JOJO LAW CHAPTER

“AN INVENTORY OF ISSUE TO ADMINISTRATIVE AUTHORITIES.”

DOCTRINE OF THE GENERAL PART

natukundajojo76@gmail.com
0783899015/0759544916

QUESTION: Discuss various Constitutional

Principles and analyze whether they are a reality or not?
ADMINISTRATIVE LAW refers to law governing organization and operation of administrative
agencies and the relations of administrative agencies with the legislature, executive and public. 1
Most principles in administrative law have a close linkage to constitutional law. It’s generally
agreed that a good constitutional framework can tend to lessen disputes involving public officials.
The areas of constitutional law include among others; Administrative law which is concerned with
public officials or institutions and most of these institutions are established by the constitution and
their powers derived from the constitution, public officials and institutions that exercise powers.

RULE OF LAW; This is where both the governor and the governed must be subject to the law of the
country without special status for the governor. In popular parlance no citizen should be above the
law. The rule of law is relevant because it controls what public officials can do and how they can do
it which above all exposes them to legal liabilities. According to Professor Kanyeihamba ,

“The rule of law is not a rule in the sense that it binds anyone. It is merely or collection of ideas
and principles propagated in the so called free societies to guide lawmakers, administrators,
judge and law enforcement agencies.
The overriding consideration in the theory of the rule law is the idea that both the rulers and
the governed are equally subject to the same law.”2

It is a principle of legality and demands something more, since otherwise it would be satisfied by
giving the government unrestricted discretionary power, so that everything that they did was
within the law. Therefore court only allows powers such as revoking licenses to be used in ways
that parl21iament is thought to have intended. In January, 2000, the Supreme Court, in the case of
SEMOGERERE AND ANOTHER V. ATTORNEY GENERAL held that;

“The constitutional court erred in law when it denied itself the jurisdiction to hear the case and
ordered court to hear the case.”3

It is suffice to note that there are many challenges facing the rule of law. Given the attempt by the
Inspector General of Government in addressing corruption, it still undermines the rule of law. The
institution has unearthed several cases of corruption, but some of the culprits may never be
prosecuted. Credit should also be given to the Anti- Corruption Court in its fight against the vice as

1
Blacks Law Dictionary
2
G.W Kanyeihamba’s Commentaries on law, polities and governance Renaissance media ltd,
Kampala Uganda p.14
3
Constitutional petition No.2 of 2002
five members have been convicted such as Teddy Ssezi Cheeye, Kavuma Fred, Annaliza Manden
and Elijabeth Ngererano and Moses Ndifuna. 4 As far as the executive and to some extent the
legislature are concerned, there’s need to take all administrative measures and see how these
measures have been consistent with rule of law.

DOCTRINE OF SEPARATION OF POWERS. The theory of doctrine of separation of powers states

that the legislature should never exercise executive or judicial power; the executive should never
exercise legislative or judicial powers and judiciary should never exercise legislative or executive
powers. This doctrine is relevant to administrative law in the following ways; It ensures that there’s
separation of functions carried out by the three organs of government by creating provision for
checks and balances. In Uganda, it is suggested that the National Resistance Movement (NRM)
government from 1986 to 1995 tended to operate as if cabinet and National Resistance Council
were one. Indeed the same personalities tended to dominate both, at least in the early years 5. When
the Odoki Commission set out to gather views and prepare a draft constitution, it did so with the
view that separation of powers was necessary to prevent the kind of tyranny that had bedevilled
the country in the past, when the executive tended to override the other organs. The 1995
constitution provides for a high degree of separation of powers. Article 79(1)6 clothes parliament
with powers to make laws which are fully backed by clause (2). Article 99(1) then vests executive
power in the president, to be exercised in accordance with the constitution and the laws of Uganda.

