By Rashid Ssemambo
Uganda once again finds itself at a familiar intellectual crossroads following the appointment of Dr Lawrence Muganga as Minister of State for Internal Affairs while holding dual citizenship of Uganda and Canada.
The storm in a teacup stems from supposed “constitutional” and “legal” interpretations circulating on social media regarding the Uganda Citizenship and Immigration Control (Amendment) Act, 2009.
Some commentators argue that the law limits the appointment of dual citizens to the offices listed under the Fifth Schedule to the Act, particularly Item 4, which mentions “Cabinet Minister and other Ministers”.
It is important from the outset to note that dual citizenship was introduced into Uganda’s legal framework through an amendment to the Constitution by the enactment of Article 15.
Of relevance to this debate is Article 15(2), which provides:
“A person who is not a citizen of Uganda may, on acquiring the citizenship of Uganda, subject to this Constitution and any law enacted by Parliament, retain the citizenship of another country.”
Citizenship is generally defined as the legal status of being a member of a political community. It guarantees an individual rights, protections and political privileges in exchange for allegiance to that state and generally operates synonymously with nationality.
Similarly, dual citizenship refers to a legal status in which an individual is concurrently recognised as a citizen of two sovereign states under the operation of each country’s laws.
From a proper reading of the foregoing, dual citizenship does not diminish the responsibilities of a citizen to either country. Neither does it, prima facie, reduce the rights and entitlements available to such a citizen.
In the Ugandan context, dual citizenship does not confer half-rights or half-duties. Rather, it grants full constitutional rights and obligations unless expressly limited by the Constitution itself.
Indeed, the oath of allegiance taken by anyone acquiring Ugandan citizenship states:
“I … swear that I will be faithful and bear true allegiance to the sovereign state of Uganda, and that I will preserve, protect and defend the Constitution. So help me God.”
Clearly, a dual citizen assumes all obligations and rights under the Constitution of Uganda.
The duties of a Ugandan citizen are provided for under Article 17 of the Constitution and under the National Objectives and Directive Principles of State Policy. These obligations apply to all citizens without exception.
It follows, therefore, that upon acquiring Ugandan citizenship, a dual citizen is bound by the same constitutional duties as any other Ugandan.
Equally important is Chapter Four of the Constitution, which guarantees the protection and promotion of fundamental rights and freedoms. Article 21 specifically provides for equality and freedom from discrimination. These rights are available to all citizens, including dual citizens.
To properly understand the issue at hand, one must appreciate the doctrine of harmonious interpretation, expressed in the Latin phrase ex visceribus actus. This principle requires that constitutional provisions be interpreted as part of a single coherent document rather than in isolation or in conflict with one another.
Any other approach would lead to absurdity.
The Constitution is the supreme law of Uganda. It is the grand norm from which all other laws derive validity and legitimacy.
Article 2(1) of the Constitution provides:
“This Constitution is the supreme law of Uganda and shall have binding force on all authorities and persons throughout Uganda.”
Article 2(2) further states:
“If any other law or custom is inconsistent with any of the provisions of this Constitution, the Constitution shall prevail, and that other law or custom shall, to the extent of the inconsistency, be void.”
The constitutional qualifications and disqualifications for public office are therefore central to this discussion.
Under Article 102(1)(a), a person qualifies for election as President only if that person “is a citizen of Uganda by birth”.
However, Article 113(1), regarding Cabinet ministers, provides:
“Cabinet ministers shall be appointed by the President with the approval of Parliament from among Members of Parliament or persons qualified to be elected Members of Parliament.”
Article 80(1)(a), concerning Members of Parliament, states:
“A person is qualified to be a member of Parliament if that person is a citizen of Uganda.”
The distinction is obvious.
Whereas the Constitution expressly restricts eligibility for the presidency to citizens by birth, it does not impose such a limitation on ministers or Members of Parliament. The Constitution simply refers to “a citizen of Uganda”.
It is therefore my humble submission that excluding dual citizens from ministerial appointment is unconstitutional and void under Article 2(2) of the 1995 Constitution.
While the constitutional amendment introducing dual citizenship contemplated an enabling law to operationalise the provision, Section 19D of the Uganda Citizenship and Immigration Control (Amendment) Act becomes void to the extent that it conflicts with the Constitution.
The Fourth Item of the Fifth Schedule cannot introduce restrictions that contradict Article 80, which permits all Ugandan citizens to serve as Members of Parliament and, by extension, ministers.
No authority can therefore rely on such a provision to make a constitutionally sound decision.
The principle was clearly stated in MacFoy v United Africa Co Ltd [1961]:
“If an act is void, then it is in law a nullity. It is not only bad but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so.”
From the doctrines of constitutional supremacy and harmonious interpretation, it follows that any Act of Parliament inconsistent with the Constitution is automatically void to the extent of the inconsistency.
No court order is required before public authorities disregard such a provision.
Parliament and other state institutions therefore possess an inherent constitutional obligation to reject provisions that offend the Constitution.
Lest I forget, the late Julius Nyerere’s Arusha Declaration identified ignorance as one of Africa’s greatest ailments. Sadly, we continue to undermine knowledge by permitting an uncontrolled flood of social media content, particularly on platforms such as TikTok, regardless of quality, accuracy or the age of consumers.
I have often argued that, for Africa, the unrestricted spread of social media resembles the flooding of Guangzhou with opium by the British during the 19th century in an attempt to tilt the balance of trade in Britain’s favour at the expense of Chinese society. That policy culminated in the Opium Wars.
TikTok and similar platforms risk becoming Africa’s modern opium.
Africa will struggle to prosper until it takes charge of both the quality and quantity of information consumed by its people.
For God and My Country.
The author is an Advocate of the High Court and all Courts of Judicature and Managing Partner at Ssemambo & Ssemambo Advocates.
