DELEGATED LEGISLATION

1. Delegated legislation is a necessary evil. Discuss

2. “Delegated legislation is an inevitable part of our process of government in these modern

times.” Discuss the legal authority for delegated legislation in Uganda, the safe guards and
control of delegated legislation and the functions of the same.

Delegated legislation-laws made by subordinate legislative body under the authority of a statutory
power. Delegated legislation also called subordinate or secondary legislation is made in the form of
statutory instrument.

A statutory instrument can be defined as where an Act confers on the President, a minister or any
authority, a power to make a power to exercisable by making proclamation, rules, regulations by laws,
statutory orders or statutory instruments, any document by which that power is exercised, shall be
known as a statutory instrument, and the provisions of this Decree shall apply there to accordingly.

A delegated legislation must not conflict with the existing law, unless the enabling law so provides, it
cannot override any Act.

Types of Delegated legislation

1. Orders-usually made by ministers e.g. to dissolve a public body

2. Regulations-by ministers. Regulations are the means through which substantive and detailed law
is made, for example setting out how an Act is to be implemented.

3. Rules-set out procedures or the way in which the parent office deals with applications. May be
made by ministers or if specified in the in the parent Act by a senior judge.

4. Schemes-e.g. schemes made by the charity commission to amend how a charity is governed.

5. Directions-are means by which ministers give legally binding institutions to a public body about
the way it exercises its functions

6. Bylaws etc.

The purpose of delegated legislation

1. Technicality of subject matter; legislation on technical matters necessitates prior consultation

with experts and interests concerned.

2. Flexibility; e.g. the fine for adultery in Penal code is 600 and it is difficult to change it because it
requires the whole parliament to sit and reverse it instead of a simple act of a minister.

3. Delegated legislation may be given to the executive in order to relieve pressure on

parliamentary time and enable parliament to concentrate on principles rather than details. If
parliament attempted to enact all legislation itself machinery, the legislative machinery would
breakdown due to too much work(Bills)

4. Emergency action. Deal with emergency without waiting for parliament to sit. However it should
be noted that regulations allowing emergency action apply only in war time.
 5. Allows laws relating to technical matters to be prepared by those with the relevant knowledge.

6. Parliament may not be the best institution to recognize and deal with the needs of local people-
local councillors know

Demerits of delegated legislation

7. It is subject to less parliamentary scrutiny than primary legislation.

8. Delegated legislation may be viewed as a way of removing controversial matters from

parliament and putting them under the control of the Government because they are regarded as
matters of detail e.g. immigration rules.

9. Lack of publicity.

Safe guard and control of delegated legislation

Reason for control

Delegated legislation is made by non-elected bodies away from democratically elected parliament
members. As a result, many people have to pass delegated legislation which provides a necessity for
control as without control; bodies would pass outrageous and unreasonable legislations. E.g. in the case
of Strickland v. Hayes Borrow Council 1986, where a bylaw prohibiting the singing or reciting of any
obscene language generally was held to be unreasonable as a result the passing of this delegated
legislation was rejected.

1. Control by Parliament. This takes the form of laying delegated legislation before parliament. An
act of parliament may require that rules and legislation made are supposed to be laid before
parliament. This gives parliament an opportunity to scrutinize and criticize those regulations
before they come into force. E.g. Section 38 (3) of the Inspectorate of government Act, No. 5 of
2005, provides that “any regulations made under this section shall be laid down before
parliament within 21 days after publication in the gazette and shall cease to have effect if
Parliament annuls them within 21 days after they are made… “ however, it should be noted that
the issue of whether a provision of laying a legislation before parliament is mandatory or
directory will normally depend on the wording of the statute, that’s why in Starey v.
Graham [1899] 1 QB 406, court found that rules which were supposed to be laid before
parliament but were not, were nevertheless valid.

2. Consultation. Unless the parent act makes it compulsory there is no general duty to consult
interested parties with regard to proposed statutory instruments. It is widely accepted that
central government apartments take great care to consult those bodies likely to be affected by
legislation. E.g. Agricultural Horticultural and Forestry Industry training Board v. Aylesbury
Mushrooms Ltd. [1972] 1 WLR .190. The Industrial training act required the Minister to consult
any organization appearing to be (to him) representative of a substantial number of employers.
The failure to consult the mushroom flowers association rendered any order made under the act
ultra vires in so far as it sought to apply to members of the association.
 3. Publication. S. 16 of the Uganda Interpretation Act provides, “Every statutory instrument shall
be published in the gazette and shall be judicially noticed.” The basis for publication is that in
law, ignorance of the law is no defence.

In Simms Motor Units v Minister of Labour [1946] 2 ALL ER 201, it was stated that a statutory rule or
order must be published in a proper way for the information of the public and those who are bound to
comply with the regulations. However, in R v. Sheermetal Craft Ltd, [1954] 1 ALL ER 542, where court
held that after the statutory instrument has been made by the minister concerned and laid down before
parliament; it became a valid statutory instrument. The other requirements of the act and the regulation
in regards to the printing publishing and issuing of the instrument were merely matters of procedure
and did not affect the validity of the instrument. This was because court was justified that reasonable
steps had been taken to notify all those affected by the statutory instrument.

4. Judicial Control. Courts will normally determine the validity of delegated legislation by applying
the test of ultra vires. This is done on this principle basis.

a) If it violates the fundamental law of the land, especially the constitution.

b) If it is not authorized by the parent Act.

c) If it is passed in bad faith

d) If it is unreasonable

e) If it is vague and uncertain

f) If it sub delegates powers delegated upon it by the statute.

g) Once it fails to follow procedure laid down for its enactment.

In the case of Kasule v Attorney General, [1971] 29 EA, the plaintiff brought a premium development
bank bond the number of which was drawn for a prize. The government refused to pay the prize to the
plaintiff relying on orders puportingly made by the minister to regulate the draw and imposing condition
that a bond had to be brought more than two weeks before the draw to be eligible. Court held that the
purported orders were ultra vires the Premium Development Bond Act. The conditions were therefore
invalid and plaintiff entitled to the prize.

LOCAL GOVERNMENT

Question:

1. One of the democratic principles set out in the National Objectives and Directive Principles of
State Policy state that “the state shall be guided by the principle of decentralization and
devolution of government functions and powers to the people at appropriate levels where
they can be best managed and direct their own affairs.”
a) Discuss the institutional framework of local government in Uganda meant to give effect to the
above principles.

b) How does a central government monitor and supervise activities at local government levels.

c) What is the procedure the Local Council should follow before enacting a bylaw?

