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LGD 2001 (1) - James Katalikawe


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Freedom of Association:
The Case For and Against
the Referendum on Political
Systems in Uganda
[1]

Dr James W R Katalikawe
Faculty of Law, Makerere University,
Kampala, Uganda
ruzamba@hotmail.com

Abstract

Uganda's ultra modern Constitution gives pride of place to the freedom of speech and expression, assembly and association, which includes the freedom to form and join political parties or other civic organisations. However, in the name of national unity, it prohibits political parties from opening and operating branches offices, holding delegates' conferences, holding public rallies sponsoring or campaigning for or against a candidate for any public office, or carrying out any activities that may interfere with the 'Movement Political System'. All candidates for local, parliamentary and presidential elections are elected on individual merit, rather than political ideology or other sectarian basis. Indeed, under these arrangements, otherwise known as the 'no-party democracy' it is an offence to campaign under political party colours.

It was envisaged that these transitional arrangements, which came into force in 1986, long before they were constitutionalised in 1995, would expire in 1998, two years before the referendum on political systems, slated for 2000. However, the government steadfastly declined to enact the enabling legislation to the chagrin of the Multi-partyists. This made the pre-referendum debate unnecessarily acrimonious, irrational and confused, and, as a result, the merits and demerits of the 'Movement Political System,' on the one hand, and the Multi-partyism, on the other, were never adequately addressed. It is argued, therefore, that both parties failed to educate the voting public. Therefore many voters did not fully appreciate the import of the referendum and it failed to achieve the primary objective for which it was designed. As expected, it entrenched the Movement Political System and, in the process, consigned the Political Parties to the lumber-room, thus sowing the seeds of rebellion and political instability. Therefore it is argued that Referendum 2000 was a futile exercise. In fact it provides yet another example of how a referendum can be used to subvert democracy.

Keywords: Referendum, Uganda, 2000, Constitution, Freedom of Association, Political System, Amendment, Transition.


This is a Refereed article published on 21 June 2001.

Citation: Katalikawe J, 'Freedom of Association: The Case For and Against the Referendum on Political Systems in Uganda', 2001 (1) Law, Social Justice and Global Development (LGD). <http://elj.warwick.ac.uk/global/issue/2001-1/katalikawe.html>/ New citation as at 1/1/04: <http://www2.warwick.ac.uk/fac/soc/law/elj/lgd/2001_1/katalikawe/>



1. Introduction:

The Freedom of Association is, in many countries, synonymous with democracy. It forms the bedrock on which political parties, the lifeblood of democracy, are founded. It is given pride of place in international and regional human rights instruments, and it is presently found in most written state constitutions[2].

For example, Article 29(e) of the Uganda Constitution (1995) states that 'Every person has the right to form and join associations or unions, including trade unions and political and other civic organizations[3]. This is underpinned by Article 72(I), which specifically guarantees the right to form political parties and any other political organisations[4]. However, these rights are severely limited by Article 269 which, while recognising the freedom of association and the existence of political parties, prohibits party political activities, particularly, the opening and operating of branch offices, holding delegates' conferences, holding public rallies, sponsoring or offering a platform to or in any way campaigning for or against a candidate for any public election, and carrying on activities that may interfere with the 'Movement Political System' for the time being in force[5].

Clearly this is a total negation of the Freedom of Association, enshrined in the Constitution. Yet, the proponents of the 'Movement Political System' over which President Yoweri Museveni presides, and which has been in force since 1986, do not share that view. For them, Articles 29(e) and 269 are apparently not incompatible, largely because they blame political parties for the Country's economic, political and social problems of the last thirty years.

It is contended that the no party political system, as opposed to the Western liberal democracy, is ideally suited to the local situation. Since in the past political parties based on religious and tribal affiliations, were sectarian and as such were inimical to national unity and political stability. Consequently, it is argued that a quick return to plural politics would inevitably plunge the country into political instability and insecurity[6].

Pluralist democrats, the multi-partyists who did not accept the charge that political parties were responsible for the past political instability, contested the re-writing of history. They place blame, fairly and squarely, on the shoulders of the country's poor and inexperienced leadership, whether political, religious or secular. In any case, it is said, that the National Resistance Movement (NRM), the umbrella organisation, the handmaid of the 'Movement Political System', is a political party in all but name, and that it is as tribal, sectarian and divisive as any political organisation. These claims and counter claims followed the enactment of the Referendum and Other Provisions Act 1999[ 7], and the shelving of the Political Organizations Bill, 1998. The debate generated more heat than light; some arguments have been embellished while some central issues were glossed over and not sufficiently addressed. This paper aims to examine these partisan arguments and then present a dispassionate analysis of the merits and demerits of the respective views, in an effort to place the Referendum 2000 in its proper perspective[8]. To this end, it is necessary to briefly examine the legal and political dynamics which led to the constitutionalisation of the referendum.

2. The Origins of Referendum 2000

After the end of the 1980-1986 guerrilla war, in which pitiless violence was inflicted on countless innocent civilians, the country was in ruins: inflation was hovering around 300% and rising, while many essential commodities were in short supply. Much of this is well documented and need not be rehearsed here, suffice it to say that the country was bleeding to death. The end of the Obote and the Okello-Okello regimes heralded, so claimed the leaders of the National Resistance Army, the conquerors of the Uganda Liberation Army, the end of repression and the beginning of a new era. Their assumption of state power, unlike that of their predecessors, they claimed, was no mere change of guards, but a more fundamental change[9]. They fought the bush war to end all wars. They promised good and clean governance, the restoration of democracy, the eradication of corruption and the abolition of the much feared state security organs.

In particular, the rule of law and democratic rule would be restored and the rigging of elections, as done in 1980, would be a thing of the past. However, in view of the country's political history, there would be a short interlude before party political activities including elections, could be resumed. In the meantime, the Country's dysfunctional infrastructure, the dilapidated economic, social and political institutions, would be the main focus of activity. The Security Forces - the Army, the Police and the Prison Service, including the Civil Service and the Judiciary - which were in a state of disarray, would be rehabilitated.

With the exception of Hon. Ziritwaula, who resigned his seat on the National Resistance Council, the NRM interim government was extended from two to four years with almost universal approval. Everyone appeared happy with the new regime's modus operandi. It appeared to offer the country the best way out of its terrible political past. The hitherto marginalised groups, such as women, were emancipated and encouraged to participate in the governance of their country. Some, for example, were incorporated into the cabinet and the newly established Resistance Councils. This was followed by the establishment of the Ministry of Women in Development and the adoption of a policy of positive discrimination in favour of women.

The rhetoric, in government circles was decidedly egalitarian, anti-capitalist in tone and Marxist in character. The government's economic policy was to eschew the Structural Adjustment Policies of the International Monetary Fund (IMF) and the International Bank for Reconstruction and Development (IBRD). The NRM Leadership was opposed to the IMF/IBRD hegemony. They criticised the Obote regime for following the latter's prescriptions. Instead, economic planning, self-reliance and barter trade was the buzzwords. The government itself was to live within its means and all ministers were to be less ostentatious: no more ministerial Mercedes Benz limousines and imported household goods. They also pledged to fight the rampant corruption and vowed to adhere to a Leadership Code of Conduct. The government's economic strategy was thus to be buttressed by moral values. This moral rectitude was to be policed by the Inspector General of Government (IGG), known elsewhere as the Ombudsman. The enormity of the task in hand cannot be overstated. It required a sober approach and the total mobilisation of the country's human and financial resources.

However, the way forward was largely dictated by the political expediency and the exigencies of the moment. First, with the exception of Museveni, none of the 27 'historicals' - that is to say those who started the 'bush-war', had had any ministerial experience and many appeared to have been unprepared for office. Indeed, a cursory glance at the Hansard vividly indicates that their mastery of Parliamentary Procedure was very rudimentary. As their leader put it:

'When we were in the bush we did not have time to sort out the legislation's as opposed to [the] roles of political organs of the movement. As of now they are fused [and] that is why you see me here acting as Speaker because we had not envisaged so soon the idea of Speakers so we did not provide for it: you will have to bear with us'[10].

He then called upon the Minister of Finance to present the budget proposals for the Year 1986-87. Interestingly, the Minister's statement was unaccompanied by the usual budget background papers, including the detailed estimates of revenue and expenditure. Even so, the Council was, following the Minister's mini-budget speech, 'adjourned to consider in great depth' (the Minister's five and a half page budget statement), and to digest the mass of data which the Minister of Finance had presented[11]. When the Council re-assembled a few weeks later, it was once again told that both the budget background papers and the estimates of revenue and expenditure were not ready, and it was, once again, adjourned for two weeks, and it was sometime that the Minister tabled the relevant background papers. In the meantime, the Council had received and approved, without debate, the vote on Account for the year[12]. The Ministry of Finance was clearly in those heady days, dysfunctional, but the nascent NRC wasn't working properly either[13].

