By Asuman Kiyingi *
I welcome Morrison Rwakakamba’s thoughtful response to my essay, The Theatre of Legitimacy: Why Muhoozi’s “Slow Coup” is the Climax of Uganda’s Gun Rule. Constitutional democracy flourishes when ideas are tested through reasoned argument rather than silenced by coercion. In that respect, his intervention contributes to an important national conversation.
Yet, after a carefully argued essay, Rwakakamba never answers the constitutional question I posed. Instead, he answers a different one.
I never argued that Uganda has formally repealed the 1995 Constitution, dissolved Parliament, closed the courts, or abolished elections. Nor did I suggest that President Museveni has ceased to occupy the presidency. Those are the questions Rwakakamba chooses to answer.
My question is simpler, but constitutionally more fundamental:
Where does effective public power actually reside, and are the powers created by the Constitution still being exercised by the institutions to which the Constitution entrusts them?
That is the constitutional question his article never answers.
Rwakakamba points to Parliament sitting, courts hearing cases, elections taking place, and the passage of an UGX 84.3 trillion national budget. These are undoubtedly constitutional forms. But constitutionalism has never been judged by institutional survival alone.
Modern constitutional decline rarely begins with tanks surrounding Parliament or the formal suspension of a constitution. More often, constitutional forms survive while effective authority gradually migrates from legally accountable institutions to informal centres of power that increasingly determine public outcomes without assuming corresponding constitutional responsibility. The constitutional question is therefore not whether institutions continue to exist, but whether they continue to exercise the authority the Constitution entrusts to them.
Rwakakamba argues that because these developments remain publicly contested—in Parliament, the courts, and the media—constitutionalism remains alive. Respectfully, political contestation and constitutional accountability are not the same. Citizens may protest, lawyers may litigate, and Parliament may debate, but constitutionalism ultimately depends upon whether those exercising public power remain legally answerable to institutions capable of restraining them.
If effective power can routinely be exercised outside legally authorised institutions without legal consequence, contestation becomes evidence of political freedom, not necessarily of constitutional accountability.
This brings us to the principle of legality, which Rwakakamba again sidesteps. The Constitution distributes public power deliberately. Institutional boundaries are not matters of administrative convenience; they are constitutional safeguards against arbitrary power.
Consider the closure of Nation Media Group’s television, radio, and newspaper operations. The constitutional controversy was never simply whether government had grievances against the media house. The real question was whether statutory powers entrusted by Parliament to civilian regulatory authorities could lawfully be displaced by military command without any publicly identifiable legal process. That question goes to the very heart of the doctrine of legality.
The same constitutional concern arises whenever senior military actors publicly threaten lawyers, journalists, or political leaders before ordinary legal institutions have acted. The issue is whether legal accountability is being administered through constitutionally competent institutions acting independently, or whether those institutions increasingly appear to validate decisions already made elsewhere.
Rwakakamba invokes Articles 98 and 99 to suggest that these developments merely reflect executive delegation rather than constitutional displacement. But executive authority cannot convert powers vested by statute in one institution into powers exercisable by another simply because it appears administratively convenient. The doctrine of legality exists precisely to prevent public power from becoming personal discretion. The issue is not whether government remains effective; the issue is whether government continues to act through law.
Rwakakamba also invokes the language of “hybrid constitutionalism” to explain Uganda’s present condition. Ironically, that description undermines rather than strengthens his argument. In comparative constitutional scholarship, hybridity generally describes systems in which democratic institutions formally survive while informal power increasingly determines political outcomes. Elections continue, courts remain open, and constitutions remain in force, yet the decisive allocation of public authority depends upon relationships of political loyalty and coercive influence rather than institutional independence.
That is not an answer to my argument. It is remarkably close to describing it.
There is a further irony. During the national debate over the removal of Article 102(b), in a September 2017 interview with The Observer, Mr. Rwakakamba himself argued that abolishing the presidential age limit would remove “the last firewall that guarantees peaceful transition.” He warned that constitutional institutions capable of managing peaceful succession were still insufficiently developed and spoke of “institutions that are diminishing.”
Those observations rested upon an important constitutional insight: that constitutional decline need not occur through the formal abolition of institutions but may arise from the weakening of their practical capacity to perform their constitutional functions. That insight remains constitutionally sound. It is therefore difficult to understand why the same distinction between constitutional form and constitutional substance is now dismissed as a manufactured narrative.
Neither John Locke (Second Treatise of Government, 1689) nor Montesquieu (The Spirit of the Laws, 1748) measured constitutionalism by the continued existence of institutions alone. Locke argued that legitimate government rests upon the exercise of public power through settled law rather than arbitrary discretion. Montesquieu maintained that liberty depends upon constitutional powers remaining genuinely separated rather than concentrated in a dominant centre of authority. Both were concerned with constitutional substance rather than constitutional appearance. That remains the unanswered question.
On one important point, Rwakakamba and I agree: Uganda’s constitutional project deserves vigorous defence. Our disagreement concerns how constitutional decline should be recognised.
We must defend this project through robust civic engagement and open, reasoned debate—the very antithesis of the arbitrary force, bayonets, bullets, and basements that characterize the abduction and lawless detention of political opponents.
Constitutions rarely perish through a single dramatic rupture. More often, their institutions continue to function while their practical authority is progressively diminished. The constitutional question is therefore not whether Parliament sits, courts hear cases, or elections are held. It is whether public power continues to be exercised through the institutions the Constitution creates.
A constitution does not cease to exist when its institutions disappear. It begins to lose its authority when its institutions remain, but their constitutional powers are increasingly exercised elsewhere. That is the constitutional question. Until it is answered, the theatre of legitimacy continues.
*The writer is a senior advocate and former Minister.
