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Administrative LAW Final NOTE

Bachelor of laws (Kampala International University)

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KAMPALA INTERNATIONAL UNIVERSITY

SCHOOL OF LAW
ADMINISTRATIVE LAW (LLB1202)
SUMMARY OF CLASS NOTE

LECTURER EKPENISI COLLINS

COURSE CONTENT AS PROVIDED IN THE REVISED CURRICULUM AND PROGRAMME

FOR THE DEGREE OF BACHELOR OF LAWS (LLB), KIU - SCHOOL OF LAW.

TOPIC 1
Introduction to and Nature of Administrative Law:
• Historical nature of administrative law.
• The social contract and the state.
TOPIC2
Constitutional Framework for Administrative law:
• Administrative law versus constitutional law.
• Constitutional anchor for administrative law.
• The Constitution of the United Republic of Uganda.
• Doctrine of separation of powers.
• The Rule of law
• Human rights
• Democratic governance
TOPIC 3
Administrative authorities
• Central government.
• Office of the President
• Ministers
• Ministerial responsibility.
• Establishment, powers and procedures relating to Administrative authorities.
TOPIC 4
The Civil Service, Local authorities, and public corporations:
• The Civil service versus public service.
• Public standing orders.
• Constitutional Offices.
• Establishment of local authorities.
• Public Corporations.
TOPIC 5
Constitutional principles of decentralization
• Local Authorities
• Devolution and democratization.
• Delegation of powers.

TOPIC 6

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Sources of Administrative Power

• Principal legislation: Acts of Parliament Act; The Commission of Parliament Act;
Interpretation Act.
• Subsidiary legislation or delegated legislation.
• Procedure For Enacting Subsidiary Legislation; publicity, consultation, advice.
• Safe guard and Control Of Delegated Legislation

• Common law and doctrines of equity.

TOPIC 7
Process of government:
• Consultation.
• Public Inquiries.
• Registration.
• Inspection.
• Enforcement of standards.
• Licensing.
TOPIC 8
The Police:
• Constitutional framework.
• The police statute.
• Role of the police in the criminal process.
TOPIC 9
Control of Public Finance:
• Constitutional powers and controls.
• Public Finance Act.
• Auditor General Act.
• Appropriation Acts.
• Public procurement.
TOPIC 10
Tribunals:
• Administrative tribunals.
• Procedure of tribunals.
• Powers of tribunals.
• Constitutional tribunals.
TOPIC 11
Judicial review:
• Appeal and review.
• Procedural defects.
• Non-judicial remedies including proceedings against the Government.
Grounds for judicial review:
• Substantive ultra vires.
• Sub-delegation of functions.
• Abuse of discretion and improper purposes.
• Irrelevant considerations.
• Unreasonableness.

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• No evidence.
• Fettering discretion.
Remedies:
• Prerogative orders.
• Certiorari and prohibition.
• Mandamus.
• Equitable remedies: injunction and declaration, damages.
• Non-judicial remedies: ombudsperson and others.
TOPIC 12
Natural justice:
• What is natural justice?
• Audi alteran partem.
• Nature of the hearing.
• Bias; distinguishing between pecuniary and non-pecuniary bias.
• Scope of natural justice.
• Duty to give reasons.
• Effect of denial of natural justice.
• Error of the record; error of law and fact.
• Estoppel in public law.
Proceedings against government:
• The Government Proceedings Act; the Limitation Act.
• Contracts with or by government.
• Torts by government agents/servants.
• Procedural matters.
Revision and Tutorials

ASSESSMENT METHODS:
• Course work - 30% Examination - 70%

ASSESSMENT PLAN:
• 3-hour written examination Continuous Assessment Test Coursework presentation.

TEACHING METHODS/MODE OF DELIVERY:

• Lecture Tutorials Case studies Group presentations

A NOTE TO STUDENTS:
Structurally, this lecture summary note covers the syllabus of the course. The content of this note is to
provide for ease of reference while studying. For this reason, the contents have been deliberately
compressed without sacrificing the essence. There is a whole wealth of more detailed information
available in textbooks recommended in the section.

In conclusion, it is my sincere hope that you enjoy this course. Best of luck.

TOPIC 1

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INTRODUCTION TO AND NATURE OF ADMINISTRATIVE LAW

1.1 Definition of Administrative Law

Administrative law is the law concerning the establishment, powers, functions and
procedures of public officials and public administrative authorities. Wade In his book Administrative Law,
gives the definition which is based on function. To him, Administrative Law is concerned with the
operation and control of powers of administrative authorities. Then to Griffith and Smith, Administrative
Law determines the organisation, powers and duties of administrative authorities.

Administrative authorities include public officers, government departments, local authorities and other
public bodies that are entrusted with the implementation of policies of government and the enforcement
of laws.

Administrative Law therefore regulates and controls the administrative process.

Objectives of Administrative Law

The general objective of administrative law is to ensure that public authorities act within the confines of
the law and that they make decisions that promote good governance.

1.2 Historical Nature of Administrative Law.

Administrative Law is the law relating to public administration. Administration is the process
of administering, which simply means it is the act of meting out, dispensing, managing, supervising and
executing etc.

In England

In England, public administration by the government grew out of the necessity and the realisation that it
was the duty of the government to meet the needs of the population and to provide remedies for social
and economic evils of many kinds. It was realised and indeed it was necessary that the government cares
for its citizens from the 'cradle to the grave' it was also realised that it was necessary to protect the
environment for the people, to educate them at all stages, to provide medical services, to house them, to
provide them with employment etcetera. The needs were various. Little can be done merely by passing
Acts of Parliament and leaving it to the courts to enforce them.

Before mid 17th century in England, the Justices of Peace were used for all purposes of public
administration up to the lowest level of authority, they received instructions from the crown or the
sovereign through the commissioners of assize and conveyed instructions to the people. They also
received complaints from the citizens and conveyed those complaints to the crown for redress through

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the commissioners. A star chamber was created to punish those who disobeyed instructions from the King.
They also punished those against whom redress of grievances lay. The process was very long and
cumbersome and many grievances and needs remained without redress. In those days the system of
administration as it existed in England today did not exist for example the power of the state or the power
of crown could not be challenged at an administrative level.

A major change in the system of government occurred beginning in the mid 17th century with the
introduction of a representative system of government. Through this system citizens could choose
representatives to present their needs and grievances to parliament for redress. Parliament responded by
enacting a variety of statutes establishing various governmental bodies, organs and offices to provide
various services, to control certain activities such as industrial processes in order to prevent harm to
citizens and to address many other kinds of grievances. The creation of various public bodies, institutions
and offices by statutes to provide public services and to exercise controls meant that two things had
happened, first of all, the public bodies have been given various duties to perform and two, they have
been given powers to exercise their duties including discretionary powers.

The grant of power including discretionary powers, creates the likelihood of abuse of those powers.
Secondly it is always possible for grievances to arise out of the public duty to provide services for example
where a body refused to deliver services and this necessitated the law to govern the public bodies. The
relevant law governing all these aspects of public administration became known as administrative law or
law and administrative processes and this system of law was introduced into Uganda through colonization
in a gradual process which we shall discuss shortly.

Uganda

In its reception of English laws, Uganda inherited English jurisprudence of administrative law into its
domestic legal system at independence. Desirous of fast-tracking the socio-economic and political
development of various societal sectors, the national leadership of the newly independent Uganda adopted
State-centred economy by which the country assumed responsibilities previously performed by private
persons and corporations. The by-product of this was the necessity of creating myriad governmental
agencies such as thecorporations, marketing boards, etc.

At present, there are hundreds of governmental agencies charged with different functions including the
delivery of goods and services, and the enforcement of certain rules and regulations.

The principal institution driving the machinery of administrative law is the executive branch of
government. Thus, Art 99 of the Constitution of Uganda 1995, provides that the executive power is vested
in the President and Article 99 (4) provides that subject to the provisions of this constitution, the functions
conferred on the president by clause (1) of this article may be exercised by the president either directly or
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through officers, subordinates to the president. Such powers extend to the execution and maintenance of
the Constitution and all laws made by the Parliament and all matters with respect to which the Parliament
is competent to make laws. It is the process of executing this power that makes up the administrative arm
of government and administrative law.

Therefore, the study of administrative law is the study of how the President carries out his enormous
duties through the ministries, public corporations and other government agencies in accordance with the
provisions of the constitution, thus maintaining the rule of law which is the president’s primary function.
Also, this study is important because it is through these agencies that citizens have their closest contact
with government.

1.3 The Social Contract and the state.

According to Hobbes (Leviathan, 1651), the state of nature was one in which there were no
enforceable criteria of right and wrong. People took for themselves all that they could, and human life
was “solitary, poor, nasty, brutish and short.” The state of nature was therefore a state of war, which could
be ended only if individuals agreed (in a social contract) to give their liberty into the hands of a sovereign,
on the sole condition that their lives were safeguarded by sovereign power.

The social contract theory is not only the most ancient but also the most famous of the theories regarding
the origin of the state. The substance of this theory is that state is the result of an agreement entered into
by men who originally had no governmental organisation. In the first period there was no government
and no law. The people lived in a state of nature. After some time they decided to set up a state. That they
did by means of a contract.

The social contract theory described the original condition of men as the 'state of nature'. To escape from
the condition of the state of nature man made a social contract. To some writers the contract was pre-
social and to others it was pre-political.

Writers on this theory are agreed on the point that the state of nature preceded the establishment of
government there was no organised life in the state of nature. Each lived according to his own wish and
fancies. No man made laws were there to control man. The law known to men living in the state of nature
was the law of nature or natural law. There was none to interpret the law or adjudicate. Hence men lived
under uncertain conditions.

When men felt the need to escape from this type of life he did so by common agreement or contract. As
a result of this, a civil society was created. Thus creation of civil society preceded the emergence and
proper administration of the State. Hence, administrative law.

TOPIC 2: CONSTITUTIONAL FRAMEWORK FOR ADMINISTRATIVE LAW

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2.1 Administrative Law Versus Constitutional Law.

Administrative law and Constitutional law are two branches of law that play integral roles in governing
the activities of the government and its administrative organs. While they are distinct fields, a significant
overlap exists between them, referred to as the watershed area in administrative law.
Constitutional and administrative law are related in that they both govern the actions of the government.
Constitutional law governs the highest parts of government: the executive, judicial, and legislative
branches. Administrative law governs the lower agencies in government that report to these main
branches, especially the executive branch. Morealso, both branches of law are concerned with the
distribution and exercise of governmental powers and functions. Constitutional law provides the
overarching framework for the exercise of these powers, while administrative law ensures that they are
carried out in a fair, just, and accountable manner.
The following are the differences between Administrative Law and Constitutional Law:
• Administrative Law is subordinate to the constitutional Law. Constitutional Law is the supreme
and highest law of the country.
• Administrative Law mainly deals with the various functions of the state. Constitutional Law
mainly deals with the structure of the state.
• Administrative Law doesn't deal with all branches of law, rather it details with the powers and
functions of administrative authorities. Constitutional Law touches all the branches of law and
gives guidelines with regard to the general principal relating to organization and powers of organs
of the state, and their relations between citizens and towards the state.
• Administrative Law does not deal with the International Law. It deals exclusively with the powers
and functions of administrative authorities. Constitutional Law also gives guidelines about the
intentional relations.
• Administrative Law deals with the powers and functions of administrative authorities, including
services, public departments, local authorities and other statutory bodies exercising administrative
powers, quasi-judicial powers, etc. Constitutional Law deals with the general principal of state
pertaining to all branches.
• Administrative Law is concerned with the organization of the services or the working of the
various government departments. Constitutional Law demarcates the constitutional status of
Ministers and public servants.

2.2 Constitutional Anchor for Administrative Law.

Administrative Law is grounded on some Constitutional foundations. The
understanding of constitutional provisions is vital in so far as it enables the public administrator to assess
the constitutional implications of all intended actions.

The Constitution of Uganda (1995) is a fundamental document that governs all aspects of life within the
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country. The constitution gives a broad framework for allocation of state powers. It establishes and
allocates power the main organs of the state i.e the President, Parliament and the Judiciary. It also
establishes the major public and constitutional offices. The constitution declares the Human rights of the
individuals and provides the machinery for enforcement of rights and freedoms. The constitution also has
provision relating for the public service, Local Government, public Finances and Security.

Thus, many aspects of the constitution and constitutional law have a direct relevancy to the practice and
enforcement of principles of Administrative law.

