manner as for a department of Government."
In making the Referendum and Other Provision Act 1999 the NRM failed to act within the provisions of the law and saw the Act nullified by the Constitutional Court. They immediately enacted another reminiscent to the recent reversal by the Legislative organ of the NRM at national level which then "deemed" the Act to have been passed at an earlier date in order to try and validate the Referendum of 2000.
Here below are some excerpts from Press reports on the Referendum of 2000:
Parliament passed this Bill in three hours to get around the damaging effects of the 1999 Referendum Act that had been nullified by the Constitutional Court because it was passed without a quorum.
Parliament then backdated the Referendum (Political Systems) Act 2000 to read that it became enforceable in July 1999, to make the referendum that was held on June 29, 2000 valid.
The backdating, Justice S.G Engwau said, was tantamount to amending the Constitution (Article 271) without following the law.
Justices G.M Okello, A.E.N. Mpagi Bahigeine, S.G Engwau, Amos Twinomujuni and C.N.B Kitumba concurred with the petitioners and ruled that Parliament did not follow the constitutionally required procedure while enacting the referendum law, making the whole process null and void.
"The Referendum (Political Systems) Act 2000 was null and void from the beginning, the referendum held on June 29 was invalid, no political system under article 69 was put in place," read the declarations by Twinomujuni.
The court also ruled that since Article 271 that provided for a mandatory referendum on the fourth year of the sixth Parliament was not complied with and has now expired - government can't cite Article 74 to justify holding another referendum because it (Article 74) has been rendered dormant.
"With this holding that no political system was ever put in place and that article 271 was never complied with, the holding of a referendum under article 74 no longer arises," Justice Twinomujuni ruled.
"It would be in fact unconstitutional to use a single penny of the tax payers money in order to change something that has no physical or legal existence," he ruled further.
The court also concurred with the petitioners that the 2000 Act hindered a free choice because it allowed only 16 days instead of two years for people to canvass support for a political system of their choice, because only one party had the chance to canvass for votes.
"The Act failed to pass the test of being an Act of Parliament. The people did not have a choice," Engwau's judgement read. The court also dismissed government's argument that the Act was repealed and is no longer a law and cannot be subject to challenge.
The NRM Government appealed to the Supreme Court where the Supreme Court did not reverse the judgement of the Constitutional Court but decided to uphold the result of the illegal referendum on the following concerns as raised by the then Minister of Justice and Constitutional Affairs as published on 29th June 2004:
The net effect of these actions is that the "power of the Government of the Republic of Uganda" is yet to be returned to their rightful owners since they were taken over on 26 January 1986 and rather than returning that power to its rightful owners the NRM is bent on compounding the problem with yet more bad law for another referendum.
I do not feel that it is right to take my God given, personal to holder right and freedom to participate in framing the destiny of my country put those rights to the vote of others. Would it be sensible to imagine that the right and freedom to freely breathe could be put on the vote, likewise all fundamental rights and freedoms should never be put to a vote.
In conclusion I am reminded of a conversation Abraham had with the Lord concerning the perversion that prevailed in Sodom and Gomorrah (Gen. 18:16-33). To paraphrase for Uganda's situation:
Would you really sweep away good and bad together? Suppose there are 50% of the citizens in the country who understand that rights and freedoms are granted by God, will you not grant the country respite because of the 50%? Far be it from You to leave the oppressor to oppress the poor and needy.
Suppose there are only 45% of the citizens of Uganda who believe in the inalienability of fundamental rights and freedoms, will you allow oppression and corruption to continue unabated because of a mere shortage of just 5%?
Suppose only 40% will withstand the intimidation and bribery?
Please do not get annoyed with me, suppose only 30% will stand to be counted?
And what if only 20% will stake their all for the freedom of the country?
Lord, please do not get angry with me, suppose only 10% can be found in the whole of Uganda?
For God and My Country.
APPENDIX
THE NRM/NRA REVOLUTION.
1. AIMS OF THE REVOLUTION
1.1 REMOVAL OF UPC/OBOTE'S DICTATORSHIP BY FORCE OF ARMS
1.2 THE ESTABLISHMENT, BY FORCE IF NECESSARY OF A ONE PARTY "POPULAR DEMOCRACY" IN UGANDA UNDER THE NRM.
2. ORGANS
2.1 NRM - POLITICAL WING OF THE REVOLUTION.
2.2 NRA - MILITARY WING OF THE REVOLUTION.
2.1 (a) NATIONAL RESISTANCE COUNCIL (NRC)
= LEGISLATIVE ORGAN OF THE REVOLUTION AT NATIONAL LEVEL
= MEMBERSHIP BY APPOINTMENT, ALTHOUGH INDIRECTLY ELECTED MEMBERS OF RC V MAY ALSO SIT IN THE NRC.
