Publications

Kituo Cha Katiba also known as the Eastern African Centre for Constitutional Development (KcK) is a regional nongovernmental organisation (NGO) based in Kampala,Uganda. It was established in1997 as a think tank to promote constitution making and democratic governance. KcK provides critical and up-to-date information to East Africans on constitutionalism, good governance and democratic development.

KcK has contributed to constitutional making processes in Uganda, Kenya, Tanzania and South Sudan. In 2013,KcK constituted a team of experts in constitution making from Uganda and Kenya to provide critical input to the Draft Constitution of Tanzania 2013. Several of the team’s recommendations found their way into the Second Draft that was debated by the Constituent Assembly (CA) and  Final Draft Constitution which is to be the subject of a referendum.. In the same year - 2013, KcK commissioned a team of experts drawn from Uganda and Kenya to examine the process and progress of constitution making in South Sudan and provide critical input to it based on best practices and lessons from East Africa. The project has been partly implemented because of the civil war in the country and is to be extended. KcK conducted a fact-finding mission in Kenya in September 2001 to initiate dialogue among all stakeholders involved in the constitutional review process in the country and to share experiences with the Ghai Commission in order to positively take the constitutional reform process forward.  In 2007, KcK developed an alternative draft of a new constitution for Kenya, building on the Bomas and Wako drafts.

The publication of this series on the annual state of constitutionalism (ASC) is timely, since it is now ten years after the revival of the East African Community (EAC). This has given the authors of the papers in this volume an opportunity to take stock of the achievements and huddles towards regional integration and the state of constitutionalism at both the national and regional level, and how the national issues of constitutionalism feed into or shape
the regional matters and vice- versa.The papers further discuss the diverse governance trends in East Africa as they unveiled in 2009 through the lens of constitutionalism.
Corruption and other aspects, such as the genocide ideology law that has been criticised as draconian in Rwanda, the unresolved Buganda Question and its implications on the stability of Uganda, are all brought to the fore. They further reveal that although the East African countries have made strides in the right direction to make human rights a reality in the lives of their people, there are still so many glaring loopholes in the area and more efforts are required to improve the situation. Economic, social and cultural rights (ESCRs) are still relegated to second position as revealed in the Tanzania paper. Also, 2009 was bleak in regard to human rights for some minority groups. 

Once again, Kituo cha Katiba (KCK) brings its esteemed readers  insights on a wide range of developments in the East African region, of relevance to constitutionalism and human rights, and which in the opinion of this particular series’ contributors, left the greatest impression.
In The State of Constitutional Development in the East African Community Med Kaggwa starts by recapturing, in broad strokes the highlights in the Community’s journey as it headed forits present destination, a Common Market. He informs us that in their decision of April 2008, the Summit gave its approval for negotiations leading to the adoption of a Protocol on a Common Market to commence. The general sense of optimism was however soon overshadowed by seemingly endless disagreements.  As is to be expected, debate has arisen over the issue of free movement of people and the use of national identity cards for
purposes of cross-border travel within the region. A related debate is over access to land by non-nationals. At the other extreme, the author quite reasonably questions member states’ commitment to the Common Market, given the miserly rates of intra-East African
Community (EAC) trade.
 

KCK organised the fact-finding mission in two legs; the first to Unguja Zanzibar, which was undertaken from 13 to 16 July 2009. The second was undertaken in Tanzania Mainland from 23 to 28 August 2009. The mission also subsequently visited Pemba from 19 to 20 April 2010.

The mission team comprised the following:

• Hon. Augustine Ruzindana (Uganda), former Inspector General of Government, former Member of Parliament and immediate former Chairperson of the African Parliamentarians Network Against Corruption (Head of Mission);

• Mr Vincent Ndikumasabo (Burundi), Lecturer, Constitutional and Judicial law, University of Lac Tanganyika, former Judge of the Supreme Court and former Member of Parliament;

• Prof. Godfrey Muriuki (Kenya), Professor of History, University of Nairobi;

• Ms Justine Mirembe (Rwanda), Consultant, lawyer practising in Kigali;

• Ms Florence Batoni (Rwanda), Communications and Peace Background and Introduction xi Building Expert;

• Prof. Frederick Jjuuko (Uganda), Professor of Law, Makerere University, Kampala, Uganda (Secretary to the mission);

• Ms Edith Kibalama, Executive Director, KCK provided logistical support.

Objectives of the Fact-Finding Mission

The main objective was to examine areas of tension relating to the Union between Tanzania Mainland and Zanzibar with respect to enhancing Zanzibar’s role in the East African Community (EAC) processes and to devise ways and means of resolving them.

The importance of this book is its contribution to the debate on anti-corruption initiatives, the sustainability of accountability and transparency in government functions in East Africa. Corruption is one of the worst governance issues in the East African countries.
The initiative by Kituo Cha Katiba (KCK) “to bring together representatives from lead regional institutions to dialogue and reflect on common approaches” in fighting corruption and strengthening public accountability is a commendable effort. It shows the concerns of civil society and its increasing contributions to the war against the scourge that undermines democratic governance and development. Participants at the workshop bore various experiences and absence of those directly involved in anti-corruption denied the workshop
their knowledge and experience. Their presence would have enabled the sharing of experience with those institutions engaged in policymaking and implementation. 
 

