ADMINISTRATIVE AUTHORITIES.

QUESTION:
Discuss the different constitutional principles that govern administrative
law and analyze whether they are a reality.
Introduction
Article 42 of The Constitution 1[1] states that;
“Any person appearing before any administrative official or body has a right to be treated justly
and fairly and shall have a right to apply to a court of law in respect of any administrative
decision taken against him or her.”
From this article, stems a branch of public law known as administrative law. Administrative law
can thus be defined as the law relating to the control of government power.2[2] All administrative
authorities (that is public officials) are subordinated to this law; right from the cabinet members
to the local government authorities. Wade 3[3] submits that the primary purpose of subjecting
them to this law is to keep the powers of government within their legal bounds so as to protect
the citizen against their abuse. To meet this end, a couple of constitutional principles have
developed over time and these are believed, by many Jurists, to be the constitutional principles
governing administrative law. The purpose of this writing is to discuss these principles and
examine whether or not they are a reality. This task I believe I have ably executed below.
The Doctrine of Separation of Powers.
The modern day philosopher, Montesquieu 4[4] from whom this doctrine was developed
described government in this form;
“In every government there three types of powers: the legislative, the executive and the judiciary.
The executive in respect of things dependant on the law of the nation and the judiciary in regard
to matters that depend on the civil law….. By virtue of the first, the prince or magistrate enacts
temporary or perpetual laws and amends and abrogates those that have been enacted. By the
second he makes peace or war, sends or receives embassies, establishes the public security and
provides against invasions. By the third he punishes criminals or determines the disputes that
arise between individuals, the latter, we shall call judicial powers and the other simply the
executive power of the state.”
Montesquieu in this same book 5[5] went on to define separation of powers as a principle
whereby the three organs of government as listed above are kept in separate compartments. This

1[1] - 1995 Constitution of the Republic of Uganda.

2[2] - Wade and Forsyth; Administrative Law 7th Edition Page 4.

3[3] - Wade and Forsyth; Administrative Law 7th Edition Page 4.

4[4] -Montesquieu; the Spirit of the Law, Book XI Cap. VI

5[5] - Montesquieu; the Spirit of the Law, Book XI Cap. VI

means that no organ of government should exercise the functions of the other that is the judiciary
should not exercise the functions of the legislature or executive mutatis mutandis, no organ
should be in position to control the other most especially the executive controlling the legislature
and judiciary and that persons or agencies in one organ should not be permitted to hold posts in
another.
It is imperative to note at this point that this doctrine in its extreme nature is just ideal and not
only unrealistic but also undesirable. Keeping the arms of government in such water tight
compartments would easily cause stagnation in the flow of government business because of the
rigidity of the doctrine. Rather, a more practical approach to this doctrine is applying a system of
checks and balances whereby each organ operates with the consent of the other two and the
consent ought to be spontaneous not coerced. This is the more practical approach and to a great
extent is alive in Uganda. A classic example of these checks and balances at work is the case of
Ssemwogere and Olum6[6]. In this case, the petitioners challenged the validity of the
Constitutional amendment Act 7[7] which sought to amend articles 88-90 of the Constitution.
The bill for the Act was passed in two days which was inconsistent with the constitution. The
constitutional court held that the amendment had been in accordance with the law but this
decision was quashed by the Supreme Court that held that the Act was null and void because it
was passed in total disregard of the Constitution. In passing such a decision, the judiciary was
able to check on the legislature’s powers and those in the executive who pushed for this bill in
Parliament especially the President who had assented to it. However, despite advancements in
this area in Uganda, this system of checks and balances still has loop holes in Uganda for
example, despite the overwhelming evidence that the Security Minister Amama Mbabazi had
exerted undue influence in getting the National Social Security Fund to buy his land at
Temangalo at an inflated price, he was exonerated by the National Resistance Movement caucus
in Parliament and this largely believed to be because he is the Secretary General of the National
Resistance Movement. Since the government Members of Parliament are the most, their
exonerating him caused him to get away with corruption unscathed8[8].