2.3 The Constitution of the United Republic of Uganda.

The constitution of Uganda (1995) is a fundamental document that governs all aspects of life within the
country. The constitution gives' a broad framework for allocation of state powers. It establishes and
allocates power to the main organs of the state ie the President, Parliament and the Judiciary. It also
establishes the major public and constitutional offices.

A comprehensive study of the constitution is reserved for the public law subject of
constitutional law. However, the basic constitutional law principles of direct concern to public officers
and Administrative law as follows:

2.3.1 Supremacy of the Constitution

Art 2 of the Constitution provides that "This Constitution is the supreme law of Uganda and shall haw
binding force on all authorities and persons throughout Uganda. (2) If any other law or any custom is
inconsistent with any of the provisions of thin Constitution, the Constitution shall prevail, and that other
law or custom shall, to the extent of the inconsistency, be void".

The import of the article is that all action, laws, practices, codes of conduct, beliefs are subordinate to the
provision of the constitution. The supremacy of the Constitution cannot be overemphasized. We are all
bound by it in its Article 2. Manyindo DCJ (as he then was) in Major General David Tinyefuza v. AG
Constitutional Petition No. 1 of 1996 p.69 observed; '

"... once a polity has enacted a constitution then the rule of law, that is the constitution becomes the
cornerstone of all laws and regulates the structure of the principal organs of government and their
relationships with their relationships to each other and to the citizen, and determines their main functions.
Needless to emphasize, all laws must conform to the Constitution as the supreme law of the
land. It is the constitution, and not the Executive, Legislature or Judiciary, which is supreme. Under
Article 2 (I) and 2 of the Constitution it its binding force on all authorities and persons throughout
Uganda." .

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Anything done in contravention of the constitution is void and of no legal effect. In the case of
Semogerere Vs Attorney General a petition was filed to nullity the Referendum Act which was allegedly
passed by parliament without the required quorum set by the constitution. The constitutional court
declared the law a nullity and Parliament had to reconvene to enact on new Referendum Act which
legalised the conduct of the referendum in 2001.

2.3.2 Doctrine of Separation Of Powers.

The Doctrine was formulated by a French Philosopher called Montesquieu. Accordingly to Montesquieu
in his book “The Spirit of the Laws” [1748], there must be 3 separate organs of government.

There must be the organ that makes law i.e. Legislature

There must be the organ that executes law i.e. Executive
There must be a body to interpret the law and to mediate disputes over the law i.e.
judiciary.

To Montesquieu therefore, separation of powers meant 3 basic things;

• Each organ of the state should be operated by different people i.e. it should not be one individual
running all the 3 organs so that, at no time should a judge make the law nor should he be involved
in an executive function.

• That each of the state organs should be independent of one another i.e. there should be an absence
of control, influence or direction by one organ of state over another i.e. there should be autonomous
operation. No one organ of state should control activities of the other.

• No one organ of the state should take over the power of the other.

The doctrine was exemplified in the case of Major General David Tinyefuza v AG Constitutional
App. No. 1 of 1997. Wherein kanyeihamba JSC noted that the principle of non- interference by the
judiciary in legislative and executive matters should prevail save for exceptional circumstances involving
the deprivation of the liberty of a citizen

Doctrine of Checks and balances

The 1995 constitution has adopted the doctrine of checks and balances to serve as an exception of
separation of power which is to the effect that there is equilibrium between the organs of state which
needs cooperation between the organs of state that is in non-antagonistic relationship.

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 Olum. In this case, the petitioners challenged

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the validity of the Constitutional amendment Act 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 unscathed.

The 1995 constitution has adopted’ the doctrine of checks and balances to larger extent as opposed to the
doctrine of separation of powers as the three organs of government are inter twined in the composition
and duties under the constitution.

- Read Articles 118,121,137,142,91,107 etc ' ’

- Consider the practice of appointing ministers who are also members of parliament.
- Subsidiary legislation by ministers

2.3.3 The Rule of law

The rule of law basically means that functions and powers will be exercised m
accordance with the law. The concept of rule of law was formulated by Prof. Dicey who said that the rule
of law had three meanings.

(a) The absolute supremacy of the law as opposed to arbitrary exercise of powers.
(b) Equality before the law
(c) The supremacy of the constitution

Over the years the basic elements of the Rule of law have been concretised. These include:
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(a) Existence of strong Government

The rule of law requires that there be in place a strong and effective government. Such a government must
be capable of enforcing law and order and protecting individual freedoms and rights. A strong and
affective government must have in placea system of resolution of disputes following the law. Absence of
a strong government leads to anarchy.

(b) Government According to Law

The government must be established in accordance with the existing law. Such laws are the constitution
and election laws. Government must also govern in accordance with the existing law. Such laws must
also not only be existence but must also be fair and aimed at promotion of public welfare. Oppressive and
arbitrary laws cannot constitute a government according to law.

(c) Equality before the law

Just laws should also be administered to guarantee all people equal rights. Law should equally and
consistently be applied to all citizens. Art 21 of the constitution provides that all persons are equal and
order the law. Equality requires treatment of all persons with equity. Consideration should not be given
to colour, place of origin social standing, race economic status, religious inclination or political affiliation.

The constitution however in Art 21 allows affirmative action" (a negation of equality before the law) in
respect of women, children, disability or minorities e.g women are awarded 1.5 points as an affirmative
action for entry in public universities sometimes regarded as positive discrimination.

(d) Independence of the Judiciary

An independent judiciary is a prerequisite for existence of the rule of law. A judiciary is independent
when it is capable of dispensing justice in freely and fairly without consideration of extraneous factors.
An independent judiciary is one that which is capable of making decisions without due regard to executive
or legislative interest or without consideration of a person's social or economic standing.
An independent judiciary can be ascertained from the existence of the following

i. Security of tenure of judges - Judicial officers should hold office without fear of possibility of
loss of office arising from executive decisions. In Uganda High Court judges serve up 65 years of age.
Court of Appeal and Supreme Court Judges serve up to 70 years age. Judges can only be removed from
office for inability to wild office of judge after a recommendation of a judicial tribunal.
Only one judge has ever been removed through such a process.

ii. Terms and condition of service- Judges should be guaranteed salaries and facilities that enable them to
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carry out their duties without social, economic and political influences. In Uganda judges are paid
relatively high salaries which are not subject to income tax.

iii. Qualifications must reflect professional competence. In Uganda judges must have a minimum of ten
years working experience.

(e) Human Rights

The Rule of law requires that rights of persons be respected. Human Rights are fundamental and should
be protected by the state. Such rights include freedom of expression, movement, religious beliefs and
association. These are also rights relating to ownership and enforcement of property and the security of
the person Chapter IV of the Constitution, of Uganda has a declaration of rights and freedoms of persons.
(Please read Articles 20 to 42 of the constitution).

Constitutional rights and freedoms are however not absolute. Rights and freedoms
may be limited in order to protect the rights and freedoms of other persons or public interest (Read Article
43 and 44 of the constitution).

The constitution also gives the machinery for enforcement of rights and freedoms. The enforcement of
rights may be through courts, Uganda Human Rights Commission and other Government Departments
like Probation and Police.

(f) Democratic Governance

The rule of Law can only exist where democracy is in place. The rule of law requires that leaders be
elected by the people through democratic processes. This normally involves free and fair elections
following universal adult suffrage. Democracy also requires periodic elections and accountability of
elected officials.

Article 1 of the Constitution of Uganda provide that the people of Uganda shall determine their leaders
and how they are to be governed through free and fair elections or referenda. The relevant laws giving
effect to this Article is the Presidential Elections Act, The Parliamentary Elections Act and the Local
Governments Act

(g) Sound and effective Principles of Administrative Law

The rule of law requires that there be in place clear rules of procedure to be followed by public officials
that public officials should be at all times balance individual interests against the overall responsibility of
executing public duties. That individual should have recourse to remedies if they are aggrieved against
administrative officials.

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Article 42 of the Constitution requires public officials to exercise Justice and fairness! The Article also
allows unhindered access to courts of law where. persons feel aggregated about an administrative
decision.

Questions

1. “It has been stated that Parliament is sovereign and that the judiciary is subordinate to parliament.
It has also been slated, perhaps paradoxically, that the judiciary is independent. This raises the question
of how such apparently conflicting assertions can be reconciled. Also at the head of the judiciary is the
chief justice who is appointed by the president. In law it is the executive, which appoints all judges”

Discuss the above contention in relation to the legal provisions and practice relating to the principle of
separation of Power.

2. Citing relevant authorities, critically analyze the salient features of the Doctrine of Rule of Law
and its relevance in administrative law.

3. a) With the use of relevant authorities critically discuss the Doctrine of Rule of Law and its
relevance in administrative law.

b) Discuss the law on the doctrine of separation of powers as envisaged in our legal system and
.practice

TOPIC 3: ADMINISTRATIVE AUTHORITIES

Administrative authorities are public officials, bodies, commissions or institutions which are
concerned with:

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a. Implementation of Government policies; and/or

b. enforcement of duly enacted laws.

Public administrative authorities include the entire administrative structure of Government, constitutional
commissions, constitutional officers, public corporations, and administrative tribunals.

Public administrative authorities include the following:

a) President
b) Ministers
c) Permanent Secretaries
d) Public officers employed in the Public Service
e) Local Government and administrative units
f) Constitutional Commissions
g) Constitutional officers
h) Public Corporations
i) Administrative Tribunals
j) Police Force

Our focus in this section is however on the President and the Ministers

3.1 Office of the President

Article 98 (1) of the constitution establishes the office of the president. It provides that there shall be a
president of Uganda who shall be the head of state, head of government and commander in chief of the
UPDF and a fountain of honor.

Article 98 (4) provides that while holding office, the president shall not be liable to proceedings in any
court.

Article 99 (1) provides that the executive authority of Uganda is vested in the president and shall be
exercised in accordance with the constitution and the laws of Uganda.

Article 99 (4) provides that subject to the provisions of this constitution, the functions conferred
on the president by clause (1) of this article may be exercised by the president either directly or through
officers, subordinates to the president.

For this purpose, the cabinet, the ministers, public officers, the police and any person or authority whose
duty involves the exercise of executive power or the performance of the function pertaining the executive
organ of government belongs to and are part and parcel of the executive of Uganda.

Functions Of The President

The president is the head of state and as such, he is the legal symbol of the republic of Uganda symbolizing

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Uganda both at home and abroad. In his capacity as head of state, he plays an important role in
international affairs e.g. representing Uganda at the U.N, A.U and Common wealth, concluding of
agreements of understanding and corporation with other countries. In the same capacity, he appoints
diplomatic officers and Uganda’s representative to international institutions. He is the president of the
national assembly and he ascents bills. He constitutes public officers.

The president is head of government and as such he performs the following functions;

i) Appoints the vice president with simple majority approval of parliament.

ii) Appoints cabinet ministers and other ministers to assist cabinet ministers.
iii) He constitutes the cabinet and appoints the secretary to the cabinet in consultation with public
service commission.
vi) He summons cabinet meetings and presides over them. The vice president presides in the absence
of the president.
The president is the commander in chief of the UPDF and as such is the chairman of the high command
of the UPDF and the chairman of the defense council.
Other powers of the president
a. Article 110 (power to declare state of emergency)
b. He has the prerogative of mercy (Art. 121)
c. Declaration of state of war (Art. 124)
d. Appointment of Judicial officers (Art. 142) and other public officers (Art. 172). While
performing the functions relating to appointments, the president becomes an administrative
authority. Hence he/she is expected to:
i. Comply with the requirements of qualifications relating to particular appointments.

ii. Follow the procedures laid down in the constitution and other laws relating to such
appointments.

e Execution of treaties, conventions and agreements (Art. 123 (1)

3.2 The Ministers

i. The Prime Minister

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He is provided for under article 108 (A). He is appointed by the president with approval of
parliament by simple majority. He is appointed from among members of parliament. Under
Article 108 (A) (2), the prime minister is the leader of government business in parliament and he is
responsible for the coordination and implementation of government policies across ministries,
departments and other public institutions.

He performs such other functions as may be assigned to him by the president or as conferred by the law.
He is individually accountable to the president and collectively responsible for any decision made by
cabinet.

ii. Ministers

Ministers are appointed by the president to head political divisions known as ministries and
departments in Uganda workout the machinery of the government. Ministers are appointed from among
members of the national assembly/parliament or persons qualified to be members of parliament. And
some are assisted by ministers of state appointed by the president from among the members of the national
assembly. Departments are normally nonpolitical and may be headed by permanent secretary or other
appointees though political appointees are not politicians but professionals.

