1

Constitutional delusions: Militarism and the Myth of Constitutionalism under Pax

Musevenica

By

Busingye Kabumba
st
LLB (1 Class Hons), Dip LP (LDC),
BCL (Oxford)
LLM (Harvard)
Lecturer-on-Law
Makerere University
&
Consulting Partner
M/S Development Law Associates
www.developmentlaw.org

Paper Presented

at

NATIONAL CONFERENCE
ON
RELIGION, RIGHTS AND PEACE IN UGANDA

20-21st November, 2013

 2

1.0 Introduction

The organizers of this Conference asked me to speak on the topic ‘Constitutionalism, Rule
of Law or Law of the Ruler: Prospects and Challenges in Uganda today’. By titling my
presentation in the way I have, therefore, I am in a way changing the ‘terms of engagement’,
which I do with some trepidation. I have felt it necessary to tweak the terms in a way that
foregrounds the question of militarism. This is because, as I will attempt to demonstrate in
this paper, this factor has had a significant impact on constitutionalism (or lack thereof) in
Uganda today. In this respect, it is perhaps fortuitous that my presentation comes
immediately after that by Dr. Arthur Bainomugisha, who given topic is ‘Uganda: a history of
conflict and abuse of Rights – the Role of the Military and Security Services’.

The National Resistance Movement/Army captured state power on 26th January 1986,
putting an end to a 5 year conflict that had seen a great loss of life and property, particularly
in the Luweero Triangle, but also in many other parts of the country. In a landmark speech
delivered on the steps of Parliament, a lean and earnest newly sworn in President promised
the weary (and wary) nation that his was not just a mere change of guards, but that it
constituted ‘a fundamental change in the politics of our country’. The ‘change of guards’ the
President was referring to of course, was the cycle of ‘liberators’ who by that time appeared
to be routinely changing seats at the helm of the state in a bizarre game of ‘musical chairs’,
each succeeding one being even more repressive than the previous. At the core of this
promise therefore, was the commitment that, this time, the change was going to be real –
that the liberators were going to deliver on what they had promised. In the case of the
NRM, these promises were well documented, having been articulated in the ‘Ten Point
Programme’ – a manifesto for action once they captured power in Uganda, or in the
language of the time, once the revolution had been successful. 1 Among these points were: 1
(democracy), 2 (security), 3 (consolidation of national security and elimination of all forms
of sectarianism) and 7 (elimination of corruption and misuse of power).2 A number of

1
Both in political terms, but also in Kelsenian terms.
2
The Ten-Points in full were: (1) Democracy; (2) Security; (3) Consolidation of National security and
elimination of all forms of sectarianism; (4) Defending and consolidating National Independence; (5) Building
 3

questions can be posed at this point: (1) was Museveni since in his promise of delivering
democracy to Ugandans?; (2) would it ever be possible to deliver real democracy through
the barrel of the gun?; (3) what conditions would have to be in place for democracy to be
delivered after reliance on the military to settle political questions?

For purposes of this paper, I use the term ‘militarism’ to mean the use of military power to
consolidate and sustain political power and to respond to political challenges.
Constitutionalism, which could be seen as the antithesis of militarism, essentially relates to
the restraint of power, primarily by law, which is democratically formulated, and which
aims at safeguarding the inherent rights and liberties of the governed. The phrase ‘Pax
Musevenica’ is inspired by the Roman ‘Peace’ that prevailed between 27 B.C and 180 A.D
and is used to broadly refer to the 28 years of the NRM government in Uganda.3

2.0 The Military Factor in Uganda’s Politics

Like a number of other Ugandan institutions, the military in Uganda was born in iniquity.4
It had its roots in the King’s African Rifles (KAR), which was formed in 1906 primarily as
an imperial instrument, to protect His Majesty’s interests in Africa and in other colonies.5
The composition of the KAR was also problematic, mainly being drawn from Sudan and
from Northern Uganda. By the attainment of independence in 1962, therefore, Uganda had
an army which had been born and bred not in the tradition of patriotism and defence of
national interest, but rather shaped in the mould of a mercenary force, which would lend
itself to the protection and consolidation of political power, whatever shape or form that

an independent, integrated and self-sustaining national economy; (6) Restoration and improvement of Social
services and the rehabilitation of the war-ravaged areas; (7) Elimination of corruption and misuse of power; (8)
Redressing errors that have resulted in the dislocation of sections of the population and improvement of
others; (9) Co-operation with other African countries in defending human and democratic rights of our
brothers in other parts of Africa; and (10) Following an economic strategy of mixed economy.
3
A recent use of this term, in this sense, Joshua B. Rubogonya’s Regime Hegemony in Museveni's Uganda: Pax
Musevenica (2007) Palgrave Macmillan.
4
See for instance Article 15 (1) of the 1902 Order in Council, which provided that the High Court, the
forerunner of the current Judiciary, would be styled, ‘His Majesty’s High Court of Uganda’. Cf Article 126 (1)
and Osotraco v Attorney General (Judgment of Egonda-Ntende, J).
5
Indeed, the KAR were engaged on the side of the United Kingdom on both World Wars, concerning a
conflict which had no direct relevance to the Uganda Protectorate.
 4

power took. At the same time, the British had left behind a tradition not of
constitutionalism or the rule of law, but rather one of rule by law, where constitutional texts
had been conveniently ignored whenever they did not suit the imperial interests.

It is perhaps little wonder, therefore, that Uganda’s two strongmen in the wake of
independence – Dr. Apollo Milton Obote and His Highness Edward Muteesa II – both
looked to the gun to resolve the political impasse that engulfed Uganda after 1963. Arguing
that Muteesa was mobilizing for a military assault against him, Obote struck first, sending in
the commander of the armed forces, Idi Amin, to attack the Lubiri and capture the Head of
State. Although Muteesa narrowly survived, the decisive blow dealt by Obote using the
armed forces temporarily settled the question as to where the power lay in Uganda. Quite
tellingly, in a move that would become typical for succeeding governments, Obote sought to
legitimize his rule by means of a ‘Constitution’ the 1966, pigeon-hole Constitution6 which
was ‘debated’ and quickly ‘ratified’ by the National Assembly. A little later, this process was
taken further with the ‘promulgation’ of the 1967 ‘Constitution’.