Independence of the Judiciary

Closely related to the doctrine of separation of powers above is the independence of the
Judiciary. Since disputes in administrative law involve public officials and public powers, an
independent judiciary is a great necessity. Independence of the judiciary means a judiciary that
makes decisions that are totally based on evidence before them and not extraneous matters. Peter
Oluyede 9[9], in expounding on this doctrine, explained that in criminal cases, the courts should
not convict or acquit because they believe a particular verdict will please the government of the
day and in civil cases, courts ought not to consider the relevant importance of parties or even the
political consequences of their decision rather, he says, that the courts only ought to find the facts
and apply the relevant principles of law in any particular situation. In Uganda, the judiciary is
6[6] - Constitutional Petition No.7 of 2000.

7[7] - Act 13 of 2000.

8[8] - www.independent.co.ug/691 Downloaded by 12th March,2010.

9[9] - Oluyede, Administrative Law In East Africa.

enabled to be independent by Article 12810[10] . This Article provides that in the exercise of
judicial power courts shall not be subject to the control or direction of any person or authority.
Subsection 4 of the same goes on to provide that a person exercising judicial power shall not be
liable to any action or suit for any act or omission by that person in the exercise of judicial
power. Subsection 6 of the Article provides that the judiciary will be self-accounting and
subsection 7 that the salary, allowances and privileges of a judge are not to be varied to the
disadvantage of a judicial officer. These subsections and others under this Article ensure the
independence of the judiciary by providing for security of tenure, financial benefits and judicial
immunity.
However, despite all these measures to ensure the independence of the judiciary, the executive in
Uganda has many times been ‘caught’ trying to undermine the position of the judiciary. Very
fresh in the memory is the “Black mamba” incident 11[11]. According to Georgette Gagnon,
deputy director of Human Rights Watch, militia men draped in military fatigue and black T-
shirts surrounded the High Court to intimidate the judges and thwart the decision to release on
bail the 22 men suspected to have been plotting treason. This siege in November 2005 of the
High Court was condemned by the Principal Judge of Uganda as “a despicable act” and a “rape
of the judiciary.” Such acts go to prove that despite the constitutional provisions in place, once in
a while the Executive tries to intimidate the judiciary but we can say on the whole that the
judiciary has stood courageous and is independent making the independence of the judiciary a
reality in Uganda.

Rule of Law.
Rule of law simply means that everything must be done according to the law 12[12]. Therefore,
every government authority that does not act which is otherwise wrong for example taking one’s
land (infringing on liberty) must justify its actions as authorized by law. Professor Dicey 13[13]
put forward that the rule of law entails absolute supremacy of regular law, equality of all before
the law and the rule according to the constitution. Rule of law is essentially meant to create an
atmosphere of law and order where the citizen can easily enjoy liberty and the pursuit of
happiness. In pursuance of this end, the International Commission of Jurists sitting at New Delhi
in 1995 suggested a code of conduct of eight clauses some of these are looked at briefly 14[14];
Clause I essentially deal with the executive or other like agencies such as public corporations
being able to make rules having legislative character. This is happening in Uganda as in Local
Councils formulating laws 15[15]. However, to ensure proper rule of law, this power has to be
10[10] - 1995 Constitution of The Republic of Uganda

11[11] - Uganda: Government Gunmen Storm High Court Again: Security Forces Used to Intimidate
Judiciary in Case of “PRA Suspects”: New York, March 5, 2007.

12[12] - Wade and Forsyth: Administrative Law 7th Edition

13[13] - Dicey; The Law and The Constitution.

14[14] - The Rule of Law In a Free Society; 1959 Page 6-8.