Every minister and department is manned by a body of public officers whose functions include
advising the minister on the policy of the government, its initiation, formation, interpretation and
implementation.

The minister remains responsible for success or failure of the policy.

3.3 Ministerial Responsibility (Art. Ill- Art. 117)

It is provided for under Article 117 of the constitution and involves;

1. Moral responsibility
2. Individual responsibility and;
3. Collective responsibility

Moral Responsibility
> The ministers are expected to give their loyalty whenever the state has a claim on their
services.
> Ministers are expected to refrain from subordinating their duties to their private interests.
> Every minister is expected to refrain from associating himself with any financial or other
activities in circumstances where the public will be suspicious that his official position is
being used for private gains.
> They are expected to avoid engaging in any occupation or business which might
prejudice their status as ministers.
> Ministers are expected to maintain the high moral standards.
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Individual Responsibility
> The minister must protect and defend his civil servants who have carried out explicit
order of the ministry.
> A minister must also defend a civil servant who acts improperly but within the policy.
> Where a civil servant makes a mistake, the minister must accept it as his own and promise to take
corrective action within the department. However if the action of the civil servant is extremely
wrong, the minister has no obligation to defend the wrong civil servant. Never the less the minister
remains responsible for anything that has gone wrong.
> A minister is not allowed to throw responsibility for the ills of his department on his
ministerial colleagues.
Collective Responsibility

Art. 117 provides that ministers shall be accountable to the president for the administration of
their ministries and collectively responsible for any decision made by the cabinet.

Collective cabinet responsibility implies the following;

A. cabinet unanimity: this requires ensuring that there is a body that takes decisions collectively and
without disappointments. Once a policy has been accepted by the cabinet, all ministers are responsible
for that policy. If a cabinet minister does not accept it, he or she must resign, all decisions of cabinet bind
all ministers present or absent at the meeting.

B. openness and sincerity: in cabinet meetings, each minister is expected to be sincere and open with his
colleagues. Each minister is expected to raise in the cabinet any matter that may be worthy of
consideration by the cabinet.

C. secrecy: is deemed by law and oath taken when assuming office for any public officer to
reveal to an outsider without superior authority what has come to his knowledge in the course of the public
duties.

D. effectiveness: cabinet responsibility means that the cabinet must be effective and able to
control every aspect of public administration in the country.

E. ministerial solidarity: this means that ministers are expected to behave like brothers or
sisters. They should not attack each other in public.

In Hon. Andrew Baryayanga Aja V the Attorney General of Uganda (Constitutional

Application No. 2 of 2013) Court stated that:

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The functions of the cabinet are, pursuant to Article 111 of the Constitution, to determine, formulate and
implement the policy of Government and to perform other functions conferred by the Constitution or any
other law. The President, Vice President, the Prime Minister and Cabinet Ministers, Constitute the cabinet.
Ministers are accountable to the President and are collectively responsible.

Past Examination Questions

Mayanja is a newly appointed president of the Republic of Uganda and he has successfully assumed office
after being sworn in. He has appointed Kitirima as the vice president, Mahoro as prime minister arid
several cabinet and state ministers to have a fully constituted executive. The president has accordingly
organised a retreat session where he intends to brief his cabinet on his leadership ideology of new nation
order and democracy.

The session is also aimed at emphasising and observing rule of law and constitutionalism. The president
wishes to conduct several lectures and orientations on rule of law, to ensure proper governance of the
country. He has directed his secretary to identify various scnolars to orient his cabinet. The secretary has
identified you as one of the qualified persons and demands that you prepare a brief orienting the cabinet
on the following;

a) The duties, functions and disqualifications of the president, vice president and prime
minister.

b) The responsibilities of ministers.

TOPIC 4: THE CIVIL SERVICE, LOCAL AUTHORITIES, THE LOCAL GOVERNMENT

SYSTEM, AND PUBLIC CORPORATIONS

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4.1 The Civil Service Versus Public Service

The term "Public service" is sometimes confused with "Civil service". They are often used
interchangeably, but they have distinct meanings, especially in a scholarly context. Understanding the
difference between these two concepts is important in the fields of public administration, political science,
and government studies.

Civil service is a narrower interpretation of public service in so far as it is taken to mean service in any
extreme governing department excluding government service in corporations, parastatals and
commissions. This is to mean that Civil servants refers to persons who are employed based on meritocratic
principles, such as competitive examinations or credentials (rather than being appointed or elected), and
deployed to government ministries and departments.

The main purpose of the civil service is to implement the policies and laws enacted by the government in
a neutral and efficient manner. Civil servants are supposed to be politically neutral and dedicated to the
service of the state regardless of the ruling government. Their employment is permanent and pensionable.

The Public service on the other hand is a broader concept. The "Public Service” is defined as 'service in
any civil capacity of the government the emoluments for which are payable directly from the
consolidated fund or directly out of monies provided by Parliament.

This definition covers all persons who are appointed by the Public Service Commission , Judicial Service
Commission, Education Service Commission and the Health Service Commission.

Appointments

i) The appointments in the Public Service are entrusted to the Service Commissions, for example:

Art 166 (1) (b) of the Constitution provides that the function of the Public Service
Commission shall include: “to appoint, promote and exercise disciplinary control over persons holding
office in the Public Service of Uganda.

The Public Service is governed by the Constitution, the Public Service Act, Public Service standing orders
and Public Service Regulations, Employment Act 2006.

ii) Appointments in the Public Service must follow Public Service standing orders or regulations.

iii) All appointments must be in writing. In the case of Kayondo Vs Attorney General (1989)
KA.LR 37, Kayondo's case for unlawful deprivation of office was dismissed because he had not been
appointed in writing. He had been appointed by radio announcement as High
Commissioner in London by no evidence of appointment in writing was presented to court.
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iv) Appointments in the Public Service may be on the following terms:

• Temporary
• Probationary
• Contract
• Permanent and Pensionable

Terms and Conditions of Service

It is the duty of the Public Service Commission to recommend to Government on terms and conditions of
service. The applicable terms and conditions of service are contained in the standing orders.

The terms and conditions of service relate to:

• Salary
• Allowances
• Conduct
• Termination of service
• Vacation of office
• Entitlement on retirement

Security of Tenure

Prior to the enactment of 1995 Constitution, public officers did not guarantee constitutional tenure of
office. This position however is no longer tenable as the 1995 Constitution (Art 28, Art 42, Art 166), the
Public Service Act, Standing Orders and Regulations have elaborate provisions that must be followed in
all cases which include disciplinary action.

The disciplinary processes are expected to include the following salient features:

a) Disciplinary action must be initiated by the appropriate officer. This is usually the Head of
Department who determines and documents a case for disciplinary action.

b) Disciplinary action must be in respect of breach of standing orders.

c) Disciplinary action can only be handled by the appropriate officer. This can include supervising
officer, head of department, Permanent Secretary and the relevant Service Commission.

d) The public officer must be given notice of the alleged breach and intervention to disciplinary
proceedings. In most cases, this is preceded by supervision or interdiction from duty.

e) Principles of Natural Justice apply to all disciplinary proceedings. This includes the right to be heard
and the freedom from bias.

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f) Punishment can be given the respect of particular breaches of Standing Order. The usual punishments
include; warning, suspension, reduction in rank, withholding a salary increment, termination and
dismissal.

g) Principles of Natural Justice apply to all disciplinary proceedings. This includes the right to be heard
and the freedom from bias.

4.2 Public Standing Orders.

Review the Standing Orders, as referred to as the Uganda Public Service Standing Orders 2021 Edition.

4.3 Constitutional Offices.

Constitutional offices are those offices that are established by the Constitution.

Their functions are also established by the Constitution and the enabling Act of

Parliament. These include:

o Auditor General (Cap. 9-Art 16ff )

o Clerk to Parliament (Cap 6-Art 87 )
o Chief Justice (Cap 8-Art .142 )
o Inspector General of Police (Cap 12 -Art .2)
o Commissioner of Prisons (Cap 12 -Art .216)
o Director of Public Prosecution (Cap 7-Art .120)
o Attorney General (Cap 7-Art .119 )
Constitutional offices operate under enabling laws like National Audit Act, Judicature Act, Police Act,
Trial on indictments Act etc. The relevant Acts will set out functions, powers, procedures and other
operational matters.
3.3 Establishment of Local Authorities.
This sub-topic will be discussed under the unit of local governments

3.4 Public Corporations

A public corporation is a body, which is either established by the constitution or by astatute (law) for
purposes of carrying out specific functions of government. Public corporations normally enjoy special
powers, which are granted by the law and can be exercised for the purposes of achieving the
statutory objectives. They usually enjoy autonomy, planning, budgeting, financial control, management
etc. They are usually set up to attend to those matters which cannot be conveniently carried but within a
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public service. This includes: Uganda Revenue Authority, Civil Aviation Authority, Uganda Railways
Corporation National Housing Corporation, National Water and Sewerage Corporation, Uganda
Investment Authority, National Agriculture Research Organization, Uganda Wildlife Authority -
Uganda National Roads Authority etc.
The public corporation is normally established to cater for those operation which cannot be conveniently
carried out within the established government bureaucracy.

FEATURES OF PUBLIC CORPORATIONS

a) Corporate status as a legal entity,

b) Created by Specific statutes passed by the legislature, which spell out the functions, sources of
funds, management of the relevant corporations.

c) Largely independent of the central government. They are not government they are managed by a
board of directors. However, they are always under the general control of the Line ministers and are
subject to ministerial control.

d) They have perpetual succession and a common seal.

CLASSIFICATIONS OF PUBLIC CORPORATIONS

Public corporations may be classified according to the functions for which they are created, namely.

a) Development corporations.

i. Some development corporations are set up to promote development of a sector of the economy.
I.e. Wildlife Authority, Uganda Tourist Board for the tourism sector.

ii. Some development corporations are set up to provide public utilities, e.g. Uganda national Water
and Sewage Corporation.

NOTE: Many Utility Corporation have since been privatised, i.e. UMEME. In the past, it was argued that
public corporations could generate capital for reinvesting in the economy that it could attract foreign
investment developing infrastructure that was not attractive to private investors etc. but these conceptions
have since been departed from. It is now argued that these functions can be performed better by private
enterprises.

b) Regulatory Corporations. E.g.

i. Uganda land Commission is set up for the purpose of granting alienating and controlling public
land on behalf of the government.

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ii. National Drug authority to regulate the manufacture, importation and sale of pharmaceuticals in
the country.

c) Finance Corporations. Bank of Uganda, Uganda Development Bank

d) Marketing boards. In as much as these have been phased out, they include the Coffee Marketing
Board, Lint Marketing Board.

e) Educational, cultural and public amenities Corporations, e.g. LDC, Makerere University and
UMI (Uganda Management Institute).

f) Cultural. Trustees of Nakivuubo War Memorial Stadium Trust, etc.

PURPOSES OF PUBLIC CORPORATIONS

a) Regulatory purposes, for controlling a particular sector, e.g. Uganda Communication Commission
regulates, issues of License, radio stations and TVs

b) For service delivery i.e. to deliver specialized service.

c) For purposes of handling technical/ scientific matters which cannot be conveniently carried out
within government.

d) For commercial purposes, i.e. to make profits for example Uganda Development Corporation, in
1950’s.

ADVANTAGES OF PUBLIC CORPORATIONS OVER GOVERNMENT DEPARTMENTS

a) It is argued that civil service methods are sometimes slow and inefficient and inappropriate for the
management of a public enterprise. So independent units perform more efficiently government
functions than the bureaucratic civil service.

b) Establishment of public corporations enables the exclusion of direct political control.

c) Public corporations make it easy to take into account the interest and view of other interested parties
by having them represented on board.

d) Establishment of public corporations is a cheaper method of managing public service because it is

possible to introduce commercial principles and make the services pay for themselves instead of
draining the government funds.

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CONTROL OF PUBLIC CORPORATIONS

a) Ministerial control. Although public corporations are supposed to be independent of the Central
Government, they are still subject to control by relevant ministers.

b) Parliamentary control. It is parliament which creates pubic control; likewise they can abolish the
corporations or reduce their powers.

c) Financial control. The statutes creating public corporations require each one of them to break even
especially commercial and industrial corporations. The Act will require that the public corporation’s
account be audited by the Auditor General’s nominee. The accounts are laid before Parliament by
the Line Minister.

d) Judicial Control. Public corporations can sue or be sued, and their decisions or actions can be
reviewed by the high Court and orders of Certiorari and Mandamus etc. can be issued against them.

