THE CONSTITUTIONAL FAULT LINE: WHY GEN. SALEH’S PROPOSAL IS A TURNING POINT—BUT IS IT A FAMILIAR TRAP OR BRIDGE-BUILDER?

Constitutional & Political Analysis

BY BARRISTER PETER MAGOMU MASHATE

Gen Salim Saleh's CONSOCIATIONAL crusade is very well intetioned and stands on all four in pursuit and search for lasting peace, national reconciliation, cohesion and tranquility in our mother country Uganda.

However, in strict definition and indeed application of CONSOCIATIONAL Democracy, its predominantly applicable and workable in situations of internal strife and or violent political and military disagreements as I will set out examples below. So where these conditions pertain, CONSOCIATIONAL model presents as a Middle ground compromise formular.

The question that inevitably arises is this; Uganda has enjoyed and continues to enjoy 40 years of NRM stability. This stability is reinforced and underpinned constitutionally by the 1995 consititution.

Its also further informed by the consititutional amendments opening of political space 2005 allowing full fledged multi-party democracy. This constitutional model operates on the First-Past-The-Post and NRM throughout the 40 years has been the victor of this political model.

Therefore, Gen Saleh's envisaged National CONSOCIATIONAL Forum would have to reconfigure this model and cause the necessary constitutional amendments for political and constitutional compliance. Is it not?

On the other hand, could Uganda’s turbulet past present exceptional circumstances for twicking and cobbling redinifed Consociationalism?

But how did we arrive or inheret the Independence Constitution in the first place?

From the outset, its important to note that while we talk of constitutionalism, Uganda's former colonial masters the British, save for the Magna-Carter (Royal Charter of rights agreed by King John & annuled twice by the Pope Innocent 111), have NO WRITTEN CONSITITUTION, but operate by way of Conventions. However, they codified their governance Conventions model into a Ugandan independence consititution hammered out at Lancaster London independence talks. This was however rightly or wrongly based on the contemporary circumstances of the times.

Gen. Salim Saleh’s reported proposal of a government of national unity alternatively called CONSOCIATIONAL doctrine of Political Scientist Arend Lijphart is an undeniably BIG STEP and a timely intervention in our national reconciliation journey. It should therefore be viewed as a transitional Bridge rather than a familiar Trap.

To me, this framework appears entirely consistent with His Excellency President Yoweri Kaguta Museveni’s historical cherished principle of DE-ESCALATION, FORGIVENESS & , NATIONAL COHESION.

However, for me as a Legal Consititutional Scholar, Practitioner and Political Pundit too, I most respectfully submit that we put Gen. Saleh's ground-breaking proposal into the stark context of Uganda’s constitutional developments and bottlenecks since independence, which is the effective date for self-governance. However, it cannot be examined to the exclusion of the Uganda Protectorate 1894 and even well before that the Imperial British East Africa Africa Company. This is because modern Uganda emerges from the ashes of those traditional and cultural structures which many elite politicians and even Oligarchs indentify with depending on political and socio-economic balance of convenience of contemporary times.

If we do not, we are doomed to repeat a "vicious cycle" of historical mistakes.

The core vulnerability of early post-colonial African states was a failure to acknowledge a fundamental truth:

"That rules in isolation cannot create a nation; rather, a nation must first collectively agree on its rules".

The Ghost of Top-Down Political Engineering discloses that the primary lesson of both the 1962 Westminster model and the 1970s "1+3" ideological experiment of President Dr Milton Obote was that elite-driven, top-down constitutional design which fails without an organic grassroots consensus.

Unfortunately, subsequent history shows this lesson was largely ignored.

The 1962 model was negotiated in the distant boardrooms of Lancaster House in London United Kingdom, while the 1970 Dr Apollo Milton Obote model was decreed by executive mandate during a state of emergency.

Its my considered submission that; When institutions fail to provide peaceful, predictable avenues for the transfer of power or the management of tribal friction, politics inevitably reverts to RAW FORCE, as was manifested by the Idi Amin coup of 1971.

Its fair and safe to argue that indeed President Idi Amin did not destroy a functioning democracy; but rather he stepped into the structural wreckage of an electoral architecture that had already collapsed under the weight of its own internal contradictions.

The 1995 Constitution was born out of an extensive, years-long consultative process meant to address these failures, initially building a deep national consensus.

However, the subsequent and indeed well intetioned and necessary removal of presidential term limits (2005) and age limits (2017) demonstrated that our framework remains vulnerable to elite national interest considerations from the top down.

While I contend these modern amendments were necessary in exceptional circumstances for continuity and national cohesion, they nonetheless reflect a familiar, international constitutional pattern. This includes examples the United States of America consititution with 1st, 2nd, 3rd, 4th, 5th etc amendments. So its not strange with Uganda’s amendments but the issue now before us is with the development and operationisation of Gen Saleh's CONSOCIATIONAL Democracy.

For purposes of this analysis, I will proceed by way of relevant and poignant perspectives for effective political illustrations. 

The imperative question therefore is whether our current constitutional provisions and political structures therein for Democratic dispension, are sufficient to support Gen Saleh's CONSOCIATIONAL Democracy?

Similarly, on the facts, how is it from pre- independence Tribal and Religious Alliances to seemingly Commercialised Coercion?

