UGANDA MARTYRS UNIVERSITY

PROGRAM: SCHOOL OF LAW

COURSE UNIT: CONSTITUTION LAW

FROM: NAKINTU KEVIN

TO: MR. OKETCHO PATRICK

REGISTRATION NO:2019-B411-12397

DATE OF SUBMISSION:29TH/04/2020

QUESTION 2
 According to Frank Tumusiime advocates the basic doctrine structure is judge made law and implies
that the limitation on the power of parliament to amend the constitution. And a living constitution is one
that is continually edited and updated in this it means it can be changed or adapts to new circumstances. It
also be called a dynamic document. A living constitution is said to develop alongside the needs of a
society. For a constitution to be good and valid it should accept changes though for the basic features it
they it static unless there is use of rules of procedure. In the case Yaakov V Chairman of the central
elections committee for the sixth Knesset court observed that there are fundamental constitutional
principles that are of so elementary a nature and so much the expression of law that precedes the
constitution that the maker of the constitution himself is bound by them. Other constitutional norms,
which don’t occupy this rank and contradict these rules can be void because they conflict with them. The
basic structure doctrine was enunciated by the supreme court India in one of its most important decisions
ever in the 1973 case of Kesavananda Bharani v the state of Kerala, the doctrine is to the effect that a
national constitution has certain basic features which underlie not just the latter but also the spirit that
constitution in a manner that takes away that basic structure, is void and of no effect. The rationale of the
decision was that an amendment, which makes a change in the basic structure of the constitution, is not
really an amendment, but is in effect, rewriting the new constitution, which parliament has no power to
do. The court held that as the supreme court of the land, it had a limited power to review and strike down
amendments which went to the very heart, and core of the constitution by seeking the alter its basic
structure. In its wisdom, the court did not lay down the list of provisions it considered to constitute the
basic structure. The claim of any particular future of the constitution to be a basic structure. Is left to be
determined by the court on a case by case basis. It is also approved and cited by countries which follow
common law jurisdictions for example in the case of Minerva Mills Ltd V. Union of India (1980) and
Indira Nehru Gandhi v Raj Narain (1975). In the process the courts have suggested various guide lines
which can be in relied onto determine whether an amendment touches the basic structure of a particular
constitution and is therefore void. Whether or not a provision is part of the basic structure varies from
country to country depending on each country’s peculiar circumstances including its history, political
challenges and national vision. Importantly the decisions I have cited show that in answering this
important question courts will consider factors such as the preamble to the constitution, national
objectives and directive principles of state policy( in countries which have them in their constitution such
as Uganda), the bill of rights, the history of the constitution for example Uganda’s constitution that was
promulgated in 1962 followed by the 1966 also called the pigeon hole constitution which was followed
by the 1967 constitution, that led to the given provision, and the likely consequences of the amendment.
In my view the basic structure doctrine is a doctrine where certain basic features of the constitution
cannot be changed by parliament. To add more the parts of the doctrine include supremacy of the
constitution as it is elaborated in article 2 of the constitution of the Republic of Uganda, sovereignty of
the people contrary to article of the constitution of the Republic of Uganda, the principle of rule of law
where by everyone must follow the law even those that make the law, the principle of separation of
powers as it is elaborated in different articles of the constitution that the executive in article 98 of the
constitution, the judiciary in article 126 of the constitution and parliament in article 77 of the
constitution of the Republic of Uganda. In case of Male Mabirizi and Ors v Attorney General each
of the justices of Uganda’s constitutional court pointed out different features as constituting the basic
structure of Uganda’s constitution. In Justice Owiny-Dollo’s view , the basic feature of 1995 constitution
are the sovereignty of the people in article 1 of the constitution of the constitution of Uganda, the
supremacy of the constitution as provided for under article 2 of the constitution saying that this
constitution is the supreme law of Uganda and shall have binding forces on all authority and persons
throughout Uganda, political and constitutional stability, rule of law where every citizen in the country
has to follow the law even those who make the law, non-derogable rights in article 44 of the constitution
of the Republic of Uganda, non-establishment of a one party state, duty of every citizen to defend the
constitution contrary to article 3 of the constitution and separation of powers as it is elaborated by the
constitution of the Republic of Uganda. According to Justice Musoke JCC the basic features of the
constitution are the preamble, sovereignty of the people, the bill of rights found in chapter 4 of the
constitution and non derogable rights in article 44 of the 1995 constitution. But in my view about the
amendment of article 102(b) , there is another equally interesting ground on which the validity of the
unfolding amendment could be challenged, even if it was to be past in scrupulous compliance with the
procedural requirements. I wish to suggest that the proposed amendment arguably violates the basic
structure doctrine. Professor Oloka Onyango of Makerere university whose latest book is when courts do
politics says on the technical questions “in a black letter of the law, there was no problem with the
removal of the age limit he told the independent in an interview “article 102(b) of the constitution is an
article like any other which can be amended by parliament but he added “you need to contextualise it”. In
my view as per basic doctrine structure any amendment that tries to change the basic structure of the
constitution is valid. The idea of the Basic structure doctrine is to preserve the nature of democracy and
protect the rights and liberties of people. The doctrine helps to protect and preserve the spirit of the
constitutional document.