Further, the NRM government lacked legitimacy and was anxious to secure it by all means. They therefore invited the leaders of the Conservative Party (CP), and the Democratic Party (DP) who, thanks to the politics of poverty, were more than happy to accept the cabinet posts on offer. No invitation was, for political reasons, extended to the previous ruling party, the Uganda People's Congress (UPC), but two of its members were summoned, incorporated into the NRM and given sinecure ministerial positions[14].

The dissident groups also had to be accommodated if the country was to avoid another wave of banditry and political instability. Their leaders were also invited and incorporated into the new broad-based government[15]. The leaders of the defeated army, like their civilian counterparts, on the other hand, were never invited or incorporated into the new government. Instead, they were peacefully disarmed, and, contrary to previous practice, spared from incarceration. Some were brought under the NRA umbrella but a good many others ran away and subsequently did a 'Museveni' themselves - they went to the bush and so began the insurgency in the north. These rudiments of consensual politics were graphically illustrated by the formation of a government of national unity. The new government, broad-based and all-inclusive as it was, was only supposed to be temporary. Its task was to prepare for multi-party democracy and, as a result, it was given more latitude than it would have otherwise been allowed.

Its request for the further extension of its tenure of office, for a five-year term, in order to accomplish its reforms, was graciously granted by the NRC, as was the earlier request for the establishment of a Constitutional Commission. The Commission's terms of reference were, inter alia, to make proposals for the enactment of a Constitution that would:

(i) establish a free and democratic system of Government that [would] guarantee the fundamental rights and freedoms of the people;

(ii) create viable political institutions that [would] ensure maximum consensus and orderly succession to Government[16].

This was the fulfillment of a long cherished dream of the bush days:

'The NRM believe that it is the inalienable rights of all peoples to freely choose their Government, and to determine the manner of that Government. Rigged or manipulated elections are an insult to the people and a sure recipe for instability, conflict and upheavals. Constitutions imposed on the people by guise, wile or force cannot be the basis of stable and peaceful governance of men'[17].

With that ringing in their ears, the Commissioners traversed the breadth and width of the Country, consulting widely and canvassing the views of the people, holding public meetings, seminars and workshops. It had been given two years in which to complete its fact-finding brief. In the event however, for a variety of reasons, not least of which was the lack of funds, it was extended for another two years. That meant that the Commissions' Report, together with its Draft Constitution was not submitted to the Government until 31 December 1992. Both were accepted by the Government and the latter was subsequently debated and promulgated by a specially elected Constituent Assembly, on 22 September 1995, thus completing the most comprehensive and, most certainly, the longest constitution-making process in the country's political history.

The end of this protracted process did not end all the political and constitutional wrangles it was intended to resolve. In particular, both the Commission and the Constituent Assembly did not satisfactorily resolve one central question, that is, the type of government the country was to have after the promulgation of the new constitution. This vital decision was left in the hands of the electorate. It was provided that:

'during the last month of the fourth year of the term of Parliament' elected in 1996, [that is to say in July 2000], 'a referendum be held to determine the political system the people of Uganda wish to adopt'[18].

In the meantime, Parliament was to enact the enabling legislation[19]. It was envisaged that political parties would be freed long before the proposed referendum was held. Again, the Constitution set out the timetable for this. It was provided that two years prior to the referendum:

'any person shall be free to canvass for public support for a political system of his or her choice'[20 ].

The choice lay between 'the movement political system; multi-party political system; or any other democratic and representative political system'[21].

Therefore it was expected that, Article 269 that bans party political activities, would be repealed long before the country went to poll in July 2000. Initially the NRM leadership appeared to agree with this interpretation of the Constitution. They duly tabled the Political Organisations Bill, 1998, and in accordance with law referred it to the Legal and Parliamentary Affairs Committee, for consideration. The Committee was given three months in which to scrutinize the Bill and report back to parliament.

Pursuant to the publication of the Committee's Report, the Bill was mysteriously withheld, and it was sometime before the responsible minister told Parliament that the Bill was to be shelved sine die. In his view, the Committee had 'mutilated' it beyond all recognition, and, as a result, he would have to re-submit it to the Cabinet for re-consideration. It soon transpired, however that the NRM leadership was concerned that the passage of the Bill, as amended by the Legal and Parliamentary Affairs Committee, before the referendum, would 'confuse' the electorate. Accordingly, the Bill was put on hold, but there was a problem. The relevant constitutional provisions, as noted earlier, were unusually clear. The enactment of the POB was a condition precedent, but it seems that the import of repealing Article 269 was not fully appreciated until the publication of the Political Organizations Bill, 1998.

The original idea was that the Constitution and the referendum, in particular, would be the vehicle for the entrenchment of the 'Movement Political System', but the enactment of the revised Political Organizations Bill, 1998, would have undermined that possibility. Indeed, it run counter to the 'NRM/NRA Revolution', the aims of which were to establish a popular democracy in which 'only the NRM [would] be allowed to operate'[22]. Clearly, this was in sharp contrast to the NRM's Ten-Point Programme, which was used to woo the people's support, and to court the multi-partyists to join the broad-based interim government. The NRM leadership was about to break one of its most important promises, and its credibility was in the balance. No wonder some felt betrayed by the NRM leadership:

In 1986, like most Ugandans, I wanted to give Museveni a chance. The chance for democracy hadn't come the way we liked, but we felt we should give him a chance'[23].

Despite their misgivings the DP leadership did not break up their relationship with the NRM: they 'had a big hope, the making of a new democratic constitution' which was then in the offing[24]. But their hopes were soon dashed, they had been out witted and out maneuvered, and their political careers lay in ruins. They had readily accepted the trappings of office without extracting the necessary concessions, and were now paying the price. Yet, the NRM's antipathy to political parties was, both deeply rooted and well known, and the inclusion of Article 269 in the Constitution and the government's subsequent reluctance to repeal it should not have surprised anybody.

However, the government's approach was worrying. Was this subterfuge necessary? Of course, if the NRM had, from the outset banned political parties, it is inconceivable that it would have been allowed to do so. Indeed, in 1990, it introduce a Bill in the NRC, to restrict political party activities, but it was, following protestations by the DP and others forced to withdraw it. However, if the same idea were to be gift wrapped and presented in a civilised manner, it might do the trick. The unsuspecting public might take the bait hook, line and sinker, and, that is precisely what happened.

However, as time went on the NRM stratagem began to unravel. The government's reluctance to level the playing field before the referendum 2000 increasingly became indefensible. It antagonized the Church, the multi-partyists, and more importantly, some of its most ardent supporters, including the donor community and some cabinet ministers.

In addition to regularising political parties, Parliament had to enact the Referendum legislation by 2 July 1999. But, for some unknown reasons, the relevant minister did not bring the enabling legislation to Parliament until the eleventh hour. This meant that the Referendum and other Provisions Act 1999 did not have an easy passage through Parliament. Its parliamentary approval, for example, was shrouded in chaos and controversy. Many Parliamentarians, presumably, protested at the government's handling of the matter and the way they were being treated as cannon fodder, did not bother to attend the final stages of the Bill. Many had signed the Attendance Register, but, at the material time, were not physically present in the Chamber, and, as a result, when a multi-partyist MP raised the issue of the quorum, the Speaker was impelled on the horns of a dilemma. It was clear that the House was inquorate. It was also clear that the House had to pass the Bill into law before rising, or else there would be a constitutional crisis.

The Speaker was forced in lieu of the customary head count of the Members of Parliament present in the Chamber, to refer to the Attendance Register to ascertain the House's quorum. Having consulted the Register, the Speaker ruled that there was a quorum and the Bill was duly passed. The Bill did not receive the Presidential Assent in time – and came into effect a day too late! These shenanigans together with the NRM's change of political colours[25] - from a temporary arrangement to a fully-fledged 'political system' tended to undermine the need for a referendum on the system of governance.

3. The Referendum 2000: A Recipe for Peace or Instability?

The elementary question being, how did the referendum become a central feature of the constitution? How did the referendum, the quintessential epitome of democracy come to symbolise in some people's eyes, the beginning of the end of democracy in Uganda? What went wrong with the NRM project? How and why did the NRM leadership get itself into this terrible muddle? These are some of the questions, which dominated the debate preceding the Referendum 2000.

Acrimony, irrationality and inexactitude characterised the debate preceding the Referendum 2000, and as such it almost derailed the NRM'S democratisation programme. It also tested the NRM Government's commitment to multi-party democracy and found it wanting, and managed to conjure up a grotesque spectacle of democrats using democracy to destroy democracy.