In Uganda, local governments were first incorporated in 1967 with the first local government Act. The
local governments were to implement the government policies at a time. The government of Uganda
has pursued implementation for the decentralization/ decentralized authority and policy which is
enshrined in Chapter 11 of the Constitution and operationalized by the Local government Act, Cap 243
which gives devolution of functions, powers and services at all levels of local government.

This policy is intended to increase the local democratic control and participation in decision making,
planning, as well as mobilize support for development.

Article 176 (1) provides that the system of local government in Uganda shall be based on the districts as
a unit under which there shall be such local governments and administrative units as parliament may by
law provide.

Decentralization is the process of dispersing decision-making governance closer to the people and/or
citizen.

Devolution of powers is the statutory granting of powers from the central government of a sovereign
state to government at a subnational level, such as a regional, local, or state level.

Article 176 (2) provides that the following principles shall apply to the Local government System.

a) The system shall be such as to ensure that functions powers, and responsibilities are developed
and transferred from government, local government units in a coordinate Manner.

b) Decentralization shall be a principle applying to all levels of local government and in particular
from higher to lower local government units to ensure peoples participation and democratic control in
decision making.

c) The system shall be as such as to ensure full realization of democratic governance at all local
government levels.

d) There shall be an established for each local government unit of sound financial base, with a reliable
source of revenue.

e) Appropriate measure shall be taken to enable local government units to plan initiate and execute
policies in respect of all matters affecting the people within their jurisdictions.

f) Persons in the service of local government shall be employed by the local governments and

g) The local government shall oversee the performance of persons employed by the government to
provide services in their areas and to monitor the provisions of government services or implementation
of projects in their areas.
The devolution form of decentralization adopted in Uganda was meant to specifically achieve the
following objectives.

i. Transfer real power to local governments and reduce the workload on remote and under
resourced offices.

ii. To bring political and administrative control over the services to the point of delivery.

iii. Improve financial accountability by establishing a clear mode of payment of taxes and
provision of services.

iv. Improve local capacities to plan, finance and manage service delivery for their
constituencies.

The LGA (Local Government Act Cap 243) was passed for purposes of giving effect to the principles of
decentralization. S. 2 gives objectives of the Act. Which include;

a) To give full effect to the decentralization of functions, powers, responsibilities and services at all
levels of local governments.

b) Ensure democratic participation in and control of decision making of people concerned.

c) Establish sources of revenue and financial accountability inter alia.

EXECUTIVE POWERS OF LOCAL GOVERNMENT

Article 180-local governments shall have both executive and legislative powers which must be exercised
in accordance with the constitution. Executive powers relate to the initiation, formulation, and
implementation of policies. Section 161 LGA established the District Executive Committee which shall
perform the executive functions of the council

Section 16 (2)-district executive Committee shall consist of chairperson and such number of secretaries
not exceeding 2 as the council may determine.

Section 17 stipulates the functions of the Executive District Committee which include initiating and
formulating policy for approval of the local Council implementation, and monitor performance.

S. 3 (1) provides that, the system of local government shall be based on the district as a unit under
which there shall be lower local governments and administrative units.

S. 3 (2) stipulates that the Local Governments in a district rural area shall be district council, sub county
council. The local governments in a city shall be the city council, city division’s council and the local
government in a municipality shall be municipal council, the municipal division council and finally, the
local government in a town shall be the town council.

It should be noted, that every local government is a body corporate with perpetual succession, and may
sue or be sued in its own name.

S. 9 provides that a council shall be the highest corporate authority between the area of jurisdiction of a
local government and shall have executive and legislative powers to be exercised in accordance with the
constitution and LGA.
The executive functions of the Local Government must be in line with the powers given to each local
council.

The Second Schedule for the LGA gives powers to the local government in a district council to the lowest
unit. The executive function of each executive committee must be approved by the executive committee
itself therefore; the committee is a final authority in any district.

FINANCIAL POWERS

Article 176 provides that local councils shall have reliable sources of revenue and they should be able to
plan, initiate and implement their own projects. The, major source of local government funding are the
grants from the central government which are provided for under article 175. These types of grants
include an unconditional grant that is money given to the district is payment of
services, conditional grants which are monies given to the local governments to finance projects agreed
upon between the local government and the central governments. Equalization grants are also given
from the central government to the local government for the purposes of equalizing districts which are
lagging behind in development. The grants which are given to the local government are normally
determined by the local government commission which is established under article 194. This financial
body assists the president to determine the financial needs of each district.

Section 17 of the local government Act provides that the local government many levy, charge,
or collect fees and taxes. This includes rates, rents, stamp duties, loyalties, licensing fees and interests.

Control of local government expenditures

1. Through the budget. Sec 77[LGA] provides that a local government must each year have a
budget.

2. Section 82 provides that no appropriation funds by local governments shall be made out of the
funds by government unless approved in the budget of the local council.

3. Section 92 creates district contract committees which create a procurement and disposal unit in
every district which is charged with awarding contracts in accordance with the public
procurement and disposal of public assets. Every district must have a district account committee
which takes and reveals how government funds are used

4. Local governments are subject to investigations by the office of the IGG who can recommend
appropriate action in cases of financial mismanagement.

5. Every local government is entitled to have an internal auditor which the auditor general may
have identified.

6. Keep proper books of accounts for accountability and all local governments must be audited by
the office of the office auditor general.

Control from the central government

1. The line minister has powers under local government Act to coordinate activities within a
particular local government and make recommendations .

2. The inspector of government has powers to investigate any matter relating to abuse of office.
3. Other controls lie in the office of the RDC per section 70 and 71.

Legislative powers

1. Section 38(1) gives local government legislative powers. Thus local governments have powers
to enact ordinances within their local areas of jurisdiction.

An ordinance is a law made by Local District Council. This law must not conflict with the he Constitution
of any other law.

2. S. 38 (2) a local bill passed by a district Council shall be forwarded to the Attorney General
through the minister to verify the bill.

3. S. 39 empowers lower Local Council to make bylaws not inconsistent with the constitution or
any ordinance or a bylaw made by a higher council.