It is noted that Uganda’s constitution provides for the amendment of various provisions by parliament and
these provisions are categorised into three.
The first category is amendment requiring a referendum as provided for under section 260 of the
constitution and the support of two thirds majority votes of parliament. Under this category are articles
259 (1) and (2) on the requirement for a referendum and sovereignty of the people contrary to article 1 of
the constitution and supreme of the constitution contrary to article 2 of the constitution. The amendment
of the article 102(b) there was no sovereignty of the people because want the people told the members of
the parliament was changed and did not submit what the citizens of Uganda. It was only few members of
parliament that represented the people as they required and they refused the amendment of article 102(b)
of the constitution. For example in my area Kyadondo East honourable Robert Sentamu Kyagulanyi was
against the amendment because the people of Kyadondo had refused the entrenchment of the Article. In
the case of Male Mabiirizi & ors v attorney General, Justice Kakuru stated that there are provisions of the
constitution which parliament does not have power to alter even if followed all the required procedures of
amendment. He also that added therefore I find that the basic structure doctrine applies to Uganda’s
constitutional order having been deliberately enshrined in the constitution by the people themselves.
Kakuru ruled that members of parliament have no power including legislating on extending their term
from five to seven years. He concluded that the contravention of several articles of the constitution and
omission defeated the whole amendment. The power of legislate belongs to the people of Uganda, who
every five years delegate it to some amongst themselves under Article 1 of the constitution of the
Republic of Uganda. This power therefore delegated as it is very limited in both in time and scope. In my
view the sovereignty of the people contrary to article 1 of the constitution was not considered because the
members of the parliament did not submit what the people had told them to present to the parliament but
because they were given some money by the president mainly to say yes but did not look back at people
views who entrusted them with power to represent them in the legislature. Article 1 of the constitution
says that all power belongs to the people who shall exercise their sovereignty in accordance with this
constitution. But also in my view they did not look at Ugandans as citizen with the rights given to them
for example freedom of expression as it is in article 29 of the constitution where by every Ugandan shall
have the right to freedom of speech and expression which shall include freedom of the press and other
media. And this was also elaborated by Justice Benjamin Odoki in the national search for the national
consensus where he stated that while constitution making was based on collecting views from sub
counties and general public. Now I wonder why people are not consulted if they are to amend the
constitution yet in the beginning the constitution was made by the people and for the people. According
to the 1995 constitution of the republic of Uganda there are articles that cannot amended without a
referendum that is article 259 (1) and (2) which require a referendum, article 1 and 2, article 44 about the
prohibition of derogation from particular human rights and freedoms, articles 69,, 74 and 75 of the
constitution, article 79(2), article 105(1), article 128(1) and lastly chapter 16 of the constitution. The
people are supposed to be inquired from to get their proposals, combine them and get something good for
the country. In the Justice Benjamin Odoki search for the national consensus the commission had to
collect views of the people then combine them, considering both for the majority and for then minority
not left behind. The constitutional court justices were further dismayed by the media’s reluctance to tell
the public that the age limit was a small component of the petition. The deputy chief justice Owiny Dollo
said that the age limit was the smallest of all matters that were brought before court. If I can remember it
was the Uganda Law Society out of the 11 petitioners that brought up the issue of the age limit; all the
others were concerned about other things. In my view the justices and the members of the parliament
created an impression that the petition was about determining whether President Museveni can stand
again for election in 2021. The whole game was about this whereby most of these where about this and
they look at the people they had left and told them something different. The judiciary and the legislature
had a hand in amending the constitution (article 10(b) of the constitution) and the media it’s self-brought
it out. And this was not a legal issue. In an open interview with the deputy justice Dollo in the Observer
where he had to split out the secrets of the age limit amendment, he said that all of the five justices of the
constitutional court agreed that the constitution allows parliament without having to go for a referendum,
to amend that provision of the age limit and there was no dissent at all. The only dissent by one person
was” although parliament had power to amend, they did not follow the procedure laid down in the rules of
procedure of parliament” and this was Justice Kakuru. Kakuru premised his judgement on the argument
that parliament in the process enacting the amendment act which he referred to as impugned act and
mostly importantly failed to sufficiently consult with Ugandans as they legally should. He said that this
court will not stand by and let our democracy and our hard earned values, set in our constitution wither or
vine. That will not happen. The members of parliament have no power of their own. The power to
