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Draft Concept Paper on Convocation of a National Convention for Consensual Governance in Uganda: A B   03/10/2010  
Draft Concept Paper on Convocation of a National Convention for Consensual Governance in Uganda: A Brief Review
By Mubiru Musoke
Presented at a Conference on Okununula oBuganda
January 23, 2010
342 Longwood Avenue
Boston, Massachusetts

“Among the civil society there is a strong feeling that Uganda is increasingly degenerating into the chaos it was during the regimes of the 1966 and 1967 Constitutions. That the mood portrayed in the Preamble to the 1995 Constitution is reclaiming its previous position fast. That the “National Objectives and Directive Principles of State Policy” have long been abandoned and no longer influence management of the State. That the leaders no longer regard themselves as trustees for the people but as masters to whose generosity the population owes a living. That the most crucial of the fundamental rights are being more honored in breach than in observance. That a cloud of fear of sliding into past chaos and conflict hangs over the political terrain. That sovereignty of the people is being snatched away from them by the very people who incessantly sing it. That centralization of power is fast replacing the decentralization and devolution ordained in the Constitution. That the highly hyped authority of the people has turned into myth. True or false, the situation calls for investigation and, where necessary, correction, in order to prevent the grim prospect of the re-emergence of social strife highlighted in the Preamble to the Constitution, and to rescue the demise of the Directive Principles of State Policy enshrined in our Constitution. …” (Quoted from the “Draft Concept Paper on Convocation of a National Convention for Consensual Governance in Uganda,” pp. 25/6)

This is a brief review of the “Draft Concept Paper on Convocation of a National Convention for Consensual Governance in Uganda,” hereafter “draft concept paper.” The purpose of the review is to evaluate the content of the paper, critique its premises, explain its objectives and point out mistakes, errors or inadequacies, if any, and, finally, suggest improvements or additional arguments and programs conducive to consensual governance in Uganda.

The draft concept paper has two main objectives. First, it seeks to provide an exposition of the fundamentals of good governance. It does this by, first, analyzing the content of the National Objectives and Directive Principles of State Policy contained in the 1995 constitution. In addition it points out how the constitutional doctrines of supremacy of the constitution and sovereignty of the people can contribute to consensual Governance in Uganda. The draft concept paper explains how protection of human rights plays an important role in good governance. These, according to the draft concept paper, are the basic elements of good governance. Secondly, the draft concept paper argues that the enforcement of the basic elements of good governance by the judiciary, the rule of law, civil society and the electoral process are essential to good governance.

Both objectives of the draft concept paper are illustrated by the virtues and/or defects inherent in the four constitutions Uganda has had since independence, namely, the 1962 independence constitution, the “pigeon-hole” constitution of 1966, the “different lives or reincarnations” of 1967 constitution under the regimes of Obote I (1967-1971) Amin (1971-1979), UNLF (1979-1980), Obote II (1980-1985), Lutwa‟s Junta (1985-1986) and NRM (1986-1995) and the 1995 constitution as amended in 2005.

Of the four constitutions Uganda has had, according to the draft concept paper, only the 1962 constitution was legitimate. This is because of the manner in which it was made. The 1962 constitution was the result of the “consensus” of the stake holders from the 15 administrative units established by the 1962 constitution. The formula for determining the basic administrative unit under the 1962 constitution was cultural/linguistic complimented by the “dominant community” where more that one ethnicity existed and an economic viability test. The question which the draft concept paper does not answer, however, is whether the same formula used under the 1962 constitution is still viable, desirable or even applicable to the existing conditions in the country in order to create a new federal system.

A few examples from contemporary Uganda will suffice. In Kigezi you have Banyarwanda, Bahororo, Bakiga, Batwa and Bambuti. In the west around Mountain Rwenzori we now have two kingdoms of Toro and Obusinga bwa Rwenzururu. It may be helpful to remember that the Bakonzo and Bamba constituting the Obusinga bwa Rwenzururu waged a war of liberation from the Toro kingdom for some time. Will all these communities agree to have a single federal state? Similarly, in West Nile there are Alurs, Lugubaras, Madi, Nubians and other small minorities. In the east around Tororo there are many communities living together who are being manipulated by the NRM regime to create new districts and thereby sowing the seeds of disunity. The communities in this area are the Luos, Banyuri, Bagwere, Badama, Basamya, and others, mainly migrants from Bugisu and Teso.

