“Revisiting the Basic Structure Doctrine and Its Efficacy in the Case Analysis of the Male Mabirizi Kiwanuka & Others v. Attorney General Constitutional Appeal No. 2 of 2018”.
- Lawpointuganda
- Mar 1, 2024
- 27 min read
“To my understanding, the Basic Structure doctrine may be equated to a family house. It must have a strong foundation, strong pillars, strong weight-bearing walls, and strong trusses to support the roof. The roof could be grass thatch, as happens in many of our homesteads. The roof could be iron sheets of particular gauge. The iron sheets could be of different colours. If the wind blew away part or all of the roof, the basic structure should remain and the next day the family can put the roof back. But if the weight bearing pillars were undermined or removed, the whole structure would collapse. It would not be a dwelling house any more. – Per Katureeba Chief Justice of the Supreme Court in the Consolidated Constitutional Appeal No. 2 of 2018 in the case of Male Mabirizi Kiwanuka & Others v. Attorney General. At pg. 12 of 102
CONTENTS
THE CHIEF JUSTICE’S REFERENCE FROM JUSTICE KENNETH KAKURU’S (JCC-RIP) BREAKDOWN OF WHAT IS THE BASIC STRUCTURE DOCTRINE?. 20
ABSTRACT.
The Basic Structure Doctrine has long been a cornerstone of constitutional jurisprudence, has significantly influenced legal systems worldwide, it is a fundamental legal concept that originated in India. It was enunciated by the Supreme Court of India in the landmark case of Kesavananda Bharati v. The State of Kerala (Civil) 135 of 1970;(A.I.R 1973 SC 1461) Vol 5 Tab DD page 64, where S.M. Sikri, C. J held that,
“This doctrine asserts that certain essential features of a constitution cannot be altered or amended by the legislature, even if the constitution itself provides for amendments. These core features form the bedrock of the constitutional framework and are immune to ordinary legislative changes. The basic structure may be said to consist of the following features: 1. Supremacy of the Constitution; 2. Republican and Democratic form of Government; 3. Secular character of the Constitution; 4. Separation of Powers between the Executive; and 5. Federal character of the Constitution.”
This article revisits the landmark case of Male Mabirizi Kiwanuka & Ors v Attorney General Constitutional Appeal No. 2 of 2018, a pivotal moment in Ugandan legal history adjudicated by the Supreme Court.
This case analysis delves into the historical context and significance of the case within Ugandan legal discourse, examining the Basic Structure Doctrine's role in safeguarding constitutional integrity.
The article provides a detailed overview of the Male Mabirizi Kiwanuka appeal, highlighting the Constitutional Court's pronouncements and the subsequent Supreme Court ruling.
Additionally, we explore the origins, evolution, and doctrinal underpinnings of the Basic Structure Doctrine, emphasizing its centrality in preserving fundamental constitutional tenets.
The efficacy of the doctrine in constitutional interpretation is scrutinized, assessing its impact on maintaining the constitutional equilibrium.
The article concludes by imparting insights for legal practitioners, scholars, and policymakers, reflecting on the enduring relevance of the Basic Structure Doctrine in a dynamic legal landscape.
This intellectual journey bridges theory and practice, unraveling the intricate threads that bind constitutionalism, justice, and societal aspirations, inviting readers to revisit and reevaluate the very foundations of constitutional governance.
INTRODUCTION AND BACKGROUND OF THE CASE.
In the case of Male Mabirizi Kiwanuka & Others v. Attorney General, several constitutional petitions were brought before the Constitutional Court of Uganda, Male H. Mabirizi filed Constitutional Petition No. 49/2017, Uganda Law Society filed Constitutional Petition No. 03/2018, Other petitioners included Hon. Gerald Kafureeka Karuhanga, Hon. Jonathan Odur, Hon. Munyagwa S. Mubarak, Hon. Allan Ssewanyana, Hon. Ssemujju Ibrahim Nganda, Hon. Winifred Kiiza, Prosper Businge, Herbert Mugisa, Thomas Mugara Guma, and Pastor Vincent Sande in various petitions. The Attorney General represented the respondents.
BACKGROUND OF THE CASE.
In 2017, Hon. Raphael Magyezi, a member of the 10th Parliament of Uganda, moved a motion seeking leave to table a private member’s Bill to amend the Constitution.
At the center of this analysis, lies the Basic Structure Doctrine—a doctrine that transcends mere legal theory, it grapples with the fundamental question: Can the core tenets of our constitution be altered at will? or do they constitute an unchangeable foundation safeguarding the essence of democracy?
