THE DOCTRINE OF SEPARATION OF POWERS

The doctrine of separation of powers can be defined as the division of the government authority
into branches of government that is the executive, the legislature and the judiciary

The doctrine is fairly dated and its first normative expression assumes that concentration of
powers in one person or one organ of government usually leads to tyrannical rule. This theory
was championed by a French philosopher Montesquieu, in his book The Spirit of the Laws Vol
1 1878 London T. Evans 1778, that when the legislature and executive powers were united in
the same person, that infusion leads to tyrannical and arbitrary government. His argument was
that in order to protect the individual from tyranny of government there is a need for the 3
separate organs of government to be separate from each other in terms of powers and in the way
the powers are exercised.

His basis was the French government at that time whereby all the powers were concentrated in
the monarchy - and this was leading to tyranny. The French Government at the time enjoyed
absolute power. Montesquieu said separation of powers essentially means 3 things.

(i) Different people should operate each of the organs. In other words, no one single individual
should belong to more than one organ;
(ii) Each of the organs of government should be independent/ autonomous of the other;
(iii) No one organ should undertake and exercise the functions of the other

Indeed, the model of government conceived by Montesquieu had divided the political authority
of the state into executive, legislative, and judicial powers. He asserted that separating the
powers of the state into different branches ensuring that the three “powers” operate separately
and independently with the intention that each different branch, jealous of its own powers, would
keep the other branches limited in their powers was the key to liberty
Montesquieu championed the doctrine of pure separation of power in government

Another founding father of the Doctrine of separation of powers James Madson knew all too
well from hard experience the dangers of unchecked power in government. As Madison himself
put it, “the truth is that all men having power ought to be mistrusted”

As Madison wrote in the Federalist papers No.51, published in 1788, “the accumulation of all
powers, legislative, executive and judicial in the same hands, whether of one, a few, or many and
whether hereditary, self – appointed, or elective, may justly be pronounced the very definition of
tyranny”

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Madison and his fellow framers believed that in creating any government administered by
humans over humans, “you must first enable the government to control the governed; and in the
next place, oblige it to control itself”

Madison on the need for separation of powers stated:

“But the great security against a gradual concentration of several powers in the same
department, consists in giving to those who administer each department, the necessary
constitutional means and personal motives, to resist encroachments of the others. The
provision for defense must in this, as in all other cases, be made commensurate to the
danger of attack. Ambition must be made to counteract ambition. The interest of the man,
must be connected with the constitutional rights of the place. It may be a reflection on
human nature, that such devices should be necessary to control the abuses of government.
In framing a government which is to be administered by men over men, the great difficulty lies
in this: you must first enable the government to control the governed; and in the next place
oblige it to control itself. A dependence on the people is, no doubt the primary control on the
government; but experience has taught mankind the necessity of auxiliary precautions”

Historically, the doctrine of separation of powers has been shaped by a number of decided cases
as shown below

Marburg vs. Madison; 5US 137 (1803), legal case in which, on February 24, 1083, the U.S
Supreme Court first declared an act of congress unconstitutional, thus establishing the doctrine of
`judicial review. The court’s opinion, written by Chief Justice John Marsahll, is considered one
of the foundations of U.S constitution law. It was stated;

“The judiciary is independent of both the executive and the legislature and has the power
of declaring invalid the acts of the executive and the laws of the legislature if they are
repugnant to the constitution.”

Director of Public Prosecutions Vs Daudi s/o Pete Criminal Appeal No. 28 of 1999. This
appeal by the Director of public Prosecutions concerned the right of bail.

The Court of Appeal of Tanzania held that the doctrine of separation of powers is infringed
when either the executive or the Legislature takes over the function of the Judicature
involving the interpretation of laws and adjudication of rights and duties in disputes either
between individual persons or between the state and individual persons. Legislations

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prohibiting the grant of bail to persons charged with specific offences does not amount to a
takeover of judicial functions by the Legislature.

Rev. Christopher Mtikila vs A.G, Civil No. 5 of 1993

Held: Courts could only interfere in executive or legislative action to protect and promote the
rights of the individual citizen. Beyond that the courts will not go. They could not formulate
government policy nor would they compel legislation. They could only make law either
through the doctrine of judicial precedent or in the exercise of the power to make rules of
court.

In Major General David Tinyefuza v Attorney General (Constitutional Petition No. 1 of

1996) [1997] UGCC 3 (25 April 1997)

Justice Kanyeihamba observed that the general rule is that courts have no jurisdiction
over matters which are within the constitutional and legal powers of the legislature or
the executive. He went on to observe that even in those cases where courts feel
obliged to intervene and review legislative or executive acts when challenged on the
basis that the rights of an individual are infringed, they do so sparingly and with great
reluctance

Separation of powers in the 1995 constitution of the Republic of Uganda as amended

There are substantial provisions in the 1995 constitution which contains the principle of
separation of powers in relation to three organs of government.

This is arranged in different chapters of the constitution, indeed with the legislature, the
executive, and the judiciary demonstrates not only an intention to separate judiciary powers
from the legislature and the executive but also the rationale for its separation.