legislate belongs to the people of Uganda every 5years they delegate some amongst themselves under
article I of the constitution. In my view of the basic structure of the constitution the people of Uganda
through their constitution should be able to freely, whenever it is absolutely necessary to do so, vary the
qualification of leaders.in the case of Male Mabirizi & ors v the Attorney general justices of the high
court that is justice Musoke said that article 102(b) of the constitution is an article like the other article
that can be amended by the parliament and also the making of the constitution the makers knew that it
could change due to certain circumstances. He also ruled that the removal of the age limits for the
president is not an entrenched provision. That the amendment does not infect article 1 or any other
mentioned articles that form the basic structure. In my submission I will have to say that a constitution is
human document that was formulated to serve human needs and that is the servant and not the master of
those who created it
The second category contains provisions whose amendment requires approval by District councils and the
support of two-thirds of all members of the parliament at the second and third readings. According to
Article 261 of the constitution a bill for an act of parliament seeking to amend any of the provisions
specified in clause 2 of this article shall not be taken as passed unless it is supported at the second and
third reading in parliament by not less than two thirds of all members of parliament and it has been
ratified by at least two thirds of the members of the district council in each of at least two thirds of all
districts of Uganda. Clause 2 of this article says that the provisions referred to in clause(1) of this article
are this article itself, Article 5(2), Article 152( about taxation), articles 176(1), 178 189, 1nd 197 of the
constitution. The district councils should be consulted before the amendment of the above articles because
they are the leaders of the local government system as provided for in article 176 of the constitution. This
is because according to the Section 9 of the Local Government Act Cap 243, a council shall be the highest
political authority within the area of jurisdiction of the local government and shall have legislative and
executive powers to be exercised in accordance with the Constitution and this Act. These councils should
be inquired from in order to consider them as leaders of certain people in societies. For example for the in
Uganda over the top tax, the district councils had to be inquired from in order to get their views about that
tax
Thirdly is the category that contains provisions whose amendment requires the support of two-thirds of all
members of the parliament at the second and third readings. The articles under this category are those
which are not included in the above category mentioned. This means that Article 102(b) of the
constitution falls in this category. According to Article 262 of the constitution a bill for an act of
parliament to amend any provision of The constitution other than those referred to in articles 260 and 261
of the constitution shall not be taken as passed unless it is supported at the second and third readings by
the votes of not less than two thirds of all members of the parliament. In the Kenyan case of Njoya v
Attorney General and others the court held that the parliament may amend, repeal and replace as many
provisions as it desired provided that the document retains its character as the constitution and that
alternation of the constitution does not involve the substitution thereof a new one or the destruction of the
identity of the existing one. In case Male Mabirizi & Ors v Attorney General the deputy Chief Justice
Owiny Dollo of the constitutional court held that the parliament has the power to amend any article of the
constitutional as long as the follow the constitutional process in the amendment act. Justice Elizabeth
Musoke held that the removal of the presidential age limit does not derogate from the basic structure.
Article 102(b) is not an entrenched provision because it does not infect article 1 of the constitution
(sovereignty of the people). Justice Kasule observed that the farmers of the constitution that is the
constituent Assembly, in their wisdom saw it fit to have the age limits of one who is to stand for election
as president of Uganda. Justice Kakuru as a dissenting justice held that there are no provisions of the
constitution which parliament does not have to alter even if it followed all the required procedures of
amendment. Parliament in my view has no power, alter or in any way abridge or remove any of the above
pillars or structures of the constitution as doing so would amount to its abrogation. He also added that in
this regard therefore I find that the basic structure applies to Uganda’s constitutional order having been
deliberately enshrined in the constitution by the people themselves. Kakuru ruled that members of the
parliament have no power including legislating on extending their term from five to seven years. Owiny-
Dollo said that all agreed that parliament had a right to amend Article 102 of the constitution of the
Republic of Uganda which lifts the age limit and would do it very easy apart from Justice Kenneth
Kakuru who dissented from other judges. He also said that power belongs to the people but Uganda isn’t
a Greek any state and because of that constitution provided that people hand over power to parliament
have power is clearly spelt out. He argued that parliament power was only limited in respect of
entrenched provisions, which articles of the constitution which parliament can only after a referendum.
Justice Owiny Dollo continued and said that it is considered that those who say people must participate in
the amendments like removing the age limit miss the point. Yes they must but what is the meaning of
