William kituuka kiwanuka
The 8th Parliament passed the Bill into law. FILE PHOTO
By John Ken - Lukyamuzi
Posted Sunday, April 3 2011 at 00:00
Much as ‘The Institution of Traditional or Cultural Leaders Act 2011’ is inconsistent with the Constitution of Uganda as I will later elaborate, the mother law (Article 246 of the 1995 Constitution) from which it draws its legitimacy, is equally questionable. The framers of the 1995 Constitution owe us an explanation for the ambiguity they left hanging in the wording of the title for Chapter 16 of the Constitution.
The title (The Institution of Traditional or Cultural Leaders) of Chapter 16 and the law operationalising Article 246 of the Constitution, in my humble view, are all ambiguous and call for revision. The two provisions by title presuppose that traditional institutions are different from cultural institutions; I submit that they are not.
In Uganda, traditional institutions are not separable from cultural institutions - the two are interrelated. Uganda is a great nation because of the uniqueness of its peoples owed to a rich mosaic of cultures found nowhere else in Africa.
Uganda’s uniqueness
Under the 3rd Schedule of the Constitution, Uganda has more than 60 tribes and languages. It is that uniqueness which we are striving to guard through thick and thin.
Unlike the American society with a tradition of more than 250 years of existence, which is not necessarily cultural, ours carries a combination of the two faces. Nearly all kingdoms in Uganda are both traditional and cultural in nature.
Under Article 2 of the Constitution, the Constitution of Uganda is supreme and binding on all authorities and persons; and any law, which is inconsistent with that Constitution to the extent of its inconsistency is therefore, void.
The Institution of Traditional or Cultural Leaders Act 2011, is inconsistent with Articles 1, 3(2), 20(1), and 29 of the Constitution as well as the National objectives of State policy XXIV. Such a law would therefore be null and void according to the above mentioned Constitutional provisions.
It is on record that the Institution of Traditional or Cultural Leaders Bill was passed by Parliament in the absence of a quorum. A cross section of people throughout the country appealed to the Speaker of Parliament not to pass that Bill during the campaign period. He turned down every appeal and went ahead to get the Bill passed with impunity.
Under Article 3(2) of the Constitution, a person such as the Speaker of Parliament, who singly or in concert with the others by any unlawful means or shrewdly amends the Constitution, commits the offence of treason, which is punishable according to the law.
The said law has several defects. Parliament passed it in the absence of a chorum; and worse still, the 130 MPs who passed it included many whose membership in Parliament had already expired. Above all, The Institution of Traditional or Cultural Leaders Act itself is in open defiance of the mother article of the Constitution from which it draws its authority.
By passing the said Bill into law in open defiance of the instructions dictated in Chapter 18 of the 1995 Constitution, Speaker Ssekandi and others, committed a treasonable offence. They therefore have a case to answer. With reference to the contents of Chapter 18 of the 1995 Constitution, Chapter 16 is entrenched and its amendment calls for a referendum. If it is to be amended, that amendment must be passed in Parliament by not less than two – thirds of all MPs before it is finally approved by the people in a referendum.
The Speaker of Parliament suspended that stage in connivance with strangers’ masquerading as members of Parliament. The Institution of Traditional or Cultural Leaders Act was not enacted in good faith. It has bad motives, that is why its long title is also in conflict with the national objectives of the State Policy XXIV on cultural objectives.
According to Article 246 of the Constitution, a community such as Buganda, is at liberty to make use of its cultural values and practices to cause development (some of these values and norms have existed since time immemorial). The said law gravely restricts the Kabaka from communicating such values to his subjects and in so doing, it undermines the Kabaka’s freedom of speech and expression in open contravention of Article 29 of the Constitution.
The 8th Parliament should have borrowed a leaf from the contents of the Political Parties and other Organisations Act, 2002. There was a tussle in the 7th Parliament in passing that Act. Many legislators were initially opposed to the use of the word ‘and’ in combining the interests of those who stood for the traditional political parties like CP and FDC against the NRM legislators who did not want to drop the word political organisation.
Proper title
In the end, we all agreed that the word ‘and’ other than or be used to cater for the interests of the two sides, that is why the said Act is referred to as the Political Parties and other Organisations Act, 2002. If it were not for the distortion of the law already referred to, the proper title therefore should have read: ‘The Institution of traditional and cultural Leaders Act’.
In the 9th Parliament intends to seek to repeal the Institution of Traditional or Cultural Leaders Act 2011. It is unconstitutional and it is also badly drafted. I would also like the government of Buganda to insist on defending its stand on the Act in the Constitutional Court. The said Act is a bad law because it aims at distorting Uganda’s ‘cultures’ and traditions. It also presupposes that Uganda’s cultures are uniform in character.
The Talabans in Afghanistan are fighting up to the last hour in defence of their unique culture. Buganda can do exactly that and could even win the appeal for self-determination through the UN General Assembly.
Mr Lukyamuzi is the president general of the Conservative Party and MP–elect for Rubaga South
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