Over the last few months Uganda’s courts have delivered a series of decisions that extended democratic practices. Judges have declared restrictive legislation unconstitutional and ordered compensation for a detainee killed by police. No wonder some observers hoped that the constitutional court would rule in favour of an application to find army representation in parliament unconstitutional. No fewer than 10 parliamentary seats are reserved for ‘serving officers’ chosen by the Army Council, headed by President Yoweri Museveni. A human rights organization challenged the continuation of this practice, but last week the constitutional court turned down the application.
Extraordinary how political practices that are acceptable, even mandatory, in one country would be absolute anathema in others. Take the case of Ellady Muyambi against the Attorney General of Uganda. It involved five supreme court judges sitting as Uganda’s constitutional court to decide an application brought by NGO Africa Human Rights Monitoring (AHRM).
The human rights organization was challenging the constitutionality of army representation in parliament. And it lost.
Army representation in Uganda’s parliament began in 1994. As things stand now, 10 seats are set aside for ‘serving officers’ of the Uganda People’s Defence Force. The 10 are chosen by the Army Council, chaired by President Yoweri Museveni, and they tend to vote with the ruling party, thus increasing the Museveni majority in parliament.
The constitutional court needed to answer two questions: whether representation of the army in parliament was inconsistent with the constitution, and whether parliament had ‘reviewed’ army representation in parliament. This refers to an exercise parliament is obliged to carry out periodically in relation to all the special interest groups represented in parliament. The first ‘re-think’ was to happen after the first 10 years of the constitution, and then every five years after that.
In addition to the army, the special interest groups include for example, people with disabilities and young people. Before the 2016 elections parliament approved all the special interest groups despite a strong lobby that wanted the army’s representation removed. This group argued that having soldiers in parliament was unconstitutional because the Uganda People’s Defence Force was barred from participating in politics.
The AHRM argued that during the period when political ‘movements’ were represented in parliament it might have been less objectionable to have the army represented. But now that there is a multi-party system of government the army should no longer have a presence.
In response, the AG argued that the change to parliamentary system made no difference and that the court should not find that army representation in parliament was inconsistent with the constitution ‘simply because Uganda adopted a multi-party system in 2005’.
On the question of parliamentary constitution, the constitution reads: ‘Parliament shall consist of … such numbers of representatives of the army, youth, workers, persons with disabilities and other groups as parliament may determine.’ According to the AHRM, once Uganda returned to a multi-party system, this section should have been amended to exclude the army from parliament.
But the judges did not agree. Under the constitution, the armed forces were to be ‘nonpartisan’, and the AHRM had not shown how the presence of the army in parliament infringed that section. The court also quoted from the report of the constitutional commission which had helped frame the constitution.
The report said that army representation in parliament had caused much debate. Most had supported the view but a ‘vocal opposing minority’ was against it. Those who agreed said the present army was different from ‘past armies’. The National Resistance Army (NRA) had helped bring the stability now enjoyed by most of Uganda, and it had a record of acting in the interests of the people. If the new constitution was to be kept safe it would be important that the army was ‘fully committed’ to it.
The army would most effectively learn to work in partnership with the civilian authorities if its representatives ‘were sufficiently involved in major decision-making processes.’ ‘It would then understand and be committed to both the processes and the decisions made.’
Those opposed said that army representation offended the principles of democratic participation. The army was supposed to be completely neutral on political matters. But how could the army be neutral if the military were represented in a multi-party parliament? Inevitably the army would represent the interests of the government of the day thus tilting the balance of support on sensitive issues.
From this report the judges concluded that the constitutional assembly wanted the army represented even after a return to a multi-party system, and they ruled that the presence of the military in parliament was not unconstitutional.
What of the question whether parliament had ‘reviewed’ the special interest groups?
The judges found evidence in Hansard and other documents that the question had been considered and that a majority in parliament wanted to maintain the status quo in relation to these groups. The most recent motion to this effect was passed in December 2015.
Since this showed that parliament had complied with its constitutional obligations, the whole petition had to be dismissed as having no merit. However, said the court, there would be no order as to costs since the litigation was ‘a citizen’s attempt to ensure that our public institutions act in conformity with the constitution. The clarification as to what is the true import of the constitution is of public benefit.’
The decision comes as something of a disappointment. Several recent Ugandan judgments have tended to uphold applications that extended democracy, and I had hoped that the issue of military representation in the present parliament would be reconsidered. But the court’s argument appeared not to grapple seriously with the concept of democracy. Nor with the impact on a democratic system of the army’s involvement in parliament. Let alone considering arguments on such matters from other African jurisdictions.
There might yet be a re-think of the issue, however: local media quoted Muyambi as saying he was considering whether to take the matter further – via an appeal to Uganda’s apex Supreme Court.