PART "B" - SUCCESSION TO GOVERNMENT

7.10   INTRODUCTION of orderly succession to government is a strong indicator that society is democratising. In Uganda, literally every change of regime has been driven by force or violence. Violent political change has cost Uganda in terms of life and property plus disruption of the economy.
During the Constitution making exercise, one of major concern of the people was how Uganda can achieve orderly succession to government. The concern was reported by the ODOKI Commission thus:
"The people's concern is that every President should strictly observe his term of office as laid down in the Constitution......... The people wish to participate in the system, which will bring in a new President, send out the old one or extend the term of office of the incumbent.  The people would like to see peaceful transfer of power at all times ".
In the past, leaders have been overthrown despite the presence of constitutional and legislative provision for elections.  The lesson to be learnt from our history is that the statements in the Constitution as a legal document do not guarantee smooth political transitions.  Nevertheless, constitutional declarations have a sensitising and civilizing influence on society. This is particularly true of those parts of the Constitution that deal with elections, tenure of office of political leaders and handing of power from one set of leaders to another set.

7.11   THE PRINCIPLE 7.11.1  The principle accepted by the people and enshrined in the constitution is that all positions of leadership shall be freely accessed through free and fair elections. It is because of this principle that the constitution fixes the tenure of political office. That two presidential and parliamentary elections have been held under the Constitution is evidence that the people of Uganda are committed to the principle that leadership shall be by popular mandate.  These elections have provided people with opportunities to change Governments in an orderly manner.

7.12   THE CONSTITUTIONAL PROVISIONS Parliament 7.12.1 The tenure of Parliament is five years from the date of its first sitting after a general election. At the expiration of the five years. Parliament stands dissolved. The life of Parliament can be extended for a period of up to six months if it is impossible to hold a general election by reason of war or a state of emergency. This requires a resolution supported by not less than two-thirds majority of all members of Parliament.  To cater for smooth succession, the Constitution provides that a general election of members must beheld within thirty days before the expiration of the term of Parliament.  The place and date of first sitting of Parliament after a general election is determined by the President.

7.12.2 The  Constitution places  no  limit on the  individual  member's length  of participation. A person is free to stand for election for as many times as she or he wishes.

The President
7.12.3 The tenure of office of the President is five years.  The office of the President can fall vacant if the incumbent dies, resigns, or is removed from office under the Constitution.  For the purposes of succession, a presidential election must be held during the first days of the last ninety days of the tenure of the incumbent President.  When the President dies, resigns, or is removed from office, the Vice-President assumes office and serves out the remaining term of the President if it is one year or less. In case the remaining term is more than a year, fresh presidential elections must be held within six months after the death, resignation, or removal of the President.

7.12.4 A person elected President must assume office within twenty four hours after the end of the term of his or her predecessor. If elected when there is no President in office, then the person has to assume office within twenty four hours after being declared as the successful candidate.

7.12.5 The Constitution places a limit on the number of terms the President can serve. According to Article 105(2) "A person shall not be elected under this Constitution to hold office as President for more than two terms as prescribed by this Article".

7.12.6 Local Government The tenure of office for the Chairperson and the Local Government councils is four years. After a local government election, an incoming Executive Committee must ensure that there is a formal handing over from the outgoing Executive Committees within one week from the date of the elections of the new committee. The law does not place any limits on the terms that local leaders can serve.

7.13   THE PEOPLE'S VIEWS 7.13.1 The issue of succession has been intensely debated. Most of the views received revolved around Article 105(2) which fixes the number of terms a person can serve as President to two.  Some people suggested that the tenure of other elective offices such as that of a member of Parliament should be limited in the same way as that of the President is. But by and large the debate has focused on whether or not to remove the limit on the term of the President.  A variety of reasons have been advanced for and against the removal of the limit. Those in favour of removal have made the following arguments;
That all power belongs to the people who 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.   The people should therefore, be the ones to decide, through elections, the number of terms a leader serves. That a Constitution should be flexible on terms so that the people can keep a good leader in power.  That it is unfair to limit the tenure of one office when there are no similar limits on any other political office.  Two terms of five years each is too short a period. In case the leader has good policies, the people should be free to extend his/her terms so that there is continuity in policy formulation and the policies can be fully implemented.  It is strong checks and balances that deter dictatorships and not the limit on terms of office.  Britain and India have been given as examples of strong democracies that impose no limit on terms. There should be no limits under a Multiparty System because it is the party that decides on leadership.

