THE QUESTION OF THE APPLICATION OF THE RULE OF LAW:

The most articulate statement on the rule of law in modern times has come from the International

Conference of Jurists (ICJ) WHICH IS AN International NGO devoted to human rights and based in

Geneva.

In 1959, the ICJ issued a statement considered to be basic to the rule of law. It contained the following

principles, inter alia:

1. There should be a strong and effective government and by this:

(b) One that can maintain law and order throughout the country and command the obedience of all

decisions;

(c) The citizens in the country should be able to pursue economical, political, social and other goals.

2. There should be a government of law, to the effect that in exercising its powers, all the arms of

government must operate under the power of the law and must be governed thus. In exercising its

power, this should be in trust of the citizens and so, it should act in their interest.

3. There should be equality of all people before the law and the law must be equally applied to all

irrespective of race, colour, sex, status, etc.

4. The Independence of the Judiciary should be respected and there are a number of components of this:

(a) The nature of appointment must guarantee the greatest possible election of judges;

(b) Judges should be capable and honest;

(c) Judges should have the merit and should be qualified to read and interpret the law as a basic

qualification. Usually, this system of election should ensure that the people qualify. In Uganda, it is the

Judicial Service Commission that appoints Judges / Justices.37

Under the doctrine of the independence of the judiciary, there must be security of tenure for the judicial

officers. Once appointed, Judges should not be removed. There is a process that must be followed.38

The retirement age of the Judges is usually higher than that of other public officers, ensuring maturity

and fearlessness;

(d) There should be adequate remuneration for the judges. A living wage and not an earning wage should

be paid with all the facilities necessary to ensure that they are comfortable and there is no interference

from the outside.

5. There should be respect for basic and fundamental human rights. The law must recognise and declare

the human rights of individuals. These are the civil, political, economical and cultural rights. In most

constitutions, these rights and contained in a separate cap or bill. In the 1995 Uganda Constitution, it

is cap. 4. It is not enough to declare human rights but effective machinery is necessary like the courts

and the Uganda Human Rights Commission, a body charged with the enforcement of all freedoms of

all Ugandans.

6. The rule of law is concerned with ensuring that there is a representative government and this is usually

done by an election, which is free, fair and democratic. It also means that the people can democratically
change their government;

7. The rule of law also means a fair and impartial trial guarantying due process, meaning that all the

principles of natural justice are adhered to.

8. The rule of law also entails adequate systems governing organs and people of the government. The

law governing them should be transparent and effective and that the public officials should be rendered

accountable for the abuse of office/ the denial of people’s democratic rights;

9. The rule of law also demands adherence to International law, i.e., and International law overrides

national law.

37 See article 146-151.

38 See article 144 of the Constitution of Uganda.

10. The rule of law also demands respect of social affairs and their recognition and that people’s rights

should be protected and promoted.

Look at the case of Pedro V. Constable Diss (1981) 2 All Er 59.

THE DOCTRINE OF SEPARATION OF POWERS:

The most direct expression of the principle in modern constitution law can be found in Article 16, of the

Declaration of the rights of man, 1789;

"Any society in which the safeguarding of rights is not assured, and the separation of powers is not

observed, has no constitution".

A classic formulation is to the effect that the three distinct functions of government should be discharged

by three separate agencies and that no individual should be a member of one and the other (Compare

with the 1995 Constitution)

The doctrine is fairly dated and its first normative expression is based on the assumption that concentration

of powers in one person or one organ of government usually leads to tyrannical rule. This theory was

championed by a French philosopher, in his book THE SPIRIT OF THE LAWS, 1878 that when the

legislature and execution powers were united in the same person. To him, any infusion leads to tyrannical

and arbitrary government. His argument was that in order to protect the individual from tyranny of

government there is a need for the 3 separate organs of government to be separate from each other in

terms of powers and in the way the powers are exercised. According to him government is made of the

executive, the judiciary and the legislature. These three should be separate. His basis was the French

government at that time whereby all the powers were concentrated in the monarchy - and this was leading

to tyranny. The French Government enjoyed absolute power. Montesquieu contrasted the French system

of government from the British one. He believed that the British constitutional arrangement had the concept

of separating of powers in practice. Montesquieu said separation of powers essentially means 3 things.

(i) (ii) (iii) Different people should operate each of the organs. In other words, no one single individual

should belong to more than one organ;

Each of the organs of government should be independent/ autonomous of the other;

In summary, the doctrine of separation of powers is about the three organs of government exercising three

powers of government in independence/ autonomy of any other. This is also called the doctrine of pure

separation.