When the question as to the validity of the 1966 Constitution came before the Uganda
Judiciary in the case of Uganda v Commissioner of Prisons, Ex Parte Matovu the High Court of
Uganda held that what Obote’s actions constituted a ‘revolution in law’ in terms stipulated
by the Austrian jurist, Hans Kelsen. Essentially, Kelsen had postulated that where a legal
order was overturned in a manner it had not itself contemplated, and that challenge was
successful, that process amounted to a ‘revolution’ in law, which would operate, legally, to
invalidate the old order and replace it by the new order so established. Although couched in
dense legal theory, what the Kelsen theory amounted to, and what the Judges in Matovu
accepted, was the idea that ‘might’ equals ‘right’.7

6
This was so-called because Members of Parliament were simply asked to ‘find’ the Constitution in their
pigeon-holes.
7
For a fuller discussion of the Matovu case and its constitutional ramifications, see Oloka-Onyango
‘Expunging the ghost of Matovu’ CBR Working Paper.
 5

The case of Matovu (as well as the dramatic events that immediately preceded it) constituted
a watershed moment in Uganda’s constitutional history. Essentially, the Court signified
that, when faced with overwhelming military power, it would capitulate before that power.
However, more significantly, the Court also demonstrated a willingness (and ability) to
legitimize and validate the exercise of military power as against civilian authority. In so
doing, it laid the basis of the ‘Legal Notices’ that would become a feature of Uganda’s
constitutional landscape, which were invariably issued every time a new government
replaced the previous one by force of arms.8 Indeed, the Matovu precedent would inform
judicial acknowledgment of subsequent unconstitutional takeovers.9

In effect, the message to political players in Uganda from this point was: ‘ acquire power by
any means necessary, and the Courts would be at hand to legitimize and validate your
actions’. Along with this message was the indication that Constitutions, laws and lawyers
were available for use, misuse, deployment and disposal as the dictates of political
expediency demanded. This message was one which would be well taken and, with a few
exceptions, broadly applied.

In fact, and in fairness to the Udo Udoma court that delivered the Matovu decision, as well
as the Courts that would later follow it, this phenomenon (of law being used to legitimize
military power) was not a new one, but one which was a cardinal feature of the British
colonial rule in the Uganda Protectorate, at least from 1894 right up to 1962. In the first
place, in exercise of and in the shadow of, their overwhelming military power, the British
had entered into a series of ‘Agreements’ with native rulers in what is currently Uganda.10
Although the (necessary) pretension was that these were entered into by equal and free
contracting parties, the reality was that they were concluded in circumstances of power
asymmetry, including, in the case of the Buganda Agreement of 1900, while more or less in

8
See Legal Notice No. 1 of 1971; Legal Notice No. 1 of 1979; and Legal Notice No. 1 of 1986.
9
See, for instance, Kayira & Ors v. Rugumayo & Ors, Constitutional Case No. 1 of 1979 and E.F. Ssempebwa v.
Attorney-General, Constitutional Case No. 1 of 1987.
10
See the 1894 Uganda Agreement, the Buganda Agreement (1900), the Toro Agreement (1900) and the
Ankole Agreement (1901).
 6

a state of war.11 Similarly, the British were only able to conclude an ‘Agreement’ with
Bunyoro in 1933, ten years after the death of Omukama Kabalega, who had mounted a
serious and sustained challenge to colonial rule in his region. This trend – of ‘legitimization
through legalization’ would be continued through the passage of such draconian laws and
ordinances, from the 190212 and 1920 Orders-in-Council, the Removal of Undesirable
Ordinance (1907), the Deportation Ordinance (1908), the Native Authority Ordinance
(1919), the Trading Ordinance (1938) right up to the Uganda Independence Order-in-
Council, which was issued on 2nd October 1962 (and to which the 1962 Constitution was
annexed as a Schedule).

Secondly, at least by the 1930s,13 ‘His Majesty’s’ High Court in Uganda had shown itself to
be willing and able to legitimize, through the colour of law, usurpations by the dominant
colonial power of even the nominal prerogatives that had been left to the Kingdoms under
the various ‘Agreements’ made with them. In R v Besweri Kiwanuka14 for instance, in
deciding whether the 1902 Order in Council could modify the terms of the Buganda
Agreement of 1900, noted that through the promulgation of the 1902 Order in Council, His
Majesty had ‘manifested jurisdiction’ over Uganda in terms of the Foreign Jurisdiction Act
of 1890, and that this exercise of jurisdiction (or power) had to be understood as an ‘Act of
state’ which could not be challenged in any ‘British Courts’. This cynical treatment of legal
text would be subsequently affirmed when the legality of the Kabaka’s 1953 deportation was
challenged in Mukwaba and Others v Mukubira and Others.15Griffin CJ, who presided over the
case, noted that, under the Buganda Agreement, the recognition of the Kabaka could have
been withdrawn as an ‘Act of State’ and that, in this event, the Court would have been unable

11
Kabaka Mwanga had just been deposed and exiled by the British, when Sir Harry Johnston purported to
enter into an ‘Agreement’ with the Regents exercising power on behalf of Chwa, Mwanga’s infant son.
12
The Preamble to this Order-in-Council recited, in part apology the basis of its exercise: ‘… whereas by treaty,
grant, usage, sufferance and other lawful means, His Majesty has power and jurisdiction within the said
territories.’ [Emphasis added]
13
There were early indications that Courts would respect the Agreements. See in this regard Katozi v Kahizi
(1907) Uganda Protectorate Law Reports, Vol.1, 24 and Nasanairi-Kibuka v A.E. Bertie Smith (1908) Uganda
Protectorate Law Reports, Vol.1, 34.
14
HC Crim. Appl. No. 38 of 1937.
15
Civil Case No.50 of 1954, (1952-6) ULR 74.
 7

to inquire into it. As such there could not have been created, by Statute, any legally
enforceable duty on the Crown regarding withdrawal of recognition of the Kabaka.16

A recollection of this not-so-recent history, in which Courts referred to legal doctrine (‘the
Act of State’) to validate patently illegal acts, allows us to see Matovu and subsequent cases,
which also referred to legal doctrine (‘a revolution in law’) to similar effect. We realize that,
absent a real commitment to constitutional rule and democratic governance, constitutional
declarations to that effect only point towards utopia, and laws (and their interpretation by
the courts) will be used as apologia after the fact of illegality.