2.1 (b) NATIONAL RESISTANCE COMMITTEES (NRC'S)
= MINOR LEGISLATIVE ORGANS AT LOCAL LEVELS WITH:
* QUASI-LEGISLATIVE AND SECURITY POWERS.
* QUASI-JUDICIAL AND POLICE POWERS.
* QUASI-ADMINISTRATIVE POWERS.
AT VILLAGE RC I; PARISH RC II; COUNTY RC III; DISTRICT RC IV AND NATIONAL RC V.
2.2 (a) THE NATIONAL RESISTANCE ARMY (NRA) AND THE HIGH COMMAND.
= FIGHTS FOR AND DEFENDS THE REVOLUTION
AT ALL TIMES AND AT ALL COSTS
2.2 (b) NRA INTERNAL SECURITY ORGANISATION:
= GATHERS INTELLIGENCE AND INFORMS ON ALL INTERNAL OPPOSITION TO THE REVOLUTION.
2.2 (c) NRA EXTERNAL SECURITY ORGANISATION:
= GATHERS INTELLIGENCE AND INFORMS ON ALL EXTERNAL OPPOSITION TO THE REVOLUTION.
3. IDEOLOGY OF THE REVOLUTION
3.1 DEMOCRACY:
TO BE DEFINED AT ALL TIMES SOLELY BY NATIONAL RESISTANCE MOVEMENT AND THE HIGH COMMAND OF THE NATIONAL RESISTANCE ARMY.
HENCE "POPULAR DEMOCRACY" OR GRASSROOT DEMOCRACY STIPULATES THAT ELECTIONS TO RESISTANCE COMMITTEE (RC I) WILL BE BY ALL ELIGIBLE VOTERS AT THE VILLAGE LEVEL.
ELECTIONS TO RC II ONWARDS UP TO RC IV SHALL BE BY ELECTORAL COLLEGES AT EACH LEVEL.
ANY PERSONS ASPIRING TO BE MEMBERS OF THE RC AT LEVEL V (1.1 a) ABOVE MUST FIRST BE ELECTED TO RC I AND THEN PROGRESSIVELY THROUGH ALL THE OTHER INTERVENING STAGES.
IN ADDITION THEY MUST BE RESIDENTS AT PARTICULAR RC VILLAGES.
EVEN THEN, ANY PERSON ELECTED TO RC I, RC II, RC III AND RC IV CAN STILL BE DISQUALIFIED BY THE MINISTER OF LOCAL GOVERNMENT TO SIT AS A MEMBER OF THAT BODY.
3.2 SOCIAL POLICY:
POLICIES REGARDING SUCH MATTERS AS HUMAN RIGHTS, SOCIAL, POLITICAL, RELIGIOUS ETC ETC WILL BE DETERMINED AND FORMULATED SOLELY BY THE NRM AND THE HIGH COMMAND OF NRA. SUCH POLICIES WILL ULTIMATELY BE PASSED BY NRC AND ENFORCED BY NRA.
3.3 POLITICAL PARTIES AND/OR MOVEMENTS:
ONLY NRM IS ALLOWED TO OPERATE IN THE COUNTRY SUCH THAT THE OTHER POLITICAL PARTIES, I.E., UPC, DP, CP, AND NLP WILL CEASE TO EXIST AS REQUIRED BY THE REVOLUTION.
4. PROPAGATION OF THE REVOLUTION AND ITS IDEOLOGY:
4.1 SCHOOLS OF POLITICAL EDUCATION.
4.2 GOVERNMENT MASS MEDIA:
PRINT MEDIA
RADIO
TELEVISION AND OTHERS.
4.3 OTHER ORGANS OF THE REVOLUTION
e.g., RC'S, NRC, NRA, CADRES, ETC
5. ADMINISTRATION OF THE REVOLUTION:
5.1 DISTRICT ADMINISTRATOR (DA) AND STAFF.
5.2 NRA DISTRICT COMMANDER