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Question 2
With the support of relevant authorities, discuss the concepts below and show how they
apply in Uganda.
a. Rule of law
b. Supremacy of the Constitution
c. Independency of the judiciary
Solution;
The rule of law
The rule of law is the opposite of the rule of power. It stands for the supremacy of law
over the supremacy of individual will. But to say this is to speak only in the most general
of terms. This doctrine and the doctrine of separation of powers are the two political
doctrines that have striven for mastery in modern governance.
The rule of law basically derived from the concept postulated by prof. Dicey in his book.
The law of the constitution, in which he argued that to remove government from
dictatorial tendencies, it is necessary to place government not in the control of men and
women but rather to subject it to the principles and rule of law.
According to Prof Dicey there are three basic elements that form the rule of law;
Absolute supremacy of the law as opposed to the arbitrary exercise of government power.
The presumption is that law prevails over actions and conduct of men and women
exercising authority and power in the government. See in Article 2(1) requires that the
conduct of organs of government conform to the provision of the constitution.
Equality before the law there must be Equality of all individuals before the law. The
presumption is that all individuals must treated and dealt with equality before the law
without any diffentiation as to social status political opinion and other grounds. In Article
26(2) (a) which provides for equality and freedom from the social status.
The law must be instrument of just government. According to Prof Dicey, the
government should be built on justice and good governance in which the welfare and
rights of citizens are promoted rather that violated. This is provided for under Article
20(2) and Article 79(2) of the 1995 constitution of Uganda. Prof. Dicey’s three elements
of the rule of law have remained intact with modifications according of the evolution of
democratic societies in the 20th century. In modern era, the rule of law has been
articulated under several principles developed by international commission of jurists at
aconference in Geneva in 1959. The I.C.J formulated what were considered guiding
principles for determining the existence of the rule of laws in modern times.
There must be independence of the judiciary. The relevance of judicial independence to
the rule of law was seen to arise from a number of corners;
The supremacy of law to the extent of its meaning and content could only be determined
by the judiciary.
It was imperative that in upholding the law and enduring equality before the law, that the
judiciary should not be subject to the control and influence of the other two arms of the
government.
For the rule of law to prevail in that government must respect to decisions of the
judiciary. There must be respect, protection and promotion of fundamental rights and
freedoms.
There must be representative government therefore there must be an opportunity for the
people to participate in the affairs of the state either directly if possible or through elected
representatives.
Few countries in the world, if any cab claim to embrace all the aspects of the rule of law
in the theory and practice. On the other hand, there is no single state that admits to having
done away with it together. Indeed, the state’s diplomatic is the projection of the rule of
law. When it is obvious that a country has infringed some principles of the rule of laws
such a country endeavors to justify her actions as constituting special circumstances.
As longer as the government and bureaucratic institutions continue to regard the rule of
law as the standard norm by which their actions should be judged, the rule of law will
continue to play a major role in a just and democratic society.

