ADMINISTRATIVE AUTHORITIES

QUESTION:
Discuss the different constitutional principles that govern
administrative law and analyze whether they are a reality.
Introduction
Article 42 of The Constitution 1[1] states that;
Any person appearing before any administrative official or body has a
right to be treated justly and fairly and shall have a right to apply to a
court of law in respect of any administrative decision taken against him or
her.
From this article, stems a branch of public law known as administrative
law. Administrative law can thus be defined as the law relating to the
control of government power. 2[2] All administrative authorities (that is
public officials) are subordinated to this law; right from the cabinet
members to the local government authorities. Wade 3[3] submits that the
primary purpose of subjecting them to this law is to keep the powers of
government within their legal bounds so as to protect the citizen against
their abuse. To meet this end, a couple of constitutional principles have
developed over time and these are believed, by many Jurists, to be the
constitutional principles governing administrative law. The purpose of this
writing is to discuss these principles and examine whether or not they are
a reality. This task I believe I have ably executed below.
The Doctrine of Separation of Powers.
The modern day philosopher, Montesquieu4[4] from whom this doctrine
was developed described government in this form;
In every government there three types of powers: the legislative, the
executive and the judiciary. The executive in respect of things dependant
on the law of the nation and the judiciary in regard to matters that depend
1[1] - 1995 Constitution of The Republic of Uganda.
2[2] - Wade and Forsyth; Administrative Law 7th Edition Page 4.
3[3] - Wade and Forsyth; Administrative Law 7th Edition Page 4.
4[4] -Montesquieu; The Spirit of The Law, Book XI Cap. VI

on the civil law.. by virtue of the first , the prince or magistrate enacts
temporary or perpetual laws and amends and abrogates those that have
been enacted. By the second he makes peace or war, sends or receives
embassies, establishes the public security and provides against invasions.
By the third he punishes criminals or determines the disputes that arise
between individuals, the latter, we shall call judicial powers and the other
simply the executive power of the state.
Montesquieu in this same book5[5] went on to define separation of
powers as a principle whereby the three organs of government as listed
above are kept in separate compartments. This means that no organ of
government should exercise the functions of the other that is the judiciary
should not exercise the functions of the legislature or executive mutatis
mutandis, no organ should be in position to control the other most
especially the executive controlling the legislature and judiciary and that
persons or agencies in one organ should not be permitted to hold posts in
another.
It is imperative to note at this point that this doctrine in its extreme nature
is just ideal and not only unrealistic but also undesirable. Keeping the
arms of government in such water tight compartments would easily cause
stagnation in the flow of government business because of the rigidity of
the doctrine. Rather, a more practical approach to this doctrine is applying
a system of checks and balances whereby each organ operates with the
consent of the other two and the consent ought to be spontaneous not
coerced. This is the more practical approach and to a great extent is alive
in Uganda. A classic example of these checks and balances at work is the
case of Ssemwogere and Olum 6[6]. In this case, the petitioners challenged
the validity of the Constitutional amendment Act 7[7] which sought to
amend articles 88-90 of the Constitution. The bill for the Act was passed in
two days which was inconsistent with the constitution. The constitutional
court held that the amendment had been in accordance with the law but
this decision was quashed by the Supreme Court that held that the Act
was null and void because it was passed in total disregard of the
Constitution. In passing such a decision, the judiciary was able to check on
the legislatures 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
5[5] - Montesquieu; The Spirit of The Law, Book XI Cap. VI
6[6] - Constitutional Petition No.7 of 2000.
7[7] - Act 13 of 2000.

balances still has loop holes in Uganda for example, despite the
overwhelming evidence that the Security Minister Amama Mbabazi had
exerted undue influence in getting the National Social Security Fund to
buy his land at Temangalo at an inflated price, he was exonerated by the
National Resistance Movement caucus in Parliament and this largely
believed to be because he is the Secretary General of the National
Resistance Movement. Since the government Members of Parliament are
the most, their exonerating him caused him to get away with corruption
unscathed8[8].
Independence of the Judiciary
Closely related to the doctrine of separation of powers above is the
independence of the Judiciary. Since disputes in administrative law
involve public officials and public powers, an independent judiciary is a
great necessity. Independence of the judiciary means a judiciary that
makes decisions that are totally based on evidence before them and not
extraneous matters. Peter Oluyede9[9], in expounding on this doctrine,
explained that in criminal cases, the courts should not convict or acquit
because they believe a particular verdict will please the government of
the day and in civil cases, courts ought not to consider the relevant
importance of parties or even the political consequences of their decision
rather, he says, that the courts only ought to find the facts and apply the
relevant principles of law in any particular situation. In Uganda, the
judiciary is enabled to be independent by Article 128 10[10] . This Article
provides that in the exercise of judicial power courts shall not be subject
to the control or direction of any person or authority. Subsection 4 of the
same goes on to provide that a person exercising judicial power shall not
be liable to any action or suit for any act or omission by that person in the
exercise of judicial power. Subsection 6 of the Article provides that the
judiciary will be self-accounting and subsection 7 that the salary,
allowances and priviledges of a judge are not to be varied to the
disadvantage of a judicial officer. These subsections and others under this
Article ensure the independence of the judiciary by providing for security
of tenure, financial benefits and judicial immunity.
However, despite all these measures to ensure the independence of the
judiciary, the executive in Uganda has many times been caught trying to
8[8] - www.independent.co.ug/691 Downloaded by 12th March,2010.
9[9] - Oluyede, Administrative Law In East Africa.
10[10] - 1995 Constitution of The Republic of Uganda