Any one embarking on a federal project in Uganda must first deal with these issues raised by the formula for the basic/state unit in the federal system head on. The concept paper does not even attempt to analyze or try to resolve the reality of the issues posed by the 1962 formula of the basic administrative unit. These issues can be anticipated when the basic federal unit tries to enact its own constitution. For example, if Toro Kingdom and Obusinga bwa Rwenzururu find themselves in the same federal unit then a constitution for the basic federal unit uniting the two kingdoms in a single political entity will have to be drawn up. Hopefully social change has made it more likely for everybody in the area to see the world, and the politics of Uganda in particular, in a different light. It is important to bear in mind that the forces aimed at sabotaging federalism in Uganda are determined to use these factors to frustrate the federal system. They are already busy at work. Fortunately their open hypocrisy is undermining their cause as the case of Buganda illustrates.

In Buganda which is one of the most unified communities in Uganda we now hear rumblings in Nakasongola and Bugerere stirred up by devious political intrigues orchestrated from the top. One can, however, make a good argument, in contrast to the other areas described, that in Buganda the Baluli and Banyala are not in fact separate cultural/linguistic units since they speak the same language and belong to the same clans as the rest of the Baganda. The Baganda have undergone a long process of nation formation for centuries through which different ethnicities were assimilated into a single community which the enemies of federalism are trying to sabotage through subversion. The Baganda are not like the Banyankole or the Banyarwanda. Among the Banyankole there are clear differences between the Bahima and the Bairu. Similarly, the Banyarwanda can clearly distinguish between the Tutsis, the Hutus and Batwa.

In Baganda the story is very different. The Banyala and Baluli have been fully assimilated into Kiganda culture like many others were over the centuries. They do not occupy a separate territory. In fact, according to the census figures, the Baluli and Banyala constitute a tiny minority of less that 5% of the population within the Baganda communities they live in. The issue of their quest to secede from the Kingdom of Buganda is therefore ridiculous since they have no territory they exclusively occupy to claim as their own. Moreover, the issue, if it is genuine, can be democratically resolved by a referendum. That would be an example of the principle of consensual governance in practice.

The draft concept paper identifies one big defect in the 1962 constitution. “What it lacked,” it is argued, “was a specific provision allowing one community the freedom to move from the system of its first choice, federal, semi-federal, or unitary, to another system available, if that community so wished at any later stage.” (See p. 14) The only question that arises from the proposed solution in the draft concept paper is: To what extent was this proposal a practical political solution under the 1962 constitution, given the post-independence politics that was preoccupied with the centralization of political power in the name of “national unity” and winning the imaginary war against “imperialism” that echoed across the continent of Africa in the 1960s and the 1970s. Nkrumah in West Africa and Kenyatta, Nyerere and Obote in East Africa saw centralization of the administrative structure as a political necessity in order to secure their grip on political power. Therefore the suggested missing provision which would have been used to resolve the issue of restructuring the political system established by the 1962 constitution after independence is more theoretical that practical. Centralization of political power was not only political repression but also a part of the one-party political system which was incompatible with democracy and the very essence of democratic consensual governance.

There is one other suggestion made in the draft concept paper which seems impossible to implement. This is the “restoration” of the 1962 constitution. The draft concept paper cites as its authority Article 3(4) of the 1995 constitution which provides that Ugandans shall “do all in their power to restore this Constitution after it has been suspended, overthrown, abrogated or amended contrary to its provisions.”
First, the idea of using a provision in the 1995 constitution which is clearly characterized as “illegitimate” by the draft concept paper to “restore” the legitimate one of 1962 is ironical. But there are other more serious practical obstacles confronting the proposal. The obvious conclusion by this reviewer is that the Article of the 1995 constitution cited was misconstrued because it only refers to “this [1995] Constitution.” The provision in the 1995 constitution was not meant to apply to any other constitution abrogated in the past. That would not make any sense from a political perspective. Moreover, NRM is not a democratic regime. It thrives on the suppression of political freedom by denying the people freedom of assembly, association and speech. Its trademark politics is to arrest demonstrators, prosecute critics for sedition and charge the opposition leaders with treason.

