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To Amend or Not Amend the Constitution? [opinion]

The government of President Museveni is once again plotting to amend the 1995 Constitution, less than ten years after sweeping changes were undertaken in 20045.

As I noted last week, former Vice President Gilbert Bukenya, who now wants to “save” Uganda from the NRM misrule, was the key architect of the 20045 amendments. A national Constitution is supposed to be a collection of broad provisions that stand the test of time in guiding the management and administration of a country. To frequently change the Constitution suggests something fundamentally wrong.

There are many potential sources of frequent constitutional changes, but two key ones are particularly worth highlighting here: the flawed content of the Constitution-text itself and the nature of the country’s politics. I will take one in turn.

First, it could be that the framers of the 1995 Constitution lacked strategic foresight and socio-political imagination such that crucial provisions were either left out or not properly stipulated.

In other words, the people who drafted the text, those who reviewed it, those who debated and passed the final document were all lacking in historical memory, creative thinking, and could not reason presciently. This is the line of reasoning that appeals to racist-oriented commentators such as journalist Timothy Kalyegira.

Apparently, as a black race, we lack the capacity to think clearly and plan properly. The inadequacy of our ability to think with precision and plan with sophistication, the argument would go, is reflected in the shortcomings to be found in a national Constitution, thus necessitating frequent amendments.

This line of argumentation is always a dead end because it inevitably ends with a “so what” question. There is little value, if any, in diagnosing socio-political problems by focusing on the racial dimension.

It may as well be true that the black race is intellectually incapable of thinking creatively and planning strategically. But to overemphasize this point, assuming it’s even remotely plausible, is to engage in defeatism and fatalism. Pursuing this line of reasoning can only lead to further resignation and abdication of responsibility. Even more deleteriously, it is a cheap way to excuse those who abuse state power and public trust by not doing the right things and delivering the services required of them by the public.

The second source of an unstable and unpredictable constitutional order is political opportunism. This has been the story of post-independent Africa. To my understanding, it is the more persuasive explanation of frequent constitutional tinkering, meant to serve personal political ends. The distinguished Ugandan journalist, Dr Shaka Ssali, calls it “shifting constitutional goal-posts.”

Shifting constitutional goal-posts has been the trend across the African continent every time an African ruler is about to concede a “political goal.” The one African ruler now at the forefront of manipulating the national Constitution to rule perpetually is our own President Yoweri Museveni.

For many observers of Ugandan politics, the current clamour for constitutional amendments, ironically engineered by the opposition and civil society groups, will ultimately climax in the removal of the age-limit provision, as General Museveni moves closer to reaching the constitutional age-limit of 75 years.

A Constitution should not be a static document that is rigidly and blindly kept sacred. It should be tweaked to meet the demands and aspirations of a country. In more than 200 years, the American Constitution has been amended only seventeen times. Yet then, for the most part, the amendments have been to expand the frontiers of freedom, rather than serve individual interests.

By contrast, constitutional amendments in Africa, and especially in Uganda, seek to serve the narrow interests of the rulers by granting them greater imperial powers and handing them the latitude to rule for life. The spirit of amending the Ugandan Constitution is not to engender constitutionalism but, rather, to undermine genuine constitutional governance and subordinate it to the whims and desires of General Museveni and his lackeys.

What we have witnessed in the last decades is a combination of outright and blatant violation of the Constitution and opportunistic amendments. The inevitable outcome is what Makerere University law Professor Joe Oloka-Onyango has aptly called “constituicide.” This means that the 1995 Constitution has been murdered in infancy, in the manner we speak of “infanticide,” or that its framers and the current rulers have committed constitutional suicide.

Given the extant political opportunism and self-seeking behaviour that defines the politics of our rulers, there is little value in pushing for amendments to the Constitution, however progressive and well-intentioned the suggested amendments may sound. This is what needs to be appreciated by opposition parties and civil society organisations.

Progressive amendments will be packaged along with regressive provisions as happened in 2005 when the return of multiparty politics was traded for removal of presidential term limits. Amending the Constitution, in and of itself, will not change our politics.

It is the change in the political modus operandi and the shift in balance of power in favour of progressive forces that will usher in a desirable and stable constitutional order. It is not a good Constitution that produces progressive politics it is progressive politics that makes possible a good Constitution.

The author is a PhD candidate in Political Science at Northwestern University, EvanstonChicago-USA.

Source : The Observer

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