undermine the position of the judiciary. Very fresh in the memory is the
Black mamba incident11[11]. According to Georgette Gagnon, deputy
director of Human Rights Watch, militia men draped in military fatigue and
black T-shirts surrounded the High Court to intimidate the judges and
thwart the decision to release on bail the 22 men suspected to have been
plotting treason. This siege in November 2005 of the High Court was
condemned by the Principal Judge of Uganda as a despicable act and a
rape of the judiciary. Such acts go to prove that despite the
constitutional provisions in place, once in a while the Executive tries to
intimidate the judiciary but we can say on the whole that the judiciary has
stood courageous and is independent making the independence of the
judiciary a reality in Uganda.
Rule of Law.
Rule of law simply means that everything must be done according to the
law12[12]. Therefore, every government authority that does not act which
is otherwise wrong for example taking ones land (infringing on liberty)
must justify its actions as authorized by law. Professor Dicey 13[13] put
forward that the rule of law entails absolute supremacy of regular law,
equality of all before the law and the rule according to the constitution.
Rule of law is essentially meant to create an atmosphere of law and order
where the citizen can easily enjoy liberty and the pursuit of happiness. In
pursuance of this end, the International Commission of Jurists sitting at
New Dehli in 1995 suggested a code of conduct of eight clauses some of
these are looked at briefly14[14];
Clause I essentially deals with the executive or other like agencies such as
public corporations being able to make rules having legislative character.
This is happening in Uganda as in Local Councils formulating laws 15[15].
However, to ensure proper rule of law, this power has to be within the
narrow limits stipulated by the legislature and the extent to which must
11[11] - Uganda: Government Gunmen Storm High Court Again: Security Forces
Used to Intimidate Judiciary in Case of PRA Suspects: New York, March 5, 2007.
12[12] - Wade and Forsyth: Administrative Law 7th Edition
13[13] - Dicey; The Law and The Constitution.
14[14] - The Rule of Law In a Free Society; 1959 Page 6-8.
15[15] - For example Mukono District Council passed on 17 th February,2009 a law
entitled Mukono District Custody of Primary School Textbooks.

also be stipulated. This is very evident in the case of Ibingira I16[16] where
it was held inter alia by the learned that the Deportation Ordinance (put in
place by the line minister) was void for being inconsistent with the
provisions of the then constitution of Uganda. Clause III says that judicial
review of delegated legislation maybe usefully supplemented by a
procedure for supervision by legislature or by an independent authority
either before or after such legislation comes into effect. Clause V provides
that in general the acts of the executive when directly and injuriously
affecting the person or property or rights of the individual should be
subject to review by the courts. This was seen practically in the case of
Shah V Attorney General17[17] where the court compelled the government
to pay according to a government order which the government had
ignored. The applicant had obtained judgment against the government for
Ushs
67,500.
The government refused\ failed to pay and the applicant brought this
motion for an order mandamus directed to the officers responsible for the
payment. In light of the above, rule of law is, to a great extent, a reality in
Uganda. Needless to say at times the rule of law in Uganda is abused by
some individuals typified in the words of the Coordinator Security Services
in reaction to the High Courts holding that the General Court Martial had
no jurisdiction to hear cases of terrorism18[18]. He said,
who are these fellows (the judges)? The judges have no power to
order the army. The army will not accept this business of being ordered by
judges.19[19]
Such attitudes are some of the few things stifling the flourish of rule of law
in Uganda.

Ministerial and Collective Responsibility.(Art.117)

16[16] - Grace Ibingira & Others V Uganda [1966] E.A 306.

17[17] - No.2 [1970] EA 543.
18[18] - Kanyeihamba; Kanyeihambas Commentaries on Law, Politics and
Governance
19[19] - New Vision ; 22-12-2005.

