The constitution, usually referred to as the grand norm is the supreme law of every country which has one. For example, in Uganda and in Kenya, the constitution of 1995 and of 2010 respectively forms the basis of the democratic governance of the people and depicts their wishes.
In the preamble of the constitution of Uganda, it is stated,
“WE THE PEOPLE OF UGANDA:…RECOGNISING our struggles against the forces of tyranny, oppression and exploitation;…EXERCISING our sovereign and inalienable right to determine the form of governance for our country, and having fully participated in the Constitution-making process;….DO HEREBY, in and through this Constituent Assembly solemnly adopt, enact and give to ourselves and our posterity, this Constitution of the Republic of Uganda, this 22nd day of September, in the year 1995”.
A similar provision is made in the preamble of the constitution of Kenya thus:
“We, the people of Kenya …RECOGNISING the aspirations of all Kenyans for a government based on the essential values of human rights, equality, freedom, democracy, social justice and the rule of law: EXERCISING our sovereign and inalienable right to determine the form of governance of our country and having participated fully in the making of this Constitution: ADOPT, ENACT and give this Constitution to ourselves and to our future generations”
No doubt, the constitutions of Uganda and of Kenya of 1995 and of 2010 respectively, are for and by the people.
Sometimes, the government and those in power wish to amend the constitution to provide for something that was not envisaged by the people at the time of enactment of the constitution. This eventually begs the questions: Are all constitutional amendments reflective of the will of the people? Are all constitutional amendments constitutional? What is the legality of unconstitutional amendments?
What does the law say on amendment on the constitution?
The constitution being the supreme law is amended subject to the provisions so stated in the constitution. No other statute can purport to give a basis for the amendment of the constitution.
In the constitution of Uganda, Chapter 18 makes provision for everything regarding amendment of the constitution.
Amendment is done by an act of parliament, by the parliament. An amendment may be by way of:
- a referendum
- amendments requiring approval by district councils
- amendments by parliament
According to article 260, a referendum is required to amend provisions of
- article 1 on sovereignty of the people
- article 2 on supremacy of the constitution
- article 44 on prohibition of derogation from particular human rights and freedoms
- article 69 on political system
- Article 74 on change of political systems by referenda or elections.
- article 75 on prohibition of one-party State
- article 79(2) on functions of parliament, particularly on who has power to make provisions having the force of law in Uganda
- article 105(1) on the tenure of office of the President, particularly, on the president being in office for more or less than 5 years
- article 128(1) on independence of the judiciary
- provisions of chapter sixteen on amendment of the constitution through a referendum
- article 260
Amendments requiring approval by district councils
- article 5(2) on Uganda consisting of districts as specified in the First schedule to the constitution
- article 152 on taxation
- article 176(1) on the basing of the local government system on district level
- article 178 on cooperation among districts
- article 189 on functions of government and district councils
- article 197 on financial authority of urban authorities
- article 261 on amendments requiring approval by district councils
Any of the above mentioned amendments must be supported at the second and third readings in Parliament by not less than two-thirds of all members of Parliament; and the same must be ratified by at least two-thirds of the members of the district council in each of at least two-thirds of all the districts of Uganda; for the bill to be considered as passed.
Amendments by Parliament
Any article of the constitution which is not subject to amendment by a referendum and an amendment which requires approval by district councils can be made by parliament if it is supported at the second and third readings by the votes of not less than two-thirds of all members of Parliament.
Assent by the president
The president is bound to assent to a bill for the amendment of the constitution if it has been passed in accordance with the constitution. Notably, the bill must be
- accompanied by a certificate of the Speaker of Parliament that the provisions of this Chapter have been complied with in relation to it; and
- in the case of a bill to amend a provision to which article 260 or 261 of this Constitution applies, it is accompanied by a certificate of the Electoral Commission that the amendment has been approved at a referendum or, as the case may be, ratified by the district councils.
Where the provisions of the constitution are adhered to but the President refuses to assent to the bill or fails within thirty days after the bill is submitted, to assent to that bill, then the President shall be taken to have assented to the bill, and the Speaker shall cause a copy of the bill to be laid before Parliament and the bill shall become law without the assent of the President.
In Kenya, amendment of the constitution is also done subject to the provisions of the constitution.
Amendments may be by way of
- parliamentary initiative
- By popular initiative
A referendum may be held to make an amendment to provisions regarding:
- the supremacy of this Constitution;
- the territory of Kenya;
- the sovereignty of the people;
- the national values and principles of governance referred to in Article 10 (2) (a) to (d);
- the Bill of Rights;
- the term of office of the President;
- the independence of the Judiciary and the commissions and independent offices to which Chapter Fifteen applies;
- the functions of Parliament;
- the objects, principles and structure of devolved government; or
- The provisions of Chapter 16.
For an amendment by a referendum to pass, it must be approved by at least twenty per cent of the registered voters in each of at least half of the counties vote in the referendum; and the amendment must be supported by a simple majority of the citizens voting in the referendum.
Amendment by parliamentary initiative
A Bill to amend the constitution shall be passed by parliament if each house of parliament passes the Bill in both the second and third readings, by not less than two-thirds of all the members of that House.
Public participation is key to the constitutionalism of Kenya and as such, parliament is required to publicize any Bill to amend the constitution and to also facilitate public discussion about the bill
After a bill to amend the constitution has been passed in parliament, the Speakers of the two Houses of Parliament shall jointly submit to the President the Bill, for assent and publication; and a certificate that the Bill has been passed by Parliament in accordance with the constitution.
After the president has assented to the bill to amend the constitution, he/she causes it to be published within thirty days from when the Bill was enacted by parliament
Amendment by popular initiative
An amendment to the Constitution may be proposed by a popular initiative signed by at least one million registered voters. The proposed amendment may be in the form of a general suggestion or a formulated draft Bill. However, if a popular initiative is in the form of a general suggestion, the promoters of that popular initiative shall formulate it into a draft Bill.
The promoters of a popular initiative shall then deliver the draft Bill and the supporting signatures to the Independent Electoral and Boundaries Commission, which shall verify that the initiative is supported by at least one million registered voters. If the Independent Electoral and Boundaries Commission is satisfied that the initiative meets the requirements of this Article, the Commission shall submit the draft Bill to each county assembly for consideration within three months after the date it was submitted by the Commission.
If a county assembly approves the draft Bill within three months after the date it was submitted by the Commission, the speaker of the county assembly shall deliver a copy of the draft Bill jointly to the Speakers of the two Houses of Parliament, with a certificate that the county assembly has approved it.
If a draft Bill has been approved by a majority of the county assemblies, it shall be introduced in Parliament without delay. Such a bill shall be passed by Parliament if supported by a majority of the members of each House. If Parliament passes the Bill, it shall be submitted to the President for assent.
If either House of Parliament fails to pass the Bill, or the Bill relates to a matter specified in 255 (1), the proposed amendment shall be submitted to the people in a referendum.
Back to the questions raised before:
Are all constitutional amendments reflective of the will of the people? Are all constitutional amendments constitutional? What is the legality of unconstitutional amendments?
I shall discuss them in detail in the next article, in the next issue. Keep it here at the DEUT.
This article appears in our digital law newsletter, The Deuteronomy Vol 7, Issue 3 of July 21st, 2017
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