The honourable justices of the Constitutional court, while reading their judgment regarding the consolidated constitutional petition, which challenged the constitutionality of the Constitutional(Amendment) No. 2 Act of 2017, spent considerable time laying down the history of Uganda before delving deeper in the judgment.
Many people, especially non-lawyers, almost lost patience listening /watching and wondered why their lordships spent much time on the history of Uganda before stating the resolution of the issues.
This article explains why history in such constitutional interpretation is not only necessary but a requirement.
The interpretation of the constitution is different from the interpretation of ordinary laws or statutes.
There are special principles of constitutional interpretation which include, among others, "sui generis" which emphasizes the uniqueness of the constitution; the living instrument rule which ensures that the constitution is viewed not only in the perspective of the present but also the future; where words are clear and unambiguous they should be given their primary meaning; interpretation as a whole which requires that each provision of the constitution be construed in light of the others; the generous and purposive rule, which requires that the constitution be construed broadly, especially regarding fundamental human rights; the preamble and history; and the national objective and directive principles of state policy, which requires that these are also put in contemplation while interpreting the constitution.
I will dwell mainly on the preamble to answer the question in issue. But before delving deeper on that, it is imperative to show where the constitution derives its uniqueness, special interpretation rules and considerations.
This principle asserts that the constitution is in a class of its own. It is couched in a different language from that of ordinary statutes.
The constitution uses words of generality, different from those of ordinary statutes. Its uniqueness is also shown in article 2 of the 1995 Constitution as amended, which states that the constitution is the supreme law of the land and shall have a binding force on all authorities and persons throughout Uganda.
This principle has been reiterated in many cases, one of which is Charles Onyango-Obbo & Andrew Mwenda V Attorney General (Constitutional Petition No 2 of 2002) in which it was stated: "We have made emphatic pronouncements that the Ugandan Constitution is the supreme law of the land. We have also made a clear distinction between constitutional provisions and those of ordinary law. No law, rule or regulation, let alone decision of any authority which are in conflict with the provision of our constitution can stand in opposition of constitutional provisions."
The need for a peculiar approach in constitutional interpretation was also well-stated in the case of Minister of Home Affairs V Fisher (1980) AC 219 where their lordships state that "a constitution should be treated as sui generis calling for principles of interpretation of its own."
It is because of such uniqueness that principles such as requiring reliance on the preamble are used in constitutional interpretation.
PREAMBLE AND HISTORY
The preamble of the 1995 Constitution as amended, reminds us of the turbulent times that Uganda as a nation has experienced over the years.
It states: "We the people of Uganda recalling our history which has been characterized by political and constitutional instability. Recognizing our struggle against the forces of tyranny, oppression and exploitation, committed to building a better future... ... through a constitution based on principles of unity, peace, equality, democracy... ... "
Reading from the excerpt above, one realizes that while interpreting the constitution, one should remember the history behind the constitution's enactment as well as the nation's core principles and values.
This is intended to ensure that whatever interpretation the justices come up with does not take us back to the perilous times that this country faced.
The requirement to rely on history was fortified in the case of Okello John Livingstone & 6 others V Attorney General & another (Constitutional Petition No 4 of 2005).
It is for these reasons that Justice Kenneth Kakuru first of all took us through our country's history, making reference to the colonial, Obote and Amin eras while highlighting the turbulence and bad governance in each of those regimes and relating their causes to the question of interpretation he dealt with.
For example, he stated on page 411 of the judgement, while refereeing to the basic structure: "Suffice to state that our constitutional history serves as a guide as to whether or not the current constitution incorporates in it the Basic Structure doctrine."
On page 418, his lordship states that parliament extending its term is similar to what Amin did when he declared himself life president.
Justice Remmy Kasule on page 240 compares the extension of term for members of parliament and says it is similar to what parliament did in 1966-1971, which he names as a prominent factor in the "unconstitutionalism" the country has faced in the past.
Such reference to history is key to constitutional interpretation especially when the issues called into question have political connotations such as those dealt with in the consolidated petition. It was, therefore, necessary to takes us through such history as their lordships did for our own appreciation.