people’s participation according to the constitution is it a mere consultation? If I consult you, you give me
your view and I act to be contrary would you recall me from parliament? I could not be a witness in the
Mbale petition but I knew the lady MP from the constituency where I vote from consulted the same
people and came from consulted the same people and came with different results about the age limit. Also
on the panel was Professor Oloka Onyango who penned a critical article on the decision, especially what
he called the court’s inability to comprehensively traverse the philosophical basic structure doctrine and
apply it to the facts of the case.in the case of Shankar Prasad case(1951), where the supreme court
contended that the parliaments power of amending the constitution under Article 385 of the Indian
constitution included the power to amend the fundamental rights guaranteed in Part 3 as well.in the case
Sajjan Singh case(1965), where the supreme court held that the parliament can amend any part of the
constitution including the fundamental rights. It is noteworthy to point out that two dissenting judges in
this case remarked whether the fundamental rights of citizens could become a play thing of the majority
party in parliament.in the case of Golaknath case (1967) it is said that fundamental rights are not
amenable to the Parliamentary restriction as stated in Article 13 of the Indian constitution and that to
amend the Fundamental rights a new constituent Assembly would be required. Also stated that Article
368 of the Indian constitution gives procedure to amend the constitution but does not takeaway power .on
parliament the power to amend the constitution. This case conferred upon fundamental rights a
transcendental position. The majority judgement called upon the concept of implied limitations on the
power of the parliament to amend the constitution. As per this view the constitution gives a place of
permanence to the fundamental freedom of the citizens. In the case of Minerva Mills case (1980), the
basic structure is again strengthened again where it was made clear that the constitution and not the
parliament is supreme, in the case the court added two features to the list of basic structures. They were;
judicial review and balance between fundamental rights. The judges ruled that a limited amending power
itself is a basic feature of the constitution. In the case Male Mabirizi and Ors V Attorney General,
Justice Kakuru held that the power to legislate belongs to the people of Uganda who every five years
delegate it to some amongst themselves under Article I of the constitution of the republic of Uganda. This
power therefore delegated as it is very limited in both in time and scope. In my view by this he was
opposing what the other judges were saying that the parliament has all the power to amend any article in
the constitution apart from those article mentioned in articles 260 and 261 of the constitution of the
constitution of the Republic of Uganda. Which was true because the members of parliament did not
present to parliament what they got from referendum but because they had got some money they could
not present to parliament what was required by the people and the this violated article 1 of the
constitution of the republic of Uganda though in the parliament most of the parliament had agree to
amend the article they had to look back to the people who vested them with the power. In the case
Mabirizi kiwanuka & other v Attorney General, the chief Justice Bert Katureebe discussed the basic
structure doctrine in light of the declaration of the constitutional court that sections 1, 3, 4 and 7 of the
constitutional Amendment act No.1. Of 2018 which among others removed the age limit of the president
and the local council 5 chairperson were in full compliance with the constitution and thus remain lawful
and valid provisions of the constitutional Amendment act No.1 of 2018. The chief justice also noted that
in interpreting a constitution, the history of the country and prevailing circumstances have to be put into
consideration. He referred to the preamble of the constitution which shows that the history of Uganda is
characterized by political treachery, military coups, and gross violations of human rights. He went further
noted that he has seen nothing to suggest that in the constitutional history of Uganda, one of the problems
has been either a very young or very aged president. There is also nothing to suggest that the ideals
espoused both in the preamble and the national objectives and the directive principles of state policy were
directed at the age of the person seeking the office of the president. that what is clear is that the ideals
were directed to over stay in power without the free will and consent of the people and he added that there
was no evidence adduced to show that a person below the age of 35 years of age or above 75 years of age
has an inherit inability to be president. He also opined that one should not be denied a chance to
participate because of age citing the preamble and national objective 2 that promotes equality and the
citizens were not an essential but mainly the parliament. On this background the Supreme Court found
that the justices of the constitutional court were correct to find that the restriction on the age of the
president or the chairperson local council 5 was not a pillar of the constitution of Uganda and was
therefore not part of the basic structure. Am of the view that the parliament crossed borders and also the
farmers of the constitution in 1995 are to be blamed in this situation because most of the power was
vested to the parliament through the constitution of the republic of Uganda. This is as to why the
parliamentarians at times can think and act for the citizens out because all the power was vested to them
in article 79 of the constitution of the Republic of Uganda.