Be that as it may, how did the referendum become a central feature of the 1995 constitution? There are two schools of thought on this matter. It is alleged, on the one hand, that it was smuggled into the constitution. The other view being that it was contained in the people's views as articulated by the Constitutional Commission. It would appear, however, that the truth lies in between these two extremes. The idea of a plebiscite on 'political systems' does not appear to have been canvassed by the commission or the people – we have yet to come across a memorandum in which it was raised. However, it would appear that it was the brainchild of the NRM leadership, and the question is how it found its way into the Commission's, recommendations. We now know that the NRM leadership first mooted the idea of a referendum. Thus, as early as 1992, well before the Constitutional Commission submitted its report, Eriya Kategaya warned that the NRM would not compromise the stability and unity of the country [by allowing] the selfish interests of some [political] parties[26] to interfere with their project. Ugandans, [he said], are to decide whether or not to accept [political] parties. Similar sentiments were, a month later, expressed by President Museveni himself[27]. The Democratic Party however, immediately denounced such an idea[28], and it was left to the Commission to sell it.

According to the Constitutional Commission, the choice of a political system most suited for Uganda [was] a very hotly debated issue[29]. Evidently, 'every section of society.... submitted its views on' the matter to the Commission[30]. It was, in their view 'one of the most controversial at all levels of Society', for it was realized that the future political stability of the country, the effective implementation and realization of other aspects of the new Constitution, such as the protection of human rights, and fundamental freedoms would largely depend on the preferred political system[31]. Unfortunately, there was no consensus on the most suitable political system for the country:

The statistical analysis carried out on views submitted to us on the two systems shows: the views of RCI, 2&3 prefer, by a large majority, the movement system while views of RC 4&5, of groups and individuals prefer, by a narrow majority, the multi-party system.

The Commission has examined the views on the subject in various types of seminar reports, newspaper articles and in interviews and position papers. It has come to the conclusion that this is an important issue, which cannot be satisfactorily decided on in terms of either a movement or a multi-party system. The people of Uganda have important values they cherish in both systems, and they have serious elements they fear in both. Large sections of our society would not want the reintroduction of a multi-party system to completely do away with the characteristics of the movement system, which they cherish, nor would they wish the adoption of the movement system to eliminate important values of the multi-party system[32].

The Commission was in a quandary. Its reputation and independence were at stake. It had a broad mandate and could have decidedly resolved the issue, but instead, it ducked it, and settled for a seemingly easy way out of its predicament: the referendum.

The Commission has, therefore, interpreted the wish of the majority of the Ugandan people to be that of wanting both political systems to be established in the new Constitution and left to the sovereignty of the people to periodically decide through a national referendum, which of the two systems, they prefer at any particular time of their political development[33].

But, was this not a recipe for disaster? What effect would such frequent referenda have on the political stability of the country? Again, the Commission found refuge in the sovereignty of the people.

The Commission discussed fully the implications of such regular referenda on so vital an issue. It came to the conclusion that since democracy always grows the people of Uganda would at some future time of their democratic development clearly express, through a referendum, whether they want one of the two systems to be permanently adopted. At that time the regular referendum on political system would come to an end through the expressed people's consensus on the issue[34].

Accordingly, the Commission recommended that:

'both the movement political system and the multi-party system should be enshrined in the new constitution to provide the people of Uganda with the right and freedom to choose either of them through a national referendum'[35].

It also recommended that such a right could be exercised on behalf of the people, by their delegates to the Constituent Assembly, before the promulgation of the new Constitution, and that should that prove difficult, then the people themselves would have to do so in a national referendum[36].

This even-handiness was, however, marred by the Commission's next set of proposals, namely that the movement should continue in force, and that the political parties should remain in limbo[37]. These recommendations can be criticised on a number of accounts, not least of which was the Commission's assumption that the 'Movement' was 'a political system' and democratic in nature and character[38].

In view of the country's political history, and the NRM's crusade against political parties since 1986, it is unfortunate that the Commission did not give the multi-partyists a chance to put their house in order before the referendum was held. It is not clear, for example, why the Commission did not recommend that the two 'systems' should alternate in government before holding a national referendum on the most suitable political system for the country.

The Commission's failure to provide a level playing field and the impact that had on the debate before the referendum was put in context by a movementist in the following terms:

I would have liked to see a situation where political parties [were] first of all allowed some room to organize themselves and make their case. For instance, I don't think either Obote or Ssemogerere are qualified to make a case for multi-partyism in this country. They killed it. But that does not mean that in their institutions there are no other people who could be more credible. But the law puts them in a situation where the current leaders remain in control of their parties and [are], therefore the force of (multi-partyism) in the country. Its rather like saying that the Movement's face is [represented by Kakooza Mutale or] some other undemocratic and extreme person... Then the movement would be unpalatable to the voters. But if the Movement can choose the best to go and make its case, it would have a better chance[39].

So, too, would the political parties. The two sides would then have an even contest, and arguably, there would be no need to go to the courts or to the bush to redress the balance. Clearly, the political parties were dealt a bad hand, and as a result, the Commission's dream panacea was, contrary to its proponents, in danger of creating a political crisis it was designed to avoid[40].

This is because the transitional arrangements, particularly those relating to the referendum and the political systems were highly contentious and divisive. They were hotly debated in Constituent Assembly, but the NRM dominated Assembly simply refused to listen to reason, it simply passed the buck. Hence, some 68 CA delegates walked out and subsequently declined to sign the Constitution, and were later largely responsible for the lack of the requisite quorum when the Referendum and other Provisions Act 1999 was forced on an unwilling parliament. They may have lost the war, but they won the battle. The 1999 Referendum Act was, at the instance of one of the political parties, annulled by the Supreme Court and the government forced to amend the constitution, thus enabling the referendum to take place. As one of them ominously put it 'These people cannot be wished away'[41].

Yet, nothing was done to placate them. On the contrary, everything that could be done was done to lock them out[42], and regrettably 'armed struggle' is, once again, on the agenda[43]. These misgivings are by no means the preserve of the Opposition. Even some government supports, such as Elly Karuhanga, who counts the President among his constituents, has publicly protested at the way the referendum issue was handled by the government.

Our political system is not static. It's growing. What we decided in the CA was the political reality of that time. We do not have the CA today neither can it be reconvened but the constitution should be the spirit of the Country at a particular point in time[44].

He thus urged his fellow movementists ' not to be unnecessarily legalistic'[45], and mused at what would happen if the Movement did not win the referendum convincingly.

If one side gets 60% and the other 40%, we should not simply say that one side has won because.... I would hate to imagine that we could be sitting here muzzling the spirit of the population, just because we would like to remain in power.

That indeed was the dilemma facing the NRM leadership. There were those who wished to free the political parties and there were those who wished to suffocate them. Indeed, some vowed to keep them at bay. The constitution not withstanding, the government seemed unable and or unwilling to unban party political activities, and as its case for the referendum, set out below indicates, it appeared as if it had a morbid fear of political parties.

4. The Case for Referendum 2000: The End Justifies the Means

Only [the] NRM [will be] allowed to operate in the country.... the other political parties i.e. [the] UPC, DP, CP and UNLP, will cease to exist as required by the revolution[46].

The NRM leadership's dislike of political parties is, as the above account shows, one of the Movement's well kept secret. It can be traced back to the 1980 general election in which the Uganda Patriotic Movement, the Movement's predecessor, and over, which Museveni presided, was routed at the polls. It was that bitter experience that launched the NRM/NRA Revolution, the aims of which were:

  • Firstly, the 'Removal of Obote's dictatorship by force of arms'; and
     
  • Secondly, 'the establishment by force of arms if necessary of a one party popular democracy.... under the NRM'[47].

The former was achieved on the 26 January 1986, when the NRA seized power and installed its 'High Command' in office, while the latter was realised, a few months later, [in March 1986] when the [NRA unilaterally banned] political party activities under what was insidiously called 'a Gentleman's Agreement to suspend party activities'[48].

The 'gentleman's agreement' was subsequently enshrined in the Constitution to the chagrin of the non-movementists. It is provided that:

'the first presidential, parliamentary, local government and other public elections, following the promulgation of the 1995 constitution, 'shall be held under the movement political system'[49].

Existing political parties were to continue in existence, albeit in limbo. In particular, they were to refrain from doing anything that might interfere with the movement political system[50]. They were, in effect, prohibited from functioning as political parties-they were for diplomatic reasons mere objets d'art.

The need for this elaborate scheme to cocoon the movement was, according to the NRM leadership dictated by the country's turbulent political history, much of which it was said was caused by the political parties. Thus in his 'Sowing the Mustard Seed', Yoweri Museveni argues that there are, in the 'absence of social classes', no healthy grounds of party political polarization; that the polarization one is likely to get would be vertical polarization' based on ethnicity; and that that would simply breed sectarianism. This, in his view, would be bad for the country for it would create 'permanent, built-in, unhealthy fissures which would be a danger to society and which', he contends', have led to terrible consequences in the past'[51].