PROCEDURE FOR PASSING A BILL

See sections 30, 38, 39 LGA, and the 3rd Schedule of the LGA under Part IV of Rule 15 (1), Regulation,
15 (1-3) Regulations

Regulation 16 (1a-d) methods of publication

Regulation 17, (1-2), Bill to have a title

Regulation 18 (1), Ordaining clause

Regulation 19, Distribution of copies of a bill to a member(s)

Regulation 20, (1-8) Debating the bill

Regulation 21, (1-3) Signing a bill into an ordinance and publication

Regulation 22, (1-6) the procedure for making bylaw

ADMINISTRATIVE POWERS OF LOCAL AUTHORITIES

Article 176, Local Government shall control and employ their own stuff. S.56 provides that the power to
appoint persons to hold or act in any office in the service of the district of urban council.

S. 63, establishes the CAO.

S. 64 stipulates the functions of CAO.

NOTE-I used the Local Government Act of 2006

PUBLIC CORPORATION

QUESTIONS

1. Public Corporations are a drain upon our meager resources and hence we are probably better off
doing away with them as a country.”

2. Discuss this statement clearly outlining the role of public corporations and why a significant
section of the general public is disgruntled with them.

A corporation is an institution that is granted a charter recognizing it as a separate legal entity having its
own privileges and liabilities distinct from those of its members. A corporation means a legal entity.

There are two types of corporations.

1. Corporation sole constituted of one person who has been incorporated by law such as the
Administrator General, the AG, the Registrar of Tittles, the IGG etc.,

2. A corporation aggregate is constituted of a group of individuals such that they can act, control
or hold property in the name of that group.

In Uganda, legal entities which are incorporated under the Companies Act, Cap 110 are known as
companies.

A public corporation is a corporate body established by law to carry out certain specified functions for
one reason or another that cannot be appropriately done by the government, a government ministry or
department. See S. 170 Companies Act. They are a means of implementing certain aspects of socio-
economic policies of government. Examples, Uganda Investment Authority

An important feature of a Corporation is limited liability. If a corporation fails, shareholders normally

only stand to lose their investments and employees will lose their jobs, but neither will they be further
liable for debts that remain owing to the corporations creditors.

TRAITS OF PUBLIC CORPORATIONS

a) Corporate status as a legal entity,

b) Created by Specific statutes passed by the legislature, which spell out the functions, sources of
funds, management of the relevant corporations.

c) Largely independent of the central government. They are not government they are managed by a
board of directors. However, they are always under the general control of the Line ministers and are
subject to ministerial control.

d) They have perpetual succession and a common seal.

CLASSIFICATIONS OF PUBLIC CORPORATIONS

Public corporations may be classified according to the functions for which they are created, namely.

a) Development corporations.
i. Some development corporations are set up to promote development of a sector of the
economy. I.e. Wildlife Authority, Uganda Tourist Board for the tourism sector.

ii. Some development corporations are set up to provide public utilities, e.g. Uganda national
Water and Sewage Corporation.

NOTE: Many Utility Corporation have since been privatised, i.e. UMEME. In the past, it was argued that
public corporations could generate capital for reinvesting in the economy that it could attract foreign
investment developing infrastructure that was not attractive to private investors etc. but these
conceptions have since been departed from. It is now argued that these functions can be performed
better by private enterprises.

b) Regulatory Corporations. E.g.

i. Uganda land Commission is set up for the purpose of granting alienating and controlling
public land on behalf of the government.

ii. National Drug authority to regulate the manufacture, importation and sale of
pharmaceuticals ion the country.

c) Finance Corporations. Bank of Uganda, Uganda Development Bank

d) Marketing boards. In as much as these have been phased out, they include the Coffee Marketing
Board, Lint Marketing Board.

e) Educational, cultural and public amenities Corporations, e.g. LDC, Makerere University and UMI
(Uganda Management Institute).

f) Cultural. Trustees of Nakivuubo War Memorial Stadium Trust, etc.

PURPOSES OF PUBLIC CORPORATIONS

a) Regulatory purposes, for controlling a particular sector, e.g. Uganda Communication Commission
regulates, issues of License, radio stations and TVs

b) For service delivery i.e. to deliver specialized service.

c) For purposes of handling technical/ scientific matters which cannot be conveniently carried out
within government.

d) For commercial purposes, i.e. to make profits for example Uganda Development Corporation, in
1950’s.

ADVANTAGES OF PUBLIC CORPORATIONS OVER GOVERNMENT DEPARTMENTS

a) It is argued that civil service methods are sometimes slow and inefficient and inappropriate for the
management of a public enterprise. So independent units perform more efficiently government
functions than the bureaucratic civil service.

b) Establishment of public corporations enables the exclusion of direct political control.

c) Public corporations make it easy to take into account the interest and view of other interested
parties by having them represented on board.

d) Establishment of public corporations is a cheaper method of managing public service because it is

possible to introduce commercial principles and make the services pay for themselves instead of
draining the government funds.

CONTROL OF PUBLIC CORPORATIONS

a) Ministerial control. Although public corporations are supposed to be independent of the Central
Government, they are still subject to control by relevant ministers.

b) Parliamentary control. It is parliament which creates pubic control; likewise they can abolish the
corporations or reduce their powers.

c) Financial control. The statutes creating public corporations require each one of them to break even
especially commercial and industrial corporations. The Act will require that the public corporation’s
account be audited by the Auditor General’s nominee. The accounts are laid before Parliament by the
Line Minister.

d) Judicial Control. Public corporations can sue or be sued, and their decisions or actions can be
reviewed by the high Court and orders of Certiorari and Mandamus etc. can be issued against them.

DELEGATION OF FUNCTOINS

Question

“Delegetus non potest Delagare” Discuss.

Delegation of powers and functions is an administrative process where the powers and functions for the
superior officer are carried out by an authorized junior officer. Under Administrative Law, the
maxim, Delegetus non potest delagara is always invoked. It essentially means that a delegate cannot sub
delegate what he is supposed to do. Otherwise the courts would condemn as ultra vires the actions
taken by people not specifically authorized.

EXECUTIVE DELEGATION

Articles 99 (4), (5) of the Constitution allow the President to delegate some powers.

In Amos Mugisha v. Uganda the applicant was detained under a detention order which was signed by
the minister for the president and was authenticated by a public seal. Upon challenge of such order, the
Court noted that whereas the power to make a detention order in this country, (S.1 Public Order and
Security Act 1967) is vested in the president, such power may be exercisable by such minister as the
President may authorize on that behalf. It is clear that the president may delegate his power or
authority.