The American constitution is usually cited as one, which separates the powers.

a) b) c) All executive powers are with the President of U.S.A.

All legislative powers, with the Congress and the Senate.

All judicial powers are with the Supreme Court and other courts of law.

But of course, not even here can we say that the doctrine has been applied in totality (for example see

President Clinton’s trial where the Senate exercised Judicial Powers.)

The US system separates personalities and members of cabinet (executive) are not members of congress

and they cannot sit as judges in courts. The Congress only exercises the legislative functions but the

President has to assent to a bill before it is passed into law. The President is elected separately from

congress at a separate election.

The Supreme Court of the US is only concerned with protecting the constitution so it can overturn a

decision of the executive or can overrule a legislation i.e. if it is in conflict with the constitution.

In many other countries like England, the doctrine of separation of powers is much less defined. In England,

the Chief Lord Justice is by virtue of membership of the House of Lords, a member of the Legislature and

also a cabinet member. No modern state exercises pure separation of powers. Rather, they operate a

system of checks and balances which is a modification of the doctrine and it is designed to ensure that

each organ of the state enjoys a balanced relationship with the other and that none of the organs are

capable of exceeding their powers. To borrow the words of Odoki J:

“Although the roles and the responsibilities of the main organs of the state are far different, they are also

closely connected. None of them can work properly by itself. They are like three stones and a cooking pot,

each playing a distinct role but always in co-operation with each other so that if any one of them is removed,

the pot collapses”

So, each of the organs has a distinct role and purpose, but the main idea behind checks and balances is

the prevention of the exercises of monopoly in powers. The other objective / advantage of the doctrine of

separation of powers is that it creates efficiency, bringing with it a cadre of Officers who understand their

work and experienced experts in their fields , thus creating efficiency.

More still, the doctrine aims at creating opportunities and spreading access and input from the different

individuals in the different classes.

38The doctrine of checks and balances basically means that although separate, they should nevertheless

operate in relation to one another. As the representative of the people, Parliament should have the right

to interfere or intervene where the Executive policies are detrimental to the welfare of the community

because they are the voice of the people- the constituency and so should be able to act as the bafour.
Because of this, Parliament should be empowered to drop out the Executive through a Vote of no

Confidence or it can express its displeasure with it for they operate for the needs of the people and this

will help tame the Executive.

Under the system of checks and balances, courts have the duty to uphold and protect the constitution and

to be chief arbitrators over all disputes in the country. Of course, the exercise of the powers will inevitably

conflict with the other powers, but it has always been deemed necessary for the Executive and the

Judiciary to intervene as a check over the legislature from abusing its powers. It is argued that separation

of powers is not desirable because good governance requires that the Members of Parliament serve as

part of the Executive. The idea is that the Executive should get in touch with the needs of the people and

this it can only do when it is part of Parliament for here, the Executive can keep pace with the proceedings

in the House and they can then explain polices of the government directly to the people.

Finally, there are some instances where it is necessary for the Executive to exercise legislative powers

and this arises especially in emergency situations and where Parliament cannot be convened and thus

emergency powers under which the Minister can make law. But these can be abused. (Parliament as

Judicial power e.g. Censorship [Muhwezi]) NB Bills are assented to by the President and introduced by

Cabinet.

How is the doctrine of separation of powers manifest in the 1995 Constitution?

The 1995 Constitution is a hybrid with a combination of not only the Executive and Parliamentary systems

of government, but also has aspects of a Parliamentary system. This hybrid system produces some degree

of tension and even some aspects of conflict between the three organs of the state, i.e. the Executive,

Legislature and the Judiciary, which tensions emerge from different sources which are the nobility of the

1995 Constitution in comparison to the 1967 Constitution which had clearly defined demarcations between

the three organs.

The constitution provides that there are three organs, i.e. the executive, the legislature, and the judiciary.

Art 99 - powers of executive, Art 77 - establishes parliament, 79 - gives functions of parliament, Art 126 -

establishes jurisdiction and power and of the judiciary.

The constitution provides that in terms of personnel, the three organs will as much as possible, employ

different people. Where officers double as members of parliament and of the Executive, there is a clash

with constituency duties as they side more with the executive than.

The constitution recognises that for practical purposes it is impractical and not possible to have complete

separation of powers. For purposes of explaining government policy it is necessary that members of

cabinet sit in the legislature. This is to explain to the legislature what is going on in the cabinet.

It is also the duty of parliament not only to make laws but to ensure that the executive standing committee

carries out its work properly. Art 118 empowers parliament to move a vote of censure against any minister

on specified grounds.