The second obstacle in the draft concept paper is legal precedent. In 1966, in Ibingira’s Case, the High Court ruled—following Kelsen‟s hypothesis, and the East African Court approved the ruling of the High Court of Uganda—that the pigeon-hole constitution of 1966 was a valid constitution even though the manner in which it was enacted was irregular, or even unconstitutional. In fact, the court argued, the1966 pigeon-hole constitution “validly” nullified the 1962 constitution through a “revolutionary” process whose legality the court had no jurisdiction to question because it was not a legal issue but a political question. Courts in a democratic system are not allowed to adjudicate political questions because of the principle of separation of powers.
There have been other political developments on this front, however. The African Union adopted a policy a decade ago of non-recognition of regimes that come to power through military coups d'état. But this is hardly a policy one can rely on. The policy is hardly enforceable given what recently happened in Malagasy. And, in any case, the new AU policy is not retrospective and therefore cannot untangle historical knots caused by Obote‟s dictatorship in 1966.

Nevertheless, there is nothing impossible in politics. If the overwhelming number of people demand that the 1962 constitution should be restored it can be restored. But, realistically, that is a remote possibility. And in any case it will be a political process and not a legal process restoring the 1962 legitimate constitution. The political battle, however, will be a big one. It may be much easier to negotiate and make a new federal constitution than to try to restore the 1962 constitution—however legitimate it may be regarded by some people—which, after all, will need a lot of amendments to update it.

The draft concept paper, obviously, declares the 1966 and 1967 constitutions illegitimate. We do not have much to add to that conclusion. What is more interesting is the argument in the draft concept paper that the 1995 constitution is as illegitimate as the other two. The draft concept paper put forward four main arguments to support its thesis. The first is that the 1995 constitution was not the result of a consensus of the shareholders. The reason given is that the CA members were not delegates but largely “representatives” of NRM. The second reason is that the making of the 1995 constitution was based on political fraud. The draft concept paper points out that during the debate in the CA NRM denied being a political party when in fact is was. In addition the other parties were suppressed and therefore they did not participate effectively in the process to make their contribution consensual.

The third reason the draft concept paper gives is that the views of the people expressed in the Odoki Commission Report were completely ignored, especially the proposals on federalism. Lastly, the draft concept paper argues that the 1995 constitution was the result of the wishes of “a person whose directives must be followed, [and] has openly voiced his deep dislike for federalism” and “whatever semblance of democratic principles dotted the 1965 constitution was erased through the omnibus amendment of the Constitution in 2005.” (See p. 14)

However, after strongly castigating the 1995 constitution the draft concept paper warmly embraces its provisions known as “National Objectives and Directive Principles of State Policy.” These Directive Principles of State Policy articulate and amplify the “spirit” and “principles” that are supposed to guide the active application of the provisions of the constitution. For example, they urge the “promotion of national unity,” instilling a “culture of cooperation, understanding, appreciation, tolerance and respect,” among the people; they call upon citizens to provide “a peaceful, secure and stable political environment,” including respect of “cultural and customary values.”

Constitution-making in Africa in the 1990s tended to imitate trends in women‟s fashions. India was the first country to introduce the idea of National Objectives and Directive Principles of State Policy in its constitution. The reason was to give national direction to the wide diversity of its ethnicities and religions in the numerous federal state governments. In the 1980s Nigeria copied wholesale the Indian constitutional “fashion.” Almost every African constitution that was enacted in the 1990s in Africa, with the exception of South Africa, included a section on National Objectives and Directive Principles of State Policy—and they are almost all identical. The idea is neither original to Uganda nor indispensable as long as the doctrines of supremacy of the constitution, sovereignty of the people and political freedom are guaranteed and strictly enforced. These constitutional doctrines are the foundation for consensual governance which the draft concept paper seeks to promote. Without them there can be no democracy or consensual governance notwithstanding the content of the National Objectives and Directive Principles of State Policy.