MINISTERIAL DELEGATION

When powers are conferred upon ministers who are in charge of large departments, it’s obvious they
will not be exercised by the ministers in person. Officials in the ministers department acting in his name,
customarily exercises these functions. In Carlton Ltd v. Commissioner of Works [1943]2 ALL ER .560 the
owner of a factory, challenged a wartime requisitioning order made on behalf of the commissioner of
works which was signed by an assistant secretary claiming that it was ultra vires however, the Court of
Appeal held that this procedure was open to no legal objection. Lord Green Said “…It cannot be
supposed this regulation meant that in each case the minister in person should direct his mind to the
matter. The duties imposed upon ministers and powers given to ministers are normally exercised under
the authority of the minister by responsible officials of the department. Constitutionally, the decision of
such an official is of course the decision of the minister. The minister is responsible; it is him who must
answer before parliament for anything that his officials have done under his authority.”

JUSTIFICATION FOR DELEGATION OF POWERS

1. Nature of duties- senior officers are always given numerous duties which are equally important
and have to be discharged within a limited period. It thus becomes legally logical for such officer
to delegate some of the tasks to their juniors.

2. The requirement of efficiency and timely delivery of services.

3. Delegation ensures personal development thus capacity building.

4. Specialization of functions- Delegation may be done with a view that particular officials will
concentrate on particular areas

5. Civil servants who excel are recognized. See Article 99 (3) and (4)

6. Delegation of powers in Uganda is covered by the Common Law.

Actions taken by people who do not possess power or have authority to do so may be condemned as
ultra vires. In Vine v National Dock Labour Board, The plaintiff was a recognized Dock worker employed
in the reserve pool but the National Dock Labour Board under a scheme set up under the Dock workers.
The National Board had the duty of delegating as many as possible functions, inter alia powers to the
disciplinary committee. After the plaintiff failing to obey a valid order, his employment was terminated
and then dismissed. It was held inter Alia that the plaintiff’s purported dismissal was a nullity since the
local board had no power to delegate its disciplinary functions. Judicial authority normally cannot be
delegated.

In Barnard Others v. National Dock Labour Board the power, to discipline the Dock workers was vested
in the Dock board. However, Barnard was disciplined by the Dock manager. It was held that the local
board had no power express or implied to delegate its quasi-judicial disciplinary functions to the port
manager or to ratify his purported exercise of these functions and the original notices of suspension
were therefore a nullity and the decisions of the appeal tribunal based on these grounds were equally a
nullity.
RATIFICATION

Ratification is a process where a public official acts without authority, but his act is subsequently
approved by the rightful authority. Ratification can cure all anomalies of a citing without authority if it is
done before the act done becomes a subject of dispute. In Municipal Council of Mombasa v Kala
[1955]22 EACA .319 the bylaws of the council empowered the workers board to demolish all buildings.
Kala’s building was demolished and Kala sued the board for trespass and demolition of the building. It
was held that the demolition of the building was a tortuous act against the owner, because the serving
of the notice by the town council and the engineer was ultra vires to their powers, that the purported
ratification by a full board could not cure the invalidity of the notice.

TRIBUNALS

Questions:

1. Critically evaluate the justification of Administrative tribunals in resolving disputes.

2. “Administrative tribunals are totally unnecessary in resolving disputes since the matters
normally end up in the courts of law.” Discuss.

Administrative law is a branch of public law which deals with or concerns the exercise of power, by
public authorities to execute public functions. Administrative law facilitates, regulates and controls the
administrative processes. Its main thrust is to ensure that public power isn’t abused or used as a
detriment to the people. Administrative authorities are either public officials or authorities entrusted
with the duty to discharge public functions. Public functions, are those expected to be delivered by
government which is entrusted with looking after the general welfare of the public. Administrative
tribunals are examples of administrative authorities.

Tribunals – bodies with judicial or quasi-judicial functions set up by statute and they exist outside the
usual judicial hierarchy of courts. Or, institutions setup to adjudicate over issues of an administrative
nature. They are courts of law in the sense that they enjoy judicial powers, however, they can be
distinguished from the ordinary courts of law when one considers the membership and procedures
followed by tribunals.

Reasons for Setting up Tribunals

Basing on the fact that the machinery of the courts is not suited for settling each and every dispute
which may arise out of the work of the government there is need to create administrative tribunals.

Reasons for setting up tribunals were laid down by Lord Pierce in Anisinimic v. Foreign Compensation
Commission to include ensuring speed, cheapness and expert knowledge;
 1. Desire for a procedure that avoids the formality of the ordinary courts.

2. Desire for a speedy cheap and decentralized determination of a very large number of individual
cases.

3. The need for expert and specialised knowledge on the part of the tribunal which courts may not
have despite it having a wide jurisdiction. Much as a litigation of a particular social or economic
activity, require expert knowledge and in depth understanding of the area being regulated e.g.
Labour disputes require experts in labour law.

4. Need to avoid the danger of imposing too many burdens to the ordinary courts.

5. Desire to implement new social policy.

6. The restrictions imposed by legal restrictions, for example, there might be no need for a
precedent, the tribunals can decide these cases without these principles but they have to be
flexible in performance, approach and principle.

7. The litigation procedure does not produce the right atmosphere for the working of certain
schemes like social insurance schemes.

Functions of Administrative Tribunals

1. To settle disputes that may arise between individuals and public authorities, e.g. evaluating
tribunals set up to consider disputes between rent payers and local authorities.

2. To settle disputes between private individuals which relate to policy implementation, e.g. rent
restriction tribunals are set up under the Rent Restriction Act which aims at regulating rent
payable to property owners.

3. To regulate socio-economic activities. This is basically regulatory with both powers to basically
settle disputes e.g. The Transport Licensing Board is a tribunal whose main objective is to
regulate the transport industry with the powers to adjudicate over disputes over any person.

A balanced tribunal usually consists of an independent chairperson who is usually legally qualified.
In Equator Inn Ltd, v. Tomasyan it was held that a chairman means a dully appointed chairperson and
his presence is necessary before the tribunal has quorum. In the absence of a chairman, the proceedings
are a nullity.