This analysis focuses on the decisions of learned justices—Katureebe CJ, Mugamba JSC, and Prof. Tibatemwa JSC—weighing in on their approach of this daunting task that is to determine whether the Basic Structure Doctrine is engrained in Uganda’s constitution.
The exploration delved into the existence and embodiment of the doctrine within the constitutional text, questioned which provisions acknowledged its presence, and scrutinized Parliament's power to amend the immutable bedrock of the constitution.
This article revisits the annals of legal history, dissecting the “Age-limit” case and unraveling the threads of constitutional restraint, the echoes of this judgment resonate far beyond the courtroom—a testament to the enduring struggle between constitutional fidelity and the exigencies of governance.
The background of this case emanates from an constitutional appeal which arose from the decision of the constitutional headed by (DCJ Owiny Dollo as he then was), Remmy Kasule JCC, Kenneth Kakuru JCC (RIP), Musoke and Cheborion JCC in which the applicants sought to challenge the Constitution (amendment) Act repealing Article 102(b) of the 1995 Constitution of Uganda as amended removing the age limit qualification to stand for President of Uganda, arguing inter alia that the amendment violated the basic structure doctrine.
Suffice to state the briefly, in 2017, Hon. Raphael Magyezi, a member of the 10th Parliament of the Republic of Uganda, sought leave to table a private member’s Bill to amend the Constitution, specifically Article 102 (b), lifting the Presidential age limit. The Bill, after amendments, became the Constitution (Amendment) Act (No. 1) of 2018.
Five Constitutional Petitions challenged its validity. Key issues included the extension of parliamentary and local government terms, alleged violence during enactment, failure to observe parliamentary rules, reintroduction of term limits, harmonizing parliamentary and presidential terms, and lifting the age limit.
The judges had varying opinions. Notably, Deputy Chief Justice Owinyi Dollo (as he then was) found the two-year extension of MPs unconstitutional but upheld the age limit amendment. Justice Musoke deemed the extension unconstitutional and supported the age limit amendment. Justice Barishaki nullified the extension but upheld the age limit amendment. Justice Kasule found the extension illegal and supported the age limit amendment. Only Justice Kakuru (RIP) dissented, declaring the age limit amendment unconstitutional.
The court's decision generated debate, with critics arguing it failed to safeguard the basic structure doctrine thus leading this appeal which was the Central issue in the Supreme Court as to whether the learned justices of the constitutional court misdirected themselves on the application of the basic structure doctrine.
HOLING OF Katureeba CJ ON THE BASIC STRUCTURE DOCTRINE.
In his Judgment on pg.3 the Chief Justice gave a historical backdrop of what the basic structure doctrine is and stated as follows;
“The basic structure doctrine is a judge-made Indian principle stating that a country’s Constitution has certain basic features that cannot be amended by its legislative body. The amendment of such features would result in drastic changes to the Constitution thus rendering it unrecognizable. This doctrine was first affirmed by a German jurist known as Professor Conrad Dietrich. The doctrine was then entrenched in the constitutional jurisprudence of India in the 1960s and 1970s which has since fundamentally influenced the development of constitutionalism and rule of law in a number of democracies across the world.”
The learned Justice further added that the parameters of the doctrine have been laid out in a number of decided cases but the most profound case is Kesavananda Bharati Versus State of Kerala, AIR 1973 SC the Supreme Court of India stated that:
“According to the doctrine, the amendment power of Parliament is not unlimited; it does not include the power to abrogate or change the identity of the constitution or its basic features.” The Court went on to rule that while Parliament has wide powers to amend the Constitution, it did not have the power to destroy or emasculate the basic elements or fundamental features of the Constitution. The Supreme Court declared that the basic structure or features of the Constitution rest on the basic foundation of the Constitution. The basic foundation of the Constitution is the dignity and the freedom of its citizens which is of supreme importance and cannot be destroyed by any legislation made by the Parliament. (See paragraphs 316 and 317 of the decision in Kesavananda Bharati).
The Supreme Court of India further elucidated on the said doctrine in the case of Minerva Mills v. Union of India, AIR 1980 SC 1789, where court held that Parliament has no power to repeal, abrogate or destroy basic or essential features of a constitution. The Court went further to hold that the claim of any particular feature of the Constitution to be a “basic” feature would be determined by the Court in each case that comes before it.