Firstly Article. 98(1) of the 1995 constitution of the republic of Uganda provides for the
presidency of the republic of Uganda. It provides thus;

98(1) there shall be a president of Uganda who will be Head of the State, Head of Government
and Commander in Chief of the Uganda People’s Defense Force and the fountain of Honor.

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The Same Articles provide for the exercise of executive authority of the republic of Uganda. It
provides inter alia that, 99(1) the executive authority of Uganda is vested in the president and
shall be exercised in accordance with this constitution and the laws of Uganda.

Different Articles Under chapter seven provides for the republic of Uganda and its authority,
the executive or cabinet consists of the president, Vice President, Prime Minister and such
number of ministers as may appear to the president to be reasonable necessary for the efficient
execution of the state duty, and other ministers to assist state ministers in the performance of
their function.

The essence or rational as the name suggests or implies, the executive or the cabinet is the
organ of the state which is charged with administrative function of the government, and
determination, formulation and implementation of policy upon which laws are eventually enacted
by parliament.

Chapter six concerns the legislature. Article 77 to 97 of the 1995 constitution of the
Republic of Uganda as amended provides inter alia, for the composition, function, power and
procedure, privileges and immunities’ of parliament, speaker and deputy speaker and the clerk
of parliament and other staff. Its common knowledge that legislature is the organ of the state
which enacts laws in the national assembly based on the policy formulated by the executive arm
of government. Equally the legislature is empowered to monitor the activities of the executive
with a view to ensure its accountability.

Judiciary is embodied under chapter eight of the constitution. Under the chapter provision
establish courts of ad judicature, which consists of the supreme court of Uganda, the court of
appeal, the High court of Uganda and subordinate courts as parliament may by law prescribe, or
establish including Qadhis courts as may be prescribed by parliament and the details of court
structure are dealt within chapter four.

It is known that the basic function of judiciary is to adjudicate over disputes arising between
parties in accordance with the laws enacted by the legislature, the courts which constitute
judiciary are empowered to interpret the constitution the supreme law of Uganda and other laws
of similar relevance enacted by parliament.

The three organs of government as they exist the supreme role of judiciary is exhibited under
Article 126(1) of the constitution which is to the effort that judicial power is derived from the
people and shall be exercised by the courts established under this constitution. In the name of

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the people and in conformity with the laws of Uganda and with values, norms and aspirations of
the people. More to the effect, under Article 128 of the constitution establish the
independence of judiciary that it will be independent and not subject to the control of or direction
of any person or authority in the exercise of their judicial function.

The provision mentioned above manifest an intention to secure in the judiciary a freedom from
political, legislative and executive powers.

There have been arguments over why members of cabinet should also be MPs, and the basic
argument has been that members of the cabinet need to be informed about what is transpiring in
the legislature. This argument was challenged in 1999 when two MPs introduced a private
members bill (Onapito Ekomoloit and Mugisha Muntu) seeking to separate the members of
cabinet from the legislature in order to produce a more presidential type of system. However that
action failed.

The system of separation of powers has come a long way since the pure doctrine of
Montesquieu. Checks and balances have largely replaced separation of powers, but different
systems have emerged to regulate how these powers are exercised.

The systems of checks and balances

It has however been argued that there is no absolute separation of powers but rather the systems
of checks and balances. It is the system where no single organ should usurp the authority at the
expense of others.

Though the constitution provides for the checks and balances, the courts encourage more of the
doctrine of separation of powers. In Rtd. Col. Dr. Kizza Besigye vs. The Electoral commission
and Yoweri Museveni Election Petition No. 1 of 2001 the judiciary was seen to check the
executive.

The government concept of separation of powers enforced through a series of checks and
balances was incorporated into the Ugandan Constitution and others worldwide to ensure that no
single person or branch of the new government could ever become too powerful.

The system of checks and balances is intended to make sure that no branch or department of the
government be allowed to exceed its bounds, to guard against fraud, and allow for the timely
correction of errors or omissions. Indeed, the system of checks and balances is intended to act as

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a sort of sentry over the separation of powers, balancing the authorities of the separate branches
of government while the responsibility to verify the appropriateness and legality of that action
rests with another.

How the doctrine of Separation of powers is manifested in the 1995 Constitution

The 1995 Constitution is a hybrid with a combination of not only the Executive and
Parliamentary systems of government, but also has aspects of a Parliamentary system. This
hybrid system produces some degree of tension and even some aspects of conflict between the
three organs of the state, i.e. The Executive, Legislature and the Judiciary, which tensions
emerge from different sources which are the nobility of the 1995 Constitution of the Republic of
Uganda as amended in comparison to the 1967 Constitution which had clearly defined
demarcations between the three organs.

The 1995 constitution of the Republic of Uganda as amended provides that there are three
organs, i.e. the executive, the legislature, and the judiciary.
Article 99 provides for powers of executive, Article 77 - establishes parliament, article 79 -
gives functions of parliament, Article 126 of the 1995 constitution of the Republic of Uganda as
amended - establishes jurisdiction and power of the judiciary.