A tribunal consists of two members representing opposed interests. In R v. Industrial Injuries

Commission Exparte Cable industrial cases involving personal injury were heard by qualified doctors
where the issue required medical diagnosis.

Procedure of Tribunals

Article 6 (1) of the Human Rights Convention states that in handling disputes, tribunals are embedded
with a duty to ensure fair and public hearing before an independent and impartial tribunal. In De Souza
v. Tanga Town Council [1961] EA 377 the right to be heard was recognised where the proceedings were
conducted in the absence of De Souza and his lawyer. Court held that he had not been heard.
IN R v University of Cambridge where Bentley had been deprived of his degree without giving him an
opportunity to be heard, one of the judges observed that even Adam had been called upon by God to
meet the challenge of having eaten a bite of the forbidden fruit before suffering expulsion. The act of
the University was declared a nullity.

Article 44 of the Constitution recognises the right to a fair hearing as non-derogable. All tribunals which
conduct disciplinary proceedings must give notice to the charged party who must be given a right to be
heard.

In Ridge v. Baldwin [1964] AC p.40 Herman LJ said “it is only fair play in action. It is well established
that the essential requirements of natural justice at least include that before someone is condemned he
is to have an opportunity for defending himself and in order that you may do so he is to be made aware
of the charges or allegations which he has to meet”.

Article 42 of the Constitution provides that: Any person appearing before any administrative official or
body has a right to be treated justly and fairly and shall have a right to apply to a court of law in respect
of any administrative decision taken against him or her.

In Mumira Mumira v NIC [1985] Justice Karokora states that the principle of natural justice “audi
alteram partem” (right to be heard) must be observed by both judicial and administrative tribunals.
Where a decision is arrived at in utter disregard of this fundamental principle of natural justice, that
decision is a nullity. This principle involves reception of relevant evidence, disclosure to all parties, the
opportunity to examine, cross examine witnesses and the opportunity for argument.

The tribunals’ decision must be based exclusively on the evidence given before it. It is of the essence to
understand that some tribunals have powers to summon witnesses and to order production of
document. Disobedience is a punishable offence.

Immunity and Privileges of Tribunals

Members of tribunals, parties and witnesses who appear before it are entitled to personal immunity as
applies to courts of law. Witnesses are not liable if evidence is defamatory as well as members of the
tribunal are not liable.

Public Finance

Questions:

1. How is public finance controlled in Uganda

 2. Critically examine the role played by legislation in the regulation of use of public finance by
public authorities in Uganda.

The constitution provides for management of public funds under Chapter 9 i.e. Articles 152 to 164.

Article 152 (1) - a collection of taxes which is the major source of revenue other sources being fees,
loans and grants.

Government Budget Process

The Budget Act 2000 provides for and regulates the budgetary procedure for efficient budgetary
process. The Act defines the budget as a process by which government sets levels to efficiently collect
revenue and allocate the spending of resources among all sectors to meet the national Objectives.

Article 153- states that there shall be a consolidated fund into which shall be paid all revenues and other
monies raised or received for the purpose of or on the behalf of or in trust for the government. A
consolidated fund is one which consists of taxes and any other revenue payable to the State.

Article 154 (1) – no money shall be withdrawn from the consolidated fund except:

a) To meet the expenditure charged on the fund by this Constitution or by an Act of Parliament

b) Where the issue of those monies has been authorised by an appropriation Act.

No money shall be withdrawn from the consolidated fund unless the withdrawer has been authorised by
the Auditor General. If the president is satisfied, then he can sign for release.

Appropriations Act

This law is adopted by Parliament every year to authorise the Executive to finance goods and services
required by any ministry or government departments in the financial year in question. The
Appropriations Act once signed by the Head of State, finances the budget process for any one financial
year.

Vote on Account (VOA)

VOA is a sanction of Parliament for withdrawal of money from the consolidated fund to meet the
government expenses before Parliament approves the budget. It is not meant to last longer than 3
months. VOA is only on expenditures appropriated by Parliament and not on statutory expenditures.

Appropriated expenditures must be debated and voted by parliament. However, statutory expenditures
are directly charged on the consolidated fund by the constitution or an Act of Parliament.

NOTE: Statutory expenditure requires no Parliamentary approval as they are already State obligations,
i.e. Public Debt, pensions salaries of state officials e.g. Presidents, vice-President, Prime Minister, Chief
Justice etc.

Money voted by Parliament under the Appropriations Act (the Budget) is to finance government services
through the country. The law requires the Auditor General, when satisfied with the correctness of those
warrants to give approval to those warrants before money can leave the consolidated fund account. It
should be noted that the right to authorise public expenditure is vested solely in Parliament through the
enactment of the Appropriations Act.

The Public Finance Act 2003 (PFA)

The Public Finance and Accountability Act 2003 was enacted with the purpose to, “provide for the
control and management of the public finance of Uganda, for the audit and examination of public
accounts of certain statutory bodies and matters connected therein.”

The Auditor General and the National Audit Act 2008 (NAA)

This gives effect of Article 163 of the Constitution of Uganda- Auditor General.

Article 163 (1) and S. 4 of the National Audit Act provides for the appointment of the Auditor General
that he shall be appointed by the president with the approval of Parliament.

Article 163 (6) and S. 14 of NAA state that the Auditor General shall not be under the control of any
authority.

Article 163 (3) (9) and S. 13 of NAA – to audit and report on public accounts of Uganda and of all public
offices including the courts, the central and local government administrations, universities and public
organisations established by an Act of Parliament.

Article 154 (3), S. 83 (2) Local Government Act (LGA) provides that the Auditor General as the sole
authority to give approval for any money to be withdrawn from the consolidated fund account, the
general fund account or any district account.

Auditor General as an Auditor

Section 24 PFA states that “the Auditor General shall on behalf of the Parliament examine, inquire into
and audit the accounts of all accounting officers, and receivers of revenue and all persons entrusted
with collection, receipt, custody, issue, sales, transfer or delivery of any stamps, securities, stores or any
other government property, to ensure that all public moneys have been dealt with in accordance with
proper authority.

S. 25 (1) PFA obliges all public officials to give documents or any explanation whenever required by the
Auditor General

Public Accounts Committee (PAC)

This examines the Auditor General’s report and enforces accountability of the officials of the executive
after detailed interviews.

Inspectorate of Government Act 2002 (IGG)

Article 223 establishes the functions of the Inspectorate of government, while Article 225 (1) spells out
the function.