The learned justice noted that this doctrine has also been instrumental in shaping the constitutional jurisprudence of different countries across the world such as Bangladesh, South Africa, Kenya, Taiwan, Thailand, Argentina, Belize, Colombia; etc
Katureeba CJ giving detailed persuasive legal precedents observed, “From the above decided cases, it comes out clearly that in interpreting a constitution, the history of and the prevailing circumstances in a given country ought to be taken into account. As such, it is true that the question of whether or not the doctrine of basic structure applies depends on the constitutional history and the constitutional structure of each country. As was underscored by the Justices in the Constitutional Court, each Constitution is a product of historical events that brought about its existence.
He further affirmed the position of Kasule JCC in regards to the historical perspective in regards to the Basic Structure Doctrine and held as follows, In an earlier case decided by the Constitutional Court of Uganda: Saleh Kamba & others Vs. Attorney General & others, Constitutional Petition No. 16 of 2013; Kasule JCC stated as follows:
“Therefore from the historical perspective, the Constitution is to be interpreted in such a way that promotes the growth of democratic values and practices, while at the same time doing away or restricting those aspects of governance that are likely to return Uganda to a one party state and/ or make in-roads in the enjoyment of the basic human rights and freedoms of conscience, expression, assembly and association…”
HOW DOES THE UGANDAN CONSTITUTION CATER FOR THE BASIC STRUCTURE DOCTRINE?
The learned CJ had this to say;
In Uganda, I am of the view that the basic structure does find its roots in the 1995 Constitution. I am in agreement with the finding by the Constitutional Court that the principal character of the 1995 Constitution, which constitutes its structural pillars, includes such constitutional principles as the sovereignty of the people, the Constitution as the supreme legal instrument, democratic governance and practices, a unitary state, separation of powers between the Executive, Parliament and the Judiciary, Bill of Rights ensuring respect for and observance of fundamental rights and judicial independence.
The pillars of the 1995 Constitution are rooted in the preamble to the Constitution. The Preamble of the 1995 Constitution captures the basis for the provisions of the Constitution in so far as it gives a historical context in which the Constitution was being promulgated. One has to visualize what the framers of the Constitution had in mind when they wrote: “WE THE PEOPLE OF UGANDA: RECALLING our history which has been characterized by political and constitutional instability; RECOGNISING our struggles against the forces of tyranny, oppression and exploitation; COMMITTED to building a better future by establishing a social-economic and political order through a popular and durable national Constitution based on the principles of unity, peace, equality, democracy, freedom, social justice and progress; EXERCISING our sovereign and inalienable right to determine the form of governance for our Country and having fully participated in the Constitution-making process; NOTING that a Constituent Assembly was established to represent us to debate the Draft Constitution prepared by the Uganda Constitutional Commission and to adopt and enact a Constitution of Uganda; DO HEREBY, in and through this Constituent Assembly solemnly adopt, enact and give to ourselves and our posterity, this Constitution of the Republic of Uganda.”
The learned CJ took note of the learned Justices of the Constitutional Court, each, gave an elaborate political history of Uganda which was characterized by political treachery, military coups, gross violation of human rights, emasculation of institutions such as Parliament, the Judiciary and the marginalization of the people etc
Thus noted that, this, In my view, is what the framers of the Constitution must have had in mind when they wrote the Constitution. It is the reason Article 1 of the Constitution was written the way it was – putting the people at the centre of everything and giving all political power to the people. But it is also important to note that the same article 1(1) states that the people will exercise their power in accordance with the Constitution. This means that the Constitution reigns supreme over all people and all organs of the State. All must act in accordance with the Constitution.
Personal Analysis
The learned Chief Justice (CJ) astutely acknowledged the historical tapestry woven by the Constitutional Court Justices—a vivid tableau of Uganda’s tumultuous past. Within this canvas, political treachery, military coups, and human rights violations cast long shadows. Institutions like Parliament and the Judiciary bore witness to both resilience and vulnerability.
In contemplating the framers’ intent, the CJ discerned a foundational truth: Article 1 of the Constitution placed the people at its epicenter. Their collective will, expressed through constitutional provisions, held sway. The Constitution, meticulously crafted, bestowed political power upon the populace—a sacred trust.
Yet, the same Article 1(1) tempered this empowerment. It stipulated that the people’s exercise of power must align with the Constitution—a covenant binding all. Herein lies the crux: The Constitution reigns supreme, transcending individuals, institutions, and transient political currents.