It is this understanding that allowed Idi Amin to depose Obote in 1971, by force of arms,
followed by the sanitization of law in terms of Legal Notice No.1 of 1971, and backed by a
further appeal to legitimacy through the issuance of his own ‘18 point’ justification for
taking over power.17 There was, however, a crucial difference between Amin on the one
hand, and Obote (his immediate predecessor) and the British (his colonial masters) on the
other. While the latter had the sophistication to ensure a continued manipulation of the law
to legitimize military power, Amin, the career soldier that he was, came to rely more on
brute force than ‘legal sophistry’.18 Thus, in Uganda’s history (including our colonial
history) he is the only leader who ruled by decree.19 He was also the first to kill the Chief
Justice and an Arch Bishop. The British largely deported them, and Obote up to that point
imprisoned them indefinitely or exiled them. Amin’s downfall would come by his own fatal
error of daring to attack a stronger opponent, who then using both military means and the

16
As above, pp 117-122, citing, in part, Sobhuza v Miller and Cook v Sprigg.
17
Ironically, these points included: the violations of human rights and lack of political freedoms.
18
I use this term tongue-in-cheek, since it was only last week used against me by none other than General Kale
Kayihura, the Inspector General of Police. During a Public Lecture by former President of Mozambique
Joaquim Chissano, in response to my view regarding what I termed was the increasing ‘ethnicization’ and
‘militarization’ of the Uganda Police, General Kayihura argued that such criticisms were nothing more than
‘intellectual sophistry’.
19
These would include: Constitution (Modification) Decree, No. 5 of 1971, Parliamentary Powers (Vested)
Decree, No. 8 of 1971, Suspension of Political Activities Decree, No. 14 of 1971, Detention (Prescription of
Time Limit) Decree, No 7 of 1971, Newspapers and Publications (Amendment) Decree, No 35 of 1972,
Military Police (Powers of Arrest) Decree, 1971, Trial by Military Tribunals Decree, No. 12 of 1973, and the
Proceedings Against the Government (Protection) Decree, No. 8 of 1972.
 8

cover of international law, used the attack as an excuse to effect regime change in
Kampala.20

The immediate aftermath of Idi Amin’s overthrow also serves to demonstrate law’s limits in
a militarized Uganda. A powerful Nyerere, in his ‘Godfather’ role convened a meeting a
exiles in Moshi (about 22 strong) which resulted into a document, made up both of minutes
and resolutions of the conference, that together would be the basis to guide the post-Amin
period. Under the umbrella of the Uganda National Liberation Front (UNLF) disparate
groups appeared to coalesce to realize the dream of a democratic and free Uganda. The
UNLF was composed of three distinct organs: the National Executive Committee (NEC),
which would serve as the ‘executive’; the National Consultative Council (NCC), which
would serve as the ‘legislature’; and the Military Commission. A mild-mannered and
unassuming Professor, Yusuf Lule, was elected to head the NEC, deputized by Akena
P’Ojok. The NCC would be headed by Edward Rugumayo with Omwony Ojok as his
deputy; while the Military Commission was headed by Paulo Muwanga with Yoweri
Kaguta Museveni as his deputy. This ‘government in exile’ was actualized by the swearing
in of Professor Lule as President on in April 1979. As their predecessors had done, the
UNLF government sought legitimacy through the issuance of a Legal Notice, No.1 of 1979,
which appeal was strengthened by the terms of that instrument, which among other things
restored Article 1 of the 1967 Constitution (supremacy of the Constitution). Evidently, the
mild-mannered Professor allowed himself to buy into the illusion of the law, and sought to
claim for himself the powers that were promised him under the 1967 Constitution. In
response to ‘suggestions’ that his appointments as President had to be ratified by the NCC in
terms of the Moshi document (the minutes), President Lule argued that the 1967
Constitution did not envisage such ratification. In his view, the Moshi spirit spoke to the
supremacy of the 1967 Constitution, and he sought therefore to exercise the full range of his
Presidential powers under the ‘supreme law’ of the land. In exercise of these broad powers,

20
Although Nyerere claimed self-defence as a basis for his invasion of Uganda, his subsequent actions,
including the occupation of Kampala, could not under international law, be justified on this basis. Indeed, the
international community could be said to have acquiesced in this illegality because it was fundamentally
legitimate.
 9

he among other appointments, reshuffled Mr. Paulo Muwanga from the Ministry of Internal
Affairs to the Ministry of Labour, and sought to have Mr. Andrew Lutakome Kayira
assume the Ministry of Internal Affairs. The NCC rebelled against this attempt to transform
constitutional promises into political reality, and voted to depose Professor Lule, a mere 68
days after he had been sworn in.

In the same vote, after a series of rounds which almost resulted in another Professor,
Edward Rugumayo, assuming the Presidency, consensus emerged around Mr. Godfrey
Lukongwa Binaisa QC, another mild-mannered man, a lawyer, who at the time was
sleeping soundly a few miles away.21 Mr. Binaisa, incidentally, had been the brilliant lawyer
who had urged, successfully, the Udoma Court to invoke the Kelsenian theory to validate
Obote’s extra-constitutional take-over of government. He was to himself benefit from the
application of this doctrine when Lule’s removal was challenged in the case of Lutakome
Kayira & Ors v. Edward Rugumayo & Ors.22 As Udoma had done before him, Justice
Wambuzi refrained from declaring the removal of Lule as unconstitutional since to do so
would be to challenge the validity of Binaisa’s government. One would have thought that,
given the circumstances of his predecessor’s removal, and of his own installation, the good
lawyer might have recognized the subordination of law to military power in Uganda’s
governance, and as far as possible trodden the ‘correct line’ set for him by the Generals. It
appears, however, like so many good people before him, he fell prey to the illusion of the
law and sought to truly exercise his ‘powers’ as President. In this regard, Binaisa QC
attempted to transfer Paulo Muwanga, Yoweri Museveni and Oyite Ojok. He was, of
course, deposed and a Presidential Commission created comprising of three persons, two of
whom were judges (keepers of the law) and the other a civil servant (a servant of the law).
During this lame-duck period, the Military Commission prepared for the ‘general elections’
which were held in December 1980. In elections that appear to have been blatantly rigged,
Obote’s UPC was declared winner by Paulo Muwanga, the head of the Military
Commission, thereby depriving DP’s Paulo Kawanga Ssemogerere of victory.