2  On the side of retaining the limit, the following arguments have been Presented: It is a Foundation for Orderly Succession to Government Several of the developing democracies in Africa (Malawi, Zambia, Tanzania, and Kenya) have adopted the term limit; A President who has been in office for a long time has the advantage and power of incumbency which, in Africa, has been used to manipulate elections in favour of the leader; Groups who see no hope for an orderly succession may be tempted to take up arms to destabilize the country.  It  would  contribute  to  unity,  peace  and  stability  if  the  top leadership is accessible to a wide range of people from the country. The limit on terms increases the opportunity for competition and access. However good a leader may be, he must be presumed to be exhausted and tohave run out of ideas after a period of time.
Mention must be made of the fact that some of the views focused on the incumbent President. They want the President to stand for another or more terms because he: has exceptional leadership qualities; has brought peace, stability, and development to Uganda; should be enabled to complete his development programmes; is capable of keeping the country together

7.13.3 Resolution of the Movement National Conference The Movement Secretariat presented a Resolution of the Movement National Conference held in March 2003. It was attended by delegates from the Districts and other members. The Resolution noted that the majority of memoranda from District Movement Committees and submissions from District Chairpersons and other delegates had called for removing the limit on the terms the President can serve.  The reasons given by the National Conference in support of .deleting Article >105(2) to provide for indefinite eligibility are:
that it would give effect to the sovereignty of the people; there are no similar limits on the tenure of other political office;

7.13.4 The Government made a detailed presentation on this issue.  In summary the memorandum of the Cabinet recommends the lifting of the term limit for the presidency because the power to elect or reject is vested in the people. The Cabinet supports the recommendation by arguments which, because of the emotion surrounding this issue, we reproduce.  Power belongs to the people and therefore the people should decide through elections as to who shall govern them. This argument is supplemented by a quotation of a delegate at the American Constitutional Convention to the effect that:
"Elections are for getting rid of politicians who do not perform. Term limits on the other hand are for eliminating politicians who are performing "

Long experience in democratic governance helps to build a young nation.  Good leaders should therefore not be barred from serving the nation Two term limit clauses provide for a weakened and shackled Presidency because focus shifts from the policies and legislative programmes of the incumbent to the campaign pledges and plans of presidential candidates.   Two-term limit turn incumbent Presidents into "Lame Ducks" because they cease to be the central figures in the governance of the State during a second term. Elections have an inbuilt mechanism to provide the equivalent of term limits to remove bad or poor and incompetent leadership. This is in line with article one that power belongs to the people who shall decide on how they are governed and who should govern them.  The fear of manipulation by incumbents is a weak argument. If manipulation
is the is'ic, it does not have to wait for the third term.  Tyranny and dictatorships do not need third or fourth terms to manifest themselves.  In order to build durable institutions, people should be trusted. If the electors' integrity can be trusted with for a term or two, why not on subsequent terms. The argument behind term limits is a disguise for personal ambitions.  The cloak of democracy which pro-term limits wrap around themselves wears very thin when you examine it closely. The unstated objective is not the defence of democracy, but a desire to get into government and share in the so-called spoils of office.  The effect of limiting presidential terms is to cede power to bureaucrats, because new presidents tend to depend heavily on unelected bureaucrats and may not necessarily be answerable to the people.  In Uganda where you have a weak bureaucracy, it is not prudent to depend on them to manage the presidency. All over the world there is now debate on the issue of term limit for elective offices.  In the United States alone there have been referenda in the States of California and Ohio over this issue. It is not out of step for Uganda to subject this matter to reconsideration.

7.14   OBSERVATIONS Term Limits 7.14.1 Orderly succession to government is part of the democratic culture and necessary component in good governance. Participation is enhanced if leaders are elected, serve and go. It is in pursuit of democracy and good governance that there exists a constitutional framework whereby leaders emerge, access power and leave power in an orderly manner.

7.14.2 A  common  characteristic  of African  politics  has  been  the culture  of "indispensable" leaders dominating the one party or the dominant party.  The single or dominant political organisation centred on a dominant personality failed to groom alternative leaders.  Hence the perception that individuals are indispensable leaders and the prophecy of doom in case they are removed. In this respect, it is significant that the Constitution emphasises that political parties and organisations shall be democratic in their internal organisations. Because parties are to be the source of leadership, a culture of orderly succession should be developed at this level.  It will be necessary to install mechanisms whereby compliance to democratic principles by political parties is monitored.

7.14.3 There is no doubt sovereignty of the people is a cardinal principle of constitutionalism.  But the people exercise their sovereignty in accordance with the Constitution.  The Constitution draws up the agreed parameters for the exercise of power, in the form of rules defining for example, the qualification of leaders, the methods of elections and the tenure of office.

The agreement of the people enshrined in the Constitution is the highest expression of sovereignty.  Although Sovereignty implies power to amend, the power should be exercised upon principle namely that: The rules to be changed have been tried, tested, and found to be unsuitable
or unworkable; or The experiences, the concerns the fears and the reasons behind the rules are no longer valid or relevant; or There is a real likelihood that the social disruption and upheavals are the rules to be implemented.