Another proposal by the draft concept paper, which is directly related to the creation of the basic federal units we discussed earlier, is the idea of the national convention to draw up a new constitution for “consensual governance.” Surprisingly the idea of the national convention is justified on two apparently unrelated rationales. The first is the defunct Article 15 of the Uganda Peace Agreement for the Restoration of Peace to the Sovereign State of the Republic of Uganda of 1985, signed in Nairobi between NRM and Lutwa Junta. The agreement urged the convening of a “National Conference” to draw up a constitution. The draft concept paper seems to be based on a conviction that Article 15 of the defunct agreement between NRA and the Lutwa Junta is still a viable idea. The second is section XXIX(e) and (f) of the National Objectives and

Directive Principles of the 1995 constitution which encourages Ugandans “to foster national unity and live in harmony with others” and “to promote democracy and the rule of law.”

What is clearly lacking from this proposal by the draft concept paper but very fundamental to the idea of a national convention is the criteria for representation in the national convention. Having criticized the CA as a good example of a defective constitution-making process, because it consisted of representatives rather than delegates, the draft concept paper must clearly spell out the criteria for selecting legitimate delegates. Will these delegates be selected on the basis of ethnicity, territoriality, population size, a combination of all or some of these or other criteria? Are the ethnic groups going to be treated as equal sovereign entities in the federation or will the tests of “dominant community” and economic viability still apply? These questions need to be addressed squarely before the idea of the national convention becomes feasible and a reality.

The nagging question all along, however, is: What are these National Objectives and Directive Principles and why are they cited as authorities by the draft concept paper? The full answer to this question will be given when we deal with the relationship between political “values” and democracy. At this point let us confine ourselves to the critique of the draft concept paper directed at the 1995 constitution. The draft concept paper points out, correctly, that the NRM leaders are hypocrites. That is obviously true. “While professing to recognize cultural institutions for public consumption, no effort is being spared to fundamentally undermine them to extinction by employing intimidation, intrigue, bribery in all its variant forms and arm-twisting, together with deprivation of territorial integrity on which the cultures are built.” (See p. 18) The hypocrisy the draft concept paper is pointing out is in the contradiction of the “spirit” embodied in the National Objective and Directive Principle of State Policy spelt out in a specific section urging preservation of cultural objectives and customary values. (See section XXIV)

Similarly, the National Objective and Directive Principle of State Policy which requires accountability from the leaders is used as an illustration of the failure of NRM. “All lawful measures shall be taken to expose, combat and eradicate corruption and abuse or misuse of power by those holding political and other public offices.” (See Section XXVI) However, as the draft concept paper points out, “The disease [of corruption] is so pervading that there can be no hope of its cure unless it is attacked massively, quickly, mercilessly and right from the bottom. Corruption in Uganda is like rain. It comes from the top to bottom. Corruption in high place has assumed such proportions that it now amounts to brazen daylight-aggravated robbery. It has god fathers with the establishment. No good governance can succeed in such a situation. It is the worst source of abuse of

human rights and power.” (See pp. 19/20) The question is how one can “massively, quickly, mercilessly” attack corruption without democracy while the cause of corruption (NRM) is in power?
It is time to be not only honest but also knowledgeable about the notoriously popular subject of corruption. Corruption occurs in all political systems including democratic ones. That is why Prime Ministers like Silvio Berlusconi of Italy was indicted and prosecuted even while still in office. A former Mayor of Paris and Cabinet Minister was charged with corruption. A former US Vice President, John N. Mitchell, who served as Nixon‟s Attorney General first, was convicted and sent to jail for bribery in Virginia where he had been Governor. Many Ministers in Great Britain have resigned because of scandals. But in Kenya, Zimbabwe and Uganda such actions are unheard of. The only difference is that a democratic system controls corruption through the democratic process. The absence of democracy in Uganda is the cause of the failure to deal with it effectively. Democracy imposes penalties on a political party guilty of corruption. After the Richard Watergate scandal the electorate punished the Republicans for their political sins committed by Nixon and his clique.