21
Ironically, Mr. Binaisa had shown up at the Moshi conference, only to be locked out of the conference room
through political machinations.
22
Constitutional Case No. 1/1979.
 10

Dr. Apollo Milton Obote therefore made his triumphant return to Kampala, to take up the
seat of government effectively handed to him on the back of the military power of Nyerere
and through the machinations of Paulo Muwanga, the head of the Military Commission.
Anecdotal evidence suggests that, in response to the Mr. Ssemogerere’s protestations at
being rigged out of elections, Dr. Obote effectively gave him a short introduction to
Uganda’s politics: ‘My brother Ssemogerere, show me your generals.’ As it turned out, one of the
parties which had lost very badly in the elections, the Uganda Patriotic Movement (UPM),
was led by a man, Yoweri Kaguta Museveni, who was himself an ardent student of the
interaction between military power and political power. It was this man who at the start of
the elections had warned Obote that he would ‘go to the bush’ if elections were rigged. In
the event, in the wake of the rigged 1980 elections, it was Museveni (whose UPM had only
managed to win 1 seat in Parliament) and not Ssemogerere (whose party had effectively
won the elections), who chose to fight. It was Museveni who could show Obote his
generals.

From the very beginning, it was important for the NRM/A to obtain legitimacy for the
armed rebellion, especially since the ‘legitimate’ rebel would have been DP as opposed to
the UPM. An effort in this regard began right from the nomenclature of the new
military/political outfit, which was named the ‘National’ Resistance Movement/Army.23 In
the bushes of Luweero, Mr. Yoweri Kaguta Museveni used the five year guerilla war to
forge a political ideology that would inform the management of the country when power was
eventually wrested from Obote.

However, in 1985, just before the fruits of battle would be realized, they were gravely
threatened by a coup in Kampala which saw the overthrow of Dr. Milton Obote by the
UNLA under General Tito Okello. Obote’s mistake had been to fail to deliver quick and
decisive victory in Luwero, as well as his perceived tribalism in army promotions. General

23
It was of course, difficult to effectively deem it a ‘national’ army given that the core of the fighters were from
Western Uganda, and that it was primarily based in Central/Southern Uganda, fighting a government and an
army that was deemed predominantly Northern.
 11

Okello sought to talk peace with Museveni, with talks eventually taking place from August
26 to 17 December 1985, chaired by President Moi of Kenya. These talks led to an
‘Agreement’ (the ‘Nairobi Accord’) under which it was decided that there would be an
immediate ceasefire and the establishment of a Military Council of 20 persons comprised of
the Head of State as Chairman; 7 members from the UNLA; 7 members from the NRA; 1
member from the Uganda Freedom Movement; 2 members from the Federal Democratic
Movement; 1 member from the Former Uganda National Army; and 1 member from the
Uganda National Rescue Front. The Accord also provided for integration of the NRA and
government forces, the formation of a new national army and the complete demilitarization
of Kampala. Perhaps not surprisingly, given the enormous investment of time by the
NRM/A into the bush war effort, the ceasefire was never effected, and the NRA continued
its assault upon Kampala, which ultimately succeeded on January 25, 1986.

3.0 The Military and the Management of Uganda: 1986 to 2012

On 26th January 1986, a select group of the successful rebels (in political and Kelsenian
terms) who had been castigated by former President Apollo Milton Obote as a ‘bandits’
huddled on the steps of Parliament to accompany their leader, Yoweri Kaguta Museveni, to
be sworn in as President of the Republic of Uganda. At hand was a (real) Judge to conduct
the swearing in ceremony. And in his hands was a (real) Constitution which he would use
to validate the acquisition of power by the successful rebels. The irony of course, was that
Museveni had needed neither Judge nor Constitution to obtain power, and would need
neither Judge not Constitution to retain it. At the same time, however, the lesson of the
Amin period was that ‘naked’ military power would not be enduring. If power was to be
consolidated and sustained, it would need the legitimacy and validity of law and other
‘civilian’ clothing. The period from 1986, would therefore be, and has always been an
exercise in the exercise of military power through a civilian face. The law, lawyers, judges,
civilian authority and other actors have all played, and continue to play important, but set,
roles in this mode of governance, together serving helping to sustain the sophisticated
project that is Pax Musevenica.
 12

We briefly highlight a number of episodes that highlight this extremely sophisticated trend,
involving both domestic and international actors, where law (including the Constitution –
the mother of laws), lawyers, judges and lawmakers have all been variously used, and
abused, in furtherance of the ‘Uganda management project’ that was launched on 26th
January 1986, and to which no foreseeable end is in sight.

3.1 The Commission of Inquiry into Violations of Human Rights

This Commission was established in 1987 as with Justice Oder as the Chairperson. It was
established with a mandate to investigate human rights violations from 1962 to 1986.
Although this was an extremely important process, the post 1986 period was specifically
outside the ambit of the Commission’s terms of reference, and it could not enquire into any
alleged violations of rights from 1986 to 1994, when its report was finally handed over.
Additionally, the persons named in the report were not prosecuted or otherwise brought to
account. The Commission was, in a sense, the first use by the NRM of law to obtain
legitimacy through ostensible commitment to human rights, provided that this commitment
did not seriously threaten its grasp on power.24

3.2 The extension of the NRC term

In 1989 the NRC, which was acting at the national parliament, passed a resolution to
extend its life and that of the NRM by 4 years, reasoning that the conditions were not yet
ripe for a full return to open political contestation and that, in particular, it would be
premature to leave before the conclusion of the Constitution-making process.25 In essence,
the Constitution-making process was used an excuse for the extension of the
NRC/NRM/NRA term unconstitutionally.