Past Examination Questions

1. “All Public corporations in Uganda have not served Ugandans to their expectations.” With a
reflection to the above assertion;

a) Discuss the role of public corporations and why you think it is likely that a significant section of
the general public is displeased with their functioning.
b) Discuss in detail the traits, classifications and control mechanisms of public corporations.

2. Philomena an LLBI student comes to you and tells you that,; Public corporations are useless and
needlessly drain our meager resources as a country. We are absolutely better off doing away with them.

(a) Discuss this statement, clearly outlining the role of public corporations and why you think it is
likely that a significant section of the general public is disgruntled with their functioning.
(b) Discuss in detail the traits, classifications and control mechanisms of public
corporations.

TOPIC 5: CONSTITUTIONAL PRINCIPLES OF DECENTRALIZATION

5.1 Devolution And Decentralization.

Devolution of powers is the statutory granting of powers from the central government of a sovereign
state to government at a subnational level, such as a regional, local, or state level.

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Our main focus is decentralization because it is the main Local Government system that is in operation
in Uganda as derived from the National Objectives and Directive Principles of State Policy which are part
of the Constitution of Uganda. Background to Decentralization in Uganda

The Government of Uganda set up the Mamdan Commission in 1986 to inquire into the local Government
system in Uganda. The commission recommended the decetralised system of government in order to ease
the governance problems in Uganda. Decetralisation was not imposed by donors, "but it is home grown".
Since 1993, Government has persued a decentralized system of government, under which political,
administrative planning and financial powers were transferd from the central government to local
governments and administrative units. .Uganda's decetralisation policy is outlined in chapter 11 the
constitution. It is amplified and operationalized by the Local Governments Act. The reform is generally
intended to make Local governments effective centres of self- governance, participation, local decision-
making, planning and development.

Definition

Decentralization is a process of dispersing decision making and implementation from the central
government to lower government units. It also includes delivery of services at lower levels of
governments. Such decisions ,implantation and services may relate to planning for local areas, raising of
local revenue, management of resources, accountability for public resources and promotion of public
welfare.

The Legal Framework for decentralization

The 1995 Constitution sets the following as the tenets of Uganda's decentralization:

1. The state shall be guided by the principle of decentralization and devolution of governmental
functions and powers to the people at appropriate levels where they can best manage and direct their
own affairs.
2. The system shall be such as to ensure that functions, powers and responsibilities are devolved and
transferred to local government units in a coordinated manner.
3. Decentralization shall be a principle applying to all levels of local government and in particular, from
higher to lower local government units to ensure people's participation and democratic control in
decision making.
4. The system shall be such as to ensure the full realization of democratic governance at all local
government levels.
5. There shall be-established for each local government unit a sound financial base with reliable
sources of revenue.

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6. Etc

Reasons for Decentralised of powers

Decentralization is justified on the following grounds:

1. It enables the public to participate in decision making.
2. It brings services closer to the people.
3. It promotes accountability of public officials.
4. It minimizes bureaucracy.
5. It creates efficiency in government operations.
6. It allows optimum utilization of resources.

5.2 Local Government System in Uganda

Art 176 of the Constitution puts in place the principles of decentralization. The Article provides that the
Local Government shall be based on the district and lower local governments and administrative units as
Parliament may be law provide.

Art 178 of the Constitution allows two or more local governments to form a regional government. This
aspect is yet to be operationalized in both law and fact. This part will therefore discuss districts and lower
local governments.

Powers of Local Governments

The powers of local governments are derived from the Constitution, the Local Governments Act and other
Acts of Parliament some of which are indicated above. The various powers of local governments include:

1. Executive powers
2. Legislative powers
3. Planning powers
4. Financial powers

Executive Powers
The Constitution gives executive powers to local governments under Article 180. The executive powers
of a local government are entrusted to the Local Council. Under S. 17 of the Local Governments Act, the
Executive Committee of a Local Council performs the executive functions of a Local Council. In effect,
the Executive Committee is a delegate of the Council. Executive functions relate to the formulation of
policies and supervision of implementation of policies.

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Legislative Powers
The legislative powers of local governments are derived from Art 206 (2) (a) of the Constitution. It
provides that Parliament shall make laws enabling local governments to make laws, regulations or other
instruments for the administration of their areas of jurisdiction. Pursuant to this article, the Local
Governments Act has provisions relating to local government legislation.

Procedure of making Local Legislation

The Local Governments Act does not give a detailed procedure for the discussion of a bill. The councils
are advised to borrow from the parliamentary procedures where they are applicable. Local governments
can also develop their own procedures as provided for in section 11(9) (b) of the. local governments Act.

Initialing a bill

Reg. 15 of the third schedule provides that a bill for an ordinance can be initiated by any member of a
district council or city council in his .or her council. A bill for an ordinance is first introduced by a motion
to which the proposed bill is attached. The following steps are recommended;

1. The initiator of the bill writes to the clerk to council giving notice of intention to move a motion in
the council introducing a bill for an ordinance. The clerk to council circulates the motion to all members
of the council.
2. The motion is moved in the council on a given date and must be seconded by at least one member of
the council before it is debated. If the motion is not seconded then is left out and therefore, no debate
takes place. However such a motion can be moved on a subsequent date.
3. After secondment, the speaker reads out the motion to the council in torm of a question. This process
is called "proposing the question from the chair". It should however be noted that the motion to be moved
should not be the same as one that council has taken a decision on in the same session or even pending a
decision or one which is inconsistent with a resolution of council. When the debate on the motion is over,
the speaker reads it to the council and directs a vote on it..

Publication of the bill

Regulation 16, 3rd schedule of the Act provides that the motion that is carried by council should be
published not later than fourteen (14) days before the council debates the motion. The law provides the
following methods of publication

1. Fixing a copy of the bill in a conspicuous place on or near- the outer door of the office
of the district council dining office hours
2. Including the bill is a supplement to an official local publication if any
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3. Availing copies of the bill to the general public.

4. Publishing or distributing it in any manner that is customary to the area.

On publication of the bill, it is referred to the appropriate standing committee for examination and further
scrutiny. The committee examines the bill in detail and makes all inquiries in relation to it, as it deems
fit. This is done within the fourteen days as prescribed in regulation 20 (1) of the 3ftl schedule of the Local
Governments Act.

Debating the bill

Debating a bill is done by full council. The clerk to council or whoever is designated reads the title of the
bill to the council so that the members attention is drawn to the particular bill. The speaker then calls upon
the member who initiated the bill to open. The debate by addressing the council on the bill. The standing
committee's report on the bill is presented to the council by the chairperson / member of the committee.
The bill is debated on the basis of the presentations of the initiator and the report from the respective
committee. The bill is passed in clauses. Where an amendment is proposed on a clause, then the clause is
deemed to have passed with amendments. New clauses can be introduced during the passing of the bills
as an amendment. All proposed amendments are made in writing. The motion will be considered passed
if a motion without debate is moved and the question put by the speaker "that the bill do pass"

Role of the minister

The clerk to council notifies the speaker and chairperson and forwards the passed bill to the minister.
Section 38 (2) (3) of the Local Government Act provides that a passed bill shall be forwarded to the
Attorney General through the minister to certify that the Bill is not inconsistent with the constitution or
any other law enacted by parliament. Where the local bill is found inconsistent as specified above, the
minister returns the bill with comments to the relevant council for modification or other appropriate
action. The minister must return the bill to the district with in 90 days.

Where a bill is returned certified without recommendations/amendments, the minister signs on the bill
and indicates the date of the signing in five copies.

The ordinance

Once the chairperson signs the bill returned from the minister responsible for local
Government it becomes an ordinance of the district Council. The chairperson signs five copies to be
distributed as follows:

1. The chairperson -1 copy

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2. The speaker -1 copy

3. The minister -1 copy
4. Attorney General -2 copies one for publication in the Gazette.

Planning Powers

Local Governments are given power to draw up development plans for their local areas. The local
development plans are supposed to be integrated into natural plans by the National Planning Authority.

Financial Powers

The financial powers of local governments are based on the following constitutional principles:

1. Local governments must have a sound financial base with reliable sources of revenues.
2. Local governments must be able to plan, initiate and execute their own projects and programmes
within their local areas.

Sources of Local Government Finances

The fifth schedule of the Local Government Act spells out the regulations governing the Local
Governments revenue. The sources of revenue for Local Governments include:

Grants to Central Government

Article 193 of the Constitution and S. 83 of the Local Governments Act provides that the President shall
for each financial year propose grants to be approved by Parliament for purposes of financing local
government operations. These grants include: ‘

a) Unconditional grants
b) Conditional grants
c) Equalization grant

Taxes, Fees, Charges, etc

Article 191 of the Constitution and S. 80 of the Local Governments Act allow local governments to levy,
charge and collect fees and other taxes, including rates, rents, royalties, stamp duties and registration and
licencing fees.

Local Service Tax

This tax is levied under; the Local Service Tax Act 2006. It is based on productive activities of the
population.

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Borrowing
Local Governments have powers to borrow funds for purposes of its operations.

Investments
Being corporate bodies Local Governments are also may make investments and can therefore receive
funds as returns on investments. This is rare given the levels of funding.

Controls over Local Government Financial Powers

There are various controls that ensure that Local Government financial powers are not abused. These
include:

1. Planning Process
Local Governments are expected to appropriate funds to the projects and programmes that Have been
agreed upon in their development plans
2. Budgetary Process
Under S. 77 of. the Local Governments Act, local governments have powers to formulate, approve and
execute their own budgets. Under S. 81, no funds may be appropriated except in accordance with a duly
approval budget.
3. National Priorities
Local Government budgets must reflect national programmes priority areas. It is tire duty of the Local
Government Financial Commission to advise the President where a local government fails in this
obligation. It is expected that the President will take appropriate action.
4. Accounting Officer
The Chief Administrative Officer is also the accounting officer. He/she takes responsibility to ensure that
all financial transactions conform to budgets and the Local Government financial regulations, procumbent
and other accountability laws. The accounting officer is answerable to Parliament and can be personally
held responsible for any financial loss.
5. Internal Auditor
This is a statutory office which has responsibility of ensuring that all financial expenditures are incurred
in accordance with the relevant regulations and standards.
6. Inspectorate of Government
Inspectorate of Government has constitutional and statutory powers under the Leadership Code Act to
investigate any cases of financial indiscipline.
7. Auditor General
Auditor General audits all Local Governments books of account and makes reports to Parliament and the
District Public Accounts Committee.
8. Resident District Commissioner
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Under S. 71 of the Local Governments Act, the Resident District Commissioner has powers to monitor
activities of a local government and can draw to the attention of the Auditor General the need for special
investigation audits.

Legal Liability of local governments

S. 6 of tire Load Governments Act provides that a Local Government Council shall be a body corporates.
The implication of that is;

1. It has perpetual succession i.e. it continues in existence irrespective of the nature of holders of office
at a particular time.
2. It has a common seal - all transactions are evidence by affixing thereto a seal as a
symbol of authentication.
3. It may sue or be sued in its corporate name. Individual district officers faithfully acting in accordance
with the law and on behalf of the Council do not incur individual liability. .The Council is
vicariously liable for their actions. Likewise, the Local Councils have powers to institute suits in
order to protect their legal interests.
4. It may own property in its own name. This includes movable and real property. It is therefore subject
to all rights and obligations relating to ownership, control and use of property as if it was a private
individual.

Central Government Controls

The Local Government Act gives various controls in which the Central Government is given power to
ensure that powers are exercised in a particular way. These controls are put in place:
1. To ensure compliance with laws.
2. To ensure compliance with national policies.
3. To ensure compliance with government procedures. .
4. To ensure efficiency in operatives.

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The Controls
Ministry of Local Government.
Under S. 98, the Ministry of Local Government has statutory powers to monitor and coordinate the
activities of local governments.
Minister of Local Government
Minister of Local Government has powers to interfere where a local council is exercising powers
unlawfully or inefficiently.
Inspectorate of Government
The Inspectorate of Government has powers under the Leadership Code Act and Inspectorate of
Government Act to take action where there suspicion or allegation of corruption and other forms of abuse
of powers in a local government.
Public Service Commissions
These Commissions have constitutional duty to guide and coordinate the activities of the District Service
Commission.
Office of the President
Under S. 110 of the Local Governments Act, the President may take over the
administration of a District under the following circumstances:

1. Where the District Council request so.

2. Where a state of emergency exists in the District of Uganda generally.
3. Where it has become extremely difficult for the district government to function.

