Jury still out as Mao ponders justice reform

After taking over the Justice and Constitutional Affairs docket on Tuesday, Mr Norbert Mao reiterated promises to deliver a constitutional review commission, and a truth and reconciliation commission that will lead to a peaceful transfer of power. However, as Derrick Kiyonga writes, critics say there’s no constitutional order to salvage.

Democratic Party (DP) president-general Norbert Mao has asked to be judged on two planks after taking over the Justice and Constitutional Affairs docket in President Museveni’s Cabinet.

Mr Mao, who took the oath on Tuesday before assuming his seat in the House as an Ex-Officio, has reiterated promises to deliver a constitutional review commission (CRC), and a truth and reconciliation commission that will lead to a peaceful transfer of power.

Both deliverables are detailed in a 42-point cooperation agreement Mr Mao entered into with Mr Museveni and his National Resistance Movement (NRM) party on July 20.

“The Minister of Justice and Constitutional Affairs will be the lead minister for coordinating the national dialogue and the whole of government response on constitutional reforms with the mandate to coordinate budget proposals in the justice law and order sector,” Section 10 of the pact reads. 

Mr Mao, who keeps insisting he can juggle Cabinet duties with those of the office of the DP president-general, has laid out what is essentially a pacifist vision.

“Taking over this office is based on two things: The aims of the DP, the party that I lead, and secondly, the agreement we signed with NRM,” Mr Mao said at a media briefing organised at the Ministry of Justice and Constitutional Affairs on July 29, adding, “We are going to look into rehabilitating the Constitution and also soliciting for views agreeable to Ugandans. We also want to look into the reconciliation process where we should repent and forgive each other as Ugandans.”

Although Mr Mao believes there’s a constitutional order to salvage, critics believe otherwise.

“There is no operational Constitution in Uganda,” Mr Peter Walubiri, a constitutional law expert, told Saturday Monitor matter-of-factly, adding, “Even the little that survives is not allowed to work.”

Mr Walubiri proceeded to note: “The Judiciary is supposed to be independent; it’s not independent. There’s a very clear bill of rights—basic things such as producing suspects in court within 48 hours don’t work. So, the whole political process of consensus broke down. There’s nothing to review.”

Illusory promise

The 1995 Constitution was put in place under the auspices of the NRM’s 10-point programme. Although well intentioned, some observers reckon it suffered a stillbirth. 

“I think it is fair to say the 1995 Constitution is essentially an illusion. The illusion begins right from the first Article, which rather leads us to believe that ‘all power belongs to the people, who shall exercise their sovereignty in accordance with this Constitution’ and runs until the very last provision of the document,” Mr Kabumba Busingye, a senior lecturer at Makerere University, wrote in a 2012 paper, adding. “The simple and unadulterated truth is that for a long time in our history, this has not been the case—and it is certainly not the case at present.” 

Mr Busingye holds that contrary to what the 1995 Constitution says, “all power belongs to the president, who exercises his sovereignty through the army.” He adds that “this is both the overarching and omnipresent truth of our constitutional age and also the source of the big lie that underlines the 1995 Constitution. He notes that “the gun and the capacity for, and the ever-present threat of, the use of military force by the Executive that currently overshadows Parliament and the Judiciary, and creates the façade of democracy within which raw and unmitigated political power is exercised by an increasingly narrow group of people.” 

First crack at review

It is unclear when Mr Mao is going to constitute the CRC, and which terms of reference he will operate under.

The Justice and Constitutional Affairs minister’s aides have, however, pointed out a number of areas that will be explored.

“Since we returned to multiparty dispensation, [former Opposition leader, Dr Kizza] Besigye has gone to court twice. [Former prime minister] Amama Mbabazi has gone to court once, and all you know is the Supreme Court directed that there should be a constitutional review,” DP secretary general Gerald Siranda said in an interview, adding, “You know after every 10 years, we are supposed to do a constitutional review to look at special interest groups, which has women, army and all of those. That review has never been done.”

Dr Siranda was alluding to electoral reforms the Supreme Court recommended be instituted to guarantee free and fair elections. They included extending the filing and determination period of presidential election petitions to 60 days to enable the concerned parties and court to adequately prepare and present their case, regulating public officials in elections, punishment of media houses that refuse to grant equal airtime to all presidential candidates, and prohibition of donations during elections.

The counsel has been ignored. This isn’t a first, though.

“In June 2004, the Judiciary was forcefully reminded of this when, after the Court of Appeal forgot its place in this ‘democracy’ and declared invalid the Referendum (Political Systems) Act of 2000, an angry Museveni informed them and the nation at large that the ‘major work for the judges is to settle chicken and goat theft cases but not determining the country’s destiny,” Mr Kabumba wrote in his 2012 paper.