7.14.4 The limit on terms of the president was adopted by the people because of concrete history experienced. In an independent Uganda, the people had not witnessed any orderly succession from one President to another.  They had seen one elected leader using the power of incumbency to enhance his position and to prolong histenure undemocratically. They had witnessed the power of incumbency enjoyed by a faction of the ruling group to manipulate elections so as to maintain the faction in power.  They have witnessed armed personnel grabbing power.  In all this history the common factor is that leaders have been violently overthrown at great human and economic loss.

7.14.5 The people were in addition apprehensive over the power of and advantage of incumbency which the leaders in many African countries have used to manipulate elections and pertuate their leaderships. Significantly, smooth leadership changes are now being effected in African countries(Tanzania, Zambia, Kenya, Ghana) after term limits have been adopted.  Democracies which have not adopted limits on the terms, the head executive can serve have no comparable history or experience. The undue advantage arising from the position of incumbency is still a concern of the people as we have outlined in paragraph 7.6.4.

7.14.6 We agree with the Government's position that good leaders of long experience are useful in building a young nation.  We also believe that it is the policies which leaders stand for that make for good leadership. The policies are not individually conceived or implemented. They are developed through the social and political structures which exist to articulate the interests of the people and those that translate policies into services to the people.  These are what make the leaders responsive to the people's needs and turn them into good leaders. The exercise of sovereignty implies the choice of leaders according to the policies they Stand for.  Policies that are in the interests of the people will survive an individual if he/she has to go whether through the vote or through the rules. The two term limit will facilitate leadership built upon organised and democratic
institutions including political  and  civic  organisations  which  can conceive  policies that  survive individuals. To any nation, a good leader is the one who supports institutions and adheres to constitutional rules and practices which will make it possible for good policies to survive him/her.
We would add that:
The experience gathered through incumbency should not be given undue weight. The best heads of government are not necessarily those who have stayed in power longest.   There are ample examples of presidents who have served their countries excellently even though they had no experience at thepresidency when they assumed power, (like President Museveni?) Experience in leadership need not be gathered from incumbency. Every sector in which people participate at leadership levels can impart the experience relevant to political leadership. There is no reason why the country cannot continue drawing on the experience of a President who has retired. Late President Nyerere remained a symbol of unity and a good ambassador for Tanzania when he retired. President Mandela remains a political asset to South Africa.

7.14.7 We have considered carefully the other strong arguments in the presentation of the Cabinet.  It has been argued that the two term limit turn the incumbent Presidents into "Lame Ducks" because they cease to be central figures in the governance of the State during the second term.  Related to this is the other argument that the effect of limiting terms is to cede power to bureaucrats for at least the first term when presumably the incumbent is busy looking ahead to the next election.  These views coming from key implementers of the Constitution must be taken very seriously. We would have expected the argument to be that because the incumbent spends the better part of the first five year term preparing to win the next election, he/she cannot concentrate on governance.  Providing for indefinite eligibility would then perpetually impair efficiency at governance. With a two term limit, the incumbent has at least five years free of election worries to concentrate on governance. The presentation of the Cabinet is a strong argument in favour of a longer tenure and not for lifting the limit on terms.  Every election provides a possibility of a new president. Therefore if a new President has to rely on bureaucrats, then that is likely to be an inevitable development out of an election whether term limits exist or not.

7.14.8 It has also been very ably put by the Cabinet that the fear of manipulation by incumbents is a weak argument because manipulation does not have to wait for the third or fourth term. We agree in part. We need to point out however that the power and advantage of incumbency builds upprogressively with the time the President stays in power.

7.14.9 The Cabinet memorandum also states that the whole argument behind term limits is a disguise for personal ambition of those who want to share in the so called spoils of office.  We have no evidence of this.  It is obvious however that the Review is a political exercise.  It is expected that the protagonist for various positions will push them in due regard of their political interests.  After all, politics is a struggle for power and through power it translates to service to the nation.

7.14.10 Some of the responses in favour of lifting the limit on the terms the President can serve were driven by the qualities of the incumbent President.  A sizeable percentage of the responses argued that the country should benefit from the continued good leadership of the President for one or more terms.  From our observations of the manner in which those who advocated for removing the term limit, the qualities of the incumbent president were very influential. It is our view that the popularity of an incumbent President is a most valuable asset in implementing the Constitutional provisions for an orderly succession. The best examples of a smooth transfer of power from one leader to another in Africa (Nyerere of Tanzania, Mandela of South Africa and Diof of Senegal) are those in which leaders have left when they were popular.