The 1995 constitution of the Republic of Uganda as amended provides that in terms of personnel,
the three organs will as much as possible, employ different people. Where officers double as
members of parliament and of the Executive, there is a clash with constituency duties as they
side more with the executive than the legislature

The constitution recognizes that for practical purposes it is impractical and not possible to have
complete separation of powers. For purposes of explaining government policy it is necessary that
members of cabinet sit in the legislature. This is to explain to the legislature what is going on in
the cabinet.

It is also the duty of parliament not only to make laws but to ensure that the executive standing
committee carries out its work properly. Article 118 empowers parliament to move a vote of
censure against any minister on specified grounds.

Parliament is supposed to exercise a lot of control over financial matters such as through Public
Accounts Committee and other committees. Article 93. Many public appointments can be made
by the president but on approval by parliament. (Articles.111&113). This is to ensure that the
appointments made are in the people’s interests. Bills can only be passed as law if they are

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passed by parliament and assented to by the president Article 91. Article 107 the removal of the
president may be affected by Parliament. Article 101, president must address parliament on the
state of the nation at the beginning of each session.

Three branches, separate but equal.

In the provision of the three branches of governmental power – legislative, executive, and
judicial – into the constitution, the framers built their vision of a stable government as assured by
a system of separation of powers with checks and balances.

In the Ugandan government, these three branches are:

 The legislative branch enacts the nations or country’s laws.

 The executive branch implements and enforces the laws enacted by the legislative
branch.
 The judicial branch interprets the law in reference to the constitution and applies its
interpretations to legal controversies involving the laws.

In both theory and practice, the power of each branch of government is held in check by the
powers of the other two in several ways.

Specific examples of separation of powers through checks and balances include:

Executive branch checks and balances on the legislative branch

 President has the power to not to assent or veto laws passed by parliament. article 91 (1)
& (2)
 Submits the budget through the minister of finance to the parliament (article 155 (1))
 Giving professional assistance while passing bills. Article 94 (4) d provides that the
office of the attorney general shall afford the member moving a private member bill
professional assistance in the drafting of the bill (under article 119 the attorney
General is a cabinet minister)
 Appoints officials, who carry out and enforce laws example the

Executive branch checks and balances on the judicial branch

 The president appoints the chief justice, deputy chief justice and judges to the courts law
(articleicle 142 (1)
 President has the power to pardon convicts under the prerogative of mercy (articleicle
121 (4)

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Legislative branch checks and balances on the executive branch

Parliaments has power to override presidential refusal to assent to laws or vetoes with a 2/3
majority vote (articleicle 91 (5). Parliament can reject presidential nominations of state officials
or judges. Parliament can impeach and remove the president or his ministers (the house serves as
prosecution, senate serves as jury)

Legisrative branch checks and balances on the judicial branch

 Executive can create lower courts like local council courts.

 Parliament can amend the constitution to overturn judicial decisions
 Decisions can amend the constitution to overturn decisions of the courts

Judicial branch checks and balances on the executive branch

 Courts of law or the judiciary can use the power of judicial review to rule laws
unconstitutional

Judicial branch checks and balances on the legistrative branch

 Courts can use the power of judicial review to rule presidential actions unconstitutional.
 Courts can use the power of judicial review treaties unconstitutional.

Therefore, when examining how effective a system of checks and balances is, it would be useful
to look at what is known as the Latimer House guidelines of June 1998. For example, with
regard to the independence of parliamentarians, it talks about securing the freedom of speech. It
says that the use of the tool of expulsion and even laws on recall should be used cautiously
because they can be manipulated in order to eliminate opposition. It also talks about introducing
accountability mechanisms and the role of non judicial and non-parliamentary bodies like IGG,

In conclusion, the system of separation of powers has come a long way since the pure doctrine of
Montesquieu. Checks and balances have largely replaced separation of powers, but different
systems have emerged to regulate how these powers are exercised.

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 THE RULE OF LAW

The doctrine of rule of law is a fundamental principle in many legal systems around the world.
A.V. Dicey, in his book, Introduction to the Study of Law of the Constitution (1885; 10th edn.,
Macmillan & Co., 1959) emphasizes the idea that all individuals and institutions are subject to
and accountable under the law. This principle ensures that laws are applied consistently and
fairly, and that no one is above the law. For Dicey the supremacy of the rule of law has three
distinct though related conceptions.

 No individual can be punished except through the process of law and the courts.
 No one is above the law; this includes the Prime Minister who is subject to the ordinary
law in the same way that other citizens are.
 The constitution is pervaded by the rule of law, since general principles of the
constitution are the results of judicial decisions which determine the rights of private
citizens.

One of the key components of the rule of law is that laws must be clear, publicized, and applied
consistently. This means that individuals should be able to know what the law is and how it will
be applied in specific situations. For example, in the case of Entick v Carrington (1765), Lord
Camden famously stated that "if it is law, it will be found in our books. If it is not to be found
there, it is not law."

Another important aspect of the rule of law is that the government must exercise its powers in
accordance with established laws and procedures. This principle is often referred to as the
principle of legality. In Anisminic Ltd v Foreign Compensation Commission (1969), Lord
Reid stated that "it is a fundamental principle that a person cannot be made subject to the
jurisdiction of a tribunal which has no jurisdiction."