5.3 DELEGATION OF POWERS

Delegation of powers and functions is an administrative process where the powers and functions for the
superior officer are carried out by an authorized junior officer. Under Administrative Law, the
maxim, Delegetus non potestdelagara is always invoked. It essentially means that a delegate cannot sub
delegate what he is supposed to do. Otherwise the courts would condemn as ultra vires the actions taken
by people not specifically authorized.

Executive Delegation

Articles 99 (4), (5) of the Constitution allow the President to delegate some powers.

In Amos Mugisha v. Uganda the applicant was detained under a detention order which was signed by
the minister for the president and was authenticated by a public seal. Upon challenge of such order, the
Court noted that whereas the power to make a detention order in this country, (S.1 Public Order and

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Security Act 1967) is vested in the president, such power may be exercisable by such minister as the
President may authorize on that behalf. It is clear that the president may delegate his power or authority.

Ministerial Delegation

When powers are conferred upon ministers who are in charge of large departments, it’s obvious they will
not be exercised by the ministers in person. Officials in the ministers department acting in his name,
customarily exercises these functions. In Carlton Ltd v. Commissioner of Works [1943]2 ALL ER
.560 the owner of a factory, challenged a wartime requisitioning order made on behalf of the
commissioner of works which was signed by an assistant secretary claiming that it was ultra
vires however, the Court of Appeal held that this procedure was open to no legal objection. Lord Green
Said “…It cannot be supposed this regulation meant that in each case the minister in person should direct
his mind to the matter. The duties imposed upon ministers and powers given to ministers are normally
exercised under the authority of the minister by responsible officials of the department. Constitutionally,
the decision of such an official is of course the decision of the minister. The minister is responsible; it is
him who must answer before parliament for anything that his officials have done under his authority.”

Justification For Delegation Of Powers

1. Nature of duties- senior officers are always given numerous duties which are equally important
and have to be discharged within a limited period. It thus becomes legally logical for such
officer to delegate some of the tasks to their juniors.

2. The requirement of efficiency and timely delivery of services.

3. Delegation ensures personal development thus capacity building.

4. Specialization of functions- Delegation may be done with a view that particular officials will
concentrate on particular areas

5. Civil servants who excel are recognized. See Article 99 (3) and (4)

6. Delegation of powers in Uganda is covered by the Common Law.

Actions taken by people who do not possess power or have authority to do so may be condemned as ultra
vires. In Vine v National Dock Labour Board, The plaintiff was a recognized Dock worker employed in
the reserve pool but the National Dock Labour Board under a scheme set up under the Dock workers. The
National Board had the duty of delegating as many as possible functions, inter aliapowers to the
disciplinary committee. After the plaintiff failing to obey a valid order, his employment was terminated
and then dismissed. It was held inter Alia that the plaintiff’s purported dismissal was a nullity since the
local board had no power to delegate its disciplinary functions. Judicial authority normally cannot be
delegated.

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In Barnard Others v. National Dock Labour Board the power, to discipline the Dock workers was
vested in the Dock board. However, Barnard was disciplined by the Dock manager. It was held that the
local board had no power express or implied to delegate its quasi-judicial disciplinary functions to the
port manager or to ratify his purported exercise of these functions and the original notices of suspension
were therefore a nullity and the decisions of the appeal tribunal based on these grounds were equally a
nullity.

Ratification

Ratification is a process where a public official acts without authority, but his act is subsequently
approved by the rightful authority. Ratification can cure all anomalies of a citing without authority if it is
done before the act done becomes a subject of dispute. In Municipal Council of Mombasa v Kala
[1955]22 EACA .319 the bylaws of the council empowered the workers board to demolish all buildings.
Kala’s building was demolished and Kala sued the board for trespass and demolition of the building. It
was held that the demolition of the building was a tortuous act against the owner, because the serving of
the notice by the town council and the engineer was ultra vires to their powers, that the purported
ratification by a full board could not cure the invalidity of the notice.

Previous Examination Questions

Previous Examination Questions

1. One of the democratic principles, set out in the National Objectives and Directive Principles of
State Policy state that, "the state shall be guided by the principle of decentralization and devolution of
government functions and powers to the people at appropriate levels where they can be best managed and
direct their own affairs."

(a) Discuss how the institutional framework of the local government in Uganda is meant to give
effect to the above principles.

(b) How does the central government monitor and supervise activities at local government level in
Uganda?

2. Hon. Kente is a newly elected District Councilor for Ntuusi Town council, Ssembabule District.
He is in your office and informs you that he is green about the law-making process and how business
operates at the District council. .

Critically analyze and advise him on the law-Making process by Local Governments?

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TOPIC 6: SOURCES OF ADMINISTRATIVE POWER

6.1 Principal legislation: Acts of Parliament Act; The Commission of Parliament Act;
Interpretation Act.
Legislation is that source of law which consists of declaration of legal rules by competent authority.
Legislation constitutes the single most important source of law in society. Legislation is the framework
by which Governments achieve their purposes. To politicians and administrators, legislation is the means
to attain their economic cultural, political and social policies. It is the means by which government is able
to govern.

Principle Legislation are laws made by parliament under the authority conferred on it by Article 79 of the
Constitution. Principle legislation refers to Acts of Parliament. The general procedure relating to
legislation is contained in the constitution, the Acts of Parliament and the rules of procedure of Parliament.

General Characteristics Of Acts Of Parliament

• Every Act of parliament will have an objective i.e. what it sets out to achieve.

• Acts of parliament always have administrative framework for carrying out or

implementing the law and may include statutory bodies, public officials, local authorities, licensing
bodies etc.

• Acts of parliament will always provide for things which are allowed and things which are prohibited
under the law.

• They have sanctions which may be enforced against those who violate the provisions of the statute.

• They give powers to other authorities to make rules and regulations necessary for
implementation of the Act of parliament.

Mandatory And Optional Provisions Of Acts Of Parliament

An Act of Parliament may give various powers to institutions and public authorities which are created for
purposes of implementing the provisions of a particular statute. It is important to establish whether a
particular public clause giving power to a particular public official is mandatory or optional.

Mandatory clauses:

These impose a duly upon a public authority. Such a duty may involve an obligation to do a particular
thing in a particular way, at a particular time or following a particular procedure. Mandatory clauses are
usually drafted in a style which suggests that a particular act must be done. The usual clause uses words
which impose a duty e.g. “shall do".

Optional Clauses:
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These give powers of discretion to a particular public official or body. They may take any of the following
forms;

I. They may exist where there is freedom to determine whether a particular act should be
done or not done. E.g. the police have discretion to allow a public assembly or not.

2. It may also involve power to determine how things should be done. Discretionary powers
are usually ascertained by words or phrases used e.g. the word “May".

Process Of Enacting Principle Legislation

In making laws, parliament uses procedure adopted and laid down by law. The executive must approve
policy that requires legislation. This involves initiation of policy by the professional technical department
in the relevant Ministry. There must be agreement (people must have a basis for discussion). Policy is
discussed and agreed upon in Cabinet.

The agreed policy is translated into a legal provision when the required law is drafted. The first
parliamentary counsel/government draftsman who receives instruction from the relevant government
department does this. At this stage, the parliamentary draftsman will have to decide whether it is an
amendment to an existing law or a substantive change. He will also be expected to ensure that all changes/
likely effects on the existing laws are actually taken into account such that if it requires amendment of the
existing law it should be amended accordingly.

The interpretation Act provides that if a new law is in conflict with an old one, then the new law prevails.
Courts have however refused this position in cases where there is an infringement on peoples’ rights.

The parliamentary counsel after drafting the law (which is now called a bill) will present it to Cabinet for
discussion and approval.

The bill then is presented in parliament and takes three distinct stages:

1st Reading: A simple introduction of the proposed law to the members. It can take as short as one minute.
There is no discussion of the bill at this stage but the minister will have circulated the bill to the members
of the house to know about it before it is presented to parliament and the bill will also have to be gazetted
in the Uganda Gazette. Publication and circulation is to enable both members of parliament and the public
to know about provisions of the bill so that they can contribute to the debate effectively.

2nd Reading: Here the bill is actually discussed. At this stage every member who wants to contribute will
be allowed*to do so either for or against. It is also at this stage that the bill may be referred to a committee
to have an in depth study and make recommendations, whether the bill should be adopted or not.
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Some legislation may be referred to the committee to inquire and to assess the general public mood
towards the bill. Expressions can be called in as well. Parliament is free to get all kinds of information.
It’s also free to consult the relevant Minister to seek clarification/clearance and may disagree with them.
But the minister and his technocrats have a deeper understanding and can advise parliament on how best
to pass the law.

At the end of the second reading it will have been agreed upon almost in its entirety. At this stage formal
amendments are proposed and discussed.

At the end of the second reading the law will have been shaped and will be ready for the third reading.
All amendments that are agreed upon will be noted and incorporated into the main bill by the draftsman
and clerk.

3rd Reading: The bill is read for the third time and this stage involves casting a vote as to
whether the bill has become law or not but this is just formality fat the end of the third reading it is already
law) what is required next is the presidential assent.

Art.91 says that the legislative powers of parliament shall be exercised through bills passed by the
parliament and assented to by the president. Within 30 days after receiving the bill the president may
return it to parliament with a request that a particular provisions be reconsidered or tells the speaker that
he cannot assent to the bill or otherwise assents to it.

Parliament may reconsider the bill or reject the request but if the president returns the same bill Three
times without assent, the parliament will pass the law without his assent.

Art. 91(8) lays down the requirement for gazetting again any law passed by parliament.

The gazette serves as an official public notification that a particular law has actually been passed.

Commencement date: The law may be effective on the day it is passed by parliament after the presidential
assent or it may be left to the minister to make a commencement date.

6.2 Subsidiary Legislation or Delegated Legislation

Whereas legislative power is generally vested in parliament, parliament can delegate to a non-
parliamentary authority like a minister, local authority, Head of department , public authority, committee

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etc. such laws made are called delegated/subsidiary legislation or statutory instruments because they
derive their existence from a principal legislation which is otherwise called a statute. The delegated
legislation should not contradict the principal/parent Act neither the constitution otherwise it would be
declared void for inconsistence with the constitution and or the principal legislation.

The power to make delegated legislation is derived from the Act of parliament (principal or parent
legislation (see Article79 (2) constitution of Republic of Uganda l995).

Types Of Delegated Legislation

1. Orders-usually made by ministers e.g. to dissolve a public body

2. Regulations-by ministers. Regulations are the means through which substantive and detailed law is
made, for example setting out how an Act is to be implemented.
3. Rules-set out procedures or the way in which the parent office deals with applications. May be made
by ministers or if specified in the in the parent Act by a senior judge.
4. Schemes-e.g. schemes made by the charity commission to amend how a charity is governed.
5. Directions-are means by which ministers give legally binding institutions to a public body about the
way it exercises its functions
6. Practice directions-These are rules of procedure issued by ministers or chief justice on how certain
proceedings are to be handled. They usually relate to legal proceedings.
7. Bylaws etc.
The Purpose Of Subsidiary Legislation

1. Technicality of subject matter; legislation on technical matters necessitates prior consultation with
experts and interests concerned.

2. Flexibility; e.g. the fine for adultery in Penal code is 600 and it is difficult to change it because it
requires the whole parliament to sit and reverse it instead of a simple act of a minister.

3. Delegated legislation may be given to the executive in order to relieve pressure on parliamentary
time and enable parliament to concentrate on principles rather than details. If parliament attempted
to enact all legislation itself machinery, the legislative machinery would breakdown due to too
much work(Bills)

4. Emergency action. Deal with emergency without waiting for parliament to sit. However it should
be noted that regulations allowing emergency action apply only in war time.

5. Allows laws relating to technical matters to be prepared by those with the relevant knowledge.

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6. Parliament may not be the best institution to recognize and deal with the needs of local people-local
councillors know

Criticism Against Delegated Legislation

1. As already stated, subsidiary legislation is incompatible with the doctrine of separation of powers
because it invites the executive arm of Government to legislate. This infringes on the principle of
democracy since people are not allowed to make laws through their elected representatives.

2. Both parliamentary and judicial controls which are supposed to regulate subsidiary legislation are
inadequate and they cannot keep watch over all the bye laws and their inadequacies.