S. 10 of the IGG Act 2002 gives the Inspectorate independence in performance.

S. 14 (5) gives special powers to investigate, cause a legal action where public office is misused.
Leadership Code Act 2002

S. 8 provides for penalties. There is no doubt that the imposition of a code of conduct on leaders and
requirement of them to declare their wealth is a necessary requirement in the fight against abuse of
office.

In Conclusion, there are many players in control of public finance, which include the Legislature,
Executive, Ministry of Finance Planning and Economic Development, Auditor General’s Office and
Central Bank.

Licensing under Administrative Law

Question: discuss the role and importance of licensing in Administrative Law.

A license is a conditional permit or authority granted by government agency for purposes of allowing a
particular person to carry out an activity which would be illegal without that permit.

There are two categories of license:

1. General license- opens a whole field of activity to an individual. It is usually granted to business
people and professionals.

2. Specific license- is granted to a person to carry out a specific action and it expires when such
action has been accomplished. E.g. a license to kill an elephant or to import goods expires as
soon as the elephant has been killed or the goods are imported respectively.

Purpose of Licensing

1. Prevention of harm to the public. This is particularly so in the case of Occupation licenses before
one can be allowed to practice e.g. Medicine he must first get a license. The government must
first be satisfied with his qualification and his reliability to carry out such work.
 2. Human safety. This applies to such things as factories, blasting operations, mines etc. the
licensing authority must satisfy itself that there is no risk to human beings when that activity is
being carried out.

3. To ensure efficient services to the public. This is the case in transport licensing. The transport
licensing board is required to satisfy itself, e.g. a bus operator will provide efficient services to
the public at reasonable prices.

4. To maintain a monopoly. A natural monopoly can be defined as a service that can be efficiently
provided by one operator, i.e. . . Uganda Water and Sewage Corporation.

5. Conservation of natural resources. Access to natural resources is restricted to license holders

only. E.g. hunting of animals, timber exploitation.

6. As a method of controlling the manufacture, storage and consumption of alcoholic beverages.

E.g. the Liquor Act cap. 3 forbids any person from manufacturing or selling alcoholic beverages
without holding a valid license.

7. Government gets revenue.

8. Control of socially undesirable activities e.g. gambling.

9. Reduction of congestion on streets/ dealing away with hawkers.

10. Control of potentially offensive activities e.g. Sale of firearms.

11. Aimed at controlling development and town planning.

12. Licenses may also be used for purposes of promoting of certain government policies e.g. Trade
licensing Act of 1969 which barred non-citizens from obtaining trade licenses for trade activities
in rural areas.

13. Used to promote investment, e.g. the Investment Code Act. Licensing is used to ensure that only
people with a certain amount of capital can come and establish certain investments.

14. License is also used as a tool of conservation of resources, e.g. the mining Act. A person cannot
carry out mining activities without a license.

Read the following in line with the above compilation on licensing.

1. Illegality: S. 5 (b) Industrial Licensing Act, Cap. 91

2. Promotion of Investment : Investment Code Act Cap 92- S.6

3. Enguli Act Cap 86 Section. 2

4. Firearms Act Cap 299 See Preamble and Section. 3

5. Advocates Act Cap 267 for professionals

6. Dent v. Kiambu Liquor Incensing Court [1968] EA where it was held that court has a right to
deny a renewal of the license basing on the law on ground. The reasons for refusal should be
 restricted only to those justified under the law. In this case, she had refused to serve liquor to
people who were not members to the club thus being denied the license.

7. Fernandez v. Kericho Liquor Licensing Court it was held that the refusal to renew the license
basing on the question of citizenship was illegal. Court further held that for one to be denied a
licence of renewal, it has to be done in regard to the manner of operation and condition of
operation.

QUESTION:

Discuss the different constitutional principles that govern administrative law and analyze whether
they are a reality.

Introduction

Article 42 of The Constitution [1][1] states that;

“Any person appearing before any administrative official or body has a right to be treated justly and
fairly and shall have a right to apply to a court of law in respect of any administrative decision taken
against him or her.”

From this article, stems a branch of public law known as administrative law. Administrative law can thus
be defined as the law relating to the control of government power.[2][2] All administrative authorities
(that is public officials) are subordinated to this law; right from the cabinet members to the local
government authorities. Wade[3][3] submits that the primary purpose of subjecting them to this law is
to keep the powers of government within their legal bounds so as to protect the citizen against their
abuse. To meet this end, a couple of constitutional principles have developed over time and these are
believed, by many Jurists, to be the constitutional principles governing administrative law. The purpose
of this writing is to discuss these principles and examine whether or not they are a reality. This task I
believe I have ably executed below.

The Doctrine of Separation of Powers.

The modern day philosopher, Montesquieu[4][4] from whom this doctrine was developed described
government in this form;

“ In every government there three types of powers: the legislative, the executive and the judiciary. The
executive in respect of things dependant on the law of the nation and the judiciary in regard to matters
that depend on the civil law….. by virtue of the first , the prince or magistrate enacts temporary or
perpetual laws and amends and abrogates those that have been enacted. By the second he makes peace
or war, sends or receives embassies, establishes the public security and provides against invasions. By
the third he punishes criminals or determines the disputes that arise between individuals, the latter, we
shall call judicial powers and the other simply the executive power of the state.”

Montesquieu in this same book[5][5] went on to define separation of powers as a principle whereby the
three organs of government as listed above are kept in separate compartments. This means that no
organ of government should exercise the functions of the other that is the judiciary should not exercise
the functions of the legislature or executive mutatis mutandis, no organ should be in position to control
the other most especially the executive controlling the legislature and judiciary and that persons or
agencies in one organ should not be permitted to hold posts in another.

