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9.23.2012

Uganda at 50 and the problem of "sham constitutions"

Today's Sunday Monitor features a stinging but unsurprising assessment of the state of Uganda's 1995 constitution by Busingye Kabumba, who teaches constitutional law at Makerere University in Kampala.  The title says it all: "The 1995 Uganda Constitution is nothing but an illusory law."  Kabumba characterizes the Ugandan constitution as "an elaborate farce that is cynically perpetrated by the President to consolidate and extend his hold on power."

Harsh words, but Uganda is far from the only country with this kind of problem.  As any comparative constitutional law scholar would tell you, there are plenty of countries with constitutions that amount to shams.  When Justice Scalia observed that "every banana republic has a bill of rights," he was merely pointing out the obvious.   What has been less clear, however, is how many countries fall short of honoring their constitutions, how badly they fail, or in what ways they tend to fail.

For anyone interested in these sorts of questions,  Mila Versteeg and I have just released an empirical study of the prevalence and severity of constitutional noncompliance entitled, simply, "Sham Constitutions".  Our analysis attempts to capture the extent to which countries uphold three different types of constitutional rights: personal integrity rights, civil and political freedoms, and socioeconomic and group rights.  The lowest scores go to countries that simultaneously promise a wide range of rights on paper and fail to uphold those rights in practice.  Thus, countries that don't promise much in the first place don't do too badly, regardless of how they actually behave.

Under this approach, as undeniably bad as Uganda happens to be - particular in the area of personal integrity rights - it does not even possess one of of the twenty-five worst sham constitutions in the world.  The dubious honor of leading our constitutional "hall of shame" belongs instead to Sudan, followed closely by Zimbabwe.  The final version of the article is slated to appear in the August 2013 issue of the California Law Review, but an initial version is available now on SSRN.

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