The Basic Structure Doctrine, akin to a sentinel, guards against constitutional erosion. It identifies essential features—the bedrock—beyond the reach of ordinary amendments. By doing so, it ensures that the Constitution endures, resilient and unyielding as elaborated by Mwondah JSC in the case of David Wesley Tusingwire Vs. The Attorney General CONSTITUTIONAL APPEAL NO. 4 OF 2016 that;
“Most importantly in my view also it would be contrary to the Sui Generis Rule which essentially means “in a class of its own. The constitution stands on a very different footing from other legislation for the most part (but not always) though the principles of interpretation are the same to a large extent. It is the only reason why all other laws are subjected to it and why they are declared null and void if inconsistent with it. Ref. Article 2 of our Constitution. It is also the reason why the language used is much broader and encompassing than that used in other statutes. It is intended to cover rights and freedoms for all people without discrimination because it is made for present generations and those unborn.
The case of Unity Dow v Attorney General of Botswana [1992] LRC (Const) 623 at page 668 it was remarked “the Constitution is the Supreme Law of the land and is meant to serve not only this generation but yet unborn. It cannot allow to be a lifeless museum piece. On the other hand Courts must breath life into it as occasion may arise to assure the healthy growth of the state through it. We must not shy away from the basic fact that while particular construction of a Constitutional provision may be able to meet the designs of the society of a certain age ... it is the primary duty of Judges to make the Constitution grow and develop in order to meet the just demands and aspirations of an ever developing society which is part of the wider society governed by acceptable concepts of human dignity.”
The Constitution should be able to serve for a long time while accommodating the new changes the world has to offer without derogating from the original framers intent. This was further witnessed in Hunter v. Southern Inc [27] “A Constitution must be capable o f growth and development over time to met social, political and historical realities often unimagined by its framers.
Though the above case is only persuasive it is good case law.”
Therefore, as Uganda navigates its constitutional voyage, the tension persists. The delicate balance between democratic empowerment and constitutional fidelity remains precarious. The Constitution, like a compass, guides our actions. All organs of the State—judiciary, legislature, and executive—must harmonize their steps with its dictates. The question as to whether all organs of government have lived upto the aforementioned position remains legal fiction since we are in the error of political patronage.
WHAT ENTAILS THE BASIC STRUCTURE IN THE UGANDAN CONSTITUTION?
The learned CJ noted that Article 1(3) emphasizes the Constitution as the source of “all power and authority of Government and its organs”. At the same time, the clause emphasizes that the Constitution itself derives its authority from the people.
He further adds that, it is important to note that, even here, the emphasis is that 10 by this Constitution, the people consent to be governed in accordance with the Constitution. Clause 4 spells out how the people will be governed. It states: “The people shall express their will and consent on who shall govern them and how they should be governed, through regular, free and fair elections of their representatives or through referenda.
In my view, this article goes a very long way to lay the foundation for the Constitutional governance of the Country by the people on the basis of free and fair elections or referenda.
1. To me this is the first pillar on the basic structure of our Constitution, based on the concerns in the Preamble. So the people have a right to choose their representatives to whom certain powers have been delegated under the Constitution. But a power has been reserved to demand for referenda.
He thus observed the amendability of the Constitution of Uganda, emphasizing Article 255, amended by the Constitution (Amendment) Act No. 2 of 2005. It outlines the provisions for holding referenda, either initiated by citizens or upon government reference on contentious matters. The referendum results are binding, except for matters related to fundamental rights and freedoms guaranteed under Chapter Four of the Constitution, and the courts retain the power to question the validity of the referendum. The underlying principle is that the Constitution is amendable through parliamentary actions, referenda involving citizens or district councils, but fundamental rights are inherent and not subject to a referendum.
2. The next pillar of the basic structure of our Constitution is Article 2 which provides for the Supremacy of the Constitution. I have decided to emphasize Article 1 of the Constitution because it is relevant to this Constitutional Appeal in so far as the appellants have raised the issue of the Basic Structure of the Constitution and averred that the Constitution (Amendment) Act violates that Basic Structure. Indeed even the Speaker, when she was sending out the Members of Parliament to go for consultations, she did state that the Bill touched on Article 1 of the Constitution.
The learned Chief Justice further observed that There are other fundamental Pillars of the Uganda Constitution as found by the learned Justices of the Constitutional Court. All the Justices agreed that the basic structure doctrine applied to Uganda. The only point of departure seems to be where they point to those doubly entrenched provisions, i.e. those requiring referendum or District Council resolutions as the only ones that form the basic structure, and the rest which Parliament may amend on its own as not being part of the basic structure.
That while certain provisions in the Constitution may not have double entrenchment under Article 260 or 261, they can still be fundamental parts of the constitutional structure. For example of Article 44 in Chapter 4, which concerns non-derogable rights. Though amendable through a referendum as per Article 260, the entire Chapter 4, dealing with the protection and promotion of fundamental rights, is considered an essential pillar of the Constitution and may not be affected by the results of a referendum, according to Article 255(4).