It is imperative to note at this point that this doctrine in its extreme nature is just ideal and not only
unrealistic but also undesirable. Keeping the arms of government in such water tight compartments
would easily cause stagnation in the flow of government business because of the rigidity of the doctrine.
Rather, a more practical approach to this doctrine is applying a system of checks and balances whereby
each organ operates with the consent of the other two and the consent ought to be spontaneous not
coerced. This is the more practical approach and to a great extent is alive in Uganda. A classic example
of these checks and balances at work is the case of Ssemwogere and Olum[6][6]. In this case, the
petitioners challenged the validity of the Constitutional amendment Act[7][7] which sought to amend
articles 88-90 of the Constitution. The bill for the Act was passed in two days which was inconsistent
with the constitution. The constitutional court held that the amendment had been in accordance with
the law but this decision was quashed by the Supreme Court that held that the Act was null and void
because it was passed in total disregard of the Constitution. In passing such a decision, the judiciary was
able to check on the legislature’s powers and those in the executive who pushed for this bill in
Parliament especially the President who had assented to it. However, despite advancements in this area
in Uganda, this system of checks and balances still has loop holes in Uganda for example, despite the
overwhelming evidence that the Security Minister Amama Mbabazi had exerted undue influence in
getting the National Social Security Fund to buy his land at Temangalo at an inflated price, he was
exonerated by the National Resistance Movement caucus in Parliament and this largely believed to be
because he is the Secretary General of the National Resistance Movement. Since the government
Members of Parliament are the most, their exonerating him caused him to get away with corruption
unscathed[8][8].

Independence of the Judiciary

Closely related to the doctrine of separation of powers above is the independence of the
Judiciary. Since disputes in administrative law involve public officials and public powers, an
independent judiciary is a great necessity. Independence of the judiciary means a judiciary that makes
decisions that are totally based on evidence before them and not extraneous matters. Peter Oluyede[9]
[9], in expounding on this doctrine, explained that in criminal cases, the courts should not convict or
acquit because they believe a particular verdict will please the government of the day and in civil cases,
courts ought not to consider the relevant importance of parties or even the political consequences of
their decision rather, he says, that the courts only ought to find the facts and apply the relevant
principles of law in any particular situation. In Uganda, the judiciary is enabled to be independent
by Article 128[10][10] . This Article provides that in the exercise of judicial power courts shall not be
subject to the control or direction of any person or authority. Subsection 4 of the same goes on to
provide that a person exercising judicial power shall not be liable to any action or suit for any act or
omission by that person in the exercise of judicial power. Subsection 6 of the Article provides that the
judiciary will be self-accounting and subsection 7 that the salary, allowances and priviledges of a judge
are not to be varied to the disadvantage of a judicial officer. These subsections and others under this
Article ensure the independence of the judiciary by providing for security of tenure, financial benefits
and judicial immunity.

However, despite all these measures to ensure the independence of the judiciary, the executive in
Uganda has many times been ‘caught’ trying to undermine the position of the judiciary. Very fresh in the
memory is the “Black mamba” incident[11][11]. According to Georgette Gagnon, deputy director of
Human Rights Watch, militia men draped in military fatigue and black T-shirts surrounded the High Court
to intimidate the judges and thwart the decision to release on bail the 22 men suspected to have been
plotting treason. This siege in November 2005 of the High Court was condemned by the Principal Judge
of Uganda as “a despicable act” and a “rape of the judiciary.” Such acts go to prove that despite the
constitutional provisions in place, once in a while the Executive tries to intimidate the judiciary but we
can say on the whole that the judiciary has stood courageous and is independent making the
independence of the judiciary a reality in Uganda.

Rule of Law.

Rule of law simply means that everything must be done according to the law[12][12]. Therefore, every
government authority that does not act which is otherwise wrong for example taking one’s land
(infringing on liberty) must justify its actions as authorized by law. Professor Dicey[13][13] put forward
that the rule of law entails absolute supremacy of regular law, equality of all before the law and the rule
according to the constitution. Rule of law is essentially meant to create an atmosphere of law and order
where the citizen can easily enjoy liberty and the pursuit of happiness. In pursuance of this end, the
International Commission of Jurists sitting at New Dehli in 1995 suggested a code of conduct of eight
clauses some of these are looked at briefly[14][14];

Clause I essentially deals with the executive or other like agencies such as public corporations being able
to make rules having legislative character. This is happening in Uganda as in Local Councils formulating
laws[15][15]. However, to ensure proper rule of law, this power has to be within the narrow limits
stipulated by the legislature and the extent to which must also be stipulated. This is very evident in the
case of Ibingira I[16][16] where it was held inter alia by the learned that the Deportation Ordinance (put
in place by the line minister) was void for being inconsistent with the provisions of the then constitution
of Uganda. Clause III says that judicial review of delegated legislation maybe usefully supplemented by a
procedure for supervision by legislature or by an independent authority either before or after such
legislation comes into effect. Clause V provides that in general the acts of the executive when directly
and injuriously affecting the person or property or rights of the individual should be subject to review by
the courts. This was seen practically in the case of Shah V Attorney General[17][17] where the court
compelled the government to pay according to a government order which the government had ignored.
The applicant had obtained judgment against the government for Ushs
67,500.
The government refused\ failed to
pay and the applicant brought this motion for an order mandamus directed to the officers responsible
for the payment. In light of the above, rule of law is, to a great extent, a reality in Uganda. Needless to
say at times the rule of law in Uganda is abused by some individuals typified in the words of the
Coordinator Security Services in reaction to the High Court’s holding that the General Court Martial had
no jurisdiction to hear cases of terrorism[18][18]. He said,

“ … who are these fellows (the judges)? The judges have no power to order the army. The army will not
accept this business of being ordered by judges.[19][19]”

Such attitudes are some of the few things stifling the flourish of rule of law in Uganda.

Ministerial and Collective Responsibility.(Art.117)

Ministerial responsibility is a doctrine that provides that members of the Executive should be
responsible for their activities and should be accountable how they use their powers. This may entail
individual accountability to the President(Art.117) or individual to Parliament since according to Article
118 of the Constitution Parliament can censure a minister. This doctrine requires a minister to explain to
parliament his own actions and the actions carried out on his behalf.

For example, where a civil servant is believed to “misbehaving”, the line minister will be called to
account. His task then will be to investigate and take the appropriate disciplinary action if
necessary. The minister will lose the confidence of parliament for serious misconduct in his
administration, if this happens, he will be required to resign or will be dismissed. A good example of this
is the time former Finance, Planning and Investment minister Sam Kutesa was censured for being found
in a situation of conflict of interest contrary to the leadership code of conduct by allowing ENHAS
(Entebbe Handling Services) a company he chaired to buy the national carriers shares in the cargo firm
below market value and also writing off as a bad debt USD 400,000. In dong this he caused Uganda
Airlines great financial loss[20][20]. However, there times when this doctrine fails to be realized because
most times Members of Parliament are on the government side unable to attack their own and at times
they are compromised (corrupted) to adamantly look on cabinet misconduct as was stated by one
Member of Parliament, Odongo Otto[21][21].

