Constitutional Conundrum

I had a very interesting discussion late last week with one of the judges here in the Commercial Court. Justice Kiryabwire and I were speaking about a decision before the Ugandan Constitutional Court and about how the decision should go. His encouragement to me was to get outside of my cultural mindset in looking at the issue, which is what I had been trying to do, and consider the issue from the Ugandan perspective. On that, he was just plain right.

While we were speaking, Justice Kiryabwire began speaking of how the Constitution needed to be dynamic and a living document, adaptable with each generation. Many of you lawyers or law students or Constitutional scholars, or just interested citizens, will recognize this language as buzz words in debates over the interpretation of our own Constitution. And regardless of which side of the fence you fall, it is interesting to hear from another country with a much different history and circumstances how they view their constitutional structure and purpose. Then the kicker came. Justice Kiryabwire went to an article in their constitution that codifies the "living/dynamic" nature of the document.

Article 126, titled Exercise of Judicial Power, says the following:

(1) Judicial power is derived from the people and shall be exercised by the courts established under this Constitution in the name of the people and in conformity with law and with the values, norms and aspirations of the people. (http://www.ugandaonlinelawlibrary.com/files/constitution/constitution_1995.pdf)


This falls under Chapter Eight of their constitution which deals with the Judiciary and Administration of justice.

Another interesting fact that helps understand this better is that in 1962 when Uganda gained independence, they formed a Constitution. Then in 1966 they tore up that Constitution and wrote a new one. The same thing happened in 1969. Then in 1995, which is the last constitution established and is the one ruling today, they tore up the 1969 constitution. It is like starting with a clean slate of sorts every time. But what that does, especially with such a relative short history of independence, is preclude even the possibility of attempting an "originalist" structure of interpretation. For example, they cannot look back 250 years ago and debate over what founding fathers meant over specific language and, for example, whether the intent was for only Congress to institute war or whether the power was left to the President as well.

We cannot say that we as the United States of America have not adapted our views over the years to appropriately change our view of the Constitution, either. If we had not, we would still own slaves and women would not be voting. So there are at least some elements of the Constitution being dynamic, or adaptable if you like that language better (even if one were to say that the inherent rights were always imbedded in the document, you could not necessarily say the Founding Fathers intended these rights to be implemented--since they owned slaves and did not allow women to vote--unless they were complete hypocrites or strict pragmatists, neither of which I believe is the case--but I must be careful, because much smarter constitutional scholars than myself have written on these things).

But was is so striking about the language of the document is that the judicial powers are derived from the people and must be exercised with conformity to the "values, norms, and aspirations of the people." The dangers that people usually site in the US against having a living constitutional framework is that having the masses decide norms all the time can inflict hardships on minorities, or the minorities can be too loud and overbearing and impose something upon the majority. And how does one determine the values, norms and aspirations of the people? And does "the people" mean 51%, a supermajority, a plurality? But with so many different tribes and people groups making up Uganda, how does the judiciary come their determinations? That is for another conversation with the judges, and for another post.

But for now, Uganda is dealing with the constitutionality of things such as Female Genital Mutilation and Bride Price. The former is hardly practices in Uganda (by only three tribes I believe), while the latter is almost universally practiced in one form or another by all tribes in Uganda. We will see how they come out and which one will be upheld and which will be struck down.

I would love to hear your thoughts on this. Coming to Uganda is such a broadening experience, and realizing that the living/dynamic view is inherent to their constitution is not only different from the US, but is a unique constitutional approach that I had not heard of before--so far as the language being inherent to the constitution itself. There is a completely different historical arc and foundation for the people here, and in its infancy (as it is still in many ways regarding independence) the system seems to be working well for the country.

So, there it is. The conundrum for me is more one of getting out of my own perspective, culture, and history to look at things a different way. But beyond that, what do you think of the structure and its sustainability for the future of Uganda?

Peace to you all.


*All photos are copyright John M. Napier unless otherwise indicated.*