DOCTRINE OF SEPARATION OF POWERS

DDAMBA M DEOGRATIUS
Background
The doctrine of separation of powers was first known in the 18 th Century when French lawyer
Aristotothe and Metesquieu explained the same. Like a few other African countries, Uganda was
a British Protectorate and hence did not survive “the catching cold.” Most of its laws are
borrowed from the yardsticks and principles of good democratic and are acceptable for India and
Great Britain, under the “reception clause” of 1880’s and the “Repagance clauses” of 1922.
These achieved the following:
● A firm and enriched colonialism and neocolonialism
● Founding roots of governance and political practice
● Expatriation of cheap labor and enhancing colonial administration, this is being brain
washed with scholarships for African to study in countries like the UK.
Therefore, upon this foundation, post-colonial rulers in Africa are characterized with greed, and
immense poser, which explains the rise of mono partisan states such as the NRA in Uganda.
Most countries in post-colonial Africa have also adopted military rule as the norm of
governance. However, Prof Kabudi affirms that despite the post-colonial constitutional
turbulence in Africa, to a great extent, our constitutions have survived with the doctrine of
separation of powers to the present day. Therefore the argument is not whether the constitution is
embedded with provisions of the separation of powers, but rather the extent to which the norms
of separation of powers are being observed.
The doctrine of separation of powers is a constitutional attribute that suggests a creation of 3
independent organs of the state that is the executive, legislature and the judiciary. As Aristotle
wrote, in a free democratic mandate, each organ must work in a unique way that contributes to
the development of the nation. Prof Kanyeihamba attempted to identify the doctrine of separation
of powers as a primary function of the 3 arms of the government. Relying on John Locker, the
fundamental functions are explained as follows;
● The legislature; is charged with the formulation of laws and rules to which the rights of
man such as life, prosperity and liberty are upheld in a vertical and horizontal manner.
● The executive; is responsible for implementing or enforcement of the laws. It must do so
with high level accountability in whichever field they may operate.
● The judiciary; is charged with the interpretation of the laws to safeguard people’s rights
from authoritative and tyrant arm of the executive. The Judiciary ought to be independent
from all the other 2 arms of government and is supposed to exercise impartial judgement
that is deemed just and fair.
Applicability of the doctrine of separation of powers in Uganda, the modern view
The quest for good governance is an ongoing struggle in Uganda, constitutionalism is alive and
deserves a much focused sharp view than ever before. The rule of law, coupled with
accountability and human right are fundamental in Uganda today. The relationship of the arms of
government therefore need to portray openness, mutual respect and candidness to one another in
order to champion the interests of the public.

The Executive
Time and again, the separation of powers in Uganda continue to face a hindrance and are in high
deterioration. The powers of the Executive arm of the government has of late been a hindrance to
the independence of the other 2 arms of the government. The constitution has been amended time
and again to fuse the powers in one person who is the president who almost points all other
members of the 2 arms of the government, save for the members of parliament. In any case,
nowadays he has the powers to determine the candidature and success of an incumbent (Member
of Parliament) in a general election. He also argues that the appointment of Ministers from the
legislature is targeted towards providing Ministers for guidance on issues of National importance
and policies. However, in most cases these appointees are those that have demonstrated
excessive loyalty to the executive, hence betraying the powers of their organ.
Pro executive arm’s laws are passed by the legislature after bribes are given to parliament, a case
in point is the bribe for lifting of term limits in 2016 and the recent deployment of the SFC
command during the age limit debate in 2017. The passing of other laws such as the Public Order
Management Act, 2013 and the Anti-Terrorism Act, MPs had to bury their souls for the highest
bidder. There is therefore need to trim the constitutional mandate of the head of state in order to
curb the continued rape of the constitution. Once reduced, there shall be a more transparent way
of managing and dealing with the doctrine of separation of powers embedded in the constitution
of Uganda. Other countries in East Africa such as Kenya have embraced the same picking from
the manner in which they appoint and screen public office bearers, major government parastatals
and enterprise.
The Judiciary
Uganda has one of the best principles and safeguards for the independence of the judiciary,
which involve the right methods of appointment and removal of judicial officers to ensure that
judges are not stripped off of any authority. However, this is also being evaded by the Executive
as it is now appointing royal NRM members and cadres to the bench. By virtue of their loyalty to
the executive, they end up making arbitrary injunctive and final orders.
Conclusion
There has been a step achieved in the process of separation of powers in Uganda, despite the
excuses that we are a young democratic country. Since Uganda is a long term signatory to major
regional and international treaties, these by now would have yielded returns on how to perfect
the concept of separation of powers, therefore there is no more need for excuses rather than
going to implement what is required by the rule of law.