KABALE UNIVERSITY

FACULTY OF LAW

DEPARTMENT OF PUBLIC AND COMPARATIVE LAW

LAW 1205 ADMINISTRATIVE LAW 1

ADV DALTON ODOMOCH

COURSEWORK ASSIGNMENT NO:1

LUYIMA SHAFIQ

2024/A/KBL/1166/F

Due date : Friday 21st February 2025

This course work is sought to assess a) the principle of separation of powers in Uganda ,b)
the rule of law as a fundamental principle in governance of Uganda and c) the doctrine of
checks and balances .
 1. The Principle of Separation of Powers in Uganda

The Doctrine of separation of powers is a principle in constitutionalism that divides the state into
3 main branches i.e. The Executive, The legislature and the judiciary and assigns each organ of
the state different powers.

The concept of separation of powers can be traced back to the ancient times of Aristotle, and
Locke and was notably developed by the writings of the French philosopher Baron de
Montesquieu in his book ( The Spirit of Laws 1748)

Montesquieu believed that autocratic rules come about when the three powers, i.e., executive
power, judicial power, and legislative power, are in one individual.1 In this case , to eliminate
tyranny, there was a need to separate the three powers, and to him, separation of powers
essentially meant 3 basic things.

 The three organs of government should be operated by different people which in addition
means that one person should not belong to more than one organ
 There is no single organ of the government that should interfere with any other organ of
the government ie independence of each organ. in that regard as the executive caries out
it’s functions or any other organ, it should feel free to do so
 Lastly, no one organ of the state should exercise the functions and power of the other .

The 1995 constitution of the Republic of Uganda basically enshrines the principle of separation
of powers under chapter 6,7and 8 ie the legislature the executive and the judiciary respectively
and there exists a basic separation between the three organs of government.

In effect The Constitution under chapter 6 article 79(1) vests legislative power under the
parliament of Uganda through making laws where bills are passed and assented by the president
2
. Chapter 6 provides for the exercise of Judicial power by the Judiciary exercised by courts
when they interprete laws .3 Lastly executive power is vested in the president and exercised in
accordance with the law under article 99 of the constitution . However, The Executive has an
1
The Evolution of Constitutional Law and Public Law & Government by Prof. Dr. George
Wilson Kanyeihamba page 164
2
The 1995 constitution of the Republic of Uganda
3
Ibid
overall sight function that is exercised through mechanism of presidential assent that is supposed
to operate as a check and in addition , there is the Judicial power which over sees legislation
which may be deemed unconstitutional just as observed in the supreme Court ruling in the case
of Attorney General v kabaziguruka. 4 Since independent decisions of the Judiciary as embedded
under article 128 of the constitution underscores the doctrine of separation of powers .5 The
separation of powers between the executive and the legislature may overlap here and there but
the distinction is clear .

All in all the principle of separation of powers is not a pure doctrine as some countries have
adopted the system of checks and balances Instead where by the 3 distinct organs of the state
Should operate to counter and ensure that tyrannical rule is not restored .

2. The rule of law and Fundamental principle of governance in Uganda

The term “rule of law” is derived from a French phrase “ la principle de legalite” which is
referred to as principles of governance of law and not of men.

Professor Dicey is known as the greatest exponent of rule of law. He articulated his ideas in his
book and he had 3 distinct concepts of rule of law6. despite being criticized the 1995 constitution
of Uganda adheres to them in some way or the other and these include;

 Equality of all persons under the law

The above is to the effect that all persons should not be discriminated against because of their
ethnicity, sex, Religion, color, social or economic status as enshrined under Article 21(2) of the
constitution of the Republic of Uganda thus upholding rule of law .

Any law which grants preferential treatment to government officials or which grants them special
privileges is on the face of it contrary to rule of law7.