Evidently, Uganda was classless and, as such not ready for multi-party democracy for the main political parties were largely based on ethnicity and religion, rather than class and ideology. Article 1 provides that 'all power belongs to the people' and further empowers them to 'express their will and consent on who shall govern them and on how they should be governed through regular, free and fair elections or referenda'. Similarly, Article 69 provides that the people have a right to choose and adopt a political system of their choice through free and fair elections or referenda. Their choice lies between the movement political system, the multi-party political system, and any other democratic and representative political system[52]. It is further provided that during the last month of the fourth year of the term of the 1996-2001 Parliament:

'a referendum shall be held to determine the political system the people of Uganda wish to adopt'[53], that a year prior to that, 'any person shall be free to canvass for public support for a political system of his or her choice'[54].

This, according to the Government meant that the Referendum 2000 was mandatory: in the words of the National Political Commissar, 'the Referendum will be held because the Constitution says so'[55]. It was a constitutional requirement and, therefore, it had to be held. That, briefly, was the government's case for the Referendum 2000.

5. The Case for the Referendum 2000: A Critique

The government's case for the Referendum 2000 was largely based on the country's past history. The government's re-writing of the country's history is open to question however. Thus, for example, Professor Frederick Jjuuko observes that:

While political parties, just like any other institution in Uganda, have had problems and short comings, it fallacious to blame [them for the country's ills]. What the history of Uganda consistently demonstrates as the real problem in the country, running through all forms of government, civilian and military alike, is a red line of two interrelated factors:(a) dictatorship and the desire to cling to power and the unwillingness to relinquish power democratically. (b) the use of militaristic means on the part of the leadership to achieve the first objective, and the use of militarism to resolve differences[56].

Nonetheless, political parties remaiain the Movementists' bete noire. And they continue to believe that political parties are evil, divisive and sectarian. That party politics are divisive is beyond dispute, that is the nature of the beast, but extrapolate from that that the country is not ready for party politics is not tenable. Nor is the assertion that the country is classless. As Jjuuko and others have pointed out Uganda is not, by any definition, classless.

The fact of the matter is that there are indeed classes in Uganda.Murkherjee, writing as early as 1956 elaborately expounds on this matter. Other writers that take a class analysis approach have since elaborated on this further.That there problems with these classes is another matter. Classes and class interests do exist in Uganda. But [even] if one were to [accept] the Movementists argument that all there to social and political organisation in the country is ethnicity, religion and sectarianism. What is the social basis of the Movement itself as an organisation: the ethnicity of the president.. the ethnicity of those who control the army? The religion or other sectarian attribute of the Movementists? Or does the Movement surpus the social and material basis on which it is built i.e Ugandan Society?[57]

Indeed, it is now widely accepted, up and down the country, that the Movement is the most sectarian political organisation in the country's history. Therefore, its leaders' antipathy to political parties simply because of their alleged sectarian tendencies is, to say the least, untenable.

The same is true of the argument that the referendum is a constitutional imperative. It was argued that the Referendum 2000 was mandatory, and that the government had no choice in the matter. But, once again, however, the government's case is not as water tight as it might seem. The referendum's etymology, alluded to earlier, suggests that it was a politically contrived device with which to silence the Multi-partyists. Witness the way in which it was pushed through the Constituent Assembly, and the circumstances in which it was constitutionalised. The NRM with an eye on the 1996 presidential and parliamentary election sought and obtained the constitution it wanted without due regard to the long term interests of the country let alone the multi-partyists'. That might have been practical politics in 1994 but that was no longer the case in 2000. Moreover, what is constitutional is not always good practical politics.

The Government's reluctance, in the face of opposition, to operationalise Article 72(3) is a sobering reminder of the dichotomy between law and practical politics. And the same is true of Article 210(d). The former required Parliament to make law for the regulation of political parties, while the latter required Parliament to make laws for the deployment of the Uganda People's Defense Forces (UPDF) outside the country. Both, are clearly constitutional requirements, but both, for political reasons, have yet to be operationalised. Yet, that has not deterred the Government from deploying the country's troops outside the country without parliamentary approval, as is required by the Constitution. Thus the constitutional requirement argument is a non-starter. The authority's disregard of these and other inconvenient constitutional provisions is illuminating.

Be that as it may, the Constitution is unusually quite clear on this matter, the real question is whether complying with it, in this case, would be in the country's best interests, or indeed practical politics? Or does 'the fact that something is legal mean that it is right? As Nobert Mao (MP Gulu Municipality) and others have pointed out the referendum 2000 was 'legal but wrong'[58 ]. It is clear that the referendum was, from its inception, contentious and divisive and, under those circumstances, to insist on it simply because it was constitutional flies in the face of reality. It is also, in this connection, well to reflect on the reasons why the 'historicals' went to the bush. What was the five-year long guerrilla war all about?

It is against this background that many people urged the government not to go ahead with the referendum. It was quite clear, given the NRM leadership's volte- face that the movement/multi-party divide could not be resolved by a referendum. The Government's refusal to enact the Political Organization Bill 1998, together with the examples given above were cited to support the common sense view that blind obedience to law is not always the best option, particularly if there is a legal way out, as was the case here. The Government's escape hatch was provided by Articles 258 through to 262 of the Constitution - they set out the manner and form for the amendment of the Constitution.

This, notwithstanding, however, the Government steadfastly refused to listen to the calls for the amendment of the Constitution, so as to avoid holding of the Referendum 2000, which everybody knew would serve no useful purpose, arguing that it was hard to amend the constitution. Admittedly it is hard to amend certain provisions of the constitution because they are entrenched but that does not mean that it is impossible so to do. It may be laborious and wearisome, but it can be done, and indeed it has been done. Thus, for example, it was, following the Supreme Court's decision nullifying the Referendum and Other Provisions Act, 1999, for having been passed without the requisite quorum amended, within hours rather than days. But as Waswa Lule (MP Rubaga North) put it, the Government was 'stuck in reverse gear'[59], and seemed unable or unwilling to shift the gear lever back to move forward.

Consequently, they rejected Omara Atubo's motion to amend Article 271, and detailed the NRM National Political Commissar to advance their cause.

Through his motion, Atubo is inviting Parliament to re-open the debate of [1994] which debate had been concluded with the adoption of the constitution. Atubo presents his argument on Article 1(4) of the constitution[60]. That is why he is suggesting that the next presidential elections be used to decide governance. It is doubtful whether this is a proper interpretation of Article 1(4). This is because it can be argued, and in my view validly, that Article 1(4) empowers the people to use election to decide who should rule them, i.e. Parliament, members of Parliament, Chairmen and Councillors at all levels, while referenda [are] to be used to decide between political systems as provided for in Articles 69,70 and 74. But, even if Atubo's argument were upheld, and his amendment effected by Parliament referenda to decide governance would still remain available even next year. This is because amending Article 271 the way he proposes does not affect the provisions of Article 74, so parliament could, even after passing Adubo's amendment, change its mind on governance next year[61]. Under article 74 District Councils are empowered by resolution to call a referendum on governance in the fourth year of any Parliament.... Given their present composition such a proposition would be an easy hurdle. So in order to avoid completely a referendum on political systems, Atubo will not only need to amend Article 271, but Article 74 as well, but to amend Article 74 one needs a referendum. In other words, to avoid next year's automatic referendum, we need a referendum on Article 74. This is a real catch 22 situation![62].

In other words, amending Article 271, if its sole purpose was to avoid the Referendum 2000, would serve no useful purpose, for Parliament, District Councils and the electorate could, under Article 74, call for a referendum to change the country's political system. The country, according to this argument, was stuck with the referendum. However, this seemingly awkward dilemma was predicated on questionable premises - the National Political Commissar's catch 22 was a red herring. Firstly, it was claimed that Atubo's amendment, based on Article 1(4), was misconceived. However, a careful reading of Article 1(4) shows that it does not sharply differentiate between the who and the how questions, as the National Political Commissar would have us believe. On the contrary, it offers two ways in which both questions can be addressed, either through free and fair elections, or a referendum. Thus, the suggestion that an Article 271 amendment cannot be based on Article 1(4) is open to question.

Secondly, a reading of the Constitution shows that it is divided into two parts viz.: the permanent or semi-permanent, on the one hand, and the temporary or transitional provisions, on the other. Such a reading also reveals that the former are further subdivided into two, the ordinary and the entrenched provisions, the amendment of which is by a simple or a two-thirds parliamentary majority respectively. Until amended or abolished, such provisions are the supreme law of the land. On the other hand, the transitional provisions, as the name suggests, are temporary, easy to amend and, once invoked within their time limits, that is to say, having served their appointed role, they cease to exist.

The cause celebre, in this connection, is of course Article 271, the primary purpose of which is to enable the electorate to choose, for the first time, the political system they wish to adopt for their governance. It is then and only then that Article 74 may be brought into play. Until then it remains dormant and inoperative. Articles 271 and 74 are not alternatives - they were designed to serve two distinctive roles - the former is for the adoption of a political system, the latter is for the changing of the first chosen system in 'any fourth year of the term of parliament' save the 1996-2001 Parliament. It follows, therefore, that any Article 74 resolution or petition prior to the referendum 2000 would, in our view, be contrary to the letter and the spirit of the Constitution, and as such unconstitutional. It would appear, therefore, that the multi-partyists did not have to overstate their case in order to dent the Government's case for the Referendum 2000. In fact the government had no case. It is now widely agreed that the Referendum 2000was cynically used to advance the NRM's political agenda.

