Uganda: Protection of Constitutional Democracy - Lessons From Kenya's 'Gen Z' Demos

The protests by Kenyan youth over the past few weeks (initially over additional revenue stipulated under the Finance Bill 2024, but which have since broadened to include wider governance issues) are a powerful demonstration of the meaning of active constitutional citizenship.

Without visible leadership from the usual suspects, and in fact, in many instances deliberately asking the old guard (such as Baba Raila Odinga) to stay away, the young people of Kenya have made real the letter and spirit of the 2010 Constitution of Kenya.

This has not been without costs - in terms of life, limb and property. However, the short-term impacts of the protests have already been visible, with the IMF-inspired Finance Bill being eschewed by the President, and lately, Ruto sacking his entire cabinet. In the words of one Kenyan commentator, quoted by Charles Onyango Obbo in a post via X (formerly Twitter) on 15th July 2024: 'The kids went hunting for a rabbit, and caught a buffalo'.

Indeed, the longer-term effects of the protests will be felt for a long time to come - in terms of the continuing recognition by elected officials that their power comes from the people, and that the same people can reclaim that delegated power. A powerful lesson from the protests is that active citizens do not meekly wait for the often-empty ritual (especially in our region) of periodic elections to make their voices heard and opinions felt.

They constantly express their sovereign will through the continued exercise of constitutional agency. At the same time, Kenya demonstrates the critical role courts can and should play in supporting such manifestations of active citizenship. Kenyan courts have been at the forefront in supporting and safeguarding the citizens' right to protest, including through issuing orders preventing the exercise of excessive force.

A notable example in this regard is a 28th June 2024 ruling by Justice Mugure Thande of the Malindi High Court, in the context of a petition filed by Advocate Saitabao Ole Kanchory, which banned the police from using water cannons, tear gas, live ammunition, rubber bullets and other forms of violence against protestors.

The Judge also expressly prohibited the police from detaining, killing, harassing, intimidating or torturing protesters. This judicial activism has been complemented by a similarly robust role played by the Law Society of Kenya (LSK), led by their President Faith Odhiambo. The LSK lived up to its mandate of protecting civic liberties, including through actively obtaining police bond and court bail for protestors and guiding the public and the State on the (un)constitutionality of various measures proposed at the height of the protest (including the Presidential taskforce on forensic audit of public debt).

In the end, the people of Kenya - especially the young people (the so-called 'Generation Z') - have asserted, and protected, their ownership of the 2010 Constitution of Kenya. In so doing, they have rejected not only the autocratic tendencies of Ruto's government, but also pushed back against the more complex confluence of global power represented by the Bretton Woods institutions (the IMF and World Bank) - which often exercise their power without oversight, accountability or democratic reckoning.

At the same time, they have directly and indirectly challenged the young people of Uganda to reassess their own position in this post-1962 concoction of ours. Some placards pointedly reminded Ruto that 'Kenya is not Uganda'. Unfortunately, Uganda House in Nairobi was also torched (my Kenyan friends - we need to have a discussion in this regard!). Certainly, there is some difference in the two country contexts.

The long incumbency of Museveni and his NRM; the militarization of the State; the capture of a large part of the Ugandan judiciary; the sheer incompetence and gross corruption of the Parliament and the general emasculation of the Ugandan population all make it an uphill task for Uganda's 'Gen Z' to do here what is being done in Kenya.

Indeed, Hon. Evelyn Anite famously reminded Ugandans in 2017 that 'we have the magye' (meaning that the NRM owns the Uganda army) - and she was right. Hon. Kasule Lumumba is also on record as warning Ugandan parents in 2016 (in the context of protests over elections): 'The State will kill your children'.

For his part, the late General Elly Tumwine in 2020 also referenced the right of the police to kill citizens who met a certain threshold of rowdy protest. Similarly, in 2021, the late General Paul Lokech warned Ugandans to write their wills and buy coffins before attempting any peaceful street protest.

