THE CONTRADICTIONS AND RISKS OF RUNING A COUNTRY ON AN UNWRITTEN CONSTITUTION
I first encountered issues to do with constitutional matters when I read Prof George Kanyeihamba’s book, titled The Rule of Law and Constitutionalism in Uganda. In those pages, he narrates how Uganda was plunged into a constitutional crisis resulting mostly from the personal egos and superiority complex of President Sir Edward Fredrick Luwangula-Walugembe Muteesa II on one hand and the then Prime Minister Apollo Milton Obote.
The more I read, the more I was indoctrinated by the Ugandan politics of the time. But one thing that was very central was that Prof Kanyeihamba seemed to favor the then Prime Minister Milton Obote. Later on I learnt from a close senior colleague that like most Ugandans outside Buganda, Prof Kanyeihamba was a UPC cadre complete with republican ideology deeply imbedded in him!
But his views regarding the constitutional crisis somehow managed to shape my initial – tentative understanding of the history of constitutionalism in Uganda. We shall get to that later… Similarly, in the recent weeks the Britons have bumped into some sort of constitutional crisis resulting from the controversial referendum that saw their citizens vote to exit the European Union in what has come to be known as the Brexit.
However, the outgoing Prime Minister Theresa May failed to actualize the Brexit without a deal, which consequentially saw her lose office, paving way for a flamboyant new Premier Boris Johnson. But it later came to light that although the Britons indeed voted to exit the European Union family, they did so out of ignorance because it’s alleged that they had not internalized the outcomes and practical consequences of the Brexit referendum!
It later emerged that the British Parliament started to engage in some form of Ping-Pong and back and forth arguments on the modalities of the Brexit itself. That’s when the issue of an exit, with or without a deal, emerged creating a very hard time for Theresa May who was forced to vacate power.
The Legal Dynamics
When Boris came in recently his first decision was to suspend Parliament. The Queen was the only remaining person remaining to assent to the suspension decision by John Boris. But the constitutional court has since overruled him (Boris) and insisted that a democratic country cannot entertain the suspension of an institution (Parliament) that embodies democracy itself.
Nonetheless, Boris Johnson also made a counter argument that the same constitution doesn’t forbid the suspension of Parliament. Ironically and paradoxically speaking, the British constitution is silent about all these issues of ‘how’ and ‘when’ to suspend Parliament! This means that the Britons have been operating on an unwritten Constitution.
The UK Constitution is not contained in a single code but principles have emerged over the centuries from statute, case law, political conventions, bye-laws and social consensus… Therefore it so happens that most of what is considered ‘constitutional’ is gathered from various sources and not one like we have in Uganda, where most of the issues of governance are guided by the 1995 constitution.
In fact when you read Prof Kanyeihamba’s book you realize that some of the issues which led to the fallout between President Muteesa and Ugandan Premier Obote were not written in the Constitution.
Although the issue of the lost Counties of Bugangaizi and Buyaga were central in the conflict and fallout between the two erstwhile allies-turned foes were provided for by the 1962 Constitution, the other issues that eroded their relationship were not catered for in writing. You might consider this to be trivial but it’s a fact that one of the contentious constitutional issues of the 60s was in regard to political hierarchy.
Although President Muteesa was head of State, Prime Minister Obote was the person with the executive powers. This led to confusion in governance issues to an extent of bickering as to whose portrait was to be placed in public offices. Since Obote was the executive Prime Minister, his portrait was the one that dominated public offices to the chagrin of President Muteesa.
But there is another interesting issue which emerged in 2005 in the advent of the amendment of the term limits on the Ugandan Presidency. At that time, we came to learn that although the American constitution had nothing written in regard to term limits, all American Presidents who have served since their war of independence in 1776 (apart from Theodore Roosevelt who served four terms due to circumstances to do with war and the great depression), all managed to serve only two terms!
The first American President George Washington actually served one term and vacated power, mostly on account of his advanced age (he was in his late 70s). The subsequent American Presidents then took turns to reign for two four-year terms with the exception of Theodore Roosevelt alone.
So when it came to Uganda’s case, we had a strictly written constitution in 1995 that a Ugandan President had to serve two five-year terms and handover to another leader! But the problem has been due to the fact that the same constitution has always created a scenario for its own amendment. This has made it appear practically a document without the certainty value that it should have.
This results mostly from the fact that for a constitution to be respected as a durable document, it must be allowed to be tested by emerging events, circumstances and time. The 1995 constitution has neither allowed most of the amended provisions (especially the term limits and age limits) to be tested because they were amended immediately when time came for them to be tested.
This makes the case for the unwritten constitution more compelling because it creates space for extra discussion. It makes those who wrote their constitutions but ended up amending then look like jokers. It makes those with unwritten constitutions look smarter. All in all, although the UK experience has proved to us that having an unwritten constitution is not necessarily sustainable in the long run, it has also given us another debate to ponder about.
We should expect this debate to reign for a very long time to come. But it leaves us with the question as to the probability for an African country to run on an unwritten constitution? Why? Because we are only talking about America and UK with unwritten Constitutions and not any other country from any other continent.
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