24
This would continue with the Uganda Human Rights Commission, which is quite happy to make awards for
torture, but will not address ‘political questions’. See e.g. The Case of the Free Movement.
25
This was effected through Legal Notice No.1/1989 (Amendment Statute of 1989).
 13

The one member who opposed the extension on principle was Mr. Wasswa Ziritwawula
(who happened to be a member of the Democratic Party). He resigned from the Council, on
the basis that the Council lacked the authority to extend its mandate, in terms of Legal
Notice No.1 of 1986 (which had set the four year time limit). Like Professor Lule and
Binaisa QC before him, his mistake was to imagine that the NRC or the NRM were actually
constrained by law.

3.2 The making of the 1995 Constitution

As noted above, in 1988, just a year before extending its term, for an additional four years,
the NRC had passed the Constitutional Commission Act, which created the Uganda
Constitutional Commission with the mandate of paving the way for a ‘national’
Constitution. The Commission was headed by Justice Benjamin Odoki.26 After a five year
process of consultation and review, the Odoki Commission submitted a report in 1993.

In the same year, the NRC passed the Constituent Assembly Statute, which for the first time
specifically mandated the idea of ‘no party’/ ‘individual merit’ political contestation (which
hitherto had prevailed under an ‘understanding’). This principle was challenged in the case
of Rwanyarare & Anor v. Attorney-General 27 with the petitioners arguing that the case violated,
among other things, the right to freedom of association and assembly under Article 8 of the
1967 Constitution. In upholding the Act, the Constitutional Court was of the view that this
right could be limited in the ‘public interest’, which in this case was need to have maximum
participation of individuals in the constitution-making process. Secondly, the Court held
that the Constituent Assembly’s life would end was the Constitution was effected and that it
was thus simply a transitional body would not affect the operation of Article 8 for a long
time.

26
Justice Odoki would later write a book on this experience, titled In Search of a National Consensus which
essentially argues that the 1995 Constitution reflected the true will of Ugandans.
27
Constitutional Case 1/1994.
 14

A Constituent Assembly was thus elected in 1994 under the ‘individual merit’ system and it
was this Assembly that debated the Odoki report and eventually adopted the 1995
Constitution of the Republic of Uganda. It must be said that this mode of election of CA
delegates, and its validation by the Constitutional Court, was a major flaw in the
Constituent Assembly process which, in retrospect, tainted the legitimacy of the
constitution-making process that resulted in the 1995 Constitution. More broadly however,
very much like the 1966 and 1967 Constitutions, the 1995 Constitution was debated and
enacted under a mono-party system, in which one political faction monopolized the
coercive means of the State. It is thus open to real question as to whether a truly ‘national’
Constitution could emerge out of a process shadowed by the omnipresence, omniscience
and omnipotence of the military.28 It is not very surprising that the ‘movement’ political
system found its way into the 1995 Constitution as a ‘political system’ under Article 70.

However, one of the most visible demonstrations of these illegitimacies can be seen in which
articles were ‘entrenched’ under Article 260 and which ones were not. To take but one
example, the UCC had noted that:

We have also reflected the view almost unanimously advocated by the people that the
tenure of office of the President should be constitutionally limited to put an end to
the phenomenon of self-styled life presidents. We have recommended a limit of two
terms of five years each for any President.29

In the event, these term limits were included in the Constitution, under Article 105 (2).
However, Article 260 did not entrench the ‘almost unanimous’ view of the people of

28
For a full account of the illegimaticies that attended the constitution-making process, see Aili Mari Tripp,
‘The Politics of Constitution Making in Uganda’. Tripp notes that: (1) the UCC was composed entirely of
NRM supporters; (2) through its dependency of the government for finance, the UCC was beholden to the
State; (3) that political party activities were proscribed while the NRM continued to campaign on a party
platform – so much so that when the final results of CA delegates were announced, President Museveni
declared ‘We have won!’; (4) that the Constitutional Court returned a blatantly ‘political decision’ to the
challenge mounted to this state of affairs; (5) restoration of monarchies was quickly effected to win the support
of the Baganda (1/5 of the population) and (6) that the Northern conflict was used as a scare tactic to
associate multipartyism with a return to war and instability.
29
p.16, para.061 of Report.
 15

Uganda, choosing instead to entrench the ‘recommendation’ by the commission, reflected

under Article 105 (1), relating to the term of office being five years. It was this crucial, and
in our view, deliberate in-built design of the 1995 Constitution, that would allow President
Museveni to later reply confidently, if cryptically, that he would ‘follow the Constitution’
when asked whether he would run for another term in the wake of the expiry of the
Constitutional two-term limit in 2005.

3.3 Presidential ‘elections’

(a) The 1996 elections

The Presidential elections of 1996 pitted President Museveni, the man who now definitely
had generals, against Mr. Ssemogerere (understand as being of the Democratic Party
although the no-party system prevailed), who now sought to win through the ballot a
Presidency he had failed to safeguard through armed conflict. The population which by now
had been condition to respect and fear the military, was never going to take him seriously.
Apart from the idea that ‘Mzee’ deserved to be rewarded for the good work he had done,
there was also the sense that it would not be very wise to annoy Mzee by voting badly.
Besides, a massive media campaign was rolled out demonizing parties, and essentially
suggesting that a vote for Ssemogerere was an irresponsible one, which might plunge
country back into the dark days of violence and conflict. In other words, a vote for Lt. Gen.
Yoweri Kaguta Museveni, tried and tested, who fought against bad governance, was a safe
vote for a trusted pair of hands. A vote for Ssemogerere was a reckless vote, and above all,
one which might provoke the fury of the otherwise benevolent Museveni. In the event, like
the Udoma Court faced with similar choices, the Uganda population voted ‘wisely’, with
75% of the vote going to President Museveni.