Parliament is supposed to exercise a lot of control over financial matters. PAC and other committees. See
Art 93. Many public appointments can be made by the president but on approval by parliament.

(Arts.111&113). This is to ensure that the appointments made are in the people’s interests. NB recent

approval of judges

Bills can only be passed as law if they are passed by parliament and assented to by the presidentArt 91.

Art 107 the removal of the president may be effected by Parliament.

Art 101, president must address parliament on the state of the nation at the beginning of each session.

QN. How effectively has the doctrine of separation of power been included in 1995
constitution and

does it work in practice?

CRITICISM

1. The Principal is incoherent/hopelessly ambivalent.

5. Executives enjoy massive delegated authority.

6. Judicial review is inhibited (makes judges reluctant to intervene) eg Kanyeihamba in TINYEFUZA’S

case

THE DOCTRINE OF SEPARATION OF POWERS:

The Executive and Cabinet system:

The primary objective of this arm of government is the governance of government affairs especially the

implementation of policies. It contrasts with the legislature that is supposed to formulate laws and the

judiciary supposed to interpret it under article 126 of the Constitution.

The executive authority of Uganda is vested in the President and it must be exercised in accordance with

the Constitution and the Laws of Uganda.

The President is the governor of the country. He shall be Head of State, Head of Government and

Commander in Chief of UPDF and Fountain of Honour. Executive authority means the power to run

government and is basically made up of five different elements:

(1) He has the duty to constitute the Public Service and other services and organs of the State and other

bodies by appointing competent people on the chair subject to their qualifications

The President exercises all executive powers although s/he does so with the support or assistance from

other organs or individuals. The Constitution therefore, establishes other constitutional offices, which are

for purposes of assisting the president in executing his functions. These offices are usually regarded as

part and parcel of the executive (What is the status of State House appointees?).

Executive authority normally means power to run the government. So the executive head is always head
of government who will appoint members of government and can remove them whenever he wants

(Cabinet and other officers basically serve at the pleasure of the President: no security of tenure) See case

of Dunn v. The Queen, held that ‘servants of the Crown hold office only during the pleasure of the Crown,

except in cases where it is otherwise provided by statute (part of the original prerogative of the Crown (see

also Rodwell v. Thomas and Terrell v. Secretary of State for the Colonies). This power was confirmed by

the case of Opoloto v. Uganda, where the court held that it was one of the prerogative powers vested in

the Crown and inherited by the President of Uganda, and that to take away that power would require clear

words in the statute (cf. case of C.B. Reilly v. The King, which was concerned with the abolition of an office

by statute). The court would not interfere in the dismissal of the appellant who had been discharged as a

member of the Armed Forces and Chief of Defence Staff because this could ‘embarrass and prejudice the

security of the state.’ Furthermore, in the case of Kayondo v. AG, court held that there was no inherent

right to political office. However, in Tinyefuza v. AG, Justice Kanyeihamba (at p.32) stated that,

41“Where a matter is governed by statute and regulations made there under, the exercise of the President’s

prerogative to affect the same matter in one way or another, even in cases where there may be apparent

omissions in the law is very severely limited.... In this age of modernity, democracy and entitlement to

human rights and freedoms, Opoloto’s case can no longer be treated as good law. The Constitution and

Laws of Uganda have provided clear and emphatic provisions for the removal from office of public officers.

Removal must be for cause and the person affected must be given notice and an opportunity to be heard.

Therefore, this court must confine the Opoloto case to its Four Corners.”

Needless to say, where an Act of parliament contradicts the express provisions of the Constitution with

respect to the exercise of executive power, the Act will be invalid to the extent of the inconsistency. This

was the holding in the case of Fox Odoi-Oywelowo v. AG (Const. Pet. No. 8 of 2003), in which the

petitioners challenged the constitutionality of certain provisions of the Leadership Code Act which

mandated that upon the failure of a Public Officer to remit a declaration of their assets to the IGG, that

person shall be dismissed from office. The court held that this provision contravened several articles of the

1995 Constitution, which provided for a different mode of enforcement of executive power. In other words,

a mere statute could not prescribe a different method of removal of certain public officers as stipulated in

the Constitution. Specific provisions cited included: 60.8 (on the Electoral Commission); 146.7 (on the

JSC); 161.5 (BoU); 163.10 (Auditor General); 165.8 (PSC); 167.9 ((Educational SC); 169.9 (HSC); 238.5

(ULC). Several other Constitutional offices (e.g. Human Rights Commissioners, etc.) must be removed

under the specific provisions, although the Constitutional Amendment Bills wants to change these,

essentially reducing the current protections.