And who can forget the hundreds killed in Kasese in 2016, the many killed in Kampala in November 2020 - and elsewhere in the name of 'elections'? Many young Ugandans who survived those traumatic episodes remain in illegal custody, with some being unconstitutionally tried before military tribunals.

Uganda is certainly not Kenya. The latter is a fledgling democracy but a democracy nonetheless. Ours is a dictatorship - worse a gerontocracy (mostly governed by older persons with an increasingly limited stake in the mess they might leave behind), kakistocracy (increasingly governed by the worst our society has to offer) and kleptocracy (increasingly governed by thieves).

Sometimes, these characteristics are exemplified by the same individuals - with the result that many of our leaders are old, bad thieves (who are becoming increasingly shameless in their thievery). We are ruled by the worst of us, who are in turn protected by the army.

Unfortunately, these persons now seem to be cobbling together Uganda as some kind of inheritance for their children and grandchildren (the true 'bazzukulu'), including through the emergence of such various nebulous formations as: 'the descendants of the revolution', 'children of the revolution' and 'the Patriotic League of Uganda'.

Should this continue to be the case? My friend Andrew Karamagi correctly noted - in a comment also on X (posted on 13th July 2024) - that there is no difference between the text of the Kenyan and Ugandan Constitutions where active citizenship is concerned. The two documents recognize the ultimate sovereignty of the people (Article 1, Kenyan Constitution; Article 1, Ugandan Constitution) and importantly, stipulate that it is not only the right but also the sacred duty of citizens to defend the Constitution (Article 3, Kenyan Constitution; Article 3, Ugandan Constitution).

Clearly, the difference if at all relates to the willingness and determination of the citizens in the two countries to exercise their natural rights to live as free citizens. The Constitution is not self-executing. It does not enforce itself. Its words do not jump off the pages by themselves, nor do they magically offer protection at the wave of some wand.

Like muscles, the words - and promise - of the Constitution must be exercised courageously lest they atrophy. The Kenyan youth are doing it. Can the Ugandan youth do it? July 23rd has been announced as the Ugandan response to the Kenyan challenge, with a number of persons planning a march on the parliament to protest the rampant corruption there.

True to form, the Uganda Police Force - through its spokesperson ACP Kituuma Rusoke - has already fired the warning shot (pun intended) against the planned peaceful protest purporting to 'strongly warn against proceeding with [it]'.

Against this manifestly unconstitutional warning must be ranged the clear words of the 1995 Constitution of Uganda, which expressly safeguard the freedom to assemble and to demonstrate together with others peacefully and unarmed and to petition (Article 29 (1)(d)); assert right to participate in the affairs of government, individually or through one's representatives (Article 38 (1)) and actually proclaim the duty of every citizen to combat corruption and misuse or wastage of public property (Article 17 (1)(i)).

From which law, then, does ACP Kituuma Rusoke, derive the mandate to 'warn' citizens planning to exercise their right - and duty - to peacefully protest against rampant corruption in parliament and at all levels of government?

Evidently, what is at play here is the now familiar reality of 'regime' or 'yellow' policing - which is precisely why the July 23rd protest is important. In the 1944 words of the US Judge Learned Hand: 'Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it. While it lies there it needs no constitution, no law, no court to save it.'

The question that arises, I think, is this: Does liberty lie in the hearts of Ugandan men and women? If it does, it does not actually need the 1995 Constitution to save it. If it does not, neither the 1995 Constitution - nor the evidently captured Ugandan courts (which lately regularly imprison Ugandans for saying bad things about their leaders) - can do much to help the situation.

As (a recently) former youth myself, a Ugandan and a believer in Uganda's long-term constitutional project and promise, I certainly wish the young people of Uganda the best on July 23rd, and beyond.

I hope, like Kenya's Gen Z, you can find within yourselves the reservoirs of courage required to create, protect and defend a constitutional democracy we can all be proud of.

The writer is senior lecturer and acting director of the Human Rights and Peace Centre (HURIPEC) at the School of Law, Makerere University, where he teaches Constitutional Law and Legal Philosophy.

Uganda: Protection of Constitutional Democracy - Lessons From Kenya's 'Gen Z' Demos

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