This view would be emphatically validated when in August 2007, while referring to these
1996 elections, President Museveni told a gathering in Luweero that: ‘Had you elected
 16

Ssemogerere we would have gone to the bush. What else should we have done?’ [Emphasis
added]

(b) The 2001 elections

These elections saw Museveni face his toughest challenger for the Presidency since 1986, his
former personal doctor and former NRM National Political Commissar, Dr. Kiiza Besigye.
Like Wasswa Ziritwawula had done in 1989, Dr. Besigye had woken up to the realization
that the 1986 project was not a terminal one. Under the ‘Reform Agenda’ he mobilized
political support to challenge President Museveni during the elections held on 12 March
2001. President Museveni won these elections with 69.33% of the vote while Dr. Besigye
managed 27.82%.30 This election was held under the Movement system, and all candidates
were therefore ‘independents’. In a challenge to the electoral process, the Supreme Court did
what its predecessors had done before, validating and legitimizing the outcome by
acknowledging ‘irregularities’ while at the same time arguing that these had not been so
‘substantial’ as to affect the outcome of the election.31

(c) The 2006 elections

During the Presidential elections of 2006, the first since the NRM captured state power in
1986, a total of six candidates contested for the Presidency:- President Yoweri Museveni of
the National Resistance Movement; Dr. Kiiza Besigye of the Forum for Democratic Change
(FDC); John Ssebaana Kizito of the Democratic Party (DP); Miria Obote of the Uganda
People’s Congress (UPC) and Abed Bwanika (Independent). Although President Museveni
was declared winner of these elections, it was with a substantially lower margin than before,
with the President obtaining 59.26% of the vote, while his closest challenger, Dr. Kiiza
Besigye obtained 37.39% of the vote. More embarrassingly, this strong showing by Besigye
was in spite of a deliberate attempt to use the law, lawyers and courts to skew the terrain of

30
Others were Aggrey Awori with 1.41%, Muhammad Kibirige Mayanja with 1%, Francis Bwengye with
0.31% and Chapaa Karuhanga with 0.14%.
31
Besigye v Museveni Presidential Election Petition No.1 of 2001.
 17

competition. In the first place, on November 14, 2005, just four months before the elections
were to be held, Dr. Besigye was arrested on allegations of treason, misprision of treason.
He, along with 22 others who had been arrested at different times, had the indictment read
to them at the Chief Magistrates Court at Buganda Road, before being committed to the
High Court for trial. Dr. Besigye was separately charged with the offence of rape, which had
allegedly been committed in nine years earlier, in 1997. Besigye would only be released on
bail in January 2006, just a month before the elections were to be held. This
uncharacteristically crude attempt was roundly condemned by Judge Katutsi, who in
dismissing the rape case against Besigye noted:

the evidence before court was inadequate even to prove a debt; impotent to deprive
of a civil right; ridiculous for convicting of the pettiest offence; scandalous if brought
forward to support a charge of any grave character; and monstrous if to ruin the honour
of a man who offered himself as a candidate for the highest office of this country [Emphasis
added]32

If one Judge had proven himself unwilling to be used by the executive, lawyers did not
appear to share these scruples. The then Attorney General, Professor Khiddu Makubuya at
the time had issued an opinion that suggested that while Besigye enjoyed the Constitutional
guarantee of the presumption of innocence he could not be said to be entirely innocent if
charged with such offences, and that, in the circumstances, was not fit to be nominated for
the Presidency. The results of the election were barely upheld, and were in fact further
delegitimized, by Supreme Court which in rejecting Besigye’s challenge of the elections
found that there had been electoral irregularities but that these had not been such as to
‘substantially’ affect the results of the election.33

(d) The 2011 elections

32
Col (Rtd) Dr. Kiiza Besigye v. Uganda High Court Criminal Session No. 149/2005.
33
Besigye v Museveni Presidential Election Petition No.1 of 2006.
 18

In February 2011, the country held its fourth presidential and parliamentary elections since
the coming into power of the incumbent NRM government. In the end President Museveni
was declared winner having garnered slightly over 68% of the election. Very importantly,
this time Kiiza Besigye opted not to approach the Courts of Law to assess the validity of the
election, choosing instead the ‘Court of Public Opinion’ through, among others, the ‘Walk
to Work’ Movement.

4.0 Understanding Current developments

Sections 2 and 3 above have attempted to show that military governance is not a new
phenomenon in Uganda’s political history. In fact, true democracy (when it eventually
occurs) will be the real change in our country’s political fortunes.

Section 2 traced the development of militarism from the colonial encounter to the 1986
period, while Section 3 demonstrated how the period from 1986 can be understood through
the lenses of consolidation of power by means of the instrumentality of laws (including the
Constitution), Courts and lawyers. Indeed, Pax Musevenica is the culmination of
sophisticated military governance, one which does not explicitly assert itself, but which
deliberately infuses itself into the national dialogue, in higher or smaller ‘doses’ as the
situation demands, but overall ensures that major political actors understand the limits of
their power. It should, perhaps, not be surprising that of all the political actors since 1986,
Museveni has most successfully used the military as an instrument of power. Not only was
he named after the famous Seventh Regiment of the King’s African Rifles (KAR) – the
Abaseveni, who had fought in the 2nd World War, but, by his own admission, he has been a
diligent student of the military power, choosing to write his undergraduate thesis on
‘Fanon's Theory on Violence: Its Verification in Liberated Mozambique’. It could be said
that this thesis, which was developed in in the intellectual climate of the University of Dar
es Salaam, and ‘verified’ in the bushes of Mozambique, has been most effectively applied in
Uganda since 1986. In his own words:
 19

A wise politician should be like a chameleon to change colour when necessary.

When I am at Wakiso I have no problem, I can be like a dove. But when facing my
enemies and murderers, I turn into a lion.34

This Section takes a snap-shot of developments in 2013 to demonstrate how they should be
understood in this broader context.