The CJ likened the basic structure to a family house and held as followed
To my understanding, the Basic Structure doctrine may be equated to a family house. It must have a strong foundation, strong pillars, strong weight-bearing walls, strong trusses to support the roof. The roof could be grass thatch, as happens in many of our homesteads. The roof could be iron sheets of particular gauge. The iron sheets could be of different colours. If the wind blew away part or all of the roof, the basic structure should remain and the next day the family can put the roof back. But if the weight bearing pillars were undermined or removed, the whole structure would collapse. It would not be a dwelling house any more.
The question then is which provisions of the Constitution can be equated to a pillar in a House Structure and which can be equated to iron sheets or doors which can be removed and replaced with relative ease but without affecting the basic structure
3. The CJ was of the view that the other fundamental pillars, apart from Article 1, are Article 5 and 98. Article 5(1) which state that “Uganda is one Sovereign State and a Republic.” Although this is not doubly entrenched under Article 260, Parliament would not change this without changing the character of the Constitution. But does that mean that the people themselves would not change this if they so wished? This is where article 255 may come in i.e. demand for a referendum.
He further states that Article 98 of the Constitution establishes the office of a President in Uganda, and Article 103(1) specifies that the President is elected through universal adult suffrage via a secret ballot. That changing this fundamental structure, such as introducing a Prime Minister or having a President appointed by Parliament, would constitute a departure from the basic constitutional framework. That the age of the President, whether 40 or 75 years, is not considered a fundamental pillar of the Constitution. Does that mean therefore that those identified pillars are cast in stone and can never be amended? My answer is no. In light of Article 255, those articles can be amended if the people so desire and call for a referendum; only with the exception of matters set out under article 255 (4) thereof. This would be in line with article 1 of the constitution.
THE CHIEF JUSTICE’S REFERENCE FROM JUSTICE KENNETH KAKURU’S (JCC-RIP) BREAKDOWN OF WHAT IS THE BASIC STRUCTURE DOCTRINE?
The learned CJ went at length appraising the various decisions of the learned justices in the constitutional court, but a deeper for Justice Kenneth Kakuru’s (JCC-RIP) breakdown of what amounts to a basic structure doctrine and held as follows;
According to Kakuru JCC, as far as he could discern, the basic structure of the 1995 Constitution was made of the following pillars:
a) The sovereignty of the people of Uganda and their inalienable right to determine the form of governance for the Country.
b) The Supremacy of the Constitution as an embodiment of the sovereign will of the people, through regular free and fair elections at all levels of political leadership.
c) Political order through adherence to a popular and durable Constitution.
d) Political and constitutional stability based on principles of unity, peace, equality, democracy, freedom, social justice and public participation.
e) Arising from above, Rule of law, observance of human rights, regular free and fair elections, public participation in decision making at all levels, separation of powers and accountability of the government to the people.
f) Non-derogable rights and freedoms and other rights set out in the extended and expanded Bill of Rights and the recognition of the fact that fundamental Rights and Freedoms are inherent and not granted by the State.
g) Land belongs to the people and not to the government and as such government cannot deprive people of their land without their consent.
h) Natural Resources are held by government in trust for the people and do not belong to government.
i) Duty of every citizen to defend the Constitution from being suspended, overthrown, abrogated or amended contrary to its provisions.
j) Parliament cannot make a law legalizing a one-party state or reversing a decision of a Court of law as to deprive a party.
WHETHER THE REMOVAL OF AGE LIMITS VIOLATE THE BASIC STRUCTURE OF THE CONSTITUTION?
The CJ had this to say,
No evidence was adduced whatsoever to show that a person below 35 years of age, as long as they are adults, or a person of 75 years has an inherent inability to be President. No examples were cited to us from those countries that have applied the basic structure doctrine whether they have provisions for age limits of their leaders.
On the contrary at this very moment across the world, we have countries that have defied that school of thought. In Malaysia, in May 2018, Prime Minister Mahathir Mohamad was popularly elected at the age of 92, becoming the oldest political leader in the World. And of greater interest to know is the fact that he is a person who had before led that country, retired and left others to take over. The people felt he should return to power and they indeed re-elected him. In Austria, Sebastian Kurz, the current Chancellor was elected in December 2017 at a very young age of 31 years. In British history, William Pitt the Younger, became the youngest British Prime Minister in 1783 at the age of 24 years. He left office in 1801 but was re-elected in 1804 and served up to 1806. On the negative side, neither Hitler nor Idi Amin who committed such heinous atrocities were 75 years or above, or below 35 years
All the above examples suggest that the problem is not the age of the leader. None of the people who terrorized Uganda and the subject of the Preamble were anywhere near 75 years of age. On the other hand the Preamble does express the desire to promote equality.