3. One of the advantages is that it allows for flexibility but this is at the expense of uniformity. Local
authorities make laws suited to their particular circumstances which lead to different by-laws in
different places. This sometimes thus defeats the. objectives of the parent Act.

4. It is generally un available to the lawyers and the public. This is because too many volumes are
produced every year and keeping an eye on every by-law or SI is difficult.

6.3 Procedure For Enacting Subsidiary Legislation

I. Antecedent Publicity

There may be a requirement for antecedent publicity before a statutory instrument is made. This however,
is not a general requirement. Whether or not antecedent publicity is to be given depends on the provisions
of the parent Act.

2. Consultation

Some statutes require that a minster should, before making SI consult advisory committees, e.g. under the
traffic and road safety Act, the minister is required to consult the national road safety council before
enacting the Statutory instrument relating to road safety.

3. Approval

By-laws of all types require approval. This is necessary to enable the Minister or any approving authority
to exercise control over the law making body. This is to guard against the making of S.Is which are at
variance with the government policies.

4. Posterior Publicity

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Under the interpretation Act, all Statutory instrument must be published. (S. 16 of the Interpretation Act)

5. Laying Before Parliament.

A statutory instrument must be laid before parliament if the parent Act so requires.
Noncompliance with the requirement renders the Statutory instrument ultravires.

6.4 Safe guard and Control Of Delegated Legislation

Reason for control

Delegated legislation is made by non-elected bodies away from democratically elected parliament
members. As a result, many people have to pass delegated legislation which provides a necessity for
control as without control; bodies would pass outrageous and unreasonable legislations. E.g. in the case
of Strickland v. Hayes Borrow Council 1986, where a bylaw prohibiting the singing or reciting of any
obscene language generally was held to be unreasonable as a result the passing of this delegated legislation
was rejected.

1. Control by Parliament. This takes the form of laying delegated legislation before parliament.
An act of parliament may require that rules and legislation made are supposed to be laid before parliament.
This gives parliament an opportunity to scrutinize and criticize those regulations before they come into
force. E.g. Section 38 (3) of the Inspectorate of government Act, No. 5 of 2005, provides that “any
regulations made under this section shall be laid down before parliament within 21 days after publication
in the gazette and shall cease to have effect if Parliament annuls them within 21 days after they are
made… “ however, it should be noted that the issue of whether a provision of laying a legislation before
parliament is mandatory or directory will normally depend on the wording of the statute, that’s why
inStarey v. Graham [1899] 1 QB 406, court found that rules which were supposed to be laid before
parliament but were not, were nevertheless valid.

2. Consultation. Unless the parent act makes it compulsory there is no general duty to consult
interested parties with regard to proposed statutory instruments. It is widely accepted that central
government apartments take great care to consult those bodies likely to be affected by legislation.
E.g. Agricultural Horticultural and Forestry Industry training Board v. Aylesbury Mushrooms
Ltd. [1972] 1 WLR .190. The Industrial training act required the Minister to consult any organization
appearing to be (to him) representative of a substantial number of employers. The failure to consult the
mushroom flowers association rendered any order made under the act ultra vires in so far as it sought to
apply to members of the association.

3. Publication. S. 16 of the Uganda Interpretation Act provides, “Every statutory instrument shall

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be published in the gazette and shall be judicially noticed.” The basis for publication is that in law,
ignorance of the law is no defence.

In Simms Motor Units v Minister of Labour [1946] 2 ALL ER 201, it was stated that a statutory rule
or order must be published in a proper way for the information of the public and those who are bound to
comply with the regulations. However, in R v. Sheermetal Craft Ltd, [1954] 1 ALL ER 542, where
court held that after the statutory instrument has been made by the minister concerned and laid down
before parliament; it became a valid statutory instrument. The other requirements of the act and the
regulation in regards to the printing publishing and issuing of the instrument were merely matters of
procedure and did not affect the validity of the instrument. This was because court was justified that
reasonable steps had been taken to notify all those affected by the statutory instrument.

4. Judicial Control: Courts will normally determine the validity of delegated legislation by
applying the test of ultra vires. This is done on this principle basis.

a) If it violates the fundamental law of the land, especially the constitution.

b) If it is not authorized by the parent Act.
c) If it is passed in bad faith
d) If it is unreasonable
e) If it is vague and uncertain
f) If it sub delegates powers delegated upon it by the statute.
In the case of Kasule v Attorney General, [1971] 29 EA, the plaintiff brought a premium development
bank bond the number of which was drawn for a prize. The government refused to pay the prize to the
plaintiff relying on orders puportingly made by the minister to regulate the draw and imposing condition
that a bond had to be brought more than two weeks before the draw to be eligible. Court held that the
purported orders were ultra vires the Premium Development Bond Act. The conditions were therefore
invalid and plaintiff entitled to the prize.

Past Examination Questions

1. With the aid of relevant authorities, discuss the law governing principal legislation and subsidiary
legislation

TOPIC 7: PROCESS OF GOVERNMENT

7.1 Consultations .

The decision making processes by which an administrative authority carries out its functions includes
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consultations. It is a process by which an administrative authority seeks the views of a particular section
of the public and considers them without necessarily imposing its own views. In effect, government
policies reflect the views of the people. Consultation as a procedural requirement concedes to the fact that
parliament may not have done an exhaustive job hence details of implementation are left to the relevant
department.

The law/statute may impose a requirement for consultation. This is done by way of mandatory provisions.
Such statute must indicate the persons and structures to consult,,
the method of consultations eg public inquiries, press discussions, memoranda, etc Thus, a distinction
must be made between mandatory obligation to consult and discretionary consultation, the latter being a
flexible process which need not confirm with strict procedural requirements, the former is mandated by
legislation and case law which if the procedural requirements are not adhered to, the consultation process
can be challenged by an action for Judicial Review.

It should be noted that where there is no duty to consult but the administrative authority consults anyway,
this could develop into a legitimate expectation as in the case of Council of the Civil Service Unions v.
Minister for Civil Service (supra).

A public body acts ultra vires if it fails to consult where there is a mandatory provision in the relevant
statute to consult. It then becomes an issue of judicial review when challenged. In Rollo Vs Minister of
Town and county planning (1948) 1 ALLER 13, a Minister was obliged under the Town & County
Planning Act to consult with " any local authorities which appear to him to be concerned " before making
an order designating an area as the site of a new town, Bucknill, L..J said " on the one side the
minister must supply sufficient information to the local authority to enable them to tender advise and on
the other hand, a sufficient opportunity must be given to the local authority to tender that advise” therefore
the essence of consultation is to tender genuine invitation extended with acceptable mind to give advise.

It follows that the Regulator must conduct consultation in a transparent manner and should have a
consultation and communications plan in order to develop the consultation process and procedure and
this would require answers to the following questions by each Regulator . ,

• Who will be consulted?

• What subject requires consultation?
• When will consultation start and end?
• Where will the consultation take place? .
• How will the consultation be conducted?
How will consultations be conducted and determining the communication tools are
choices each Regulator must make from a spectrum of communication methods some of which are:
• -formal and informal hearings,
• -roundtable-multi-stakeholder meetings/workshops, focus groups,

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• -consumer education,
• -individual communications,
• -research and surveys,
• -receiving stakeholders feedback,
• -responding to stakeholders on feedback received,
• -media and electronic communications,
• -wrap -up sessions/meeting of the consultation process,
• -funding to facilitate participation by consumers,
• -Communication before, during and after the consultation processes.
It must be demonstrated that the Regulator is unbiased, reasonable, open, fair, firm and
free from stakeholder capture in the conduct of consultation.

7.2 Public Inquiries

Public inquiries are instituted under the provision of Commission of Inquiries Act Cap 166 of Laws of
Uganda. Under the S.2 of Act, the President can institute a Commission of Inquiry into:

• Conduct of a public officer

• Conduct or management of any government department or local institution
- Public welfare
A public inquiry is therefore in respect of matters of public concern. Matters of public concern are those
unresolved issues on which the public need information and apportionment of responsibility.

Why Inquiries?

Commission of Inquiry is normally put in place to inquire into and report on some unresolved matter of
public concern. A Commission of Inquiry therefore addresses the following issues:

a) Causes of particular things, occurrences or accidents.

b) Responsibility — who is responsible for failure to comply with the law or policies?

c) To establish the social, economic, financial and other effects of an incident, accident
or occurrences.

d) To provide recommendation to the appointing authority.

Constitution of a Commission of Inquiry

The Act empowers the President to name Commissioners. The Secretary is always a public officer. The
President is also empowered to provide the terms of reference for the inquiry and the period in which the
inquiry should be completed and reports made to the appointing authority.

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Powers of a Commission of Inquiry

The Commissions of Inquiry have powers and immunities of the High Court. They can therefore summon
and compel attendance , and examination of witness. They can also charge a witness for contempt of
court.

Reports

The report of Commission of Inquiry must reflect the views of all Commissioners. They confirm this
position by appending their signatures to the report.

7.3 Registration

This is a process of recording data relating to a particular social, economic or political activity. Such
activity can be a business, a professional undertaking or a political process.

The main objective of registration is to enable planning authorities to have the relevant information which
affects a particular sector. This data becomes an aide to planning. Under the Uganda Bureau of Statistics
Act, the Bureau is empowered to undertake census relating to population and other human activities. This
enables the Ministry of Finance and Planning, National Planning Authority, and local authorities to plan
for the country on basis of scientifically determined data.

Registration is also used as a tool of controls. It can be used as an authorization to carry out certain
activities or as a disqualification for engaging in certain activities. For example eligibility to practice as
an Advocate, Surveyor, Medical Doctor, Architect Engineer can only be ascertained from the relevant
registration data. This is available from public officers authorized to carry out registration.

Registration also assists in ensuring that certain dangerous activities are controlled. Hence, the ownership
of a firearm can only be confirmed through registration by the relevant authority i.e. police.

Registration is also used as a preliminary stage in licencing of activities. Through registration, the
licencing authority can determine qualification of persons, suitability of premises and payment of
necessary fees.

Registration may also be used as a mechanism of raising revenue. Certain activities may not be undertaken
unless the relevant registration has been effected with payment of dues, charges or fees.

Registration is carried out under various laws:

Uganda Bureau of Statistics: Population census,Human activities, Standards of living
Trading (Licencing) Act: Retail and wholesale trade

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Education Act:Licencing and registration of schools

Professional registration: E.g Persons eligible to practice as Surveyors, Counsels, etc
Firearms Act: Forearms dealers and gunsmiths, firearms holders and all transactions relating to firearms.
Uganda registration service Bureau Act -registration of Documents, business names, marriage, birth and
death Etc

7.4 Inspections

Inspection is a legal process that is used by administrative authorities. It involves search, discovery,
testing and evaluation of the state or status of persons, records or premise. The purpose of inspections is
to establish the prevailing conditions in respect of a particular legislation.

The law that provides for inspections has the following provisions:

a) The Proper Authority

The law provides for a proper authority to carry out inspections. In the Occupation, Safety and Health
Act, the proper authority is a labour inspector from the Ministry of Labour. The proper authority to carry
out inspections can also be a statutory body like the National Council for Higher Education as provided
in the Universities and other Tertiary Institutions Act. In some cases, the law gives the relevant authority
to appoint inspectors. For example, under the National Environment Act, the National Environment
Management Authority is empowered to annually name environmental inspectors for general inspection,
industry and occupational health, water resources, chemical safety, etc.

b) Powers of Inspectors ,

Inspectors are normally given powers to enter into private or public establishments , without fear of
committing trespass. S.35 of the Firearms Act gives a typical provision. It provides:

“The Chief Licencing Officer may at all reasonable times require any police officer, without a search
warrant, to enter upon the premises of any firearms dealer with a view of ascertaining whether or not the
provisions of this Act or any regulations made under it are being observed and may inspect the premises
and any forearm or ammunition, book, account, register, document or thing found in the premises, and
may require any person appearing to be in control of or employed in the premises to give such information
as the police may require in order to ascertain whether or not the provisions of this Act or any regulations
made under it are being observed”.

The laws also normally put in place provisions which ensure that the inspections are carried out without
hindrance, interruption or disruption. These provisions create offences of obstructing of an inspector

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which may result into arrest without a warrant.

7.5 Enforcement of standards.

What are Standards?

Standards are minimum acceptable practices, procedures, qualifications and facilities that must be
'attained in respect of a particular service. Acceptable standards vary from one industry to another.
Similarly, laws relating to standards are found in different Acts of Parliament.