In Africa corruption is also a symptom of the disease to be treated: political repression. There is corruption in all political systems as we have illustrated above. In democratic systems when corruption is revealed the head of the Department has to resign whether he was involved in the misdeed in question or not. The democratic principle used to fight corruption is called accountability. It is enforced by specific political and ethical values. However, for accountability to be enforced by the democratic process the electorate must be politically educated or enlightened. It must also be active in the electoral process requiring candidates to explain their policies. We shall come back to this point below.

The draft concept paper specifically identifies supremacy of the constitution and sovereignty of the people as important components of consensual governance. The doctrine of supremacy of the constitution was first pronounced by Chief Justice John Marshall of US in 1803 in the case of Marbury v Madison. Many African constitutions, including Uganda, have borrowed and adopted this doctrine. It is an important doctrine in enforcing and preserving democracy and protection of human rights. The 1995 constitution is specifically declared to be the supreme law in Article 2. When the constitution is the supreme law Parliament cannot make a law that is inconsistent with the constitution. That means that Parliament and the Executive branch are subordinate to the constitution as interpreted by the judiciary. Logically the people collectively become the sovereign.

Sovereignty of the people which is declared in Article 1 of the constitution is normally expressed through the ballot box in a free and fair electoral process. That is how the people who are sovereign can participate in controlling corruption. Unfortunately declaring the people to be sovereign under the constitution does not necessarily make them sovereign in political reality. There are several explanations for this situation. First, the ordinary people in Uganda do not understand or appreciate the power of the ballot box. To them governments come and go notwithstanding the ballot box. The ordinary people do not fully understand that governments are in power partly because they allow them to stay in power through their actions or inactions.

As the draft concept paper notes the “docility” of the people prevents them from being sovereign. Their docility prevents them from speaking out about the abuse of power and corruption in government. In fact sometimes the ordinary people do not understand that when the national treasury is looted it is their money collected as taxes from them that is looted. Instead they admire the “intelligence” of the thieves and end up praising them for their craftiness. With such attitudes how can one expect to control corruption through the electoral process? As the draft concept paper points out the people continue to tolerate bad situations without speaking out. (See pp. 24/25) To change that situation political education is essential and a prerequisite to full democratization of the political system regardless of whether you have National Objectives and Directive Principles of State policy enshrined in the constitution which bestows abstract sovereignty on the people.

Sadly what “docility” of the people means is that their sovereignty is confined to the constitutional provisions. It is not translated into political actions. Not only does the government in Uganda restrict the liberty to assemble and associate it does not tolerate criticism which it punishes severely using the repressive law of sedition. The only notable occasion on which the people stood up against government was when the Kabaka was denied his right to visit his people in Bugerere in September 9—12, 2009. The thousands who demonstrated, or later justifiably rioted, are in prison for attempting to assert their human rights. The situation calls for fundamental social change before the “docility” of the people is finally uprooted.
Second, the people of Uganda remain subservient to the whims of NRM executive branch because it promises what it cannot deliver such as the eradication of poverty but it is not held accountable for the perennial empty promises. Third, the NRM government corrupts the people by delivering new districts which drain the meager resources in the treasury. This type of politics compounds poverty and breeds more corruption at the lowest level. Ironically when the NRM argues that creation of new districts brings government closer to the people what it is actually means is bringing corruption closer to the people by involving more people in corruption with the creation of new economically unviable districts!

Both the supremacy of the constitution and the sovereignty of the people are practically meaningless to the people in Uganda today. One way to rectify the situation or break the vicious circle of corruption and dictatorship is to adopt a federal system of government whose basic units are autonomous and self-governing, that is, constitutionally insulated and placed beyond the control of the central government. The regional-tier system is therefore political fraud and a joke. Now you understand why NRM, and Museveni in particular, do not like a federal system of government in Uganda even though they sing the virtues of federalism at the regional level. Federalism takes way their autocratic power to control local government. Political dishonesty is not difficult to decipher or detect under these circumstances. If the people are sovereign at all they should deliver a clear message to all elected officials in the 2011 elections. Then I will believe in their sovereignty.