THE OPINION OF Tibatemwa Ekirikubinza JSC
In her Judgment noted that the basic structure doctrine is to the effect that although parliament may have power to amend a country's constitution, such powers are limited so as not to amend to bring about a new constitutional order as that can only be done with the consent of the citizenry.
It deals with principles and values inherent in the constitution; that's to say the spirit of the constitution and with universally accepted principles such as democracy, human dignity and people's sovereignty.
She went on to observe that the basic structure doctrine being judge made law, whether a particular provision is a basic feature of the constitution can only be determined by the court in each case that comes before it. There's therefore to her no exhaustive list of what constitutes the basic structure of Uganda's constitution.
WHAT CONSTITUTES THE BASIC STRUCTURE OF THE CONSTITUTION ACCORDING TO Tibatemwa Ekirikubinza JSC
What constitutes the Basic Structure of a Constitution is not exclusively explicit, it is also implicit. The Basic Structure Doctrine deals with principles and values inherent in a Constitution. It transcends procedural imperatives and its essence cannot be reduced to procedural imperatives which must be followed in amending a particular provision. The import of the doctrine is that it communicates an implied limitation on the power of Parliament to amend the Constitution – the power to amend is not the same as the power to re-write or replace a Constitution. There is therefore a direct link between the Basic Structure Doctrine and the philosophy of Constitutional replacement. The latter power is with the people and not with the people’s representatives. The Basic Structure Doctrine is concerned with the substance of a particular provision and its linkages to the spirit or character of the Constitution and with universally accepted principles such as democracy, human dignity, and peoples’ sovereignty.
I posit that any article dealing with universally accepted human is part of the Constitution’s fabric. I also posit that provisions of the Constitution which inherently rest on the universally acceptable principle of separation of powers between the Judiciary, Parliament and the Executive - such as the independence of the Judiciary - are part of the Constitution’s basic structure.
The list is long. And the question which should be asked is: what is the bed rock, the purpose, the value inherent in a particular provision? Would the amendment of this particular provision contravene the spirit of the Constitution, would it alter the character of the Constitution? In which ways would the amendment of a particular provision for example go against the aspirations of the people as espoused in the preamble and in the National Objectives and Directive Principles – both of which were necessitated by our sad history?
I therefore agree with the appellant that to equate the doctrine to the need for referenda is a narrow interpretation of the doctrine. In the matter before us, the specific question to be answered is: would the removal of the age restriction regarding eligibility to stand for presidency and for the office of District Chairperson change the character of the Constitution? I must answer the question: can one say that alteration of Article 102 (b) which set a minimum and maximum age for presidency and Article 183 (2) (b) which set age limits to who can stand for the office of District Chairperson restricted run counter to the character of the 30 Constitution?
Citing Liav Orgad International Journal of Constitutional Law, Vol 8, Issue 4, 714-738. on the role and nature of preamble in reflecting the constitutional understandings of the framers, Tibatemwa Ekirikubinza JSC said that the preamble to our constitution serves the purpose; and is a kind Liav Orgad refers to as an interpretive preamble which is part of a constitution's basic structure as was ruled by the Indian Supreme Court in Kesavananda Bharati v State of Kerala-that the preamble is a key to understanding the constitution and interpreting its clauses and together with the fundamental rights and directive principles of state policy constitute the core of the constitution. That the elements of the basic features of the constitution were to be found in the preamble of the constitution: which decision according to Tibatemwa Ekirikubinza JSC is true of Uganda's constitution.
That the preamble according to Liav is a source of entrenchment and therefore the authority of parliament to amend a specific provision in the constitution must be tested against the principles in the preamble and also the National Objectives and directive principles of state policy.
I am persuaded that the above is as true of Uganda’s Constitution as it is for the Indian Constitution. Liav (ibid) posits that Preambles are not only a source of rights and powers but also of entrenchment. (My emphasis).
It must therefore be concluded that the Preamble is part of the Basic Structure of our Constitution and the authority of Parliament to amend a specific provision in the Constitution must be tested against the principles in the preamble. Consequently, I must answer the question: can one say that alteration of Articles 102 (b) … which set a minimum and maximum age for presidency and LCV … run counter to the character of the Constitution as represented in the preamble?