The East African Community (EAC), now encompassing five states after Rwanda and Burundi joined in 2007 expressed a commitment to the rule of law, good governance and respect for human rights under article 6(d) of the East African Treaty of 2000. The article sets out the fundamental principles that shall govern the relationship between members of the Community. Based on this principles, East Africans have committed themselves to enhance constitutionalism in the region in order to improve the manner in which the region is governed. Enhancing constitutionalism and the rule of law is key to achieving Objective 1 under Article 5 of the Treaty which is the attainment of greater economic prosperity of the region, regional security and political stability. 

Ever so often in the histories of a state or region, a congenial trajectory of gradual democratisation is put to a shuddering stop by circumstances more often than not designed by state elites rather thanchanced or dictated by the masses.  When this happens, the masses are left wondering how it is ever possible for their political leaderships to change so dramatically – from fervent espousal of adherence to constitutionalism and the rule of law to contempt for its principles. By the end of the year 2004, the rapid expansion of democratic
space within the East African region was experiencing jitters which, if not contained, could have resulted in an anticlimactic diversion away from the path of democratisation and constitutionalism.  This condition was most apparent within the context of Kenya’s drawnout
constitution-making process; but it was clearly present in Uganda too.
 In Zanzibar,legislative changes were employed in a cynical way to ensure electoral success for the incumbent Chama Cha Mapinduzi (CCM) government

One of the most important developments in Africa in recent years has been the revival of 
the East African Community (EAC), with Kenya, Uganda and Tanzania as its members.
Before its collapse, the old EAC was regarded as one of the most successful experiments in regional economic integration on the Continent. Due to ideological differences among and within the three countries, the perceived domination f the Kenyan economy and the Idi
Amin-led military coup in Uganda in 1971, this promising experiment in regional economic
integration came to a premature and painful end in 1977.  Twenty-two years after the ignominious collapse, the Community appears to have arisen from the ashes of the old.
On 1 December 1999, the new EAC was launched in Arusha, Tanzania. This was preceded by eight years of protracted and gradual negotiations that culminated in the signing of the Treaty Establishing the East African Community on 30 November 1999.
This paper explores the status of constitutionalism in the three states of Kenya, Uganda and
Tanzania; and the actual and potential role of the EAC in promoting constitutionalism in the
region. In so doing, it analyzes the constitutional and political developments in the three
states during 2005, and examines the constraints and opportunities for the EAC to enhance
constitutionalism in the region.
 

When, in 1999, Kituo Cha Katiba undertook to produce annual analyses of constitutional developments that occurred in East Africa, it was very easy for the pessimist to wonder whether there would be developments worth reporting to justify the intended study series. Our imaginary pessimist’s reservations would be understandable, considering that for decades the region, like most of sub-Saharan Africa, had been mired in tyranny, state-inspired abuse of human rights and in many cases, a near-total collapse of constitutionalism and the rule of law. What then was there to report and analyse year after year regarding
“constitutional developments” in such a region other than a repetitive litany of excesses?
In “the Constitutional Development in East Africa” annual studies have now been published on four occasions.  This instant one, the fifth in the series, more than justifies the decision to embark on this project. present compendium, like its predecessors, contains a country report
for each of the three states – Uganda, Kenya and Tanzania, and one focusing on the East African Community (EAC).  The common thread that runs through the four reports is the interest which the people of all the three countries continue to exhibit in matters relating to governance and human rights, in short, to constitutionalism.  In all three country reports, one notes an on-going process of the re-examination and the re-adjustment of the existing constitutional order – for better or for worse  –  a process involving not just state players, but the general populace as well.

The most momentous development in the area of constitutionalism in East Africa in the year 2002, was the end-of-year gift the Kenyan people delivered to East Africans. A tardy and reluctant arrival,  the successful presidential elections  resulted in the peaceful hand over of power by former President Daniel arap Moi to President Mwai Kibaki, on December 30, 2002. It thus saw the end of the rule of the Kenya African National Union (KANU), in power since Independence in 1963, thereby heralding a new era and inspiring  optimism not only in Kenya, but in the whole region and well beyond East Africa.  This is one of the numerous constitutional developments that took place in the East African region.
This publication documents and analyses the state of constitutionalism in East Africa for the year 2002. It recounts significant events in the three countries, attempts to put meaning to these events by placing them in their historical context and within the constitutional framework of the given country. This publication also attempts to look to the future a adumbrated by the developments in the year. The other subject of this publication is regional constitutionalism in the form of the East African Community and its institutions. There are therefore, four papers assembled in this compendium – three country papers and one on the
East African Community.  The four papers share a lot in common, not least, naturally, the subject matter, but also differ in their style and approach to the subject matter.