It is always nice and absolutely fulfilling to write something positive about your country and its state of affairs but unfortunately that isn’t the day for that. Uganda is heralded as the “Pearl of Africa,” and by some very patriot Ugandans as the “Pearl of the world.” But with all due respect to all those who hold Uganda in this regard, how could we be the “Pearl of Africa with a state of constitutionalism, rule of law, human rights and access to justice as messy as it is? Uganda’s beauty should reflect beyond its physical features.

Uganda, despite making some steps in constitutionalism, rule of law and human rights is plagued by a growing cancer of constitutional despair!

What is constitutional despair?

Constitutional despair is a combination of “constitutional” and “despair.” Anything constitutional is that pertaining to anything related to the constitution of a state while despair is the utter loss of hope. In my understanding, constitutional despair refers to a state where citizens and institutions lose faith in the effectiveness and integrity of their constitutional framework. Furthermore, it can mean lose of hope in the ability of the constitution to protect the rights of citizens, uphold justice and safeguard democratic principles. Unfortunately, Uganda is unfortunately faced with this predicament.

The constitution of Uganda, like many constitutions of different countries is premised on the principle of supremacy of the constitution under article 2 of the constitution. The central point of a constitution is to channel people’s disagreements and struggles for power into a system of law and political procedures so that these disagreements and struggles for power do not break down or break out into violence, civil war, or insurrection. The moment the constitution fails to do this, a constitutional crisis will erupt but before this, the country will enter a phase of constitutional despair where people give up on the constitution and its ability to protect them.

Constitutional despair happens over a series of events that inform and the causes of this for the purposes of Uganda

1. Constitutional rot. Here, there is a gradual decay of constitutional norms and practices contained in the constitution and thus no cohesion between political factions. In Uganda this is manifested in the erosion of constitutional norms such as the right to fair hearing through trying civilians in military courts, right to freedom of speech by jailing those who insult and annoy the governing regime among other human rights violations.
2. Weak enforcement foundations. Almost all the rights enshrined in the bill of rights in Uganda and supported by enabling legislation in the acts of parliament on a daily are violated either by the state or private citizens with no enforcement mechanisms most importantly the social economic and cultural rights
3. Exclusionary foundations of the constitutions. The constitution has been amended multiple times to favour the incumbency and thus stifle out political dissent through the removal of both term and age limits in the constitution that seen the incumbent Yoweri Kaguta Museveni serve a 40-year tenure.
4. Misguided legitimacy. The provisions of the constitution are used and interpreted narrowly and restrictively to deny citizens their human rights such as the freedoms of assembly by using archaic public order doctrines from colonial Uganda.
5. Constitutional contradictions. The constitution in this case blows hot and cold providing for rights and freedoms and in the same text restricting and setting simple tests for their restrictions such as guaranteeing equality and non-discrimination and in the same bill of rights discriminating certain people. This undermines the public confidence in the constitution.
6. Lastly, failure of the constitution to guarantee in the least some form of economic equality has rendered the text in the eyes of many Ugandans only ink on paper with no deep reaching impact on their financial capabilities.

Nuwe Ahereza Marvin (ISHR Ambassador, Uganda)

The characteristics of constitutional despair in Uganda are; public disengagement with political and legal system; protest movements such as the recent anti-corruption protests in Uganda; cultural and ideological polarisation characterised by increase in tribalism; xenophobia in Uganda; loss of institutional trust in the executive, the parliament, the judiciary and even law enforcement.

Constitutional despair can have far reaching implications for Uganda which include

1. Civil Unrest. Constitutional despair can basically lead to a constitutional crisis where everyone doesn’t respect the constitution with the defence that they are trying to uphold it in their own ways. This has the effect of breaking the social bonds and cohesion in the country and will ultimately leading to wide spread protests, civil unrest and potentially a state of lawlessness and anarchy in the country. A classic example of this is Haiti, South Sudan and Sudan.
2. Rise of demagogues and authoritarianism. Loss of faith and hope in the strength and ability of the constitutionalism to bind everyone in the county can lead to rise of popular demagogue movements such as the ones in Nazi Germany and Fascist Italy. Secondly, constitutional despair can also lead to emergence of authoritarianism in a bid to curb the constitutional crisis and state of lawlessness erupting from prolonged and unchecked constitutional despair.

In conclusion, constitutional despair is bad news for a developing country like Uganda which ought to depend on the strength of the social contact between the government and the people of Uganda to foster development of the country while having regard to constitutionalism, rule of law and human rights. The ultimate solution lies in promoting a culture of civic engagement customised to enable citizens to be informed, active, and hold their leaders accountable. This requires a strong and independent judiciary, a free and independent press, and robust civil society organizations. Unfortunately, the state of civic education is still in the limbo and there is a long way to go although all hope isn’t lost yet!

Nuwe Ahereza Marvin
ISHR Ambassador, Uganda