Furthermore, the rule of law requires that there be an independent judiciary to interpret and apply
the law. This ensures that the judiciary can act as a check on the executive and legislative
branches of government. In R v Sussex Justices, ex particlee McCarticlehy (1924), Lord
Hewarticle CJ famously stated that "justice should not only be done, but should manifestly
and undoubtedly be seen to be done."

In Uganda, the doctrine of rule of law is enshrined in the country's Constitution and is considered
a fundamental principle of governance. The Constitution of Uganda, 1995, provides for the
supremacy of the rule of law and the protection of fundamental rights and freedoms. The
doctrine of rule of law in Uganda emphasizes the accountability of all individuals and institutions
under the law, as well as the need for laws to be clear, publicized, and applied consistently.
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One of the key cases in Uganda that has emphasized the importance of the rule of law is
Muwanga Kivumbi v Attorney General (2004). In this case, the Supreme Court addressed the
issue of the constitutionality of the removal of presidential term limits. The Muwanga Kivumbi v
Attorney General case highlighted the complex interplay between constitutional principles,
democratic governance, and the rule of law in Uganda. It underscored the need for a robust
legal framework and independent judiciary to adjudicate constitutional matters and uphold the
rule of law in the face of contentious political issues.

In this case, the Supreme Court of Uganda held that the rule of law is a fundamental principle of
the Constitution and that all actions of the government must be in accordance with the law. The
court emphasized the importance of upholding the rule of law to prevent arbitrary exercise of
power by the government.

Another important aspect of the rule of law in Uganda is the independence of the judiciary. The
judiciary plays a crucial role in upholding the rule of law by interpreting and applying the law
imparticleially. The case of Mohammed Hamid v Attorney General (2004) highlighted the
importance of an independent judiciary in ensuring that the rule of law is upheld and that
individuals have access to justice.

Furthermore, the doctrine of rule of law in Uganda requires that government actions are subject
to legal scrutiny and oversight. The case of In Re Kampala City Traders Association (2012)
emphasized the importance of government actions being lawful and in accordance with
established legal procedures. The court held that the rule of law requires that all government
actions must be based on law and must not be arbitrary or capricious.

The principles of the rule of law are essential for ensuring a fair and just society where
individuals are protected from arbitrary government actions. Here are some key principles of the
rule of law along with relevant cases:

1. Legal Certainty: Laws should be clear, accessible, and predictable so that individuals can
understand their rights and obligations. This principle was highlighted in the case of Entick v
Carrington (1765) where the court emphasized the importance of laws being clear and specific
to prevent arbitrary government actions.

2. Equality Before the Law: All individuals, regardless of their status or position, should be
treated equally under the law. In R v Sussex Justices, ex particlee McCarticlehy (1924), the
court emphasized the importance of justice not only being done but also being seen to be done,
highlighting the principle of equality before the law.

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3. Accountability: Government officials and institutions should be accountable under the law and
subject to legal scrutiny. In Muwanga Kivumbi v Attorney General (2004) in Uganda, the
Supreme Court emphasized the accountability of the government and the need for all actions to
be in accordance with the law.

4. Independence of the Judiciary: An independent judiciary is crucial for upholding the rule of
law and ensuring that laws are interpreted and applied imparticleially.

In Mohammed Hamid v Attorney General (2004), the importance of an independent judiciary

in upholding the rule of law was highlighted.

5. Fairness and Imparticleiality: Legal proceedings should be conducted fairly and

imparticleially, without bias or discrimination. In Anisminic Ltd v Foreign Compensation
Commission (1969), the court emphasized the importance of legal proceedings being conducted
in accordance with established legal principles to ensure fairness and imparticleiality.

These principles of the rule of law are essential for maintaining the integrity of the legal system,
protecting individual rights, and promoting a just and democratic society. They serve as
foundational principles that guide the application of laws and the exercise of governmental
powers in a manner that upholds justice and fairness.

While Uganda has made significant progress in establishing the rule of law as a fundamental
principle of governance, there are still several challenges that hinder its full realization. Some of
the key challenges of the rule of law in Uganda include:

1. Political Interference: One of the major challenges facing the rule of law in Uganda is political
interference in the judiciary and legal processes. There have been instances where the
independence of the judiciary has been compromised, leading to concerns about the
imparticleiality and fairness of legal proceedings.

2. Corruption: Corruption remains a significant challenge in Uganda and poses a threat to the
rule of law. Corrupt practices within the legal system, such as bribery and influence peddling,
undermine the integrity of the legal process and erode public trust in the judiciary.

3. Limited Access to Justice: Many Ugandans, especially those in rural areas and marginalized
communities, face barriers in accessing justice due to factors such as high legal costs, lack of
legal aid services, and geographical constraints. This limited access to justice hampers the
effective implementation of the rule of law.

4. Weak Legal Institutions: Uganda's legal institutions, including the police, prosecution, and
judiciary, face challenges such as inadequate resources, capacity constraints, and inefficiencies.

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These weaknesses in legal institutions can impede the proper enforcement of laws and
undermine the rule of law.