7.14.11 It has been argued that the presidency should not be constrained by term limits when other elective office is not similarly constrained. Some people have in fact proposed term limits for members of Parliament in general and the terms of members by affirmative action in particular on the
grounds that: A member of Parliament should serve for two terms in order to give opportunities to other aspiring leaders: Affirmative action was meant to expose as many members of the Marginalized
groups as possible and to create a cadre of leaders who can compete on equal footing with others. t is obvious that some people would rather place similar limits to other elective office.   Be that as it may, members of Parliament and indeed other elective officers have no comparable power of incumbency.   An analysis of the composition of the current Parliament indicates that  ..............  of the representatives were not members of the sixth Parliament which is a turnover of .. ...percent.

Moreover the presidency is held by one person who signifies power over the security and welfare of the country. The importance of a genuine free popular mandate behind the exercise of such power cannot be gainsaid.

7.14.12 On the statistical weighting of the people's views, we have the following observations.  The issue was not subjected to intense debate in the earlier part of the exercise. The debate intensified after public consultation of the people had covered about half of the district, coming to a peak after the National Conference of  the  Movement issued a Resolution calling for the lifting of the limit on terms the President can serve.  Because the issue had been raised by a few people at the beginning of the exercise, we made it part of the guiding questions for the submission of views.   (The Instrument) We have therefore collected some statistical information on it.

Of the people who participated in the exercise .........per cent are not.
However .......Per cent did not respond.

The statistical results by themselves are not reliable for a conclusion one way or the other.  This is because of the large percentage of people who did not address the issue.  This could well be due to:
The fact that the issue was not intensely debated in the earlier part of the exercise; .  Lack of interest in the issue; .  Confusion of the issue with the position of the incumbent President. The statistics show that ...... per cent just want the extension of terms to apply only to the incumbent President.  Before the Resolution of the National Executive/Conference of the Movement, it had not been drawn to our attention that the issue was being specifically discussed through the Movement organs.  However we have giveq due weight to the resolution because of the information received that it was arrived at after wide consultation.We have also given due weight to the proposal from the Government subject to  our observations. (STATISTICAL WEIGHTING)

7.14.3  We have carefully considered all the arguments made in favour of indefinite eligibility to the office of the President.   We are not satisfied that enough justifications exist for removing the two term limit.  We have given reasons in response to the arguments. We have also taken into account the fact that: the experience, concerns and fears behind the limit are still valid; there appears no real likelihood of constitutional disruption if the current position is maintained; the people who recognise their power under the constitution decided for good reasons on all the parameters for the exercise of power. The provision has not been tested.

7.15 THE VICE PRESIDENT 7.15.1  The current position is that the Vice President serves out the remaining term if it is one year or less. Otherwise, fresh elections for the office of the President must be held. Our observation is that the Vice President should have the qualities to act in the absence of the President. This is emphasized by the Constitution when it authorizes  the  Vice-President  to  perform  the  functions  of  the President whenever the President is unable to perform those functions. The Vice President should be trusted to serve out any remaining term of the President who has died, resigned or has been removed from office, it cuts the cost of a fresh election and at the same time secures an orderly succession.

7.15.2 However, under the current constitutional arrangement the Vice President does not enjoy the mandate of all the people.   Because the office is held by appointment, it can be argued that the Vice-President does not qualify to serve out the remaining term.  To address this concern, we propose that in the presidential elections, a presidential candidate should select a running mate for Vice-President.  They will campaign together for office.  The Vice-President would then enjoy the popular mandate to take over the presidency if it falls vacant before the expiration of its tenure.

7.15.3 To facilitate orderly succession, the Constitution and the Law should provide for a package of dignified retirement for leaders. The package is so far limited to a retired President, should be extended to the retired Vice President.

7.16 ASSUMPTION OF OFFICE BY THE PRESIDENT 7.16.1 This observation is made because some people have expressed  concern about the time gap between the declaration of results of a presidential election and the assumption of office by an elected candidate who replaces a sitting President. Some people are uncomfortable with a situation whereby the elected candidate has to wait for the expiration of the term of the sitting President to assume office. They feel that the time gap could be used by the incumbent to disorganise or prevent orderly succession.

7.16.2 It is understandable that people who have never witnessed any orderly Succession from one leader to another during all the period of political independence should express this concern.  They have no faith in a sitting President peacefully handing over power to any other person. The time gap needs to be explained. The Constitution has provided that a presidential election could be challenged in Court.  The Court process takes a minimum of thirty days. During that time the elected candidate cannot assume office.  Elections have to be held early enough to allow time for court proceedings in case of challenge. This is why the

7.16.3 Constitution makes an allowance of at least sixty days to enable the court proceedings and an orderly hand over of power.  It is  important that the country evolves a culture of orderly succession.  The elected candidate, having acquired the mandate of the people, must assume office if they want him to continue in leadership because of his leadership Qualities dignity.

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