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COMMENT: To amend the constitution or not

Why recent discussions have been neither highly educational nor offered legitimate debate

COMMENT | Bob A. Kasango | It is a few days after October 8 when we passed the 22nd Anniversary of the adoption of the third Constitution of the Republic of Uganda in the 55 years of our independence.  This is the longest serving uninterrupted constitution of Uganda. Our first lasted just four years, the second 29 years but was suspended twice – first in 1971 and then in 1986. Why has the 1995 Constitution endured for so many years and why is it still a living and vital document?

Part of the reason is that we have a very robust Constitution that has not needed many changes. The basic framework of the Constitution is very much suited to our country. It is also true that the Constitution makers were very farsighted and provided for many solutions for future situations. But no constitution can provide for all eventualities. No document can be such that it needs no change.

How then can we ensure that this Constitution continues to serve our country?

Our recent constitutional discussions have been neither highly educational nor helpful to the wider public; and have instead stirred emotions that have clouded the clear course of legitimate debate. There are those who apparently regard the Constitution as embalming forever the explicit and final word of wisdom and distaste any critical debate as to its merits or its possible defects. They have forgotten that the Constitution is a human document formulated to serve human needs; and that it is the servant and not the master of those who created it.

Recent discussions have centered on amendments proposed by Hon. MP Raphael Magyezi, the gentleman from Igara West constituency.

The gravamen of the amendment is the removal of both the lower and upper Presidential age limit.

In any society, those responsible for drafting the constitution face one common challenge: the tendency of provisions of the constitution to reflect efforts to tackle the problems facing the society at the time of making of the constitution at a time when the constitution must provide the framework of the government for the future as well. Therefore, a constitution has to respond to the present and challenges that may arise in the future. In this sense, the constitution will always have something that is contemporary and something of more durable significance.

A constitution is not a frozen and unalterable document. It is a document that may need revisions, changes, and re-examination. It is true that the constitution reflects the dreams and aspirations of the concerned society. It is also an instrument that societies create for themselves.

Therefore, the permanence of a constitution lies chiefly in its being couched in broad general terms and its capacity for adaption to changing conditions. It is impossible for human beings of one era to foresee all of the problems that would confront later generations. It is not uncommon, however, for nations to rewrite their constitutions in response to changed circumstances or ideas within the society or even due to political changes.

If our constitution had been framed like a rigid, detailed code, incapable of adjustment, it would have long ago been broken into fragments; for life has a way of disregarding forms and cannot be cast
into a rigid mold.

Fortunately, our Constitution accepts the necessity of modifications according to changing needs of our society.

Secondly, in the actual working of this Constitution, there has been enough flexibility of interpretations. Both political practice and judicial rulings have shown maturity and flexibility in implementing the Constitution. These factors have made our Constitution a living document rather than a closed and static rulebook.

In the present case of the Hon. Raphael Magyezi amendments, the opponents have belaboured the point that to amend Article 102 (b) would be to throw the country into chaos! They urge that the Article is untested and it should be given a chance to work and that it is intended to be an inbuilt restraint to longevity in power.

All these are arguments are shallow and hollow. The first is scare mongering, the second deeply theoretical, and the third very presumptive.

There is nothing about age limits in our Constitution as it presently is that is a bar to longevity in power.  President Museveni has been in power for 31 years and some people believe this is ‘too long’. He assumed power at the age of 42 years – 7 years above the present constitutional lower age limit for a President.

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