Independency of the judiciary

It has been opined by many legal writers that one of the most obvious ways to determine
whether or not a particular country enjoys a high degree of democracy and justice is
looking at how independent its judiciary is, the doctrine of independent of the judiciary
and its importance was under scored in the well-known case of Masalu Musene $ 3
others VS AG constitutional petition no.5 of 2004. Where Mpagi Bahigiene JA noted
that;
“Judicial officers are changed with safeguarding the fundamental rights and freedoms of
the citizenry. In the performance of their duties, they are entrusted with checking the
excess of executive and legislature. These duties requires insulation from any influence
direct or indirect that may warp their judgment or cause them to play into the hands of
corrupt elements. An independent judicial officer is indispensable to the administration of
impartial justice and the rule of law.”
Constitution disposition of judicial power in the people of Uganda, Article126(1)
provides that judicial power is derived from people and not the government in power and
shall be exercised by courts in the name of the people and in conformity with law and
with the values, norms and aspiration of the people. Similarly Article127 prescribes and
enjoins parliament to make laws for the participation of the people in the administration
of justice.
According, judicial power does not any more flow from crown or government as it did in
the colonial days or from the president as it apparently did before the enactment of the
1995 constitution. It can longer be dispensed at the whims of the ruling government or
any other person or authority. This provision is meant to ensure that courts act in line
with the aspiration and mandate of the people. Moreover, Article1 (1) of the constitution
places all power in the Ugandan people. This power must now be taken to include the
judicial power.
Exercise of judicial power without the control or direction of any person or authority.
The doctrine and principle of independence of the judiciary are contained in Article 128
of the constitution where it provides that “in the exercise of judicial power, the courts
shall be independent and shall not be subject to the control of direction of any person.it
then sets out principle upon which this very fundamental doctrine rests.
Non-interference with judicial authority. Article 128(2) is to the effect that no person or
author shall interfere with the courts or judicial officers on the exercise of their judicial
functions. Under Article 128(3) all organs and agencies of the state shall accord to the
courts such assistance as may be required to ensure the effectiveness of the courts.
However, the assistance must not be necessary, but it must not be such that it instead
violates the independent of the judiciary. In Uganda law society vs. Attorney General
case no18 of 2005, the doctrine was held to have been a bluntly violated when Rtd col.
Dr. Kiiza Besigye and others were jointly charge with treason and misprision of treason
under penal code act. The accused Dr Kizza was charged with rape. The other accused
were later committed to high court for trial. In his judgment Enwau JA noted that “under
128(3) what those military personal did on that day was not an assistance envisaged.
Judicial officers not be liable to action or suit in the exercise of judicial power. Without
prejudice to any disciplinary procedure or to any right of appeal or to compensation from
the state, in accordance with national law, judges must enjoy personal immunity from
civil suits for monetary damages for improper acts or omissions in the exercise of their
judicial functions. Under Article 128(4) a person exercising power shall not be liable to
any action or suit for any act or commission by that person in the exercise of judicial
powers. This protection is buttressed in the judicature Act section 46(1).
Judicial expenses to be chargeable directly on the consolidated fund. Article 128(5) is to
the effect that the administrative expenses of the judiciary including all salaries,
allowances, gratuities and pension payable serving the judiciary shall be charged on the
consolidated fund.
Self-accounting judiciariary. Under Article 128(6) the judiciary shall be self- accounting
and may deal with the ministry responsible for finance in relations to its finance. These
two provisions are meant to ensure that there is a reasonable degree of self-accounting
and control over judicial funds such that the welfare of judicial officers is not placed in
the hands or at the whims and mercy of the executive or legislature. Financial matters
cannot therefore be separated from the board question of judicial independence.
No varying of the terms and conditions of service to disadvantage judicial officers. In
order to safeguard the independence of judges, their terms of office, their independent,
security, adequate remuneration, and condition of service, pensions and the age of
retirement must be adequately secured by law. See Article 128(7) of the constitution of
Uganda 1995.

Supremacy of the Constitution

Within any constitution is the most fundamental law from which all other laws derives
their validity. It is therefore that the constitution is called ground norm to mean supreme
of the land since it provides the basic structure of the state and governance of the laws of
the country.
Apart from Uganda other countries that embrace the supremacy of the constitution are
United States of America. South Africa, Kenya, Tanzania and most countries in the
world.
Most Constitutions provide for their own supremacy over all authorities and person
throughout the country. Thus, in the case of Joseph Tumushabe v. A.G, the
Constitutional Court held that all provisions of the Constitution are binding on all
authorities in Uganda unless specifically accepted by the Constitution itself.

The same Constitutions usually incorporate a clause rendering void any other law or
custom that is inconsistent with any of their provisions.1 The fact that the supremacy of
the Constitution cannot be diluted by any means was emphasized in the case of Al Haji
Nasser Ntege Sebaggala v. A.G & Ors One of the issues in this case was whether the
Constitutional Court still had jurisdiction as conferred upon it under Article 137 of the
Constitution to entertain the petition in the face of the some provisions of the Constitution
that had been incorporated in the Local Government Act depriving it of jurisdiction. The
Constitutional Court held that it still had jurisdiction to entertain the petition by virtue of
Article 137 of the Constitution. The Court could not lose jurisdiction merely because the
Local Government Act had incorporated certain articles of the Constitution. Provisions of
the Constitution cannot be diluted by incorporation because this would derogate from the
provisions of Article 2 that guarantees supremacy of the Constitution.

There are a number of factors that make the Constitution supreme and these are:

All executive authority must be derived from the constitution and must be exercised
according to provisions of the constitution. Any exercise beyond what is provided for in
the Constitution will be regarded as arbitrary.

The Judiciary is vested with the responsibility of interpreting the constitution but that
jurisdiction does not mean that the judiciary can make its own constitution. The judiciary
must exercise its jurisdiction within the confines of the provisions of the Constitution. All
this makes the constitution supreme.
However there are some few countries that don't regard their constitution as supreme law.
For example, in Britain, it is parliament, which is supreme. Parliament there can pass any
law, which has the effect of changing what is currently regarded as a constitutional
principal.