Set against this history, Mr Mao appears to have his work cut out. This isn’t the first time Mr Museveni’s government is instituting a CRC. Back in November 2001, under the leadership of Prof Fredrick Ssempebwa, a DP member, a CRC put the Constitution—then barely six years—under the microscope. Dr Besigye had months before mounted a serious challenge against Mr Museveni in the 2001 General Election.

“In the first instance, the commission was established in the heat of election campaigns. Secondly, President Museveni’s chief rival in that battle—Rtd Col Kizza Besigye—had stated that one of his first goals would be to undertake a review of the Constitution in order to address the many issues that had not been comprehensively dealt with by the [Constituent Assembly], including the formation of government, and the issue of federal,” Mr Ronald Naluwairo and Mr Isaac Bakayana—who lecture at Makerere University’s Law School—wrote in their research paper titled ‘Buganda’s quest for Federal and the Right to Self Determination: A reassessment.’    

Term limits saga

The terms of reference of the Prof Ssempebwa commission were to review certain specific areas of the Constitution relating to civil and political rights; socio-economic rights; the relationship between the three arms of government; and democracy and good governance.

By 2003, the commission had gathered the views of about 50,000 Ugandans on many issues, including the evaluation system of the decentralisation system provided under the Constitution and considering whether federalism should be introduced where required.   

But before the commission could release its report, the ruling NRM government was preparing to amend the Constitution. The process to remove the two-term limits—ostensibly to give Mr Museveni the green light to rule beyond 2006—began in earnest.

“By that time, we had almost concluded our consultation of the people. So, we couldn’t get a reaction from the people about the official proposal. The proposal was also made by the government after we had concluded. So, we don’t have a sizable sample on this issue to go by,” Prof Ssempebwa said back then. 

Still, at some point during the hearings, delegations from districts hovered around the commission. They demanded that Article 105 (on presidential term limits) be amended.

Initially, the matter caused divisions within the commission. An agreement to keep thoughts on term limits out of the report did not last long because one of the commissioners leaked a draft report to some officials within the Movement secretariat. The secretariat swung into action and accelerated its proposals to the commission, which included reviewing how Article 105 could be amended. 

Mr Amama Mbabazi, the then Security minister, is said to have been among the NRM lackeys, who reportedly applied pressure on a section of NRM-leaning commissioners. With NRM exerting pressure, it was just a matter of time before the commission yielded.

Eventually, as per the final report, it was recommended that the issue of presidential term limits “be referred to a decision of the people through a referendum.” Prof Ssempebwa and another commissioner—Sam Owori—distanced themselves from the report, particularly the recommendation to review the presidential term limits, and authored a dissenting report.

“Some of us stood our ground and said no, but you know how the matter ended,” Ssempebwa later told The Weekly Observer.

Doubting Thomases

The matter didn’t go to the referendum as the majority report of the commission had been recommended since the NRM had tabled an omnibus constitution amendment Bill in early 2004. The Bill sought to amend 114 articles, including Article 105 (2). And on July 12, 2005, the House prodigiously supported the pitch to lift presidential term limits. This left many questioning the essence of the constitutional review commission.   

“Mr Mao hasn’t come to do justice nor is he expected to repair any cracks in or supply new vigour to our decadent constitutional affairs,”  Mr Isaac Kimaze Ssemakadde, who runs the Kampala-based democracy and human rights watchdog Legal Brains Trust (LBT), said in an interview, adding, “To the contrary, like the biblical thief in John 10:10 that comes to steal, kill and destroy, Mr Mao has come to help the junta execute the most unjust and unconstitutional affairs, as we shall soon realise.”

At a dinner party held on July 29 to congratulate Mr Mao on his new ministerial appointment, Mr Fred Mukasa Mbidde—DP’s vice president (Buganda)—scoffed at critics like Mr Ssemakadde.

“We know why the public has behaved the way it has—the smaller public. It’s because of the low relative political maturity of the masses,” Mr Mbidde said.

At the same party, Mr Mao described the pact he made with Mr Museveni as “an institutional ladder” that allows “one who wants to go on top can go nicely and peacefully.” He added that the same ladder allows “one who has finished his job up [to] come down also in an orderly fashion.”

Dr Siranda, who was also at the party, told Saturday Monitor in an interview that the work to be done is as vast as it is consequential.

“We must look at the Political Party and Organisations Act, which needs an overhaul; look at the issues of succession…when you look at the Constitution, many things have changed,” he said, adding, “We must review it and have a Constitution that will serve us for a period of time without going back for amendments…We actually think there should be a referendum to entrench certain things such that they can’t easily be changed to suit individual interests.”