5. Human Rights Violations: There have been reports of human rights violations in Uganda,
including arbitrary arrests, torture, and extrajudicial killings. These violations not only infringe
on individuals' rights but also undermine the rule of law by disregarding legal protections and
due process.

6. Inadequate Legal Reforms: The slow pace of legal reforms and the lack of implementation of
existing laws contribute to gaps in the legal framework and hinder the effective enforcement of
the rule of law. Without comprehensive legal reforms, the rule of law may not be fully realized
in Uganda.

Addressing these challenges requires concerted efforts from the government, civil society, legal
professionals, and the international community to strengthen legal institutions, promote
transparency and accountability, combat corruption, and ensure equal access to justice for all
Ugandans. By addressing these challenges, Uganda can further advance the rule of law and
uphold justice and fairness in the country.

Judicial interpretation of the rule of law:

Historically, constitutional lawyers have extolled the virtues of the UK's adherence to the Rule of
Law. In countries with codified constitutions, judicial responsibility for the rule of the law is
their power to interpret, and apply terms of the constitution. In the UK, without a codified
constitution, the judges apply the common law to protect the rule of law.

The courts have interpreted the rule of law through a selection of cases that have examined the
legality, the irrationality or the procedural impropriety of the actions of the executive or public
bodies, or whether their actions conform to the Human Rights Act 1998. The main principles of
the rule of law, along with judicial interpretation are considered here.

i. No one must be punished by the state except for a breach of the law
Punishment without trial has been brought back into focus due to anti-terrorism legislation,
including Section 1 of the Anti-Terrorism, Crime and Security Act 2001 (now repealed). In A
and others v Secretary of State for the Home Departiclement [2004] UKHL 56, the appellants
were detained without trial on grounds that they were suspected of involvement in terrorist
activity and were alleged to be a danger to the public. The appellants claimed that if they were
returned to their home countries, they would be killed and could not be deported. The Home
Secretary certified that the detainees could be held indefinitely without trial.

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Lord Bingham of Cornhill, in the House of Lords: the appellants were all foreign non-UK
nationals. None had been subject to criminal charge. The right to liberty exists within Articleicle
5(3) European Convention on Human Rights (ECHR). The UK had sought to derogate from
the ECHR under Articleicle 15, claiming that a 'state of emergency' existed in the light of the
terrorist attacks of September 11, 2001. The House of Lords found that indefinite detention
without trial was always illegal; its justification had to be utterly exceptional. Since the
legislation was discriminatory against non-nationals, it was not justifiable.

In M v Home Office and another [1994] 1 AC 337 HL, M was a citizen of Zaire, he sought
political asylum in the UK; his claim was rejected as was his claim for judicial review of the
decision. He was informed he would be deported, but disputes between the Secretary of State
and the Home Office led to his deporting being order, then postponed, then reordered with
neither side appearing to be aware of their own legal powers. The Home Secretary was
eventually held to be in contempt of court. The principle that the executive is subject to full
judicial oversight was upheld in this case.

In R v Mullen [2000] QB 520, CA the appellant had been unlawfully deported to the UK to face
criminal charges, Mullen claimed he had been forcibly brought to the UK, rather than extradited
according to the law. The case reached the Court of Appeal (CA) to decide whether his unlawful
extradition rendered his final conviction for conspiracy to cause explosions. The CA held that in
order to uphold the rule of law and administration of justice, his conviction must be quashed. The
case confirms that whatever the crime the appellant was accused of it does not justify the state
acting outside the law.

iii. Individuals' rights are protected through the ordinary law and the ordinary court
system
The process of judicial review allows an individual to challenge a decision of the executive
through the courts.

iv. Legal certainty and non-retrospectivity

The rule against the retrospectivity of criminal law was upheld in the joint cases of R v
Rimmington; R v Goldstein [2006] 2 All ER 257, HL, in this case is was the legal certainty of
the common law that was in question. The appellants submitted that the crime of causing public
nuisance, which is governed in common law and not statute, is too uncertain and lacks the
predictability. The court found that within the common law the issue of judicial precedent is an
indispensable foundation upon which to uphold legal certainty. The requirement was for

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sufficient rather than absolute certainty, which the HL upheld was provided by the case by case
basis of judicial precedent.

v. Fair hearing by an independent judiciary

In Matthews v Ministry of Defence [2003] 1 All ER 689, HL a former member of the Navy
claimed personal injury as a result of exposure to asbestos during his time as a member of the
armed forces between 1955 and 1968. The MoD claimed it was not liable due to section
10(1) Crown Proceedings Act 1974 gave immunity the Crown, although repealed in 1987. The
HL held that section 10(1) 1974 Act did not offend against the right to a fair trial under
Articleicle 6 ECHR, because this did not bar the courts from considering the case; the Crown
was permitted to limit liability for its tortious acts.