Collective responsibility on the other hand means that all members of the executive are responsible for
all government decisions and are to support each other on policy matters.[22][22] This principle
essentially means cabinet solidarity and is meant to ensure that policies and decisions are made in line
with the requirements of good administration as provided for in Article 111 of the Constitution of
Uganda. A celebrated depiction of collective responsibility in Uganda is the clash between former
President Milton Obote and his Minister of Planning and Economic development, Hon. Obwangor[23]
[23]. Mr. Obwangor in a speech made in the National Assembly criticized the government proposals for
a new constitution for Uganda. This was contrary to Section 43(2) of the then constitution of Uganda
which provided for collective responsibility of cabinet members. As a result of the speech, a couple of
letters were exchanged between the two and this culminated in the dismissal of Mr. Obwangor from
cabinet. He also had to cross the floor to the opposition side of parliament.

Key to note is that administrative justice demands some regular efficient and non-political system of
investigating individual complaints against the powers that be and this exactly what ministerial
responsibility does not provide because of its political nature. To deal with this , administrative tribunals
have been set up in Uganda and no minister is responsible for their decisions although such decisions
are subject to judicial review. Evidence of tribunals fully functioning in Uganda with clear guidelines can
be drawn from the different cases such as Equator Inn V Tomasyan[24][24] where it was held inter alia
that the chairman’s presence is necessary before a tribunal has Coram and that a minister has power to
appoint persons to a tribunal.

Human Rights and Civil Liberties.

Human Rights are the rights a person has simply because he or she is a human being[25][25]. These
were adopted by the United Nations in 1948 observing them as the foundation of freedom, justice and
peace in the world. It is thus a generally agreed upon issue that a good constitutional framework must
have a Bill of Rights which declare rights available to all in the country. This principle is very relevant to
administrative authorities because through their decisions can either let people enjoy their inherent
God-given rights[26][26] or be denied of them. As already mentioned they are God given and thus only
declared in the Ugandan constitution in Chapter four.

From a general point of view, the constitution declares equality and freedom from discrimination in
Article 21, right to life in Article 22, protection of personal liberty in Article 23, respect for human dignity
and protection from inhuman treatment in Article 24 a right to a fair hearing in Article 28 and Article 29
provides for the protection of freedom of conscience, expression, movement, religion, assembly and
association. However, Article 43 provides that the enjoyment of these rights may be limited where they
prejudice the rights of others or in public interest.

Over the years, Human Rights abuse has been at deplorable levels in Uganda especially during the Amin
regime[27][27]. The courts however have tried to up hold these rights here and there as in the case of
Uganda V Commissioner of Prisons, Ex Parte Matovu[28][28] where the court defended the rights of
Matovu when it held inter alia that ;

“ the Sovereign State of Uganda would not allow anyone to be illegally detained and has the prerogative
right to enquire through its courts into anyone’s loss of liberty by issuing a writ of habeas corpus, the
procedure and nature of which was discussed.”

With the National Resistance Movement government in power, the Human Rights record in Uganda has
greatly improved but still leaves a lot to be desired as we have witnessed unlawful killings by security
forces, mob violence, torture by security agencies, abuse of suspects, poor prison conditions and
arbitrary arrests[29][29]. In a bid to curb the gross Human Rights abuse, the National Resistance
Movement government when it had the 1995 Constitution promulgated established in Article 51 the
Uganda Human Rights Commission and in Article 52 provided for the roles of the commission which can
be summarized as ensuring the observance of Human Rights in Uganda.
In analysis, the constitutional principles governing constitutional law are; rule of law, separation of
powers, independence of the judiciary, human rights, ministerial and collective responsibility and I
would submit that drawing from the above discussion these principles are to a greater extent a reality in
today’s Uganda. Of course, due to the fact that they have to operate amongst human beings who are
very complicated and versatile beings, these principles cannot operate in their entirety or strict form; a
few compromises and balances have to be implemented to make them not only practical but also of
service in the administration of society.

[1][1] - 1995 Constitution of The Republic of Uganda.

[2][2] - Wade and Forsyth; Administrative Law 7th Edition Page 4.

[3][3] - Wade and Forsyth; Administrative Law 7th Edition Page 4.

[4][4] -Montesquieu; The Spirit of The Law, Book XI Cap. VI

[5][5] - Montesquieu; The Spirit of The Law, Book XI Cap. VI

[6][6] - Constitutional Petition No.7 of 2000.

[7][7] - Act 13 of 2000.

[8][8] - www.independent.co.ug/691 Downloaded by 12th March,2010.

[9][9] - Oluyede, Administrative Law In East Africa.

[10][10] - 1995 Constitution of The Republic of Uganda

[11][11] - Uganda: Government Gunmen Storm High Court Again: Security Forces Used to Intimidate
Judiciary in Case of “PRA Suspects”: New York, March 5, 2007.

[12][12] - Wade and Forsyth: Administrative Law 7th Edition

[13][13] - Dicey; The Law and The Constitution.

[14][14] - The Rule of Law In a Free Society; 1959 Page 6-8.

[15][15] - For example Mukono District Council passed on 17th February,2009 a law entitled “ Mukono
District Custody of Primary School Textbooks.”
[16][16] - Grace Ibingira & Others V Uganda [1966] E.A 306.

[17][17] - No.2 [1970] EA 543.

[18][18] - Kanyeihamba; Kanyeihamba’s Commentaries on Law, Politics and Governance

[19][19] - New Vision ; 22-12-2005.

[20][20] - Nyagabaki Bazara; http:// www.kituachakatiba.co.ug/bazara99.htm. downloaded 12th March

12, 2010.

[21][21] - Tumwebaze; Administrative Law and Practices in Uganda, 2007 Page 35.

[22][22] - Oluyede; Administrative Law in East Africa 1973.

[23][23] - Ibid.

[24][24]- [1971] EA 405.

[25][25] - http: // www.hrusa.org/ thisismyhome/project/what_ hr.shtml.

[26][26] - Article 20(1) of The Constitution of the Republic of Uganda.

[27][27] - 1971 -1979.

[28][28] - [1966] E.A 514.

[29][29] - U.S Department of State Human Rights Report on Uganda, 200