In evaluating the 1970 system, I have long argued that cross-regional campaigning without deep reform would favor wealthy elites, substituting ethnic clientelism with state-sponsored clientelism. This has manifested explicitly in modern Ugandan politics.

Modern elections are no longer just fought along rigid, overt tribal lines like the old UPC-KY alliance; instead, they are heavily mediated by financial patronage. The state machinery and immense financial capital are deployed to secure multi-ethnic coalitions.

Furthermore, running a viable parliamentary campaign across even a single district today requires immense wealth, mirroring the logistical barriers of the historical Document 5 of President Milton Obote’s "1+3" system of 1970.

The result is an elite capture of our democratic space, where access to state resources or private capital dictates political survival.

The Failure to Move Past Majoritarianism Despite the historical lesson that the First-Past-The-Post (FPTP) system exacerbates existential, zero-sum dynamics in a fractured society, Uganda has stubbornly clung to it.

Elections in our multi-party era continue to feel like existential threats to the losing sides. This is because representation is not proportional, entire regions or demographic blocks feel systematically marginalized the moment their preferred candidates lose.

Additionally, the continuous creation of new districts has fragmented the electorate further, keeping politics highly localized and dependent on central patronage for service delivery, rather than fostering a cohesive national policy debate.

The "Tutelary Politics" rebranded Dr Obote's 1970 assumption that the state needed to "discipline" or " re-orientate" the masses, found a successor in the early years of the National Resistance Movement (NRM) with continued ban on political party activities, but permitted political participation only under the NRM Umbrella.

But to the NRM's credit, unlike Obote, it organized the masses through participatory democracy from the village level (LC1). However, the underlying paternalism remained.

For nearly two decades, the NRM implemented the "Movement System," which suspended political parties under the guise of preventing sectarianism.

While this successfully managed overt ethnic violence for a time, it operated on the same principle as the "1+3" system: that the population was not yet mature enough for unregulated multi-party democracy.

When multi-party politics was finally reintroduced in 2005, it immediately inherited the old structural fractures.

Suppressing political expression does not cure underlying social divisions.

LESSONS FROM KENYA & ZIMBABWE ON CONSOCIATIONALGOVERNANCE

When we look across the East African Community and indeed the world, history teaches us that top-down elite accommodations regularly collapse if the underlying electoral system remains a winner-take-all scramble. Therefore a constitutional revist or review is imperative to underpin Gen Saleh's CONSOCIATIONAL Democracy and governance.

Yes, there has never been an easy way out of political quagimires but nonetheless they have been slowly but surely progressed and Uganda cannot be an exception. For example, the British and the decades armed combat with the Irish Republican Army (IRA) which ended up with the Good Friday Agreement with shared government, Burundi, South Africa following the release of Nelson Mandela and dismantling of APARTHEID. So its arguable that national unity power sharing governments often follow crisis ridden governance. Yet Uganda has enjoyed 40 years of stability under the NRM. All-in-all, lets specifically look at two countries of power sharing experiment, namely, KENYA and ZIMBABWE.

Consider the Kenyan Precedent of the 2008 National Accord

Following the 2007 post-election violence, Kenya established a Grand Coalition Government, sharing power between a President and a Prime Minister. While it successfully halted immediate bloodshed, it operated as an uneasy marriage of convenience.

Its my considered submitted that this was because the underlying legislative structure remained deeply rooted in localized First-Past-The-Post (FPTP) rivalries, ethnic polarization simply simmered beneath the surface until the coalition dissolved.

ZIMBABWE CONSOCIATIONAL EXPERIMENT

Similarly, look at the Zimbabwe Dilemma of the 2009 Government of National Unity (GNU). The arrangement brought the opposition into the executive cabinet. However, because the ruling party maintained structural control over the state apparatus, the arrangement ultimately resulted in executive capture. The opposition was effectively swallowed by the state and the well intetioned CONSOCIATIONAL Democracy swept aside.

In conclusion, its my considered analysis that these continental examples prove my core legal argument and diagnosis that fixing the executive cabinet while leaving a polarizing legislative election system intact is akin to painting a building with a fractured foundation.

Indeed, the ultimate tragedy of Uganda’s electoral trajectory is that we have continually mistaken the manipulation of rules for the building of a state.

The 1962 framework collapsed because it ignored our deep fractures; the 1970 system collapsed because it tried to coerce unity from above.

Gen. Saleh's proposal is indeed a big step, while it cannot stand alone its nonetheless a relevant Bridge-Builder. It is my considered submission that until Uganda undertakes a genuine, bottom-up renegotiation of its national citizens' contract—one that prioritizes democratic proportional inclusion or representation and deep electoral reform over winner-take-all dominance (by way of First-Past-The-Post or survival-of-the fittest)—our electoral architecture will remain an elaborate stage built over an active fault line. Notwithstanding, Gen Saleh's CONSOCIATIONAL Democracy is a necessary Bridge-Builder.

THE WRITER IS; BARRISTER PETER MAGOMU MASHATE, AN ADMINISTRATIVE, CONSTITUTIONAL & HUMAN RIGHTS BARRISTER-AT-LAW, CALLED TO THE BAR BY THE HONOURABLE SOCIETY OF LINCOLN’S INN OF COURT LONDON, UNITED KINGDOM.