In R (on the application of Anderson) v Secretary of State for the Home

Departiclement [2002] 4 All ER 1089, HL A was convicted of murder and given a mandatory
life sentence, which permits the prisoner to be considered for release on licence. At this time, the
Home Secretary held the power to set the tariff. Lord Steyn held that "the power of the Home
Secretary in England and Wales to decide on the tariff to be served by mandatory life sentence
prisoners is a striking anomaly in our legal system"[para 51]. He rules that an accused may be
tried and convicted only by the courts, on the basis of the rule of law since 1688. The tariff had
been left in the hands of the Home Secretary, but this is subject to review by the courts as to
whether the executive had breached Articleicle 6 in affording the tariff.

vi. The rule of law and substantive judgments

Traditionally judicial review has been restricted to the legality, rationality, and procedural
propriety of the executive's action, omission rather than the review of the content of its decision.
The following case considers whether judicial review should not review the substance of the
executive's decision in matters related to human rights. In R (on the application of Al Rawi and
others) v Secretary of State for Foreign and Commonwealth Affairs and another [2006]
EWCA C 1279, the CA held that the role of the courts has expanded in human rights cases to
consider the proportionality of the decision, as well as its strict compliance with the law. This
was a consequence of the Human Rights Act 1998.

In conclusion, the doctrine of rule of law in Uganda is a fundamental principle that underpins the
country's legal system and governance. It ensures accountability, transparency, and fairness in
the application of laws and in the exercise of government powers.

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 THE DOCTRINE OF EXECUTIVE RESPONSIBILITY

The doctrine of executive responsibility holds that the executive branch of government is
accountable for its actions and decisions. It emphasizes that the executive (such as the president
or prime minister) is responsible for the administration of government and must answer to the
people or their representatives for its performance. This doctrine is a key component of
democratic governance and helps ensure transparency, oversight, and accountability in the
executive branch.

In Uganda, the doctrine of executive responsibility is enshrined in the 1995 Constitution (as
amended) and plays a crucial role in ensuring accountability and transparency in the executive
branch of government. It also describes in detail, the organization, functions, roles and
responsibilities of the Executive. It also explains the relationship between the Public Service and
the Executive Arm of Government

The Executive

The Executive is headed by the President and includes the Vice President, the Prime Minister,
Ministers, the Attorney General, the Deputy Attorney General and Ministers of State.

The President

Articleicle 99 of the Constitution of Uganda provides for an Executive President. The President
appoints Members of the Executive from amongst Members of Parliament or persons qualified to
be elected Members of Parliament.

The President has the discretion to appoint any citizen of Uganda a Vice President, a Prime
Minister, a Minister, an Attorney General, Deputy Attorney General or Minister of State and
anybody appointed in such a capacity is accountable to the President for the day to day
management of their respective Ministries as the President may assign.

The Vice President

Articleicle 108 of the Constitution provides for the appointment of the Vice President by the
President, with the approval of Parliament by a simple majority.

The functions of the Vice President shall be to:

(i) deputize for the President as and when the need arises;

(ii) Perform such other functions as may be assigned to him/her by the President or as may be
conferred to him/her by the Constitution.

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The Vice President shall, before commencing to perform the functions of Vice President, take
and subscribe the oath of allegiance and the oath of Vice President, specified in the Fourth
Schedule of the Constitution.

The Prime Minister

Articleicle 108 (A) of the Constitution provides for the appointment of the Prime Minister by the
President, with the approval of Parliament by a simple majority from among Members of
Parliament or persons qualified to be elected Members of Parliament.

The functions of the Prime Minister are to:

(i) Be the Leader of Government Business in Parliament and be responsible for the coordination
and implementation of Government policies across Ministries, Departiclements and other public
institutions.

(ii) Perform such other functions as may be assigned to him/her by the President or as may be
conferred on him/her by the Constitution or by law.

In the performance of his/her functions, the Prime Minister is to be individually accountable to

the President and collectively responsible for any decision made by the Cabinet.

Before commencing to perform the functions of his/her office, the Prime Minister has to take
and subscribe the oath of Prime Minister as specified in the Constitution.

The Cabinet

Cabinet is the highest policy making organ of the Executive and under Articleicle 111 of the
Constitution, Cabinet consists of the President, the Vice President, the Prime Minister, the
Attorney General and such number of Ministers as may appear to the President to be reasonably
necessary for the efficient running of the State.

The function of Cabinet is to, determine, formulate and implement the policy of Government and
to perform such functions as may be conferred by the Constitution or any other law of the land.
The Cabinet generally has the following functions:

(i) Providing central leadership in the management of financial, human and physical resources;

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(ii) Establishing the Government’s overall strategic direction and key priorities

(iii) Ensuring that Ministerial proposals are consistent with the Government’s strategic direction
and priorities;

(iv) Establishing the Government’s medium to long-term policy and legislative priorities and
agenda; and

(v) Monitoring the implementation of its decisions.

Cabinet Ministers

Articleicle 111 of the Constitution provides for the appointment of Cabinet Ministers who shall
be appointed by the President from amongst Members of Parliament or any other persons
qualified to be elected Members of Parliament.

Ministers of State

Articleicle 114 of the Constitution provides that the President may, with the approval of
Parliament appoint other Ministers to assist Cabinet Ministers in the performance of their
functions. Ministers of State are also appointed from among Members of Parliament or persons
qualified to be elected Members of Parliament.

