UGANDA MARTYRS UNIVERSITY NKOZI

NAME: NYINOMUNTU ANNET

REG.NO: 2019-B411-12400

YEAR/SEMESTER: 4TH/1

COURSE UNIT: CONSTITUTIONAL LAW

LECTURER: MADAM JULIET KEKIMURI

DATE: 22/11/2022

QUESTION

Analyse whether the Doctrine of Separation of Powers in Uganda is a

myth or a reality?
The Doctrine of Separation of Powers has been defined by Granner 1. to mean that the
three powers of government that is, the Executive, Legislature and Judiciary must in
free democracy, be kept separate and never become exercisable by the same organs of
government.

According to Montesquieu in his book The Spirit of the Laws [1748], 2there must be
three separate organs of government. There must be the organ that makes law which
is, the legislature, there must be the organ that executes Law, that is Executive and
there must be a body to interpret the Law and to mediate disputes over the Law,
which is the Judiciary.

Montesquieu goes ahead and says that separation of powers meant 3 basic things as
explained below;

i. Each organ of the state should be operated by different people meaning that it
should not be one individual running all the three organs so that at no time
should a Judge make the Law nor should he be involved in an executive func-
tion.

ii. That each of the state organs should be independent of one another that is,
there should be an absence of control, influence or direction by one organ of
state over another meaning that there should be autonomous operation.

iii. No one organ of the state should take over the powers of the other.

The doctrine was exemplified in the case of MAJOR GENERAL DAVID

TINYEFUZA v AG 3wherein Kanyeihamba JSC noted that ‘the principle of non-
interference by the Judiciary in legislative and executive matters should prevail save
for exceptional circumstances involving the deprivation of the liberty of a citizen. The
reluctance of the courts to enter into the arena reserved by the Constitution for the
other arms of government reaches its zenith when it comes to the exercise and control
of powers relating to the armed forces, their structure, organization, deployment and
operations. The accepted principle is that courts will not substitute their own views of
what is public interest in these matters especially when the other coordinate powers of
1 Granner; Constitution and administrative laws, penguin in S.A. DE Smith.
2 The spirit of laws
3 Major General David Tinyefuza v AG const. app. no.1 of 1997
government are acting within the authority granted to them by the Constitution and
the law. As military matters are within the exclusive jurisdiction of both the Executive
and Parliament, it is not for the courts to consider whether the discretion of the
executive has been properly, if at all. It is Parliament which has the authority to bring
the executive to account in these military matters. In the English case of Chandler V
DPP 4, Lord Devlin underscored this point when he said “the court will not review the
proper exercise of discretionary power but they will only intervene to correct excess
or abuse” …The Constitution provides that the Constitutional platform is to be shared
between the three institutional organs of government whose functions and powers, I
have already described. The Uganda Constitution recognized these organs as the
parliament, the executive and the Judiciary. It was not by accident either that it
created, described and empowered them in that order of enumeration. Each of them
has its own field of operation with different characteristics and exclusivity and meant
by the Constitution to exercise its powers independently. The doctrine of separation of
powers demands and ought to require that unless there is the clearest of cases calling
for intervention for the purposes of determining Constitutionality and legality of
action or the protection of the liberty of the individual which is presently denied or
imminently threatened, the courts must refrain from entering arenas not assigned to
them either by the Constitution or laws of Uganda. It cannot be overemphasized that it
is necessary in a democracy that courts refrain from entering into areas of disputes
best suited for resolution by other government agents. The courts should only
intervene when those agents have exceeded their powers or acted unjustly causing
injury thereby…the makers of the 1995 Constitution as amended took away a lot of
the powers which had hitherto been exercised by the executive and assigned them
either to parliament or the Judiciary or the local governments. To whittle away the
powers which are left in the executive by judicial engineering would in my opinion
weaken the Executive further and be contrary to good and balanced governance in
Uganda’.

4 Chandler V DPP (1964) AC 763

To a lesser extent, the doctrine of separation of powers is a reality in Uganda as
discussed below;

Article 99(1) of the 1995 Uganda constitution 5as amended vests the Executive
power in the hands of the president. It lays down the duties that the executive is
charged with the duty of administering, implementing, and enforcing government
policies.

Article 128 of the 1995 Uganda constitution as amended of the constitution

provides for the independence of the Judiciary. It provides for how the Judiciary shall
not be interfered with by any authority or person. This indicates that the Courts shall
have autonomous powers while carrying out their activities of ensuring law and
justice.

Article 79 (1) of the 1995 Uganda constitution as amended vests the power to

make laws under the Parliament. This provides that the Legislature and its delegated
subsidiary bodies are the only recognized law-making bodies. As laid out above each
organ is charged with unique duties in the framework of government.

The case of Attorney General v Major General David Tinyefunza6 illustrates the

balance of power between the Judiciary and the Executive. Retired Justice Kanyei-
hamba noted that the courts can only interfere where the acts of the Executive violate
the rights of an individual. This continues to show how the arms of Government are
not ready to interfere with the activities of the other this was portrayed where the
Constitutional Court ruled in favour of the plaintiff 'without the executive interfering
with the judge's right to reach a decision. Hence the independence of the judiciary
which makes this doctrine a reality.