6. The Case Against Referendum 2000

Much of the Multi-partyists' case against the Referendum 2000 revolved around the Government's denial of the right to the freedom of association and its unwillingness to implement Article 73, of the 1995 constitution, the relevant part of which reads as follows:

Subject to the provisions of this constitution, but notwithstanding the provisions of paragraph (e) of clause (I) of Article 29 and Article 43 of this Constitution, during the period when the any political systems provided for in this constitution has been adopted, organizations subscribing to other political systems may exist subject to such regulations as Parliament shall prescribe. Regulations prescribed under this article shall not exceed what is necessary for enabling the political system adopted to operate.

Accordingly, the government issued the Political Organizations Bill 1998 (POB), the object of which was to operationalise Articles 72, 73, 269 and 270 of the Constitution. It made provision for the registration and de-registration, the internal organization, management, financing and proscription of political parties[63]. Rather surprisingly, it did not, in contravention of the Constitution, and, contrary to many people's expectations, repeal Article 269. On the contrary, it sought to strangle them at birth. The POB was the most illiberal piece of legislation to have been brought before Parliament since the passage of the Detention Act 1964. It would have, if enacted in its original form, placed political parties in a straight jacket. Consequently, it was greeted with derision and much disappointment, both in and out of Parliament.

The severe restrictions on independent political activity contained in the constitution will ultimately be supplemented by the Political Organizations Bill currently being considered by Parliament. The draft currently under consideration maintains many of the severe restrictions on political rights. The Bill would create many obstacles for parties. The required registration, including high registration fees and requirements such as having founding members in one-third of Uganda's districts. The Political Organizations Bill, if enacted, will not regulate political parties, but rather restrict them to the point of ineffectiveness. Many of the restrictions on political party activities currently in article 269 of the Constitution are maintained. Political parties will continue to be prohibited from sponsoring or offering a platform to any candidate seeking electoral office, although the ruling NRM will continue to be able to do so. Severe sanctions are provided for any violation of the provisions of the bill[64].

The furore the POB caused can hardly be over emphasized. It sparked off a series of acrimonious attacks, both from expected and unexpected quarters. Nevertheless, it was duly presented to Parliament for its first reading. However it was, following the Parliamentary and Legal Affairs Committee's critical report, withdrawn and has yet to be reintroduced. Evidently, the NRM leadership had not grasped the import of Article 73, when the Constitution was being put together. It was not realized that repealing Article 269 would undermine the NRM/NRA revolution[65]. Clearly, the fathers of the NRM revolution had not properly briefed the draftsman. There had been a slip up, and, as unbanning political parties, long before the referendum, would have enabled them to compete with the NRM on equal terms, and, as the latter was not yet ready to relinquish power, it decided to ditch it[66].

As noted earlier, Parliament was obligated to free political parties from the shackles of Article 269, well in advance of the referendum. So, in order to extricate himself from this difficulty, the NRM legal adviser, the National Political Commissar, argued that the passage of the POB would not necessarily repeal Article 269.

This is too optimistic [to suppose that] the POB would remove the Article 269 restrictions. I know many within the Movement who take the view that some of the restrictions that exist in Article 269 can be repeated in the POB without offending Articles 29 and 43 [respectively]. For example, some movement supporters argue that parties should not be permitted by the POB to open branches below sub-county levels because to do so would disrupt the unity brought about in the villages by the movement political system a situation which justifies inclusion in the POB of the equivalent Article 269(e).

They also, in this regard, point to the Local Government Act, which fuses the movement and administrative structures at the Parish and Village level.

[Admittedly] this would invite fire from the multi-party adherents who would argue that the restrictions are not acceptable and demonstrably justifiable in a democratic society or that they go beyond what is envisaged by Article 73(3)[67].

Having thus closed one avenue, the National Political Commissar, went on to hold out an olive branch to the multi-partyists. He, in the light of the problems associated with the POB, suggested that the best way forward would be to proceed under the Referendum and Other Provisions Act 1999 (RA)[68].

On my part, therefore, I take the view that the RA as an option is amore desirable avenue to the referendum on the political systems. Whereas, the right to organize by political parties may be restricted by a law that implements Article 73, no such restrictions can be imposed on canvassing under a law that implements Articles 271(2)[69].

Unfortunately, however, there was no such a route. A close examination of the RA shows that it was a typical NRM product: it was partisan and uneven-handed. Indeed, his candor, rather ironically, reinforced the view that the Movement leadership was not keen on sharing the political space with any one else before the referendum. The bone of contention was whether political parties were to be free to organize and canvass for support without let or hindrance. The Referendum and Other Provisions Act 1999 did not remove the existing restrictions on political parties. On the contrary, under the Act, canvassing for votes was left in the hands of 'individuals' or 'a national referendum committee, consisting of not more than twenty members', rather than political parties[70]. Thus, the RA was as restrictive as the POB. Both were illiberal and ani-party. No wonder Wapakhabulo's assurances were not taken seriously, and, as a result, even his clarion call that, during the referendum, there would be 'no trickery nor rigging or dirty tricks'[71] was treated with contempt. For them, the NRM leadership, as the maneuverings set out above indicate, was determined to cling to power at all costs. They, therefore, regarded the Referendum on political systems as a sham, and, as a result, many democrats were forced to oppose the referendum and some were driven to overstate their case against it. Bishop Benon Y Ogwal-Abwang was a typical example. For him, the idea of holding a Referendum on political systems was unthinkable. It was:

'an affront' to an incontestable and divinely given human right, [namely, the freedom of association. Moreover], 'to subject the fate of a God-given right to an exercise of political contest... [was] not only a tasteless political parody, but a profanity to the sanctity of what God…ordained'[72].

Similarly, another cleric claimed that:

'our God-given rights [could not] be subjected to a vote,'[that they were] not negotiable' [because they did]'not spring from the generosity of the state but from the hand of God'[73].

Some of the government's most severe critics also claimed that 'referenda are never conducted on peoples human and fundamental right'[74], and they roundly condemned the no-party democracy, the raison detre of the referendum, as total 'negation of the freedom of association'. They argued that the no-party democracy [was] simply a one-party dictatorship by another name and [that it constituted] a ban on the right to organized opposition. For the Multi-partyists, it [was] a convenient contrivance which, despite the pretence of broad-based inclusiveness, was deliberately designed by the NRM leadership to monopolize power at the expense of other political forces in the country'[75]. They then opted to boycott the referendum, which, as expected, the NRM went on to win comfortably.

7. Defending the Indefensible

One of the abiding memories of the debate preceding the Referendum 2000 was that it pitted democrats against democrats. It forced some democrats to argue against one of the cardinal precepts of democracy, the referendum. However, having justifiably concluded that the Referendum 2000 was an exercise in 'futility' they had no choice but to denounce it as anti-democratic and a denial of yet another quintessential element of democracy, the right to freedom of association. Even so, their arguments, though understandable, were highly contentious. The 'God-give nights' may well be embedded in religious mythology, but that does not cut much ice with non-christians and atheists alike. Even some believers may have problems with the assertion that 'all human rights are God-given' and that as such, they cannot be subjected to a vote' and that by implication they cannot be taken away or be curtailed by the State. It is one thing to say that human rights are fundamental, inherent, innate and inviolable, but it is quite another to say that they are 'God-given' and absolute.

That certain rights are innate and inalienable, that is, to say that they inhere in the individual by virtue of his or her humanity is now generally accepted, but that they are ipso facto, 'God-given' is open to question. The reasons for this are many and complex, suffice it to say that the 'right of association', the right in question is, in constitutional terms, better known as the freedom of association, one of the major civil liberties and, as such, susceptible to state interference. Indeed, the 'crucial question is whether or how far the [Government of the day] will permit [it] to exist[76].

In all countries, with written constitutions, the 'freedom of association' is both well protected and fairly well circumscribed! Article 43(1) of the 1995 Constitution provides a good example. It stipulates that:

'In the enjoyment of the [right to freedom of association] no person shall prejudice the fundamental or other human rights and freedoms of others or the public interest'[77].

Moreover, the freedom of association, or rather its exercise is subject to the age of majority and the electoral rules. It is thus postnatal and derogable. It would appear, therefore, that the assertion that the 'right of association' is a God-given right, which is absolute, is, in view, untenable.

So too is the claim that 'referenda are never conducted on peoples human and fundamental rights'[78]. Again, this argument is open to attack on several grounds. For example in 1992 the Malawian voters were asked, in a referendum.

