Remaining in the Shadows Parliament and Accountability in East Africa Tundu Lissu Remaining in the Shadows – Parliament and Accountability in East Africa By Hon. Tundu Lissu Berlin and Tienen, August 2020 Remaining in the Shadows- Parliament and Accountability in East Africa Copyright © Konrad-Adenauer-Stiftung ISBN 978-9966-021-22-9 Year of publication 2021 Design and Printing by: Lino Typesetters (K) Ltd. Email: [email protected] The pictures on the cover page are those of Parliament Buildings of Uganda (left), Kenya (centre) and Tanzania (right). Remaining in the Shadows – Parliament and Accountability in East Africa iii Table of Content Acknowledgements ...........................................................................................................v List of Abbreviations .......................................................................................................vii List of Statutes .................................................................................................................ix Publisher’s Note .............................................................................................................xiv Foreword .........................................................................................................................xvi Summary ............................................................................................................................1 Introduction – The Long Road for Parliamentarism in East Africa ..........................16 Part I – Kenya: ‘Constitution We Did Not Want’? The Parliamentary Road to Kenya’s Democracy ........................................................................................................46 CHAPTER ONE: THE NEW CONSTITUTION AND ITS TENSIONS ..........49 CHAPTER TWO: DEVOLUTION OR MAJIMBO? ...........................................66 CHAPTER THREE: INDEPENDENCE AND THE RISE OF IMPERIAL PRESIDENCY ........................................................................................................79 CHAPTER FOUR: DEMOCRACY MAKES A COME-BACK .........................95 CHAPTER FIVE: CONSTITUTIONAL DEVELOPMENTS SINCE 2010 ...107 Part II – Uganda: ‘End of the Road for Federation’? Federalism, Parliamentarism and Presidentialism in Uganda’s Long March to Democracy ..................................119 CHAPTER ONE: IN THE BEGINNING THERE WAS BUGANDA… .........122 CHAPTER TWO: THE UGANDA ORDER IN COUNCIL 1902 ....................135 CHAPTER THREE: THE STILL-BIRTH OF FEDERAL UGANDA .............143 CHAPTER FOUR: 1967 CONSTITUTION AND ‘THE CREEPING DICTATORSHIP’..................................................................................................153 CHAPTER FIVE: OBOTE’S HEIRS AND THEIR INHERITANCE .............176 CHAPTER SIX: THE EMPEROR UNCLOTHED: THE CONSTITUTION AND THE PRESIDENCY ...................................................................................184 Part III – Tanzania: Déjà-Vu? Parliamentary Democracy and the Challenge of Imperial Presidency in Tanzania .................................................................................192 CHAPTER ONE: THE POISONED CHALICE OF COLONIALISM ...........192 iv Remaining in the Shadows – Parliament and Accountability in East Africa CHAPTER TWO: INDEPENDENCE AND ITS INHERITANCES ................199 CHAPTER THREE: END OF THE HONEYMOON ........................................206 CHAPTER FOUR: THE DEMOCRATIC RECOVERY ...................................225 CHAPTER FIVE: THE NEW CONSTITUTION-MAKING ...........................233 CHAPTER SIX: DÉJÀ-VU OR DEMOCRATIC RETREAT? .............................255 Conclusion – How Far Have Our Parliaments Come? ..............................................260 Bibliography ..................................................................................................................273 Remaining in the Shadows – Parliament and Accountability in East Africa v Acknowledgements This book started on a very modest scale. Konrad-Adenauer-Stiftung (KAS) which provided the grant that made it all possible, demanded of me to produce a 30-40 page monograph with ‘standard pages’, i.e. “typewritten pages with 30 lines of 60 keystrokes each….”