Article 126, which states that judicial power is derived from the people, goes on to state that
power shall be exercised by the courts. Article 128 then lays down elaborate provisions intended
to secure judicial independence. The grund norm also provides for the establishment of
independent bodies such as the Uganda Human Rights Commission and Inspectorate of
government. But pure separation of powers is neither possible nor even desirable. In many cases,
it is necessary to have some overlaps. Indeed many post independence leaders in Africa tended to
be hostile towards separation of powers, reasoning that the three arms of the state ultimately have
a common objective to cater for the welfare of the people. In ATTORNEY GENERAL V. DAVID
TINYEFUZA7, the respondent had sought to resign from the army on appointment as a presidential
adviser. His resignation constituted a violation of his rights to freedom from forced labour provided
for under Article 25(3). Although court ruled in favour of the respondent, on further appeal it was

4
Book of fame and shame pg 31-32 Anti Corruption Coalition Uganda.
5
Uganda Perspective.
6
The Constitution of the Republic of Uganda
7
Constitutional Petition No. 9 of 1996
held that the judiciary must respect the executive and not interfere with its constitutional mandate.
It is therefore the duty of parliament to not only make laws but ensure that the executive carries
out its work properly. Hence Article188 empowers parliament to move a vote of censure against
any minister on special grounds such as abuse of office and misconduct. Other overlaps provided
for in the 1995 constitution include where parliament exercises a lot of control over financial
matters, under Articles 93; Many public appointments into constitution can be made by the
president with approval of parliament, for instance appointments to cabinet (Article 113) and
many others; Bills can only become law after being passed by parliament and assented to by the
president.

Also in an attempt to create a strict separation of in the composition of the executive and
legislature, a Private Members’ Bill was moved by Hon. E. Onapito and Mugisha Muntu8, which
sought to amend Article 113 of the constitution to require that an individual being a member of
one and not both organs thus called upon a Member of Parliament who was appointed as a cabinet
minister to resign his parliamentary seat. It was flawed in several respects i.e. ignored the principle
of parliamentary representation, the improper phrasing of the Bill otherwise would be that
whoever is a member of parliament is not eligible for appointment as a cabinet minister. The
principle has always worked effectively in classical multi- party systems, in countries like the
United Kingdom, USA, Germany and others. Despite the various views gathered by the
Constitutional Review Commission to address the doctrine of separation of powers 9, little or
nothing has been put in place for example that ministers should not at the same time serve as
elected members of parliament.

INDEPENDENCE OF THE JUDICIARY; This is the foundation of the rule of law in any developing
society. Disputes in administrative law involve public officials and institutions. It is important that
such disputes among public officials are resolved by the judiciary which enjoys functional
independence from other organs of government. While some rubbing of shoulders between the
executive and legislature, may be desirable, it must institutionally not be allowed to reach a level
where it becomes impossible for the legislature to carryout oversight. At the same time, the
situation must not be antagonistic that the two spend all their time trying to pull down each other.
In other words, parliament must act as a watchdog not as a ‘blood hound’. On the other hand, a
judiciary that is as independent of the two organs as possible is desirable. The world over, it is
taken to be the most important aspect of separation of powers. Article 128 of the Constitution of
8
See The New Vision 17th February 2010
9
www.enteruganda.com/constitution/
Uganda provides for judicial independence. In the course of deciding a member of politically
sensitive cases, courts have ended up locking horns with the executive. In MAJOR GENERAL
TINYEFUZA V ATTORNEY GENERAL, it was held that “For an army officer to resign from his
commission or army, he had to first comply with the unless and regulations of the army
dealing with resignation and termination of service of serving army officers which, in this case
General Tinyefunza had not complied with….” 10

Other events in question relate to the trial of Dr Kizza Besigye, and 22 suspected rebels. On 16
November, he was granted bail but court premises were besieged by ‘Black Mambas’--Urban Hit
Squad, which forced Justice Edmund Lugayizi to withdraw from the case. Another judge, John
Bosco Katusi followed suit, citing pressure and allegations put about that he was politically
biased11. This puts the judiciary in a hard situation to function at the heart of the executive. It goes
without saying that as much as the judiciary may not be mandated to make laws, it plays a great
deal in influencing laws as was seen in ONYANGO OBBO &OTHERS V. A.G.12 This revolves around
the challenge by the managing editor of Monitor newspaper of the constitutionality of section 50 of
the Penal Code Act of Uganda. The editor and other petitioners had been charged with the
publication of false news. The Constitutional Court found for the state and Obbo appealed to the
Supreme Court which held that the offence under section 50 of the Penal Code was too vague, wide
and conjectural to provide the requisite certainty to impose an acceptable limitation on freedom of
expression.