'Do you wish that Malawi remains with one party system of government with the Malawi Congress Party (MCP) as the sole political party or do you wish that Malawi changes to the multi-party system of government'[79].

Moreover, this can be underscored by citing a long list of countries that have organized referenda on abortion and the death penalty. Therefore, if a referendum can be held on the right to life itself, why, it may be asked, it cannot be held on the freedom of association? The opponents of the referendum did not, in fact, have to box themselves into the corner by attracting such awkward questions. They could have mounted a strong case against the referendum by simply putting the NRM 14-year rule under the microscope. In particular, they could have focused on the Government's broken promises, the duplicitous schemes it employed to stay in power and the sleaze the Movement Political System brought about in its train. The NRM has a record, much of which is characterized by 'sleaze', and the manipulation of the political process and, therefore, vulnerable to attack.

For years now, there has been a continual crusade against the return to political parties. There is growing feeling that there is nothing remarkable about people who profess to be movementists. They have been found to be as human as any other in terms of fleecing state coffers, nepotism, tribalism, amassing mysterious wealth, the lot. The movementists have been known to be good at all these activities. Thus to a simple voter the difference between [political parties] and the movement system is hazy[80].

In any event, the allegations that political parties were responsible for the country's ills were never founded on incontrovertible evidence.

'For one thing, genuine competitive multiparty politics has never been practiced in Uganda before or after independence. The pseudo-multipartyism of the 1950s and 1960s was flawed, hollow and ephemeral. Moreover, it was quickly discarded soon after independence. What happened between 1980 and1985 was a complete negation of the modern principles and the practice of mulipartyism. But even if it is assumed, for the sake of argument, that Uganda has experienced some form of crude multiparty politics, this experience was too transient to have a profound and lasting impact on the political fortunes of independent Uganda[81].

The NRM leadership which waged a five-year guerilla war, ostensibly to rid the country of 'professional politicians' and their vices is now susceptible to the same charge and after 15 years in power, may very well find it difficult to enter a plea of not guilty[82]. They may also, in a country where 50% of the population, about 10 million people, live below the poverty line, and in which hospitals and schools are poorly resourced, find it difficult to justify the expenditure of more than 30 billion shillings on a flawed referendum.

Similarly, the charge that the Multi-partyists can hardly mount a credible challenge is one, which cannot be substantiated, which has consistently denied the political space. In any case, as the above excerpt clearly shows, political parties can hardly be said to have existed in Uganda. It is, therefore idle, in the light of the fact that they have never had, the opportunity to demonstrate their incapacity or otherwise, to say that they were running away from the referendum. Given that it was the NRM leadership, which refused to play the game in accordance with the rules of the game that led to the boycott, they could hardly make such a charge stick. Indeed, the Multi-partyists could justifiably say that it was the NRM leadership, which was incapable of holding a free and fair referendum.

Until recently, such a claim by the Multi-partyists would have been laughed out of court, as some kind of morale boosting bravura. Despite the fact that they have been locked out for the last fifteen years and in spite of the fact that they have not been allowed to hold conventions or elect new office bearers, the Multi-partyists can claim that their erstwhile supporters have never deserted them. They can even justifiably claim that even those who were rued by the trappings of office and influence would, given the opportunity, return to the fold. It is suggested that when it comes to elections, that even the NRM falls back to the old certainties – ethnicity and religion – the two pillars on which the country's political parties are based. Indeed a cursory glance at the election results, both before and after 1986, tends to support this claim. It is also true that throughout that period very few candidates ventured outside their tribal or religious enclaves with much success! The election of the first Kampala mayor, Al-hajji Nasser Ntegye Sebaggla in 1998, and his successor, John Ssebaana Kizito, both of who are Baganda and DP members, tends to support these claims. A sad commentary on the country's political development, it may be, but it is the reality. This irresistible force of tribal politics would, it is argued, if political parties were freed, drive many NRM 'supporters' including cabinet ministers, into the arms of political parties.

This, of course, plays into NRM's hands in that it endorses their prejudiced views about political parties, but it also shows that the NRM big idea of riding the country of the scourge of tribal politics has signally failed. Therefore, its continued refusal to liberalise politics as it has liberalised the economy can no longer be justified on that basis alone.

Until now, the debate has proceeded on the assumption that a referendum is a well-tried and tested device for resolving controversial political questions. In fact, nothing could be further from the truth. The available evidence suggests otherwise: its record is by no means as creditable as some of its most enthusiastic proponents would have us believe. The truth of the matter is that the referendum as a constitutional mechanism for the settlement of hotly disputed constitutional issues, has more often than not, left a trail of devastation in its wake. The list of issues on which referendums have been held without satisfactory outcomes is as long as it is varied. The locus classicus example is the Indian/Pakistan dispute over Kashmir, and the most recent and most graphic is the East Timor Independence Referendum and its aftermath. Mention may also be made in this context, of the Buganda/Bunyoro referendum over the 'lost counties of Buyaga and Bugangaizi' which directly gave rise to the 1966 crisis that marked the beginning of the country's economic and political decline, the ramifications of which are still much in evidence today. It follows therefore, that a referendum is not always the most appropriate mechanism for solving all intractable political questions. Thus in his 'Yes or No vote is Never Good' article, Reilly states that:

'The lessons are clear: While superficially attractive, referendums are a very bad way to settle highly, contentious issues. Even under calm conditions, they can be dangerous[83]. In a situation of deep social mistrust, they can be deadly'[84].

Clearly, some issues are more referendum friendly than others, and by the same token, others are not. In our view, the proposed question, whether the country should embrace the movement political system or whether it should revert to political pluralism belongs to the latter category. In the words of the Odoki Constitutional Commission:

it is such 'an important issue [that] it cannot be statistically decided....in terms of either a movement or a multi-party system'[85].

This notwithstanding, however, the Commission was forced to wrongly recommend the referendum, the outcome of which would unavoidably be 'statistically determined'. No worse stratagem could have been devised. For the referendum 2000 was, given its subject matter and the environment in which it was conducted, unlikely to bring about a lasting solution to the country's political problems. What would be the lot of the losers, for example. In a democracy, the losers live to fight another day, in four or five years' time. But, there is no such a possibility under the Movement Political system. For once the referendum has been held, the country is likely to be stuck with the adopted political system for quite a long time, a state of affairs, which runs counter to Article 75, which prohibits the establishment of a one-party state. This is because it is inconceivable that the 'opposition forces' could, given the wording of Article 74, successfully petition Parliament with a view to holding another referendum for changing the political system in vogue[86]. This is yet another reason why the referendum on political system was regarded by many as a recipe for disaster. It is also not always appreciated that, although the referendum is regarded by many as an epitome of democracy, it is nonetheless open to endless manipulation and abuse. Thus, for example, in 1799 Napoleon Bonaparte staged a coup de'tat, made himself one of the consuls and called a referendum to legitimate his deeds. Some two years later he made himself Consul for life, and in 1804 proclaimed himself Emperor and, once again, called for a referendum for the approval of the changes. Similarly, his nephew, Napoleon 111 used the same tactics. So too did Adolf Hitler. He too held a succession of referendums to secure popular support, ex pot facto, of his political actions. It was on the result of these popular votes that the Nazi tyranny was founded[87]. It has so been abused in the past, and in the light of the above discussion, that possibility cannot be ruled out with any degree of any certainty.

8. Conclusion

More than any other Government before it, the advent of the NRM Government was genuinely well received in most parts of the country. For it appeared to offer them opportunities for rebuilding their shattered lives. Since then however, much of its democratization programme on which many had pinned their hopes is very much open to question. The nub of the problem is that the Government's path to democracy, the no-party democracy, is a one-party system in all but name. Although the writing was on the wall, almost from the start, it was not until the promulgation of the constitution in 1995 that the Government's hidden agenda began to unfold. It consitutionalised the 'Movement Political System', manipulated the democratization process, forced a costly referendum onto the unsuspecting public, and placed the 'Gentleman's Agreement', suspending political party activities, on a semi-permanent footing. The government has shelved the Political Organizations Bill 1998, hurriedly, following the decision of the Supreme Court nullifying the Referendum and Other Provisions Act 1999, amended the Constitution placed, in record time, and placed the Referendum (Political Systems) Act 2000 on the statute book.

In sum, the NRM Government's democratic credentials have been put to the test and found wanting. As Bouckaert and others have pointed out the NRM's record has fallen short of what was promised and what was expected:

'[The] NRM has extensively manipulated the political landscape in Uganda for the past thirteen years, and has succeeded to a significant extent in destroying the capacity of opposition political parties to function effectively. The demonization of independent political parties has been a central tenet of the NRM's political programme, bolstered by a state-funded political education programme, which has immersed thousands into the ruling NRM's anti-party political ideology. While independent political parties have been systematically harassed, the NRM bodies (including the movement structures) have gained increased access to state funding and other state resources. Even in the pre-referendum campaign period, the playing field between the opposition parties and the NRM will be fundamentally uneven. The track record of the NRM towards independent political parties suggests that harassment during the campaign period will be sever, effective preventing the advocates of pluralism from contesting the NRM's position. In short, the NRM will be in a position of unchallenged dominance during the referendum campaign period'[88].