Article 128(2) is to the effect that no person or authority shall interfere with the courts
or judicial officers in the exercise of their judicial functions and 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. In Masalu Musene, Mpagi
Bahigeine JA noted that the maintenance of judicial independence as enshrined in
article 128 depends upon public support for the judicial process to run effectively and
5 1995 Uganda constitution
6 Attorney General v Major General David Tinyefunza
independently. It is the public respect, for that principle that sustains it. By public is
meant the government to reinforce and facilitate the effectiveness of the independence
which makes the reality of this doctrine achievable.

To a large extent, the doctrine of separation of powers is a myth in Uganda as

discussed below;

The Executive arm has a lot of influence on the Judiciary Article 282(c) 166 provided
that daily prerogative functions which under the executive lay or rests in the president
shall be exercised by the President under common law prerogatives in Engrailed were
hailed over to the present also equivalent to Article 99(1).

The Doctrine of separation of powers in Uganda was portrayed in the case of

Tinyefuza vs Attorney General where the Constitutional Court ruled in favour of the
plaintiff 'without the executive interfering with the judge's right to reach a decision.

The Member of Parliament of Amuria County, Onapito Ekimoloit moved a motion to

amend Article 113 of the Constitution baring minister once appointed as minister
should resign from being Member of parliament 59 in or order to have smooth
operation of the legislative. This was rejected by the majority members of parliament
and also ministers and this shows that once the legislature has many of its members
being part of the executive the influence is passing of any law can easily be made so
long as it favours the executive whether valid or not as the referendum law hence non
adherence to the doctrine.

In 2006, a uniquely, dramatic and movie style like, the so called the black Monday,
in the case of The Uganda Law Society V Ag 7 where Dr. Kiiza Besigye and other
accused after being granted a bail, the court was surrounded by the black mambas
from the army on the orders of the executive and the applicants were rearrested
symbolizing the un independence thus the doctrine being a myth.

Another most recent case was that of 2017, referred to as tl1e stupid order15 under
which deputy chief justice Steven Kavuma granted an interim order stopping
7 The Uganda Law Society v Ag Constitutional Petition No. 18 Of 2005
parliament from debating, investigating or inquiring into the "Presidential handshake"
16. It was an act of violating the embodiments of the principle of separation power

Articles 225 and 230 of the 1995 Uganda Constitution 8as amended gives powers to
the Inspector General of Government to investigate arrest, cause arrest, and prosecute
or cause prosecution in respect of cases involving corruption. This role could not be
legally performed by a sitting Judge as it would contravene the doctrine of separation
of powers as enshrined in the Constitution and this was further explained in the case
of Bob Kasango v Attorney General & Ors 9where it was stated that “the duty of a
judge is to adjudicate disputes in society and to interpret and enforce the law. In do-
ing so the judicial officer and judiciary are independent of any person or authority.
On the other hand, the duties and functions of the IGG, include, the powers to invest-
igate, arrest, cause arrest, prosecute, cause prosecution in respect of cases involving
corruption, abuse of authority or of public office. Now, it is a cardinal principle of
our jurisprudence that a judge must be Independent, Impartial and just to all manner
of people. He must take the judicial oath to inculcate these principles in his person.
“This therefore, makes the doctrine a myth.

Under Articles 2 and 128 (1), (2) and (3) of the 1995 Uganda Constitution 10as
amended, the judiciary is protected and is guaranteed independence. This same prin-
ciple was portrayed in the case of Attorney General v Walugembe Danie,11 where the
Court of Appeal emphasized that court judgments, and or orders cannot be comprom-
ised or interfered with by orders issues by any other arm of Government, and to do so
would be interference in the separation of powers and independence of the Judiciary.
However, this principle or doctrine was contravened with by COSASE as seen in the
case of Ssekatawa v Attorney General & 2 ors 12where it was stated that COSASE
violated the principle of the independence of the Judiciary as it is known under the
relevant provisions of the Constitution.

8 1995 Uganda Constitution

9 Bob Kasango v Attorney General & Ors (constitutional petition 16 of 2016) [2021]
10 The 1995 Uganda Constitution
11 Attorney General vs. Walugembe Daniel CA Civ. Appl. No. 390 of 2018,
12 Ssekatawa v Attorney General & 2 ors miscellaneous Application 293 of 2017
[2020]
Under Article 142 of the 1995 Uganda Constitution 13as amended, the President has
the mandate to appoint the Chief Justice, the Deputy Chief Justice, The Principal
Judge, Justices of the Supreme Court and Judges of the High Court subject only to the
advice of the Judicial Service Commission whose members are appointed by the Pres-
ident with the approval of Parliament. The approval of Parliament is affected by a vet-
ting committee, the majority of whose membership is from the party in power includ-
ing the Speaker, who chairs it. In this scheme of things, the ruling party controls the
executive, the legislature and through the appointments system, the Judiciary. This
makes the doctrine of separation of powers a myth in Uganda.

In conclusion, the doctrine of separation of powers in Uganda is more of a myth than

a reality as seen in the discussion above. In the introduction I gave the definition of
the doctrine of separation of powers, I gave a wide explanation about this doctrine in
the Tinyefuza case and I gave reasons to why the doctrine is a reality in Uganda
which is to a small extent and the reasons why the doctrine is a reality in Uganda
which is to a large extent and I concluded.

13 The 1995 Uganda Constitution