15[15] - For example Mukono District Council passed on 17th February,2009 a law entitled “ Mukono
District Custody of Primary School Textbooks.”
within the narrow limits stipulated by the legislature and the extent to which must also be
stipulated. This is very evident in the case of Ibingira I 16[16] where it was held inter alia by the
learned that the Deportation Ordinance (put in place by the line minister) was void for being
inconsistent with the provisions of the then constitution of Uganda. Clause III says that judicial
review of delegated legislation maybe usefully supplemented by a procedure for supervision by
legislature or by an independent authority either before or after such legislation comes into
effect. Clause V provides that in general the acts of the executive when directly and injuriously
affecting the person or property or rights of the individual should be subject to review by the
courts. This was seen practically in the case of Shah V Attorney General 17[17] where the court
compelled the government to pay according to a government order which the government had
ignored. The applicant had obtained judgment against the government for Ushs 67,500.
The government refused\ failed to pay and the applicant brought this motion for an order
mandamus directed to the officers responsible for the payment. In light of the above, rule of law
is, to a great extent, a reality in Uganda. Needless to say at times the rule of law in Uganda is
abused by some individuals typified in the words of the Coordinator Security Services in reaction
to the High Court’s holding that the General Court Martial had no jurisdiction to hear cases of
terrorism 18[18]. He said,
“… Who are these fellows (the judges)? The judges have no power to order the army. The army
will not accept this business of being ordered by judges.19[19]”
Such attitudes are some of the few things stifling the flourish of rule of law in Uganda.
Ministerial and Collective Responsibility. (Art.117)
Ministerial responsibility is a doctrine that provides that members of the Executive should be
responsible for their activities and should be accountable how they use their powers. This may
entail individual accountability to the President (Art.117) or individual to Parliament since
according to Article 118 of the Constitution Parliament can censure a minister. This doctrine
requires a minister to explain to parliament his own actions and the actions carried out on his
behalf.
For example, where a civil servant is believed to be “misbehaving”, the line minister will be
called to account. His task then will be to investigate and take the appropriate disciplinary action
if necessary. The minister will lose the confidence of parliament for serious misconduct in his
administration, if this happens, he will be required to resign or will be dismissed. A good
example of this is the time former Finance, Planning and Investment minister Sam Kutesa was
censured for being found in a situation of conflict of interest contrary to the leadership code of
conduct by allowing ENHAS (Entebbe Handling Services) a company he chaired to buy the
national carriers shares in the cargo firm below market value and also writing off as a bad debt
USD 400,000. In dong this he caused Uganda Airlines great financial loss 20[20]. However, there
times when this doctrine fails to be realized because most times Members of Parliament are on
16[16] - Grace Ibingira & Others V Uganda [1966] E.A 306.

17[17] - No.2 [1970] EA 543.

18[18] - Kanyeihamba; Kanyeihamba’s Commentaries on Law, Politics and Governance

19[19] - New Vision ; 22-12-2005.

20[20] - Nyagabaki Bazara; http:// www.kituachakatiba.co.ug/bazara99.htm. downloaded 12th March

12, 2010.
the government side unable to attack their own and at times they are compromised (corrupted) to
adamantly look on cabinet misconduct as was stated by one Member of Parliament, Odongo
Otto21[21].
Collective responsibility on the other hand means that all members of the executive are
responsible for all government decisions and are to support each other on policy matters.22[22]
This principle essentially means cabinet solidarity and is meant to ensure that policies and
decisions are made in line with the requirements of good administration as provided for in
Article 111 of the Constitution of Uganda. A celebrated depiction of collective responsibility in
Uganda is the clash between former President Milton Obote and his Minister of Planning and
Economic development, Hon. Obwangor23[23]. Mr. Obwangor in a speech made in the National
Assembly criticized the government proposals for a new constitution for Uganda. This was
contrary to Section 43(2) of the then constitution of Uganda which provided for collective
responsibility of cabinet members. As a result of the speech, a couple of letters were exchanged
between the two and this culminated in the dismissal of Mr. Obwangor from cabinet. He also had
to cross the floor to the opposition side of parliament.
Key to note is that administrative justice demands some regular efficient and non-political
system of investigating individual complaints against the powers that be and this exactly what
ministerial responsibility does not provide because of its political nature. To deal with this,
administrative tribunals have been set up in Uganda and no minister is responsible for their
decisions although such decisions are subject to judicial review. Evidence of tribunals fully
functioning in Uganda with clear guidelines can be drawn from the different cases such as
Equator Inn V Tomasyan24[24] where it was held inter alia that the chairman’s presence is
necessary before a tribunal has Coram and that a minister has power to appoint persons to a
tribunal.
Human Rights and Civil Liberties.
Human Rights are the rights a person has simply because he or she is a human being 25[25].
These were adopted by the United Nations in 1948 observing them as the foundation of freedom,
justice and peace in the world. It is thus a generally agreed upon issue that a good constitutional
framework must have a Bill of Rights which declare rights available to all in the country. This
principle is very relevant to administrative authorities because through their decisions can either
let people enjoy their inherent God-given rights 26[26] or be denied of them. As already
mentioned they are God given and thus only declared in the Ugandan constitution in Chapter
four.
From a general point of view, the constitution declares equality and freedom from discrimination
in Article 21, right to life in Article 22, protection of personal liberty in Article 23, respect for
human dignity and protection from inhuman treatment in Article 24 a right to a fair hearing in
21[21] - Tumwebaze; Administrative Law and Practices in Uganda, 2007 Page 35.