MINISTERIAL RESPONSIBILITY. This doctrine is sometimes called “Individual responsibility.13”

The concept has its origin from convention in British constitutional law which places individual
responsibility on the part of the minister to ensure and oversee the performance of the ministry to
which he or she has been appointed. Ministers are both individually and collectively responsible to
parliament through cabinet. The Prime Minister can delegate any government business to any
minister in administration of the department. It is incumbent upon the minister to explain or show
cause to parliament his actions and those that fall under his/her ministry. Hence if a minister
conducts him/herself in a manner that is undeserving, then is bound to lose parliamentary trust
which could amount to resignation. Ministerial accountability is provided for under Article 117.
The second arm of individual responsibility is that parliament only deals with the minister, and not

10
supra
11
See Daily Monitor 19th November, 2005.
12
Constitutional Petition No. 15 of 1997
13
Prof. H.W.R. Wade; Administrative Law, 1965, pp.101
with any civil servant. However in Uganda, the law- making body has dealt with the permanent
secretaries (the technocrats).

Since the 1995 constitution, individual responsibility has been subject to scrutiny and checks on
part of the executive by the legislative organ through the mechanism of assessment of ministerial
performance by committees of the parliament such as Public Accounts Committee and through
censorship of the ministers under Article 118. Thorough investigations by select committees have
unearthed activities questioning mandate of a minister e.g. Jim Muhwezi and Sam Kutesa as then
minister of state for education and minister of state for finance respectively. Article 118(2) leaves
a lot undesired as instead of the sacking those censured but are transferred to different ministries
thus weakening the institution. Complaints are usually made not in terms of personalities of civil
service but of the case involved.

In summary, ministerial responsibility has three meanings i.e. It confers a duty for the cabinet to
perform certain functions, it is a mechanism for accountability of cabinet and individual ministers
in the performance of their duties, and, the members of the executive should be individually or
collectively responsible for their activities and should be accountable for the way they use public
power.

COLLECTIVE RESPONSIBILITY; This is where responsibility fully and squarely rests on the
minister of the particular ministry; it is on the part of the minister in respect to decision of the
cabinet. It stresses the point of cabinet solidarity that each cabinet minister can disagree to some
extent pertaining to issues raised in cabinet meetings but when consensus is reached, each cabinet
member should defend the decision in any future utterances. A minister should not publicly oppose
a cabinet decision once it is made as this can tantamount to loss of confidence in the government.
For example the constitution of Republic of Uganda, section 37, 1967 provides that

“There shall be a cabinet of ministers consisting of the president. The functions of the cabinet
shall be to formulate and implement the policy of government of Uganda and in performance
of these functions, shall be collectively responsible to parliament.” 14

In cases where the president resigns, also means resignation of the cabinet to signify solidarity just
like when a Prime Minister resigns in Britain. 15 The concept of collective responsibility also requires

14
Oluyede; Administrative Law in East Africa
15
Sec.30(1) Constitution of Uganda1967.
that a minister unsatisfied with the decision of the cabinet, he should resign. To contract this, in the
case of KAGGIA,16 a junior minister for education in 1964, in Jomo Kenyatta’s (prime minister)
cabinet publicly criticized government of Kenya’s policies concerning land consolidation and
settlement. The prime minister wrote to him expressing interest that he should resign which he did
and said

“I felt that to give such an assurance and to be prepared to remain muzzled, I was betraying
my inner- most convictions for the sake of a salary or a position.” 17

Another case in point is Obote and Obwangor clash where Obote dismissed the latter from the
cabinet as a result of the speech he made in the National Assembly in which he criticised the
government proposal for a new constitution of Uganda which was contrary to section 43(2) of the
constitution of Uganda, 196618.As a result, letters were exchanged culminating into his dismissal.
As much as collective responsibility ought be achieved, ministers who double as Members of
Parliament often find themselves between a rock and a hard place. They are forced to compromise
their integrity or conscience in favour of government made decisions. Cabinet ministers should not
hold positions of Members of Parliament as this over shadows their working.

In conclusion, there’s a thin line between administrative and constitutional law as it can be said
that these principles are essential in the running of the government bodies though there are
others like human rights which specifically deal with remedies where rights are infringed upon for
example wrongful dismissal from work or sexual harassment.

“JOJO LAW CHAPTER MADE EASY”

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0759544916/0783899015

16
Wade, op cit (1965) pp.
17
Supra
18
supra