Accountability of Ministers

Cabinet Ministers are accountable to the President and to Parliament for the exercise of two
fundamental responsibilities:

(i) Individual performance related to their portfolio within the Government; and

(ii) Collective performance of the Government

Individual Responsibility

Ministers are:

(i) Sworn to carry out the powers, duties and functions of their portfolios;

(ii) Responsible for the policies, programs and administration of their

Ministries/Departiclements;

(iii) The source of policy and program initiatives;

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(iv) Vested with Departiclemental powers, duties and functions through various Acts of
Parliament;

(v) Individually responsible to Parliament for their actions; the policies and practices of their
Departiclements including the actions of all Departiclemental officials under their management
and direction; and the policies and practices of any non-departiclemental bodies such as
agencies, Boards and Commissions within the Minister’s portfolio.

Collective responsibility:

Ministers are:

(i) Appointed by the President to serve at his/her pleasure;

(ii) Expected to particleicipate fully in Cabinet decision making including appropriate Cabinet
Committees; and

(iii) Expected to defend the Government’s actions and policies.

The Attorney General

Articleicle 119 provides for the appointment of the Attorney General who shall:

(i) be a Cabinet Minister;

(ii) be the Principal Legal Adviser of the Government;

(iii) draw and peruse agreements, contracts, treaties and conventions and documents by
whatever name called, to which the Government is a particley or in respect of which the
Government has an interest;

(iv) represent the Government in Courts or any other legal proceedings to which Government is
a particley

(v) Perform such other functions as may be assigned to him/her by the President or by law.

Deputy Attorney General

Articleicle 119A of the Constitution provides for the appointment of the Deputy Attorney
General who shall be a Minister appointed by the President with the approval of Parliament A
person shall not be qualified to be appointed Deputy Attorney General unless he/she is qualified
to practice as an Advocate of the High Court and has so practiced or gained the necessary
experience of not less than seven years

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The Deputy Attorney General shall deputize the Attorney General.

Cabinet Meetings

Regular Cabinet meetings are held every Wednesday. However, the President has discretion to
convene Special Cabinet Meetings as and when he deems appropriate.

Cabinet meetings take precedence over all other business, although Ministers may occasionally
be absent from Cabinet to attend to Parliamentary Business. Requests by Ministers to be absent
from Cabinet Meetings shall be made at the earliest opportunity and in writing to the Prime
Minister, copied to the Secretary to Cabinet.

Cabinet meetings shall take precedence over all other Government business save for the
following:

(i) audience with H. E. the President;

(ii) when express permission has been granted to a Minister to be absent by the President, Vice
President or Prime Minister;

(iii) when a matter of legislation before Parliament is critical;

(iv) When the President is addressing Parliament. (Rule 2 of the Rules to Guide Cabinet at its
meeting).

Chairs of Cabinet Meetings

Cabinet meetings shall be summoned and presided over by the President and in his absence, by
the Vice President, in the absence of the latter, by the Prime Minister and in the absence of the
Prime Minister, by the Deputy Prime Ministers and in the absence of all of them, by a Minister
designated in writing by the President. (Articleicle 112(1) of the Constitution and Rule 1 of the
Rules to Guide Cabinet at its meetings).

Venue of Cabinet Meetings and Meeting Times

The usual meetings of Cabinet are held in the Cabinet Room, West Wing of Parliamentary
Buildings every Wednesday at 9:00 a. m However, Special Cabinet meetings may be held at
other times and other venues whenever necessary. (Rule 3 of the Rules to Guide Cabinet at its
meeting).

Attendance of Cabinet Meetings

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 Members of Cabinet must be punctual and any likely lateness should be reported to the
Chairperson in advance. (Rule 4 of the Rules to Guide Cabinet at its meetings).

The presenter of the Paper on the agenda shall be given 10 minutes in which to present his or her
Paper. (Rule 5 of the Rules to Guide Cabinet at its meetings).

Each contributor shall be given 5 minutes in which to contribute. (Rule 6 of the Rules to Guide
Cabinet at its meetings).

Points covered in the Papers shall not be repeated. (Rule 7 of the Rules to Guide Cabinet at its
meetings).

Members of Cabinet shall adhere to the subject under discussion and shall not add any other
matters which are not relevant to that discussion. (Rule 8 of the Rules to Guide Cabinet at its
meetings).

Members of Cabinet shall not leave meetings without permission from the Chairperson (Rule 9
of the Rules to Guide Cabinet at its meetings).

In discussing papers, Cabinet shall strictly follow the order on the agenda, but the Chairperson
shall have the prerogative to vary the order of the agenda. (See Rule 15 of the Rules to Guide
Cabinet at its meetings).

At every end of discussion on each topic, the Chairperson shall summarize the points agreed
upon. (See Rule 20 of the Rules to Guide Cabinet at its meetings).

Quorum

There is no quorum for Cabinet meetings. (See Rule 27 of the Rules to Guide Cabinet at its
meetings)

Ministers’ holding the portfolio in the absence of the substantive Minister

Ministers of State do act as alternate Ministers and may act in the absence of the Senior Minister
as the portfolio Minister.

Attendance of officials in Cabinet or Committee meetings

When a Minister is presenting a Cabinet paper of a technical nature, the relevant technical
officers may attend the meeting at the request of the Minister and the permission of the
Chairperson.