We must address the nature and function of human rights in society in light of the thesis of the draft concept paper. This, we believe, must be the core idea in the Draft Concept Paper on Convocation of a National Convention for Consensual Governance in Uganda. First, citing Article 20 of the 1995 constitution the draft concept paper points out what has been recognized by natural law philosophy for millennia: namely, that “Fundamental rights and freedoms of the individual are inherent and not granted by the state.” “This article sets out a universal truth that no one in authority ought to pride itself or expect to be thanked for granting freedom to the people. No. It is a duty and failure to do so is a criminal act.” (See p. 21) We totally agree. After all the Americans declared the same idea in 1776 and the movement to abolish slavery was founded and mobilized around the same theme, later to be followed by decolonization of Africa.
But why has it taken centuries for the majority of humanity to wake up to this reality, assuming they have? Members of NRM do not seem to embrace the idea of universal protection of „inherent” human rights, at least judged by their ideology and political deeds during the last quarter of a century. We reluctantly reach this conclusion in spite of the fact that NRM leadership participated in making the 1995 constitution. The whole process was a political strategy to institutionalize political repression as Articles 69—75 of the 1995 constitution clearly demonstrate. There was a strong belief, and probably confidence, that the NRM system would gradually take root by displacing other political parties so that NRM would in the end rule without opposition. The NRM political philosophy was certainly not compatible with democracy. The sectarianism charge was not honest and it has come back to bite the NRM leaders with a vengeance!
Cultures, political ideologies and religions, the contemporary jihadists who follow bin Laden‟s teaching being a good example, can teach and have taught in the past gospels contrary to the “universal truth” about human rights. Bin Laden‟s Jihadists believe that

killing innocent people identified by their leaders as “enemies” of Islam, or infidels, can be a passport to heaven where God himself rewards the killers with seven virgins—imagine God rewarding earthly pleasures in heaven to suicide bombers who kill innocent people on earth! Contorted logic is a trademark of distorted ideologies. For example, what reward in heaven awaits a woman who, like a man, detonates a suicide bomb on behalf of bin Laden? Certainly not seven virgins since bin Laden does not believe in lesbianism!

A man who recently short and killed an abortion doctor in US justified his action in a court of law by arguing that killing abortion doctors is “justified” because they “kill innocent lives” of the unborn. Apparently, according to him, killing a doctor who performs a lawful medical procedure is not “killing an innocent person!” The man was convicted by a jury for murder on January 27, 2010, in Wichita, Kansas, and sentenced to life in prison without parole by a judge the following day. It is not unusual for legal, moral and religious norms to conflict. In fact conflict between these norms is sometimes inevitable. It often signals a need for social change. The conflict also activates social change for the better in the long run because individual liberty guided by rule of law is the only rational arbiter in the process of social change. Otherwise some systems resort to repression as a solution to prevent inevitable change. This is one vital function of the protection of human rights. It helps the political system perform self-correction through social change. The examples cited above give us a nasty flavor of what an ideological distortion of social reality is. Let us go back to politics.

Some people still believe that human rights rhetoric is nothing more than political (ideological) rhetoric. This is not always true, however. When they came out of the bush NRM leaders sought to convince many gullible Ugandans and, surprisingly, some foreigners too, about the virtues of NRM ideology, that is, the suitability of a no-party regime in a society with no middle class. Many Ugandans, for example, mistakenly believed, due to the violent and bloody history of the country, that NRM would be the political organization that would bring political salvation to all Ugandans supposedly because NRM was not sectarian like the political parties. This, however, was a misinterpretation of history clevely designed to justify a no-party regime.

NRM, through its deceptive rhetoric, was naively assumed by many, some of whom now regret their mistake, to be a political force for peace and democracy in Uganda. Because NRM leaders did not believe in political parties they convinced the people that there can be such a thing as “democracy” without freedom, that is, democracy without rights to assemble, associate in political groups or political parties and speak freely, as one pleases. NRM leaders in their 10-point program pamphlet even committed political sacrilege by citing and associating NRM with Abraham Lincoln‟s famous description of democracy as “government of the people, by the people for the people.”