Hence the boycott of the Referendum 2000 by all the main political parties. That, of course, played into the hands of the NRM leadership - it simply romped home. But theirs was a Pyrrhic victory! The Referendum did not solve anything. It simply entrenched the Movement Political System and, ipso facto, sent political parties into oblivion, thus sowing the seeds of political instability, the very antithesis of the NRM manifesto upon which the five-year bush war was fought and won.

Be that as it may, it is now clear, more than ever before, that the country is polarized, that the Referendum simply confirmed the status quo ante, and therefore, it did not provide the solution to the country's political problems for which it was designed. Instead, it has simply provided, yet another example, of how a referendum can, for political expediency, be used to subvert democracy itself.

Endnotes

1. The research for this paper was carried out in both England and Uganda, and I owe a special debt of gratitude to many institutions and individuals, too many to mention. However, I remain solely responsible for whatever errors and omissions that may have escaped my attention.

2. The Universal Declaration of Human Rights 1948 , Article 20(1) provides that 'Everyone has the right to freedom of peaceful assembly and association (2) No one may be compelled to belong to an association'.

The United Nations Convention on Civil and Political Rights 1966, Article 22(1) provides that 'Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests. (2) No restrictions may be placed on the exercise of this right other than those which are prescribed by law and are necessary in a democratic society in the interests of national security, or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on members of the armed forces and of the police in the exercise of this right'.

The African Charter on Human and Peoples' Rights 1981, Article 10 provides that: 'Every individual shall have the right to free association provided he abided by the law. Subject to the obligation of solidarity provided for in Article 29 no one may be compelled to join an association'.

The European Convention on Human and Fundamental Freedoms 1950 , Article 11 provides that 'Everyone has the right to freedom of peaceful assembly and association with others, including the right to form and join trade unions for the protection of his interests'

3. The Uganda Constitution1995.

4. The Uganda Constitution, 1995

5. Ibid. Article 269

6. See Onyango Odongo: A Political History of Uganda: The Origin of Yoweri Museveni's Referendum 2000, The Monitor Publications Ltd, 2000 p. 86.

7. The Act could not have had a worse start - it was the subject much criticism and condemnation, and attempts were made to challenge it in the Courts. Even the normally conservative Law Society was critical, saying that the Act was hastily passed without a quorum:

'The Law Society' would like to express its gravest concern over the way the Referendum and Other Provisions Bill was debated in a record 24 hours. Not giving it thorough surgery was a disservice to the citizens and we call upon the legislative, which is answerable to its electorate to provide a satisfactory answer to such an act. To add to this injury, the Bill was debated when there was no quorum.' The Monitor, July 2, 1999. Two petition, challenging the validity of the Act were immediately lodged with the constitutional court; one was subsequently withdrawn, the other, having been dismissed on technicalities by the Constitutional Court for resolution. The Constitutional Court is, at the time of writing still considering the petition.

8. Mugaju and Oloka-Onyango op.cit p. 2. 'Thus far, the virtues and vices of no-party democracy versus Multi-partyism has not been conducted in a rational, calm, moderate, democratic and civilized manner. On the contrary, the debate has been conducted in an atmosphere of mutual contempt, suspicion, and name calling and misinformation. The result has been confusion and bewilderment for the Ugandan populace. By adopting 'I know it all, holier than thou' postures in the debate for and against no-party democracy, the Movement and Multiparty protagonists will not help the voters to make an informed and realistic choice in the forthcoming referendum. In this regard the mask of legal and administrative technicalities should not be used as an exercise. Instead of a rhetorical shouting match across the political divide, it is necessary for the two sides of this debate to present their respective positions to the Ugandan people.'

9. President Yoweri Museveni's presidential inaugural address - 26th January 1986.

10. Hansard, First Session, 1986/87. Issue No.1 23rd August, 3rd December, 1986, p.1.

11. Ibid. p.13.

12. Ibid. p. 19

13 . For example, on 27th November, 1968 the Council met at 2.30pm and was promptly adjourned at 2.35pm The communication from the chair reads as follows: Hon. Members, as you are all aware, some members have already been assigned some other duties and they are not going to be here with us today. So, I wish to adjourn until Tuesday, same time, sameplace. Thank you.

14. The UPC members in question were: Anthony Butele, Former Minister of Labour in Obote II, and Stanislus Okurut, a former Deputy Minister in Obote I. They were named Minister Without Portfolio and Minister of Youth, Culture and Sport respectively.

15. The leaders of the guerrilla groups were Andrew Kayiira - Uganda Freedom Movement (UFM); Moses Ali -Uganda National Rescue Front (UNRF) and the late George Nkwanga's - Federal Democratic Movement of Uganda (FEDEMU). Some have argued, of course, that you do not form a broad-based government by simply handing cabinet positions to selected political leaders. That is simply 'bribery'. 'For the NRM government to be broad-based, it would have required the involvement of various political forces through their legitimate leaders'. Yoga Adhora, The Monitor, November 20 1999.

16. The Uganda Constitutional Commissions Statute, 1988, Article 4.

17. Towards A Free and Democratic Uganda: The Basic Principles and Policies of the National Resistance Movement (NRM), NRM Publications, Kampala 1982.

18. Article 271(3).

19. Article 271(4).

20. Article 271(2).

21. Article 69(2) (a, b & c). The Movement Political System is defined by Article 70(1) as 'broad based, inclusive and non-partisan', and it is to conform to the following principles:

'participatory democracy, democracy, accountability; transparency, accessibility to all positions of leadership by all citizens; individual merit as a basis for election to political offices'. The multi-party political system is not defined, but it too, is to conform to stated principles, viz. 'every political party shall have a national character; membership.... shall not be based on sex, ethnicity, religion or other sectional division; the internal organisation of a political party shall conform to the democratic principles... (Party political officials) shall be regularly elected; (and) political parties shall account for the sources and use of their funds and assets'. The Additional Political System Bill, 1999, defines 'any other system' as 'a democratic and representative political system, which is different from the movement political system and the multi-party system' as defined above. However, a close examination of the attributes of the two 'Systems' suggests that they are not too dissimilar. Indeed no political party worth its salt could afford to be exclusive, parochial, partisan undemocratic and mediocre or corrupt. Such a party would soon wither away. By definition, a political party is abroad church. Consequently, to project the movement as a new and unique 'system' of governance, or as a novel political organisation, is mere obfuscation. It does not bear examination. See Prof. J. Oloka-Onyango, 'New Wine or New Bottles? Movement Politics and One-partyism in Uganda' in Justus Mugaju and J. Oloka-Onyango. No-Party Democracy in Uganda: Myths and Realities. Fountain Publishers Ltd 2000 pp. 40-59.

22. The 'NRM/NRA Revolution' The Monitor, Wednesday 5th July 1999.

23. Ssemogerere, P.. President of the Democratic Party. The Monitor, Tuesday, 3rd February 1999.

24. The Monitor, Tuesday 3rd February 1999.

25. The NRM government has been in power for over 14 years now, several years longer than any other government before it. Its achievements on many policy fronts have been equally unprecedented. In 1986 when it came to power, the country was literally breeding to death. Today, with the exception of the North and some parts of the West, that scenario is a thing of the past. However, this success story has its flipside. The government's Structural Adjustment Policies have decimated the public sector with calamitous consequences for thousands and thousands of workers and their families. The privatisation process fiasco has seen off a couple of ministers and emptied rather than filled government coffers with funds; and though it has produced a few fat cats, it has left a sour taste in the mouths of many. Next the NRM in the words of Dr. Col. Kiiza Besigye is 'a political organisation much the same way as any political party is'. Worse, he has accused its leadership of being ' dishonest', 'optimistic' and 'undemocratic' (Sunday Vision, November 1999). Much of this has been in the public domain for some time now, and it has left many baffled and bewildered.

This is particularly so, because the NRM leaders went to the push to put an end to all this, and to restore democracy. So, what has happened to the Ten-Point Programme? This is a question, which is increasingly asked with monotonous regularity, and, not surprisingly, much of the antipathy towards the forthcoming referendum is largely due to this general disillusionment with the NRM's change of its original line.