Work cut out

With terms limits and age limits removed from the Constitution, it’s unclear which provisions Mr Mao’s camp wants to entrench even before the CRC is put in place.  

“The civil society, the Opposition, and all sober Ugandans have been urging government to engage the Opposition to engage the polity in Uganda to have dialogue because there is no Constitution in operation,” Mr Walubiri said, adding, “Everything centres around the President. Independent bodies like the Judicial Service Commission died a long time ago. There’s nothing that works constitutionally, so there is nothing to review really.”

On attempts at having a national dialogue, Mr Walubiri said thus: “Mr Mao is trying to justify why he was given a job. He is just justifying his salary. When a job seeker goes for an interview, they say they will do a good job even if their intention is to just get a salary.”

There have been attempts to have the Opposition dialogue with Mr Museveni but all have flopped. For instance, in 2011, following walk-to-work protests in reaction to inflationary pressures, veteran journalists Andrew Mwenda and Mr Conrad Nkutu attempted to get Mr Museveni and Dr Besigye to have round-table talks. They, however, suffered a stillbirth.

“President Museveni will not allow Mr Mao, even if Mr Mao had good intentions, to do anything constructive. I’m not saying Mr Mao has good intentions, anyway,” Mr Walubiri said, adding that Mr Mao “has formally accepted to come out in the open and work with President Museveni [who] can’t allow a genuine constitutional review to get him out of office.”   

Eyes on POMA

One specific law that Mr Mao wants to reform is the Public Order Management Act (POMA). The law continues to be used by police to disperse Opposition rallies. 

“The law must have regulations and those regulations interpret the law, but what we have right now is that the law has no regulations so the police do whatever they wants,” Mr Mao said as he received the instruments of power for his new office on July 29. 

The most contentious clause of POMA is Section 8, which defines a public meeting as a gathering of two or more people. Every organiser is consequently required to fill a form at a police station in which their name, physical address, postal address, immediate contact, occupation, and age is captured.

It was struck down by the Constitutional Court on grounds that it’s against the key tenets of democracy.

“All efforts must be made by all arms of government to protect this young constitutional democracy. The enactment of Section 8 of POMA by the Legislature following this court’s decision striking down a similar provision in the Police Act was a blatant attempt at disregarding the checks on legislative powers,” Justice Chebrion Barishaki warned in his lead judgment in March 2020. 

Dissatisfied, the office of the Attorney General appealed to the Supreme Court to have Section 8 reinstated. Judgment is currently pending.

“We have this law called the Public Order Management Act. That law has to have regulations under it. Those regulations are supposed to interpret the law,” Mr Mao said on July 29, adding, “Currently, regulations or the statutory instrument are nonexistent. So, the police operate as they deem fit and yet we have a draft.”

Mr Isaac Ssemakadde, who of Legal Brains Trust remains unconvinced. He concludes thus: “We should not expect anything new or transformative from Justice Minister Mao’s highly trumpeted national dialogue and other pacifist nonsense that he is lately tweeting about.” 

What some stakeholders say...

Norbert Mao, Justice Minister

Taking over this office is based on two things; the aims of DP, and the agreement we signed with NRM. We are going to look into rehabilitating the Constitution and also soliciting for views agreeable to Ugandans. We also want to look into the reconciliation process where we should repent and forgive each other as Ugandans.”

Kabumba Busingye, Law don

I think it is fair to say the 1995 Constitution is essentially an illusion. The illusion begins right from the first Article, which rather leads us to believe that ‘all power belongs to the people, who shall exercise their sovereignty in accordance with this Constitution’ and runs until the very last provision of the document.”

Gerald Siranda, DP secretary general  

Since we returned to multiparty dispensation, [former Opposition leader, Dr Kizza] Besigye has gone to court twice. [Former prime minister] Amama Mbabazi has gone to court once, and you all know is the Supreme Court directed that there should be a constitutional review.”

Isaac Ssemakadde, lawyer

Mao hasn’t come to do justice nor is he expected to repair any cracks in or supply new vigour to our decadent constitutional affairs. To the contrary, like the biblical thief in John 10:10 that comes to steal, kill and destroy, Mao has come to help the junta execute the most unjust and unconstitutional affairs, as we shall soon realise.’’

Peter Walubiri, lawyer

Everything centres on the President. Independent bodies like the Judicial Service Commission died a long time ago. There’s nothing that works constitutionally, so there is nothing to review really. Mao is trying to justify why he was given a job. Mr Museveni will not allow Mao, even if Mao had good intentions, to do anything constructive.’’