They shamelessly equated NRM with Lincoln‟s dictum! It was NRM political fraud at its best.
NRM rhetoric was obviously empty if not deliberately deceptive. The rationalization of “broad-based” government in which no right to dissent was enforced and the right to associate outside the NRM prohibited under Article 73 of the 1995 constitution were contrary to democratic principles. Violation of human rights was justified and enacted in the constitution by NRM blind, distorted ideology. The 1995 constitution which institutionalized the NRM system was not only a political monstrosity it was a legalized and systematic violation of human rights on the same lines as the apartheid system which claimed its legitimacy through legality imposed by a minority on the majority or the Soviet “dictatorship of the proletariat” enforced by the repressive Communist Party. All these ideologies were incompatible with democracy but portrayed themselves as “democratic.” Some people believed in them and staunchly, if not blindly, supported their outrageous causes.

The fact that “safe houses” still exist in Uganda is either beyond comprehension or concrete proof that ideologies are very cunning in distorting the idea of human rights. The leaders of NRM justify the necessity of “safe houses” on exactly the same grounds Amin justified the need and brutality of the “State Research Bureau” and the “National Safety Unit” rampant operatives or Obote sanctioned the need for the illegalities committed by his thugs in NASA.

Violation of human rights is not just a violation of international law but it is a good example of inhumanity sometimes rationalized as “state security.” Even the Bush administration justified Guantanamo as a “legal weapon” against terrorism. Remember that prisoners of war are expected to be treated humanely no matter what the causes of war may have been. Calling them “enemy combatants” is a lame excuse designed to sanitize and justify violation of human rights. There are no exceptions to the rule protecting war prisoners or else it would be no rule at all given the brutalities committed in combat.
This distortion of political reality extends to many political systems. In a political system in Uganda where NRM regime is in power and where there is no active war why should political rivals be denied their human rights and tortured in “safe houses?” Logic alone does not seem to be sufficient to explain or answer these questions. Science has recently opened a small window through which we can peep and try to understand or appreciate the function of human rights without ideological, cultural and religious blinders or distortions.
A scientific experiment was carried out on otters. One group of otters was allowed free access to water any time they desired. Another group was denied the otter “right” to

water, even though they could see the water they so desperately desired enjoy nearby. Otters naturally thrive and feel “happy” in water. So it is inhumane to deny them access to water. It is cruel to deprive them of their “natural” habitat or “inherent right.” The Otters deprived of the “right” to water got depressed, distressed, their immunity declined and they became irritable and fought nasty battles with each other even though it was human beings who deprived them of the water. Many otters deprived of “freedom” to enjoy water got sick and died prematurely. The moral of the story translates into the value of freedom and self-determination. If solitary animals are injured by deprivation of “freedom” it is obvious that people who live in social groups with culture and political institutions need freedom to interact and communicate with each other.

Freedom has a vital role in sustaining life and nourishing the health it depends on. Not just for otters but people too. Freedom is part of health, if not a source of “happiness,” desired by all living creatures. The US Declaration of independence proclaimed certain “truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness.” To dictators freedom is a threat and certainly a source of insecurity. Freedom belongs to them exclusively. They monopolize it and suppress it for the others who disagree with them. However, for all human beings freedom is a necessity that facilitates a satisfactory and peaceful life. Moreover, protecting all other human rights is predicated on protecting political freedom.

We are now ready to briefly comment on the subject of federalism and political values. To some extent the draft concept paper suffers from an ambiguity between federalism and democracy. These two concepts should be clearly distinguished. Federalism is a political structure first introduced by the US constitution in 1787. Federalism, however, has no inherent components of democracy. Therefore we can have a democratic federal system and an oppressive federal system. The latter prevailed under the Soviet system. The former exists under the US and Switzerland federal systems. The difference between the later and the former is the presence or absence of political freedom, as the case may be. We must emphasize that by political freedom we mean three components: namely, the liberty to freely assemble, associate and speak or express one-self on matters political.

Federalism as a political structure reinforced with political freedom maximizes the enjoyment of the right to self-determination which is protected under international law. The otters that were denied access to water were deprived of the right to self-determination or fully enjoy their natural liberty as otters. Unlike animals people have a right to self-determination under international law. It is a human right. Demanding a federal system is demanding the enjoyment of a human right to self-determination. It is

not necessarily the same thing as demanding political freedom. People can enjoy political freedom without a federal system as the French and British do.