26. New Vision Newspaper, Tuesday June 9, 1992.

27. New Vision Newspaper Wednesday, July 15, 1992.

28. The New Vision Newspaper Monday, July 27, 1992.

29. Report of the Constitutional Commission, UPPC, Entebbe 1993, p.195.

30. Ibid.

31. Ibid.

32. Ibid., p.217.

33. Ibid., p.217. However, according to Onyango-Odongo, a former Director of Information and Mass Mobilisation at the NRM Secretariat, the constitutional commission was 'coerced into adopting' both the 'no-party system' and the referendum, the latter as a sop to the donors. He writes, the 'NRM Secretariat draft later became known as the 'Mayombo Proposal' [For the incorporation of the Movement Political System] The Foreign Diplomats….. came out with strong statements in which they criticised the undemocratic activity of the NRM Stalwarts. Museveni, who was more sensitive to Western criticism than the voices from inside Uganda, was forced to temporarily postpone the open imposition of a one-party political system on the people of Uganda. Instead, the NRM stalwarts resorted to perfidious methods of hoodwinking the foreign diplomats with the claim that the no party political system was not the same as the one-party system they knew… Museveni then glee fully promised the foreigners who were concerned about the future democracy in Uganda, that he would try his no party rule in Uganda for five years only. After that period he would hold a referendum to ascertain from the people of Uganda whether they would like the 'no party rule' to continue in Uganda or whether they would prefer to revive the multiparty system of governance in Uganda. This led to the birth of the Referendum 2000' (Onyango Odongo, op.cit p. 86).

34. Report of the Constitutional Commission. p.217.

35. Ibid. p.219.

36. Ibid.

37. Ibid.

38. This assumption is one, which does not find favour with many commentators. See, for example, Barya, J.J. 'The Referendum on Political Systems in Uganda, Is it a Way Forward? What is the Alternative? (an unpublished paper, 20 November 1999).

39. Byanyima, W. MP. Mbarara Municipality. The New Vision, Wednesday 7th July 1999.

40. 'Whatever the outcome of the referendum, the country as a whole will be the loser... This will only help to perpetuate our already existing state of disunity. This referendum is therefore an incubator for additional political problems' Okulo Epaka, MP Ayam County. The Monitor, Tuesday, 16th February 1999.

41. Okulo-Epaka, MP Ayam County, the Monitor, Tuesday, 16th February 1999.

42. The failure to enact the Political Organisations Bill 1998, and the passage of the Referendum and Other Provisions Act 1999, and the Referendum (Political Systems) Act 2000 provide ample evidence of the governments determination to frustrate the opposition.

43. 'If [President] Museveni closes all channels the armed struggle will be inevitable. If [the] government continues to refuse dialogue and positive change, we shall have no alternative but to support armed struggled. (Dr James Rwanyarare, Chairman, UPC Presidential Commission, The Monitor, Wednesday July 7th 1979.

44. Karuhanga, E. MP. Nyabushozi. The New Vision, Friday June 25th, 1999.

45. Ibid.

46. The NRM/NRA Revolution Manifesto Circa 1981.

47. Rwanyarare, J.W. Chairman, UPC Presidential Policy Commission, 'UPC Rejects Referendum', Press Release, 6th July 1999.

48. Ibid. According to President Museveni: there was 'an agreement reached with the NRM when it came to power in 1986' to suspend political party activities. See the New Vision Newspaper, Friday, July 10, 1992. But this is vehemently denied by the DP leadership with whom such on agreement could have been concluded. See the New Vision Newspaper Monday, July 27, 1992. The UPC has also denied entering into an agreement with the NRM to ban political party activities in Uganda in 1986. Its two-;age press statement, in part reads: The UPC has never been part of the NRM arrangement and it is not contrary to what President Museveni told the country and the world on July 9, 1992 at Semuto in Luwero that the present ban on political parties was a result of an agreement between the political parties and the NRM in 1986'. The New Vision, Monday, July 20, 1992. However, the DP leadership acknowledges that at one time there was a desire to reach a tacit understanding between themselves and the NRM to limit political party activities to the minimum so as to allow the NRM Government to take root during the interim period that began in February 1986 to January 1990. Indeed, that much is admitted. Thus, Dr. Kawanga Ssemogerere, President of DP, writes: 'The truth is that the parties, Democratic Party included, were presented with a fait accompli on the suspension of their activities; and this, by the way, is standard practice when regimes seize power by violence. The DP spent eight years in negotiations with President Museveni in a bid to secure, among other things, the freeing of party activities. We failed in this and we discontinued the negotiations; and I finally resigned from cabinet.' Ssemogerere, in Nabudere, Uganda referendum 2000: Winners and losers, Monitor Publications Ltd, 2000 p. (vi).

49. Article 271 (I).

50. Article 269 (a-e).

51. Museveni, Y.K. Sowing the Mustard Seed, Macmillan 1997, p.195. Others have argued that given the country's political past that the Country needs time to heal the wounds and to reconcile the people of Uganda. It is not stated, however, how long that process is likely, to take; but given Museveni's prognosis it could be a long time indeed. See Nabudere, D.W., Uganda Referendum 2000: Winners & Losers. The Monitor Publications 2000 p. 145.

52. Article 69(2) (a), (b) & (c).

53. Article 27(3).

54. Article 271(2).

55. Wapakhabulo, J, National Political Commissar, NRM Secretariat. The New Vision, Friday 25th June 1999.

56. Jjuuko, F.W., The Referendum: Which Way Uganda? The Ben Kiwanuka Memorial Lecture, Makerere University, 1998.

57. Ibid.

58. Mao, N. (M.P Gulu Municipality) Sunday Vision, July 11 1999.

59 . Waswa Lule MP (Lubaga).

60. Article 1(4) provides that 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 referendum.

61. Article 271(1) to(4).

62. The New Vision, Friday June 25, 1999.

63. The Political Organisations Bill 1998, The Uganda Gazette No. 77, Vol. XCI, 18 December 1998.

64. Bouckaert, Human Rights Watch Report, 1999 p.2 of 6.

65. The NRM/NRA Revolution Manifesto, Circa 1981.

66. According to sources close to the Cabinet, President Museveni was, true to form, the prime mover behind the cabinet's decision: political parties are his enemy number one. He is reported to have told a press conference that anyone who asks him about political parties is hisenemy.

67. The New Vision, Friday July 4, 1999.

68. Ibid.

69. Ibid.

70. S 13.

71. The New Vision, July 9, 1999.

72. Bishop Ben, Y Ogwal-Abwang. The Monitor, Thursday February 11 1999. Even some Movement well wishers have expressed some reservations about the Referendum 2000. Indeed, it is now widely accepted that the referendum constitutional provisions are fundamentally flawed largely because they do not provide for a level playing field. Nor does the Referendum and Other Provisions Act 1999. The Multi-partyists too regard it as 'unfair'. For it locks them out of the Referendum 2000. In their view, the referendum on political systems cannot be fair. They cite the number of years the NRM has been in power, while the political parties have been in abeyance, the crusade the NRM has waged against them, the unequal resources available to the two sides and the NRM's past manipulation of the electoral process. For them the Referendum 2000 is a 'death trap'. (Cecilia Ogwal (UPC), The East African, May 4-10 1992)

73. Rev Dr Larry Kanyike, The Monitor, Wednesday January 6 1999.

74. Jjuuko, FW, The Sunday Monitor, February 21, 1999.

75. Mugaju, J& Oloka-Onyango, J., (Eds.) No-Party Democracy in Uganda, Myths and Realities Fountain Publishers, Kampala, 2000, p. 2.

76. Walker, D.M, the Oxford Companion to Law OUP, 1980 p 492.

77. Article 29(e) and 43(1) respectively.

78. Jjuuko, FW the Sunday Monitor, February 21 1999.

79 . Ngongola.C. 'The Malawi Referendum of June 1993' Some Pertinent Legal Issues', quoted in Barya, J.J 'The Referendum on Political Systems op.cit p.3. The question before the people of Uganda is somewhat similar, it reads: 'which Political System Do you wish to Adopt Movement of Multiparty?'

80. Luganda. P. The New Vision, Tuesday May 5 1999.

81. Mugaju, J, An Historical Background to Uganda's No-PARTY Democracy, Mugaju & Onyango-Onyango, op. cit. P23.

82. Even the movement most ardent supporters have long since ceased to believe in fairy tales. They have thus cautioned the leadership to 'Stop justifying the continued stifling of partyists in the County by continuously singing their past mistakes.... the popularity and strength of the movement [they mused] will only be justified if it builds Uganda into an ideal state free of wars and vicious poverty among the peasants and the workers'. The New Vision, Monday February 8 1999.

83. The Monitor Newspaper, Saturday, 12 February 2000.

84. The Monitor Newspaper, Saturday, 12 February 2000.

85. Report of the Constitutional Commission. Op.cit p. 217.

86. The constitutional provisions for changing a political system appear to have been designed not to be invoked by the opposition. For such a resolution requires by more than half of all members of Parliament, or half of all district councils, one tenth of the registered votes from each of at least two-thirds of all the constituencies, or not less than two thirds of all members of Parliament upon a petition to it supported by not less than two-thirds of at least a half of all the districts.

87. Strong CF, Modern Political Constitutions, Sidgwick and Jackson Ltd, London, 1952, p 276-277.

88. Human Rights Watch, op.cit. p.32.

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