Standards of consumer products are regulated under the Uganda National Bureau of Standards Act. Under
the Act, Bureau is established to carry out functions relating to standardization.

Standards of consumer products may relate to:

a) Weights
b) Measures
c) Packing
d) Quality
e) Safety
Under the Act, the Bureau may carry out inspections to ensure compliance with standards.

Under the Universities and other Tertiary Institutions Act, a National Council for Higher Education put
in place with the statutory functions of inter alia ensuring minimum academic standards for courses of
study in universities and higher institutions of learning.

In tills regard, the Council is given powers to:

a) Licence institutions.
b) Accredit programmes of study -
c) Determine minimum requirements in terms of human resources, facilities, etc
d) Equate qualifications -
,
e) Carry out reviews and inspections to ensure compliance.

7.6 LICENCE

A licence is a conditional permit to carry out an activity. It therefore has elements of

authorization, conditions and specified activities which would be illegal if they were carried out without
such a licence.

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A licence may be known by various names. These include:

a) Licence e.g. road licence under the Traffic and Road Safety Act.
b) Permit — Driving Permit under the Traffic and Road Safety Act.
c) Concession — Under the Uganda Wildlife Authority Act.
d) Certificate — like practicing certificate under the Advocates Act.
e) Authority, Authorization, Permission etc.

Why are activities Licenced?

a) To promote Human Safety

This is especially in connection with activities that are inherently dangerous. The licence ensures that
such activities are controlled.

b) Prevention of harm to the Public

There are licences that are directed to the prevention of harm to the public. There are licences that ensure
that the consumer of goods and services is not harmed.

c) Provision of Efficient Services

In some cases, the State undertakes to ensure that some services are controlled for purposes of efficiency.

d) Maintenance of Monopolies

A licence can also be used as a tool of maintaining monopolies. This is usually put in place. In the past,
there were monopolies given to UPTC and UEB.

e) Promotion of Governement policies

f) Raising revenues

Characteristics of a Licencing Law

Licences are statutory authorizations. The issue of a licence must be based on provision of a licencing
law usually an Act of Parliament. The licencing law usually has the following provisions:

1. Licencing Authority

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2. Objectives of the Licence

3. Conditions of Licencing

4. Powers of the Licencing Authority

TOPIC 8: THE POLICE

8.1 Constitutional framework.

Article 211 of the Constitution establishes the Uganda Police Force, the Force is supposed to be
nationalistic, patriotic, professional, disciplined, competent and productive.

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8.2 The Police Statute.

The Police Act (as amended) provides the composition of the Police Force to include regular Uganda
police force, Uganda Police Reserve; special constables, local administration police and any other person
appointed as a member of the force.

The functions of the force are designated as follows:

a) To protect the life, property and other rights of the individual;

b) To maintain security within Uganda
c) To ensure public safety and order;
d) To prevent and detect crime in the society;
e) To perform services of a military force as provided
f) To cooperate with civilian authorities and other security organs.

What one can deduce, from the above is that the Police Force is charged with very important functions,
with grave implications for the country and its citizens. It should be noted that the protection of rights,
maintain security prevent and detect crime requires a high level of discipline and professionalism. It is
for this reasons that policemen and women are expected to be disciplined and to carry out their duties in
a professional manner.

In addition to the above functions are number of duties and powers are conferred on the Police as exercised
by its officers. A police officer is taken to be on duty 24 hours and must obey all lawful directions issued
by the competent authorities and to apprehend all persons for whose apprehension sufficient grounds
exist. Additionally, police officers have the power to regulating traffic for the purposes of maintaining
public order and safety.

It is an offence to obstruct a police officer in the execution of his duties. This though does not mean that
there is any obligation oil the public to assist the police in executing their duties, there is for instance no
obligation to report crime or even answer questions to put to some by the police. Although giving the
police false information may(constitute an offence silence does not.

Discipline and complaints against police officers

As already mentioned, police officers are expected to act and carry out their duties with utmost
professionalism. If they default, the law makes provision "for such officers to be held accountable and be
subject to disciplinary proceedings. Like any member of the public, police officers are not immune from

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the law; they are as bound by the law as anyone else. Violation of the law or commission of offences by
police officers has to be followed by all the legal incidents. One of the most common offences committed
by police officers and one which goes unpunished is the offence of assault, occasioned on suspects
especially during arrest and detention. It should be noted, however, that police
officers are entitled to use reasonable force when effecting an arrest or combating an attempt to escape
from lawful custody. Such force should, however, be reasonable and compatible with the circumstances.

The Police Code requires police officers to treat humanely all persons at their disposal. Torture of suspects
while in detention is prohibited, section 25(4) of the Police Act provides that where a complaint of torture
of a suspect in custody is made, the magistrate shall order an investigation into the allegation, and if the
allegation is proved to be true, the magistrate shall order for the compensation, examination and treatment
of the person " affected at the expense of the state and any person responsible for the torture shall be
charged.

In addition to the law that binds everyone police officers are bound by the police disciplinary code of
conduct, which is the basis of all police officers and other persons employed the force (Police Act, section
44(1)). Persons bound by the code include: attested members of the force, persons under police training,
local administration police, spcs, police officers on contract, member of security agencies put under police
command and persons accepting to perform duties of force. The Police Act makes provision for the
establishment of a police disciplinary court, to be established at every police unit. Members of this court
enjoy the same immunities and privileges as enjoyed by a magistrate. The punishments that may be
imposed by the court include dismissal and imprisonment, depending on the nature of the offence.
Punishments that may be imposed on police officers include dismissal. -

The Police Act makes provision for complaints to be made by members of the public against police
officers. (Section70). Instances that may be reported include bribery, corruption, oppression or
intimidation, neglect or non-performance of duties and any other misconduct. -Such complaint is
supposed, to be addressed to a senior officer in charge of the unit or district.

The Police Act allows police officers to use firearms (section 28). Firearms are defined by the Fire Arms
Act to include any barreled weapon from which any shot, bullet or other missile capable of causing injury
can be discharged and any weapon adopted for the purposes of discharging noxious liquid, gas or other
thing dangerous to human beings. In the Police Act, firearms may only be used against the following
persons (a) a person charged with or convicted of a felony who escapes from lawful custody; (b) a person
who, through force, rescues another person from lawful custody; (c) a person, who through force, prevents
the lawful arrest of himself or herself or of any other person. The
Act, however, stipulates the circumstances under which resort may be made to firearms. Resort is only
made if the police officer has reasonable grounds to believe that he or she cannot otherwise prevent any
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act referred to or otherwise effect the arrest; the police officer has issued a warning to the offender that
he or she is going to resort to the use of arms and the offender did not heed the warning; or the police
officer has reason to believe that he or she or other person is in danger of grievous bodily harm if the
firearm is not used.

TOPIC 9: CONTROL OF PUBLIC FINANCE

9.1 Constitutional powers and controls.

The constitution provides for management of public funds under Chapter 9 i.e. Articles 152 to 164.

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Article 152 (1) - a collection of taxes which is the major source of revenue other sources being fees, loans
and grants.

Government Budget Process

The Budget Act 2000 provides for and regulates the budgetary procedure for efficient budgetary process.
The Act defines the budget as a process by which government sets levels to efficiently collect revenue
and allocate the spending of resources among all sectors to meet the national Objectives.

Article 153- states that there shall be a consolidated fund into which shall be paid all revenues and other
monies raised or received for the purpose of or on the behalf of or in trust for the government. A
consolidated fund is one which consists of taxes and any other revenue payable to the State.

Article 154 (1) – no money shall be withdrawn from the consolidated fund except:

a) To meet the expenditure charged on the fund by this Constitution or by an Act of Parliament

b) Where the issue of those monies has been authorised by an appropriation Act.

No money shall be withdrawn from the consolidated fund unless the withdrawer has been authorised by
the Auditor General. If the president is satisfied, then he can sign for release.

9.2 The Public Finance Act 2003 (PFA)

The Public Finance and Accountability Act 2003 was enacted with the purpose to, “provide for the control
and management of the public finance of Uganda, for the audit and examination of public accounts of
certain statutory bodies and matters connected therein.”

9.3 The Auditor General and the National Audit Act 2008 (NAA)

This gives effect of Article 163 of the Constitution of Uganda- Auditor General.

Article 163 (1) and S. 4 of the National Audit Act provides for the appointment of the Auditor General
that he shall be appointed by the president with the approval of Parliament.

Article 163 (6) and S. 14 of NAA state that the Auditor General shall not be under the control of any
authority.

Article 163 (3) (9) and S. 13 of NAA – to audit and report on public accounts of Uganda and of all public
offices including the courts, the central and local government administrations, universities and public
organisations established by an Act of Parliament.

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Article 154 (3), S. 83 (2) Local Government Act (LGA) provides that the Auditor General as the sole
authority to give approval for any money to be withdrawn from the consolidated fund account, the general
fund account or any district account.

Auditor General as an Auditor

Section 24 PFA states that “the Auditor General shall on behalf of the Parliament examine, inquire into
and audit the accounts of all accounting officers, and receivers of revenue and all persons entrusted with
collection, receipt, custody, issue, sales, transfer or delivery of any stamps, securities, stores or any other
government property, to ensure that all public moneys have been dealt with in accordance with proper
authority.

S. 25 (1) PFA obliges all public officials to give documents or any explanation whenever required by the
Auditor General

Public Accounts Committee (PAC)

This examines the Auditor General’s report and enforces accountability of the officials of the executive
after detailed interviews.

9.4 Appropriations Act

This law is adopted by Parliament every year to authorise the Executive to finance goods and services
required by any ministry or government departments in the financial year in question. The Appropriations
Act once signed by the Head of State, finances the budget process for any one financial year.

TOPIC 10: TRIBUNALS

10.1 Administrative Tribunals

Administrative law is a branch of public law which deals with or concerns the exercise of power, by
public authorities to execute public functions. Administrative law facilitates, regulates and controls the
administrative processes. Its main thrust is to ensure that public power isn’t abused or used as a detriment
to the people. Administrative authorities are either public officials or authorities entrusted with the duty
to discharge public functions. Public functions, are those expected to be delivered by government which
is entrusted with looking after the general welfare of the public. Administrative tribunals are examples of
administrative authorities.

Tribunals – bodies with judicial or quasi-judicial functions set up by statute and they exist outside the
usual judicial hierarchy of courts. Or, institutions setup to adjudicate over issues of an administrative
nature. They are courts of law in the sense that they enjoy judicial powers, however, they can be

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distinguished from the ordinary courts of law when one considers the membership and procedures
followed by tribunals.

Reasons for Setting up Tribunals

Basing on the fact that the machinery of the courts is not suited for settling each and every dispute which
may arise out of the work of the government there is need to create administrative tribunals.

Reasons for setting up tribunals were laid down by Lord Pierce in Anisinimic v. Foreign Compensation
Commission to include ensuring speed, cheapness and expert knowledge;

1. Desire for a procedure that avoids the formality of the ordinary courts.

2. Desire for a speedy cheap and decentralized determination of a very large number of individual
cases.

3. The need for expert and specialised knowledge on the part of the tribunal which courts may not
have despite it having a wide jurisdiction. Much as a litigation of a particular social or economic
activity, require expert knowledge and in depth understanding of the area being regulated e.g.
Labour disputes require experts in labour law.

4. Need to avoid the danger of imposing too many burdens to the ordinary courts.

5. Desire to implement new social policy.

6. The restrictions imposed by legal restrictions, for example, there might be no need for a precedent,
the tribunals can decide these cases without these principles but they have to be flexible in
performance, approach and principle.

7. The litigation procedure does not produce the right atmosphere for the working of certain schemes
like social insurance schemes.

Functions of Administrative Tribunals

1. To settle disputes that may arise between individuals and public authorities, e.g. evaluating tribunals
set up to consider disputes between rent payers and local authorities.

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2. To settle disputes between private individuals which relate to policy implementation, e.g. rent
restriction tribunals are set up under the Rent Restriction Act which aims at regulating rent payable
to property owners.

3. To regulate socio-economic activities. This is basically regulatory with both powers to basically
settle disputes e.g. The Transport Licensing Board is a tribunal whose main objective is to regulate
the transport industry with the powers to adjudicate over disputes over any person.

A balanced tribunal usually consists of an independent chairperson who is usually legally qualified.
InEquator Inn Ltd, v. Tomasyan it was held that a chairman means a dully appointed chairperson and
his presence is necessary before the tribunal has quorum. In the absence of a chairman, the proceedings
are a nullity.