We are now finally ready to relate democracy to the concept of values. Political freedom in its three components is based on values and promotes values. Freedom of association encourages and contributes to national unity. After independence it was a mistake to assume that national unity would be achieved by force, suppression of political freedom or centralization of political power. Freedom of assembly and expression provide a self-correcting mechanism in a political system. Individual liberty enables individuals to make the best decisions for themselves and, therefore, for society as a whole. As Geoffrey R. Stone points out enjoyment of freedom fosters the “development of certain values and character traits among citizens, values and traits that are essential to a well-functioning society—tolerance, skepticism, independence of mind, critical judgment, distrust of authority.” (Perilous Times: Free Speech in Wartime—From the Sedition Act of 1798 to the War on Terrorism,2004 at p. 16)

Political freedom cannot exist without specific values. Written constitutions are not sufficient to protect human rights. Written constitutions did not guarantee protection of human rights soon after independence. Indeed the independence constitutions were either abrogated or amended for the sole purpose of banishing political freedom from them. The consequences were political repression and gross mismanagement of the economy with disastrous consequences. Africa‟s lack of development since independence was not caused by colonialism or “imperialism” as NRM ideologues want us to believe or teach recruits at Kyankwanzi political school. Africa‟s economic stagnation can clearly be explained by the systematic violation of human rights that took place in the 1960s, 1970s and 1980s.

Protection of human rights presupposes the existence of certain values. It is values that guarantee respect of others and ensure treating them as equals and with respect instead of imprisoning, torturing or executing them because they have uttered what one leader does not like hear. Fortunately dictatorships eventually self-destruct. All dictators are short-sighted. Their obsessive preoccupation with power at a particular moment blinds them about long term consequences of their actions. That is why their demise seems to shock them beyond belief. Inevitably dictatorships succumb to the laws of social causation and social change. No leader or political system can violate human rights with impunity for ever.
Social change is inevitable. Otherwise the Soviet Union would be with us today. So would the colonial and apartheid regimes not to mention the military dictatorships that wreaked havoc on the African continent for decades. All these oppressive regimes had one thing in common. They thrived on violations of human rights rationalized by distorted ideologies often magnified by large egos. All these qualities, unfortunately, are discernible within NRM leadership which is slowly crumbling.
Political values that promote democracy need not be written down as long as they are observed. The proliferation of National Objectives and Directive Principles of State Policy in African constitutions in the 1990s did not necessarily, as the draft concept paper points out in the case of Uganda under NRM, result into protection of human rights, respect of cultural institutions, national unity or eradication of corruption. They were paper tigers. Eventually political values protecting human rights become a part of the general culture. At that point they are taken for granted until the laws of social causation transform society yet again.

United States has a written federal constitution. Great Britain has an unwritten unitary constitution. Both constitutions are democratic because they are based on similar values that protect political freedom. One is a monarchy while the other is a republic. No political contrasts can be greater and yet reflect harmonious similarities. There is no contradiction between the two systems because both systems are founded on similar political values of protection of political freedom. Therefore the Baganda can be democratic and preserve their Kabakaship at the same time. A federal system in Uganda is the best political structure to achieve that objective because it maximizes and protects the right of the people to self-determination which enhances enjoyment cultural rights and protection of traditional institutions.

In conclusion we want to thank the anonymous author of the draft concept paper. He/she has elevated the debate on federalism from the common combat political field where mud and misinformation are thrown all over to an enlightened intellectual level of historical inquiry and scientific explanation of the function of human rights where ideas inform an important subject. Our criticisms of the draft concept paper, which may appear harsh at times, are not meant to undermine or condemn the content of the draft concept paper but to praise it for starting a necessary conversation about federalism in general and protection of human rights in particular within the context of Ugandan history and politics. Without the errors and shortcomings of the draft concept paper we have pointed out the debate on federalism would be poor, stale, unattractive and probably uninformative. Moreover, from this review it is now clear that the war on federalism is just beginning and could turn out to be a protracted one. Abaami n‟abakyala mwena mufungize empale.
Reader Comments:
it is the time we should not only focus on museveni but also NRM as a party should also go not to be back in to Ugandan politics after museveni
- Posted By OKELLO ALFRED on 09/05/2012

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