In the first place, at the beginning of 2013, during an interaction with the Parliamentary
Rules Committee, the Minister of Defence, Dr Crispus Kiyonga, warned Parliament that if
its members did not ‘behave’ the Uganda Peoples’ Defence Forces (UPDF) would
‘intervene’. Dr. Kiyonga is quoted as having said that the army was watching events in
Parliament and that there was a possibility that it would ‘take over’ if politicians did not
show ‘seriousness’ in resolving the problems facing the country. According to him, such an
intervention would be done to ‘refocus’ the country’s future and to reclaim it from the hands
of ‘wrong politicians’.35 Shortly thereafter, on January 16th, 2013, during a retreat for NRM
MPs held at Kyankwanzi, the President warned the MPs that the military would not permit
was he called ‘confusion’ in Parliament to continue.36 These threats from the country’s
‘civilian leaders’ were echoed by the UPDF Chief of Defence Forces, General Aronda
Nyakairima, who on January 23, 2013, informed reporters that the ‘message’ had been
‘deliberately sent out’, that it was ‘well taken for those to who it was intended’ and that
Ugandans should ‘Stand warned’. Like Dr. Kiyonga who had spoken of ‘wrong politicians’,
General Nyakairima warned that the military would not allow ‘bad politics’ to reverse the
gains made by the country. The General was further quoted as saying ‘Stand advised that
should you not change course, other things will take place.’37

34
http://www.observer.ug/index.php?option=com_content&task=view&id=21932&Itemid=114 This
statement was made at a public rally held in Wakiso in 2000 while drumming up support for retaining the
‘movement’ system in the referendum that was to be held that year. Tellingly, he also noted that leaders like
Obote lost power twice through coups d’état because they failed to understand developments and to modify as
appropriate.
35
http://www.newvision.co.ug/news/638828-defence-minister-kiyonga-tells-mps-to-behave.html
36
http://www.monitor.co.ug/News/National/Museveni-tells-MPs--Army-can-takeover/-/
688334/1668782/-/15pey9/-/index.html
37
http://www.monitor.co.ug/News/National/Aronda-saysarmy-takeover-possible/-/688334/1673856/-
/eg5q6q/-/index.html
 20

A few weeks after these strange statements, on March 4, 2013, Ugandans woke up to the
strange news that a number of gunmen had launched an attack on a major military
installation, the army barracks in Mbuya. This brazen attack was puzzling in terms of who
was behind it, what was aimed at and what the broader goal was. The official explanation
that was issued by the Army a few weeks later was that it had been planned and executed by
a UPDF informant who sought to justify his claims of an imminent rebel attack.38 However,
on May 7, 2013, it transpired that a more serious alternative theory regarding the attack had
been developed by General David Sejusa Munungu (formerly known as Tinyefuza), a
highly decorated Four Star UPDF General, who at the time served as Coordinator of the
country’s intelligence services and as a Senior Presidential Advisor. It transpired that
General Sejusa, in an April 29 letter to the Director General of the Internal Security
Organization (ISO) alleged that there was a plot by top officials, including the Inspector
General of Police (IGP), General Kale Kayihura, to assassinate or frame a number of
politicians including General Sejusa himself. In the letter, General Sejusa alleged in part
that the IGP had ‘hatched an evil and extrajudicial plan of stage-managing the attack on
Mbuya barracks’ with a view to framing ‘some senior members’ of the government
including, especially, himself, the Prime Minister Amama Mbabazi, the Chief of Defence
Forces General Aronda Nyakairima as well as other persons thought to be against a
perceived plan to have the President’s son, Brigadier Muhoozi Kainerugaba, succeed his
father as Uganda’s President (the so-called ‘Muhoozi Project’). In this regard, General
Sejusa further asked that the Director General of ISO investigate claims that General
Kayihura and company were organizing for the assassination of people opposed to the
‘family project of holding onto power in perpetuity’.39 This letter is particularly important,
coming from a General who fought with President Museveni during the bush war of 1981-
1986 and can thus claim to be an ‘NRM historical’, and who, at the time he wrote it, was a
member of the UPDF High Command, the UPDF Defence Council and was also a Member
of the Parliament of Uganda, representing the UPDF. As would be expected, General

38
http://www.observer.ug/index.php?option=com_content&task=view&id=24478&Itemid=116
39
http://www.monitor.co.ug/News/National/Probe-assassination-claims--says-Tinye/-/688334/1844358/-
/fjq5ayz/-/index.html
 21

Sejusa has since gone into exile in London, where he is relatively safe from some of the
more dire consequences of his bold claims.

However, but again, as has now come to be fully expected in Uganda, the full weight of the
State machinery was brought to bear upon the news outlets which had published reports of
the letter, with the Uganda police raiding and shutting down the offices of The Daily Monitor
and The Red Pepper on May 20, 2013. The Police also shut down The Monitor’s sister station
KFM, as well as Dembe FM, an independent broadcaster. It would be a full eleven days
before the police would finally leave the premises of the two newspapers and allow staff to
resume business. Obviously, this media siege had a substantial chilling effect on the media,
whose full impact will only be fully felt in the coming months. For starters, The Monitor
Publications Limited, which owns The Monitor and KFM, lost over UGX 1,100,000,000
(One Billion, One Hundred Million Uganda Shillings) or approximately USD 426,000
(Four Hundred Twenty Six Thousand United States Dollars) during this eleven-day
period.40 This is not to mention the employees whose jobs were affected during this time, as
well as the entire wider network of newspaper vendors, service providers and other persons
who suffered collateral damage. Although The Monitor prides itself on providing Ugandans
with ‘Truth Everyday’ as per its slogan, it is not inconceivable that going forward, its
editorial team on instruction from the Board who represent the shareholders, will be careful
to ‘tone down’ or at worst suppress important issues of national concern for fear of running
afoul of the State once more. It is no wonder that, in the wake of the lifting of the siege, Al
Jazeera found it necessary to now refer to The Monitor as a ‘semi-independent’ newspaper.41

For his part, since his stern warning about the army not allowing ‘bad politics’ to distort the
country’s gains, General Aronda Nyakairima has been appointed Minister of Internal
Affairs, by President Museveni, which position he assumed on July 24, 2013. The
appointment sparked a spirited national debate regarding the constitutionality of a serving
UPDF officer assuming a Ministerial position. In the end, however, as is now customary,

40
http://news.ugo.co.ug/2013/05/monitor-loses-shs-1bn-in-media-siege/
41
http://www.aljazeera.com/news/africa/2013/05/2013530102350599419.html
 22

the President’s will triumphed in an NRM-dominated Parliamentary Appointments

Committee and the appointment was eventually confirmed.42 True to form, in his first public
pronouncement as Minister for Internal Affairs, General Nyakairima warned media groups,
opposition politicians and civil society activists to toe the line or face the consequences of
their actions.43