22[22] - Oluyede; Administrative Law in East Africa 1973.

23[23] - Ibid.

24[24]- [1971] EA 405.

25[25] - http: // www.hrusa.org/ thisismyhome/project/what_ hr.shtml.

26[26] - Article 20(1) of The Constitution of the Republic of Uganda.

 Article 28 and Article 29 provides for the protection of freedom of conscience, expression,
movement, religion, assembly and association. However, Article 43 provides that the enjoyment
of these rights may be limited where they prejudice the rights of others or in public interest.
Over the years, Human Rights abuse has been at deplorable levels in Uganda especially during
the Amin regime 27[27]. The courts however have tried to up hold these rights here and there as
in the case of Uganda V Commissioner of Prisons, Ex Parte Matovu 28[28] where the court
defended the rights of Matovu when it held inter alia that ;
“The Sovereign State of Uganda would not allow anyone to be illegally detained and has the
prerogative right to enquire through its courts into anyone’s loss of liberty by issuing a writ of
habeas corpus, the procedure and nature of which was discussed.”
With the National Resistance Movement government in power, the Human Rights record in
Uganda has greatly improved but still leaves a lot to be desired as we have witnessed unlawful
killings by security forces, mob violence, torture by security agencies, abuse of suspects, poor
prison conditions and arbitrary arrests 29[29]. In a bid to curb the gross Human Rights abuse, the
National Resistance Movement government when it had the 1995 Constitution promulgated
established in Article 51 the Uganda Human Rights Commission and in Article 52 provided for
the roles of the commission which can be summarized as ensuring the observance of Human
Rights in Uganda.
In analysis, the constitutional principles governing constitutional law are; rule of law, separation
of powers, independence of the judiciary, human rights, ministerial and collective responsibility
and I would submit that drawing from the above discussion these principles are to a greater
extent a reality in today’s Uganda. Of course, due to the fact that they have to operate amongst
human beings who are very complicated and versatile beings, these principles cannot operate in
their entirety or strict form; a few compromises and balances have to be implemented to make
them not only practical but also of service in the administration of society.

BIBLIOGRAPHY

BOOKS
 Jones B. L & K. Thompson; Garners Administrative Law, 8th Edition Oxford University Press,
2005.
 Kanyeihamba George William; Constitutional Law and Government in Uganda, East Africa
Literature Bureau, Nairobi ,1975.
 Kanyeihamba George William; Kanyeihamba’s Commentaries on Law, Politics and
Governance, Renaissance Publishing.
 Oluyede Peter; Administrative Law in East Africa, Kenya Literature Bureau published 1973.
 Tumwebaze Ayebare; Administrative Law and Practices in Uganda, Barrister’s Reference Book
Series, 2006.

27[27] - 1971 -1979.

28[28] - [1966] E.A 514.

29[29] - U.S Department of State Human Rights Report on Uganda, 2008.

 Wade H.W and Forsyth; Administrative Law 7th Edition , Published by Oxford University Press
Inc, New
LAWS
 The 1995 Constitution of The Republic of Uganda.
 Mukono District Local Government Ordinance, “ Custody of Primary School Text Books
ordinance” of 2009.
PAPERS
 Twesiime- Kirya Monica; The Independence and Accountability of the Judiciary In Uganda:
Opportunities and Challenges. A Kituo Cha katiba Occasional Publication 2, 2005.
WEBSITES
 www.independent.co.ug/691
 www.kituchakatiba.co.ug/bazara99.htm
 www.state.gov/g/
 www.hrusa.org/thisismyhome/project/what-hr.shtml