I posit that the import of the Preamble is that it places the Constitution in a historical context. The Constitution was enacted as a tool to protect the people of Uganda from the ills of our sad history, a history characterised by tyranny, oppression and exploitation. It is a history of political and Constitutional instability. What is contained in the National Objectives and Directive Principles of State are linked to the said history. In the appeal before us, Democratic Principle (i) and (ii) are relevant. Principle (i) provides that: The State shall be based on democratic principles which empower and encourage the active participation of all citizens at all levels in their own governance. Democratic Principle (ii) provides that: All the people of Uganda shall have access to leadership positions at all levels, subject to the Constitution.
Even if I were to agree with what the appellant considers to be the Basic Structure of Uganda’s Constitution, there is no evidence to the effect that the tyranny, oppression and exploitation suffered by Ugandans in the past was a result of the leadership being in the hands of particular age groups.
I am unable to come to the conclusion that the impugned amendment had the effect of reintroducing the Kelsenian theory into our law or that the amendment violated the sovereignty of the People.
It cannot be said that the impugned Section ignored the supremacy of the Constitution. There is no evidence that removing age restrictions in leadership positions would violate the aspirations of Ugandans to build a society based on democracy, a politically and constitutionally stable society.
I therefore hold that amending Article 102 (b) and 183 (2) (b) did not violate the basic structure of Uganda’s Constitution
WHAT CONSTITUTES THE BASIC STRUCTURE DOCTRINE ACCORDING TO MWANGUSYA JSC,
Justice Mwangusya went at length to define what constitutes the basic structure doctrine and held that in the judgement of Kesavananda Bharati v. State of Kerala AIR 1973 SC 1461 there were six dissenters out of the 13 judges that presided over the case.
One of the six dissenting judges, Hon. Justice A.N.Ray had this to say:
“Fundamental or basic principles can be changed. There can be radical change in the Constitution like introducing a Presidential system of government for a cabinet system or a unitary system for a federal system. But such amendment would in its wake bring all consequential changes for the smooth working of the new system.(see paragragh 960)…
The problems of the times and the solutions of those problems are considered at the time of framing the Constitution. But those who frame the Constitution also know that new and unforeseen problems may emerge, that problems once considered important may lose their importance, because priorities have changed; that solutions to problems once considered right and inevitable are shown to be wrong or to require considerable modification; that judicial interpretation may rob certain provisions of their intended effect; that public opinion may shift from one philosophy of government to another…
The framers of the Constitution did not put any limitation on the amending power because the end of a Constitution is the safety, the greatness and wellbeing of the people. Changes in the Constitution serve these great ends and carry out the real purposes of the Constitution. (See para 987).
In quoting the above passage from judgment of Hon. Justice A.N.Ray, Justices Tsekooko in the case of Paul k. Ssemogerere and Ors v Attorney General Constitutional Appeal No.1 of 2002 stated that:-
“This passage indicates that written constitutions are not static and are liable to be amended. There is an obvious implication in this passage that courts have to interpret constitutional provisions to bring the constitution in line with current trends. Implicit in this is the real possibility that one part of the constitution can be harmonised with another part of the same constitution.”
In the case of Rev. Christopher Mtikila v Attorney General Misc. Civil 25 Cause No. 10 of 2005, the Tanzanian Court of Appeal found:-
“we are definite that the courts are not the custodian of the will of the people, that is the property of elected members of parliament”, so if there are two or more articles or portions of articles which cannot be harmonised then it is parliament which will deal with the matter and not the court unless power is expressly given by the constitution.
On the doctrine of ‘basic structure’ of the Constitution, the Court held in that case that: We agree with Prof. Kabudi that that doctrine is nebulous, (meaning it is misty, it is cloudy, it is hazy according to the dictionary) as there is no agreed yardstick of what constitutes basic structure of a constitution.”
That in the case of Kesavananda Bharati v. State of Kerala AIR 1973 SC 1461 from which the doctrine has its genesis, never came up with a single structure that would be said to be a useful guide as to determining as to which part/Articles of our constitution is amendable because it is not part of the basic structure and which part/Articles cannot be amended because to do so would lead to the destruction of the Basic structure leading to total collapse of the constitution.
He thus observed that, “it can be easily discovered from above that each of the above justices had his own understanding of what formed the Basic structure of the Indian constitution at that time. There was no unanimity as to what constituted the basic structure of the Indian Constitution. The same can be seen by Ugandan Constitutional Court justices whose attempt to define what the basic structure of the Ugandan constitution suffered the same fate as that of the Indian court.”