Security and retention procedures for Cabinet documents

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 The right to retain Cabinet papers continues only for a Minister’s lifetime in office after which,
they should be returned to the Cabinet Secretariat.

Ministerial papers and files should also be returned to the Cabinet Secretariat.

All files and papers that are internal departiclemental materials should be returned to the
originating departiclement when Ministers leave office.

The Government holds a large quantity of information of all kinds. All Government information
should be treated with care and protected from unauthorized release.

Statutory decisions

Ministers are also empowered with administrative powers from statutes. Ministers may make
decisions concerning their mandates without referring those decisions to Cabinet.

However, where a statutory decision or action would affect the collective interest of the
Government, the Minister should not take the relevant action without consulting relevant
colleagues at an early stage and submitting a paper to Cabinet. The paper should include the
Minister’s recommended action or decision and preferably, analysis of other options that may
commend themselves to Cabinet.

Matters that should not as a general rule be brought to Cabinet include:

(i) Matters concerning the day-to-day management of portfolio that have been delegated to the
departiclement;

(ii) Operational (non-policy) statutory functions; and

(iii) The exercise of statutory decision making powers within existing policy parameters.

Cabinet Committees

Cabinet has powers to establish standing and ad hoc committees. Standing committees are
permanent and they are given specific terms of reference while the ad hoc committees are
established from time to time to handle specific subjects assigned to them.

Secretary to Cabinet

Articleicle 111 (3) of the Constitution provides for the appointment of a Secretary to Cabinet
who is appointed by the President in consultation with the Public Service Commission.

The Secretary to Cabinet shall:

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 (i) take charge of the Cabinet office, keep all Cabinet minutes and convey Cabinet decisions to
the appropriate persons or authority;

(ii) Perform such other functions as the President may direct.

The Cabinet Secretariat

The Cabinet Office commonly known as the Cabinet Secretariat is the main Secretariat of
Government. The Permanent Secretary/Deputy Secretary to Cabinet is responsible for the day to
day running of the Secretariat.

Functions of the Cabinet Secretariat

(i) Providing secretariat support to Cabinet and its Committees, including gate-keeping and
challenge function

(ii) Supporting the development of policy capacity across Government

(iii) Supporting Government Ministries in developing capacity for policy analysis

(iv) Preparing the public service to manage transitions in Government;

(v) Supporting the political leadership in the translation of its election manifesto into policies
and programs for implementation;

(vi) Supporting Cabinet in monitoring the implementation of its decisions

Ministries

Ministries are the focal organs through which Government develops and executes its policies and
programs on a day to day basis and each Ministry is headed by a Minister and assisted by other
Ministers of State as the President may deem fit and one Permanent Secretary.

The Permanent Secretary

Articleicle 174 of the Constitution provides that each Ministry shall be under the supervision of a
Permanent Secretary whose office is a public office. The Permanent Secretary is appointed by
the President on the advice of the Public Service Commission and his/her duties as spelt out in
Articleicle 174 of the Constitution are:

(i) The organization and operation of the Ministry;

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(ii) Tendering advice to the responsible Minister in respect to the business of the Ministry and in
that capacity, the Permanent Secretary is the principal policy advisor to the Minister;

(iii) Implementation of the policies of Government;

(iv) Responsibility for the proper expenditure of public funds by or in connection with the
Ministry;

Relationship between the Permanent Secretary and the Minister

The relationship between Ministers and Permanent Secretaries is of paramount importance in the
successful development and implementation of Government policy and for the effective service
delivery by the Public Service.

The relationship between Ministers and Permanent Secretaries is underpinned by the following
principles:

(i) that Ministers are responsible for policies under their Ministries/Departiclements;

(ii) that Permanent Secretaries are responsible for advising Ministers, professionally and
imparticleially, on how these policies can best be implemented and for ensuring that the
Ministry’s/Departiclement’s business is conducted efficiently and cost-effectively. In that
regard, the Permanent Secretary is responsible for the day-to-day function of the
Ministry/Departiclement and is also the Accounting Officer.

In conclusion, the doctrine of executive responsibility in Uganda is crucial for upholding good
governance, transparency, and accountability in the executive branch. By holding government
officials accountable for their actions and decisions, this doctrine helps promote the rule of law
and ensures that the interests of the citizens are safeguarded.

REFERENCES:

The Constitution of the Republic of Uganda, 1995

The Uganda Human Rights Commission Act, 1997
The Judicial Service Commission Act, 1998
The Constitutional Review Commission, 1995
The Equal Opportunities Commission, 2007
Dicey, A. V. (1885). Introduction to the study of the law of the constitution. Macmillan and Co.

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Nalweyiso, J and Twinomugisha, E.M. (2018): "Constitutionalism and Human Rights in
Uganda" by Human Rights Law Review, Volume 18, Issue 1, 1 March 2018, Pages 113–
136
Ninsiima, B.K (2016). The Rule of Law in Uganda: An Overview of the Current State of Affairs,
Journal of Politics and Law, vol. 9, no. 12 (2016), pp. 12-20.
Oloka-Onyango, J. (2005). Constitutionalism and the challenge of Building Democratic societies
in Africa.

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