To sum it up since there no document that needs no change the good constitution should adapt some
changes if there are proper procedural rules to follow while changing the constitution for example through
referendums, approval of the two thirds of the members of parliament and the district councils as it is
asserted in chapter eighteen of the constitution of the Republic of Uganda of 1995. Am of the view that a
document without change cannot serve the country well. The 1995 constitution of Uganda accepts the
necessity of modifications according to changing needs of the society and also there has been enough
flexibility of interpretations in that both political practice and judicial rulings have shown and maturity
and flexibility in implementing the constitution. These two factors have made the 1995 constitution of
Uganda a living document in that it is part of the Ugandans. On the other side a constitution is like
marriage where two people vow to be together for better and for worse that is in poor and in rich times.
When Raphael Magyezi presented this bill in parliament it showed signs of chaos in the country. The
members of opposition argued that the Article is untested and it should be given chance to work and that
Article 102(b) is intended to be an inbuilt restraint to longevity in power.

REFERENCES ROR MY SUBMISSION

THE 1995 CONSTITUTION OF THE REBUPLIC OF UGANDA

INDIAN CONSTITUTION

THE SEARCH FOR THE NATIONAL CONSENSUS BY BENJAMIN ODOKI

CASE LAW

ADVOCATES FIRM

THE LOCAL GOVERNMENT ACT CAP 243