That throughout the trial at the Constitutional court and the appeal before this court there was no suggestion that the Indian Constitution is the same Model as our constitution because our constitution was structured according to our history.
In our constitution there is the whole chapter eighteen with the heading “Amendment of the Constitution”, under which there are various Articles including: - Article 259 Amendment of the Constitution, Article 260 Amendments requiring a referendum, Article 261 Amendments requiring approval by district councils and Article 262 Amendments by Parliament which provides:- 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 this 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 Parliament
These Articles give a framework within which the constitution can be amended. I do not think that it is necessary to agonize as to what the basic structure of the constitution is.
As I have already stated both the Indian Court and the Constitutional court attempted to define what the basic structure of the Indian and Ugandan Constitution is but it was an exercise in futility.
My understanding of the basic structure doctrine is that within this framework the constitution is amendable but it can still be protected from compromise of its own foundation and structure so that every amendment is harmonized with the rest of the constitution and the wishes of the people of Uganda.
The framework provided under Articles 259,260 and 261 of the constitution should not be seen as a licence to the Legislative arm of Government to amend the constitution the way they wish. As to whether this amendment was part of the basic structure it was adequately addressed by the Constitutional court which came to the conclusion that the removal of the age limit would not affect the basic structure of the constitution and I agree with that finding. The issue is answered in the negative.
WHAT CONSTITUTES THE BASIC STRUCTURE DOCTRINE ACCORDING TO MUGAMBA JSC,
According to Mugamba JSC The doctrine of basic structure in a given constitution is a derivative of Indian judicial experience and it defies universal description. What forms the basic structure differs depending on the country. That what forms the basic structure in a given constitution is embedded in that particular constitution and that it is accompanied by the intended rigidity, which is woven in the constitution and its mission is to ensure that the constitution is not wantonly tampered with by way of amendment.
Upholding the decision of the majority justices of the Constitutional court, Mugamba JSC ruled that it is possible to amend the basic structure. He cited the case of Premier Kwazulu Natal v President of the Republic of South Africa that; "There is a procedure which is prescribed for the amendment to the constitution and this procedure has to be followed. If that is properly done, the amendment is constitutionally unassailable. It may perhaps be that the purported amendment to the constitution, following the formal procedures prescribed by the constitution, but radically and fundamentally restructuring and reorganizing the fundamental premises of the constitution, might not qualify as an amendment at all.
That the basic structure is amorphous and varies from case to case and that he finds no specific provisions in the constitution that are so sacrosanct that even if one followed provisions of the constitution it would not be possible to amend them legitimately as that would be turning human progress on its head.
CONCLUSION
In conclusion, The Supreme Court’s ruling in the Male Mabirizi Kiwanuka v Attorney General case underscores the significance of the Basic Structure Doctrine within Uganda’s constitutional framework. Key elements, such as the preamble, the National Objectives and Directive Principles of State Policy, and Chapter 4 (the Bill of Rights), serve as guiding principles for identifying basic features of the constitution.
The Justices’ opinions diverged on the scope of parliamentary powers regarding constitutional amendments: Katureebe CJ and Tibatemwa JSC unanimously held that amending basic features lies beyond the legislative powers of parliament. Such amendments touch the spirit of the constitution, akin to creating a new foundational document. The exclusive authority for such transformative changes rests with the people. Whereas Mugamba JSC asserted that parliament can legitimately amend basic features. However, adherence to the prescribed amendment procedure outlined in the grand norm (the Constitution) is essential. On the other hand Mwangusya JSC. Noted that Articles 259, 260, 261, and 262 of the Constitution, which specify procedures for constitutional changes, including referendums and approval by district councils. Are expressive to the point that that there is no need to dwell on defining the basic structure of the constitution, referencing the Indian Court and the Constitutional court's futile attempts to do so. Thus the basic structure doctrine allows for amendments within the constitutional framework of Uganda while ensuring protection against compromising the constitution's foundation and structure, aiming for harmony with the overall constitution and the will of the people of Uganda.
By
FARIDAH TSWALIK (LLB 4 IUIU)
With Contributions from Waboga David-Legal Researcher
NOTE TO READERS
Thank you for reading this article. I hope you found it useful and informative. Please note that the above analysis is intended for informational purposes only and does not constitute legal advice.
The information provided is based on publicly available sources and general principles of law as of the date of the analysis. Laws and regulations may vary, and legal interpretations can change over time. Readers are advised to consult with qualified legal professionals for advice tailored to their specific circumstances. The author and the platform shall not be held responsible for any inaccuracies, errors, or omissions in the content or for any actions taken in reliance on the information provided.
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