It would appear that the warnings that were sounded at the start of the year regarding
military intervention to counteract ‘bad politics’ and ‘wrong politicians’ have started to be
acted upon. It would appear that the armed group that took over power in 1986 and that has
since then tried to wear the guise of civilian authority legitimized by periodic ‘elections’ and
‘referenda’ has grown tired of the charade and is finally ready to shed the ill-worn costume.
What is most unfortunate, at this critical time, is that they are being facilitated in this
process a host of civilian actors who should know better. The majority of Uganda’s
Members of Parliament appear to be quite willing to go along with the President’s will,
perhaps due in no small measure to the financial pressures a number of them face. Indeed,
in what appears to be a first for a national Parliament, a number of MPs had the audacity to
ask the President to assist them to pay off loan obligations to banks and other financial
institutions.44 Such MPs will hardly be in position to agonize over the implications of a
serving UPDF officer being appointed a Minister, especially in the face of the requirement
under Article 208 (2) of the Constitution for the UPDF to be ‘nonpartisan’ and ‘subordinate
to the civilian authority as established under this Constitution’. There are also increasingly
troubling indications that the Judiciary as currently constituted may be more willing than
before to look the other way when faced with Executive overreach and military usurpation
of civilian authority.45 Moreover, if current proposals to reappoint the immediate former
Chief Justice Benjamin Odoki as Acting Chief Justice in spite of his having reached the
mandatory retirement age (70 years) are anything to go by; there are serious efforts being

42
http://www.monitor.co.ug/News/National/MPs-walk-out-as-Gen-Aronda-isconfirmed/-
/688334/1919346/-/u2u6a2z/-/index.html
43
http://www.thelondoneveningpost.com/behave-or-else-army-general-warns-ugandanmedia-and-ngos/
44
http://www.newvision.co.ug/news/645411-broke-mps-cry-out-to-museveni-over-debts.html
45
http://allafrica.com/stories/201307290370.html
 23

made to coopt and subsume the Judicial branch under the Executive in the context of the
broader campaign to fully militarize the country’s politics.

For its part, the Uganda Law Society (ULS) in a troubling Memorandum to the
Parliamentary Appointments Committee, marked ‘Privileged and Confidential’, and which
was obviously not expected to surface in the public domain, appears to take the view that,
faced with the substantial question regarding the militarization of Uganda’s politics, a
‘literal’ approach (which in their view permits a serving officer to be appointed Minister) is
preferable to a ‘purposive’ one (which might ‘have an impact on the approval by
Parliament’ of such an appointment).46

5.0 Rule of Law or Law of the Ruler?

In light of the preceding discussion and analysis, it is extremely problematic to argue that
there is ‘rule of law’ in the real sense in Uganda. What we have, and what Uganda has had
since the colonial period, has been the law of the ruler, except, perhaps for the brief and
tense period between October 1962 and Obote’s invasion of the Lubiri in 1966.

Since 1986, there have been many ‘unguarded’ moments, when this reality has been
signaled to Ugandans by His Excellency:

 June, 2004: ‘The major work for the judges is to settle chicken and goat theft cases
but not determining the country’s destiny’47

 February 2008: ‘I’m the one who went hunting, and after killing my animal some
people want me to go. Where should I go?’48

46
http://www.scribd.com/doc/155176591/Aronda-Opinion-ULS
47
In the wake of the Court of Appeal decision declaring the Referendum (Political Systems) Act of 2000
invalid.
48
Addressing a gathering of locals in the district of Bushenyi.
 24

 June 2012: ‘[a] speaker isn’t supposed to be in dance halls, jumping up and down. A speaker
should wear her wig and keep silent until something that needs her guidance comes up’. 49

Given such public statements of intent, which demonstrates the illusion of separation of
powers under the 1995 ‘Constitution’, is it unrealistic to suppose that the overriding
Presidency, deriving its power as it does from the military, would submit to law except
where that law is convenient or expedient to its own purposes.

It is in this light that one can assess the scope for action under a litany of laws such the
Kampala City Authority Act, the NGO Amendment Act and the recently passed Public
Order Management Act.

6.0 Conclusions

For too long now, national debates on Constitutionalism and human rights have focused on
the periphery, without adequately or comprehensively addressing the phenomenon of
militarism that is critical for an understanding how Uganda is really governed. On the other
hand, enquiries into the military and security services have also been somewhat limited in
so far as they have considered then as an ‘aspect’ of governance rather than what they really
are, that is to say, a form of governance. It is time we squarely faced the ghost that haunts
our governance and honestly addressed the fundamental challenges that bedevils our
attempts as a country at democratization.

It seems reasonably clear that the sad story that is Uganda’s propensity for turbulent and
militarized politics is an ongoing one, and that the struggle for good governance - a
government OF the people, BY the people and FOR the people is still in progress. While
there have been indications that the current government sincerely believes that their actions
are taken ‘for’ the people, it is quite clear by now that the true government of Uganda is not
exercised by the civilian authority, but rather by those who wield effective power over the

49
With reference to the Speaker of Parliament, Rt. Hon. Rebecca Kadaga.
 25

UPDF. There are very troubling, and turbulent, times ahead, in which the high promise of
the 1995 Constitution will be continually revealed to have been nothing more than an
elaborate and most cynical illusion. As this shown above, this descent into the exercise of
naked military power is not really surprising, given the extra-constitutional genesis of the
current government, and given the circumstances under which the 1995 Constitution was
made.

In the face of this onslaught, the Courts and lawyers will most likely continue doing what
they have done since pre-colonial times – serving to validate and legitimize military power
through various doctrines crafted for this purpose – ‘the Act of State’, ‘the Kelsen theory of
revolution in law’, ‘the substantiality test re Presidential Elections’, ‘the Political Question
doctrine’ and so on. While it has been argued that – inter arma leges silent (in the face of arms
the law is silent) – the reality appears to be that in the face of arms, the law speaks the
language of power, validating and legitimizing it as only the law, and lawyers, know how.