Ministerial responsibility is a doctrine that provides that members of the

Executive should be responsible for their activities and should be
accountable how they use their powers. This may entail individual
accountability to the President(Art.117) or individual to Parliament since
according to Article 118 of the Constitution Parliament can censure a
minister. This doctrine requires a minister to explain to parliament his own
actions and the actions carried out on his behalf.
For example, where a civil servant is believed to misbehaving, the line
minister will be called to account. His task then will be to investigate and
take the appropriate disciplinary action if necessary. The minister will lose
the confidence of parliament for serious misconduct in his administration,
if this happens, he will be required to resign or will be dismissed. A good
example of this is the time former Finance, Planning and Investment
minister Sam Kutesa was censured for being found in a situation of conflict
of interest contrary to the leadership code of conduct by allowing ENHAS
(Entebbe Handling Services) a company he chaired to buy the national
carriers shares in the cargo firm below market value and also writing off as
a bad debt USD 400,000. In dong this he caused Uganda Airlines great
financial loss20[20]. However, there times when this doctrine fails to be
realized because most times Members of Parliament are on the
government side unable to attack their own and at times they are
compromised (corrupted) to adamantly look on cabinet misconduct as was
stated by one Member of Parliament, Odongo Otto21[21].
Collective responsibility on the other hand means that all members of the
executive are responsible for all government decisions and are to support
each other on policy matters. 22[22] This principle essentially means
cabinet solidarity and is meant to ensure that policies and decisions are
made in line with the requirements of good administration as provided for
in Article 111 of the Constitution of Uganda. A celebrated depiction of
collective responsibility in Uganda is the clash between former President
Milton Obote and his Minister of Planning and Economic development,
Hon. Obwangor23[23]. Mr. Obwangor in a speech made in the National
Assembly criticized the government proposals for a new constitution for
20[20] - Nyagabaki Bazara; http:// www.kituachakatiba.co.ug/bazara99.htm.
downloaded 12th March 12, 2010.
21[21] - Tumwebaze; Administrative Law and Practices in Uganda, 2007 Page 35.
22[22] - Oluyede; Administrative Law in East Africa 1973.
23[23] - Ibid.

Uganda. This was contrary to Section 43(2) of the then constitution of

Uganda which provided for collective responsibility of cabinet members.
As a result of the speech, a couple of letters were exchanged between the
two and this culminated in the dismissal of Mr. Obwangor from cabinet. He
also had to cross the floor to the opposition side of parliament.
Key to note is that administrative justice demands some regular efficient
and non-political system of investigating individual complaints against the
powers that be and this exactly what ministerial responsibility does not
provide because of its political nature. To deal with this , administrative
tribunals have been set up in Uganda and no minister is responsible for
their decisions although such decisions are subject to judicial review.
Evidence of tribunals fully functioning in Uganda with clear guidelines can
be drawn from the different cases such as Equator Inn V Tomasyan 24[24]
where it was held inter alia that the chairmans presence is necessary
before a tribunal has Coram and that a minister has power to appoint
persons to a tribunal.
Human Rights and Civil Liberties.
Human Rights are the rights a person has simply because he or she is a
human being25[25]. These were adopted by the United Nations in 1948
observing them as the foundation of freedom, justice and peace in the
world. It is thus a generally agreed upon issue that a good constitutional
framework must have a Bill of Rights which declare rights available to all
in the country. This principle is very relevant to administrative authorities
because through their decisions can either let people enjoy their inherent
God-given rights26[26] or be denied of them. As already mentioned they
are God given and thus only declared in the Ugandan constitution in
Chapter four.
From a general point of view, the constitution declares equality and
freedom from discrimination in Article 21, right to life in Article 22,
protection of personal liberty in Article 23, respect for human dignity and
protection from inhuman treatment in Article 24 a right to a fair hearing in
Article 28 and Article 29 provides for the protection of freedom of
conscience, expression, movement, religion, assembly and association.

24[24]- [1971] EA 405.

25[25] - http: // www.hrusa.org/ thisismyhome/project/what_ hr.shtml.
26[26] - Article 20(1) of The Constitution of the Republic of Uganda.

However, Article 43 provides that the enjoyment of these rights may be

limited where they prejudice the rights of others or in public interest.
Over the years, Human Rights abuse has been at deplorable levels in
Uganda especially during the Amin regime 27[27]. The courts however have
tried to up hold these rights here and there as in the case of Uganda V
Commissioner of Prisons, Ex Parte Matovu 28[28] where the court defended
the rights of Matovu when it held inter alia that ;
the Sovereign State of Uganda would not allow anyone to be illegally
detained and has the prerogative right to enquire through its courts into
anyones loss of liberty by issuing a writ of habeas corpus, the procedure
and nature of which was discussed.
With the National Resistance Movement government in power, the Human
Rights record in Uganda has greatly improved but still leaves a lot to be
desired as we have witnessed unlawful killings by security forces, mob
violence, torture by security agencies, abuse of suspects, poor prison
conditions and arbitrary arrests29[29]. In a bid to curb the gross Human
Rights abuse, the National Resistance Movement government when it
had the 1995 Constitution promulgated established in Article 51 the
Uganda Human Rights Commission and in Article 52 provided for the roles
of the commission which can be summarized as ensuring the observance
of Human Rights in Uganda.
In analysis, the constitutional principles governing constitutional law are;
rule of law, separation of powers, independence of the judiciary, human
rights, ministerial and collective responsibility and I would submit that
drawing from the above discussion these principles are to a greater extent
a reality in todays Uganda. Of course, due to the fact that they have to
operate amongst human beings who are very complicated and versatile
beings, these principles cannot operate in their entirety or strict form; a
few compromises and balances have to be implemented to make them
not only practical but also of service in the administration of society.

27[27] - 1971 -1979.

28[28] - [1966] E.A 514.
29[29] - U.S Department of State Human Rights Report on Uganda, 2008.