A tribunal consists of two members representing opposed interests. In R v. Industrial Injuries

Commission Exparte Cable industrial cases involving personal injury were heard by qualified doctors
where the issue required medical diagnosis.

10.2 Procedure of Tribunals

Article 6 (1) of the Human Rights Convention states that in handling disputes, tribunals are embedded
with a duty to ensure fair and public hearing before an independent and impartial tribunal. In De Souza
v. Tanga Town Council [1961] EA 377 the right to be heard was recognised where the proceedings were
conducted in the absence of De Souza and his lawyer. Court held that he had not been heard.

IN R v University of Cambridge where Bentley had been deprived of his degree without giving him an
opportunity to be heard, one of the judges observed that even Adam had been called upon by God to meet
the challenge of having eaten a bite of the forbidden fruit before suffering expulsion. The act of the
University was declared a nullity.

Article 44 of the Constitution recognises the right to a fair hearing as non-derogable. All tribunals which
conduct disciplinary proceedings must give notice to the charged party who must be given a right to be
heard.

In Ridge v. Baldwin [1964] AC p.40 Herman LJ said “it is only fair play in action. It is well established
that the essential requirements of natural justice at least include that before someone is condemned he is
to have an opportunity for defending himself and in order that you may do so he is to be made aware of
the charges or allegations which he has to meet”.

Article 42 of the Constitution provides that: Any person appearing before any administrative official or

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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.

In MumiraMumira v NIC [1985] Justice Karokora states that the principle of natural justice
“audialterampartem” (right to be heard) must be observed by both judicial and administrative tribunals.
Where a decision is arrived at in utter disregard of this fundamental principle of natural justice, that
decision is a nullity. This principle involves reception of relevant evidence, disclosure to all parties, the
opportunity to examine, cross examine witnesses and the opportunity for argument.

The tribunals’ decision must be based exclusively on the evidence given before it. It is of the essence to
understand that some tribunals have powers to summon witnesses and to order production of document.
Disobedience is a punishable offence.

10.3 Powers, Privileges and Immunities

Tribunals have powers that are enjoyed by ordinary courts which include:

• Power to summon witness

• Power to examine witness

• Power to order production of documents in accordance with the relevant laws

• Power to initiate contempt of court proceedings against any person

The proceedings before tribunals are privileged. They cannot form a basic of court action. In Suleiman
Vs Sayani, the court held that an advocate cannot be sued in respect of words uttered in proceedings
before a tribunal. Similarly, members of the tribunal do not have personal responsibility for the decisions
or words uttered during the proceedings.

Members of tribunals, parties and witnesses who appear before it are entitled to personal immunity as
applies to courts of law. Witnesses are not liable if evidence is defamatory as well as members of the
tribunal are not liable.

TOPIC 11: JUDICIAL REVIEW

Judicial review takes different forms, the concept has varying definitions and is has been subjected to
different interpretations. But generally, "Judicial review" means the process by which the High

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Court exercises its supervisory jurisdiction over the proceedings and decisions of subordinate courts,
tribunals and other bodies or persons who carry out quasi-judicial functions or who are charged with the
performance of public acts and duties.

The court will be concerned with whether the authority acted in accordance with provisions of the law
under which it purported to have acted or whether or not it was biased or whether the authority gave the
aggrieved party the opportunity to present its side of the case.

A claim for judicial review has a special quality which sets it apart from other forms of litigation: it is a
claim against the government which may result in the government’s unlawful actions being quashed.

Persons aggrieved by decisions of administrative authorities may apply for judicial review. Judicial
review can be justified on the provisions of Art 42 of the Constitution which provides 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".

Furthermore, Art 28 of the Constitution provides that:

"In determination of civil rights and obligations or any criminal charge, a person shall be entitled to a fair,
speedy and public hearing before an independent and impartial court or tribunal established by law".

The powers of judicial review are also contained in the S. 36 of the Judicature Act which provides that
the High Court shall have powers of review and shall have powers to grant prerogative remedies of
certiorari, mandamus and prohibition.

The heart of judicial review is the notion of the rule of law i.e. that the government possesses only those
powers which have been conferred upon it and that it must exercise those powers in accordance with the
law. The substance of judicial review is hence an examination of how the courts or judges operate this
policing jurisdiction over Administrative authorities/tribunals.

Most actions for judicial review are based on allegations that a public authority or body acted ultravires
i.e. beyond its powers. Judicial review is intended to ensure that persons or bodies exercising statutory
functions do not exceed or abuse their powers and also ensure that such persons or bodies perform such
duties as have been imposed on them.

10.2 Grounds For Judicial Review

1. Acting Ultravires: This arises where a body does something in excess of its powers. It refers to a

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situation where a body has power to do X and Y but ends up doing Z. the purported act or decision of the
statutory body/ authority will be ultravires. In such a case an aggrieved person can apply for judicial
review.

2. Failure to observe proper procedure.

In the case of De Souza V Tanga Town council (1961) E.A377, the appellant was dismissed without
following the procedure the Tanga Town council regulation. It was held that if a statute prescribes or
statutory rules or regulations binding on the tribunal procedure to be followed, that procedure must be
observed. The decision was set aside. R V Wakiso Estate (1955)ULR137.

3. Improperly constituted body.

a) Lack of quorum: A public body which has statutory powers must be properly constituted before it can
exercise powers.

b) Participation of nonmembers: A body is not properly constituted where non members are admitted
and participate in the proceedings.

4. Un authorized delegations.

5. Abdication of discretion granted by statute i.e. fettering of discretion

6. Abuse of discretionary power.

All power has legal limits. Statutory powers must be exercised reasonably and in good faith for proper
purposes only in exercising power, administrative authorities must take into account only relevant
consideration and must not take into account irrelevant considerations.

7. Denial of natural justice.

Natural justice means that fairness with which a person ought to be treated when making a decision which
affects him or her. Article 28 (1) of the constitution guarantees the right to fair hearing. Article 42 of the
constitution guarantees the right to be treated just and fairly when appearing before any administrative
official or body.

8. Where the aggrieved party has exhausted the local remedies S.36 (4) of the Judicature Act provides
that the prerogative remedies of certiorari and prohibition shall not be granted to a complainant unless
such a party had exhausted the available local remedies. This means that where the law provides for
appeals, the appeals processes must be completed before a party becomes eligible for judicial review.

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9 Where the complaint is about Process/ procedure

An applicant for judicial review must be raising complaints about how a particular decision was arrived
at. This therefore involves questioning the process leading to the decision. Judicial Review does not lead
to examination of the correctness or the merits of a particular decision. It leads to examination whether
the process leading to a decision is what ought to have been in motion.

10.3 Remedies

The following are the nature of remedies that are available to parties/ litigants in judicial review. The
remedies inter alia include certiorari, prohibition, mandamus, damages, injunctions and declaration.

Prerogative Orders

S 36 of the judicature Act, as amended by Act 3 of 2003 provides that the High Court may upon
application for judicial review grant anyone or more of the following reliefs in a civil or criminal matter,

(i) An order of mandamus requiring any act to be done.

(ii) An order of prohibition, prohibiting any proceedings or matter.
(iii)An order of certiorari removing any matter into the High Court.
(iv) An injunction to restrain any person from acting in any office in which he/she is not entitled
to act.
(v) A declaration or injunction not an injunction referred to in paragraph iii.
The above are referred to as prerogative orders.

Certiorari

Certiorari is issued to quash a decision which is ultra-vires due to breach of natural justice or other defects
in the procedure that was followed by an administrative authority. Under certiorari, the High Court will
call up the decision of an inferior tribunal/ authority in order that it may be investigated. If it is found that
the decision was made in breach of natural justice or some other procedural defect, it is quashed i.e. it is
declared completely invalid so that no one need to respect it once made an order of certiorari is final.

in KikondaButema Farms Ltd V Inspector General of Government, this was an application that
sought for certiorari to quash the decision of the IGG, Justice ApioAweri stated that for an order of
certiorari to be made, it must be shown inter alia the respondent acted in excess of his jurisdiction; that
there was actual or threatened usurpation of jurisdiction or that there was breach of natural justice, or that
an error of law on the face of the proceedings or where the determination was procured by fraud, collision
or perjury.

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Prohibition

Judicial review is not concerned with the decision in issue per say but with a decision making process to
assess the manner in which the decision was made and an order of prohibition may be granted if it is
anticipated that an impugned order will be implemented.

Prohibition is more or less of a similar remedy to certiorari but it is prospective rather than retrospective
i.e. whereas prohibition issues to prevent a future act or decision, certiorari issues to quash a decision that
has already been made. Typically, prohibition is used to prevent tribunals from dealing with cases over
which they have no jurisdiction.

In R Vs Kent Police authority exparte Godden (1971) 2 QB 662, a biased adjudicator was prohibited
from taking part in the decision. It was held that a doctor who had previously examined a police officer
and formed then an opinion that the officer was suffering from mental disorder of a paranoid type, should
not subsequently have been appointed to be the ‘dully appointed practitioner’ to certify whether the officer
was permanently disabled from proper performance of his duties requiring compulsory retirement. Such
certification was a judicial-type function, requiring both actual and apparent impartiality. In the
circumstances suspicion existed that the doctor would be biased to favour his own earlier diagnosis.

Mandamus

It is an order which compels the performance of a public duty by a public authority. It commands the
person or body to whom it is directed to perform a public duty imposed by law. In R V Paddington South
Rent Tribunal, exp Milliard, [1955] 1 ALLER 691, an order of mandamus was granted against a rent
tribunal which had wrongly held that it had no jurisdiction to hear and determine an application properly
made to it. The tribunal had a duty to hear cases that fell within its jurisdiction and, as a result of its errors
as to its jurisdiction, had improperly declined to hear the case.

It is also a discretionary remedy and court may decline it in cases it deems unsuitable e.g. undue delay on
the part of an applicant.

Injunction

Is a court order requiring the party to whom it is addressed to refrain from doing a particular act?
Injunctions are provided for under the rules of equity and there are various circumstances under which
they may be granted in administrative law. It may be granted in the following circumstances.
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It may be granted to prevent a public body from acting ultra-vires.

To prevent a public authority from committing a tort.

To enforce a statute or to secure obedience to the law.

Declaration

Is an order of the court which merely declares what the legal rights of the parties to the action are without
them. It has no coercive force i.e. it does not require anyone to do anything.

NB an application for a declaration can be combined with an application for other types of remedies. It is
a particularly useful remedy in administration law and it is a suitable way to settle disputes with the
government because it involves no immediate threat of compulsion but is nonetheless effective. It is a
wide range remedy that the court will rarely refuse to grant.

All in all, any act of a public authority may be challenged in declaratory proceedings claiming that it is
ultra-vires and void.

Circumstances where court may refuse declaration

a) To speculators and busy bodies asking hypothetical questions.

b) Where its result would be to embarrass and prejudice the security of the state.
c) No declaration of specific performance for breach of contracts of employment.
d) Where the effect would be to usurp of the body in question.

Compensation or Restitution

Compensation is giving something to make up for something that was lost or damaged whereas
Restitution is restoring something to its original state. Application for restitution where and insofar as a
decree is varied or reversed, the court of first instance shall on the application of the party entitled to any
benefit by way of restitution or otherwise cause such restitution to be made as will, so far as may be, place
the parties in the position they would have occupied but for such decree or such part of it as has been
varied or reversed.

No suit shall be instituted for the purpose of obtaining any restitution or other relief which could be
obtained by application.

Damages.

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A person aggrieved by the act or decision of a public authority which amounts to a tort or a breach of
contract can sue the government or authority for damages in the accordance with the government
proceedings Act Cap 77.

Damages can be classified into 3 types.

Special damages.

These can be claimed in respect of matters whose value can be quantified and specifically proven e.g.
through receipt for goods and services issued to the plaintiff.

In KafumbaMukasaVs AG Court held that without receipt or other specific proof, a cause of action for
specific damages may not succeed.

General damages.

Are damages which cannot be specifically ascertained, they include compensation awarded for pain and
suffering, inconveniences, loss of future prospects. In Departed Asians Property Custodian Board Vs
Kayondo Court held that general damages are awarded at the discretion of court.

Exemplary damages.

These are awarded as a deterrent or punishment of the defendant. Where the defendant's conduct has been
oppressive and arbitrary e.g. in cases of false imprisonment.

Past Exams Questions

Write short notes

a) Ultra vires
b) Public Corporations
c) Commissions of inquiry
d) Injunctions
e) Declarations

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