! This modest assignment was to be undertaken over a period of seven months, a rather generous timeframe given the scope of the contract. However, the contract also stipulated that I had “... to depict the subject matter exhaustively in a publication-ready version.” I signed the contract very quickly. Over time, however, it dawned upon both KAS and myself that a study of parliaments of three different countries with different historical, social and political contexts, could not be ‘depicted’ exhaustively in a 30 to 40 standard page monograph. As a result, what should have been a monograph eventually morphed into this book. And so, I must register my gratitude to KAS, especially its Subsahara-Africa Department, for not only making the grant possible but also for hosting me and organizing meetings with German government officials, members of the Bundestag and other stakeholders on the numerous occasions that I visited in Berlin in the course of researching and writing of the book. Special mention is due to Stefan Friedrich, the Head of the Subsahara-Africa Department, Stefanie Brinkel, Stefanie Rothenberger, Mathias Kamp, Tillman Feltes and Miriam Fischer, for their patience, persistence and encouragement which ensured this book sees the light of day. Much of the published material for the Kenya and Uganda studies was procured from Nairobi by Maria Leti ‘Nyailanda’; while those from Tanzania were made available by my brothers Alute Mughwai in Arusha and Ikoti Lissu in Dar es Salaam. All this material found its way to Tienen by way of Berlin, thanks to my great friend Daniel El-Noshokaty, formerly Country Director of KAS Tanzania. To all of them I owe a great fraternal debt of gratitude. Dr. Willy Mutunga, former Chief Justice and President of the Supreme Court of Kenya, generously went through the manuscript in its semi-finished stage, and made typically critical and valuable comments which enabled me to polish some of my arguments. Ndugu Mutunga also gave of his time to write an incisive Foreword to the book. For this I am grateful, as I have always been for his exemplary commitment to human rights and social justice in his native Kenya and in Tanzania where he spent his undergraduate student years. Finally, I owe a huge emotional debt to my family, my wife Alicia and children Tino and Eddie. They have never said much, publicly or privately, but one can only imagine the horrors they went through during the past three years, starting with that fateful vi Remaining in the Shadows – Parliament and Accountability in East Africa Thursday afternoon on 7th September, 2017. Their selfless love, unswerving devotion and unstinting friendship did not only see me through those dark days, it has always been a great source of strength for me. Tundu Lissu Tienen, December 2020 Remaining in the Shadows – Parliament and Accountability in East Africa vii List of Abbreviations AIM African Independence Movement AMNUT All Muslim National Union of Tanganyika ANC African National Congress ASP Afro-Shiraz Party BBI Building Bridges Initiative CCM Chama Cha Mapinduzi CHADEMA Chama Cha Demokrasia na Maendeleo CKRA Constitution of Kenya Review Act CKRC Constitution of Kenya Review Commission CoE Committee of Experts EBC Electoral and Boundaries Commission ECK Electoral Commission of Kenya IEBC Independent Electoral and Boundaries Commission GEMA Gikuyu, Embu and Meru Association KADU Kenya African Democratic Union KANU Kenya African National Union KASA Kenya Socialist Alliance KPU Kenya People’s Union KY Kabaka Yekka NARC National Rainbow Coalition NCC National Constitutional Conference NEC National Electoral Commission NEP National Enterprise Party NRA National Resistance Army NRC National Resistance Council NRM National Resistance Movement viii Remaining in the Shadows – Parliament and Accountability in East Africa NUTA National Union of Tanganyika Workers ODM-K Orange Democratic Movement – Kenya PCK People’s Commission of Kenya PCP People’s Convention Party PDP People’s Democratic Party PSC Parliamentary Select Committee SRB State Research Bureau TANU Tanganyika African National Union TFL Tanganyika Federation of Labour TISS Tanzania Intelligence and Security Service UKAWA Umoja wa Katiba ya Wananchi UNLF Ugandan National Liberation Front UPC Uganda People’s Congress UTP United Tanganyika Party Remaining in the Shadows – Parliament and Accountability in East Africa ix List of Statutes TANZANIAN STATUTES The Deportation Ordinance, 1921 The Expulsion of Undesirables Ordinance, 1936 The Emergency Powers Order in Council, 1939 The Legislative Council (Elections) (Amendment) Ordinance, 1959 The Legislative Council (Power & Privileges) Ordinance, Chapter 359 of the Laws of Tanganyika The Constitution of Tanganyika Act, 1961 The Constituent Assembly Act, 1962, No. 66 of 1962 Republican Constitution, 1962 The Republic of Tanganyika (Consequential, Transitional & Temporary Provisions) Act, 1962 The Preventive Detention Act 1962, No. 500 of 1962 The United Republic (Declaration of Name) Act, 1964, Act No. of 1964 The Interim Constitution of Tanzania Act, 1965, Act No. 43 of 1965 The National Assembly (Alteration of the Number of Constituency Members) Act, 1968, Act No. 56 of 1968 The Interim Constitution of Tanzania (Increase in the Number of Regional Commissioners) Act, 1971, Act No. 29 of 1971 The Interim Constitution