 A man can only be punished for breach of law

4
Attorney General v kabaziguruka constitutional appeal no. 02 of 2021
5
Ibid no2
6
The Evolution of Constitutional Law and Public Law & Government by Prof. Dr. George
Wilson Kanyeihamba page 167
7
Ibid page 173
This is interpreted to mean that no person commits an offence unless that offence is prohibited
by the existing law. The 1995 constitution under article 28 (7) is also to the effect that “No
person shall be charged with or convicted of a criminal offence which is founded on an act or
omission that did not at the time it took place constitute a criminal offense ”

The Constitutional court of Uganda Upheld the rule of law in the case of Uganda V. Atugonza
Francis ruled that charging the accused with offences under the 2009 anti corruption act which
came into force much later than the alleged acts between 2007 and 2008 was against the law
since the law does not operate retrospectively 8

 Constitutional supremacy

The Constitution must be regarded as the fundamental law of the land with in which the organs
of government exercise their powers and functions in accordance with the constitution.

Article 2 of the constitution provides that the constitution is the supreme law of Uganda and shall
have a binding force on all persons and authorities in Uganda. In the case of Joseph Tumushabe
v Attorney General the Constitutional court held that all provisions of the constitution are
binding on all authorities in Uganda9.

 Protection and observance of human rights

The rule of law entails that the state ought to protect and promote human rights and that these
rights are inherent and not granted by state .The 1995 Ugandan Constitution upholds the rule of
law under article 50 as it puts machinery for enforcement of such rights through putting in place
bodies such as the Ham Rights Commission.

 The existing government must be one guided by rules and laws

Rule of law also entails that the government in power should not be subject to arbitrary influence
but follow procedure of law while carrying out it’s functions . Article 172 of the constitution
provides for the appointment of public officers and the required procedure that should be
followed while appointing the public officers.

8
Uganda V. Atugonza Francis Constitutional Reference NO. 31 of 2010,
9
Joseph Tumushabe v Uganda constitutional appeal no 03 of 2005
In the opinion of the majority judges in kesavananda Bharati v state of kerala10 it was observed
that rule of law is an aspect of the doctrine of the basic structure of the constitution even the
plenary power of parliament can not reach to amend.

The doctrine of checks and balances

Over time , different scholars have argued that rather than using the term separation of powers ,
preference can be governed to viewing the relationship of the organs of state as one of checks
and balances . The import of checks and balances is that one organ should be able to oversee and
scrutinize the exercise of function and power of other organs so that the other organs do not
exceed their powers and functions granted by the constitution.

How executive power is checked.

The checks on presidential powers is provided for under the constitution which includes:

As regards removal or impeachment of the president ,if any of the grounds provided for under
article 107(1) have been proven to exist, the legislative has to take action through setting a
motion that has to be supported by 1/3 of the legislative

The second stage involves the Judiciary because a petition is forwarded to the Chief justice who
then sets up a tribunal to assess the allegations that tribunal then reports back to parliament and
if 2/3 of the parliament vote against the president he or she is removed from the office.

In addition article 101 provides for president to deliver to parliament an address of the state of
nation at the beginning of each parliament session.

However much the constitution grants president to declare state of emergency under as provided
article 110(1)he has to lay it before parliament for approval as soon as practicable as provided
under article 110(3) . He is also required under article 110(6) to submit to parliament regular
reports as parliament may seem fit.

The president powers to appoint cabinet ministers and other ministers under article 113 and 114
of the constitution are checked through parliament first approving the appointed person thereby

10
Kesavananda Bharati v state of kerala ( 1973) 4 SCC 255
preventing tyranny and dictatorial rule by the sitting president He also seeks parliament approval
when he appoints ambassadors and head of diplomatic missions under article 122 of the
constitution

Still under article 124 the president can only declare a state of war between uganda and another
country only through the approval of parliament .

How legislative power is checked

Article 92 of the constitution is to the effect that parliament shall not pass any law to alter the
decision or judgement of any court as between the parties to the decision or judgement This
serves as a check that parliament could not pass a law that overturned the decision of court.

Under Article 77(3) the term of office for members of parliament is 5 years which means that at
the end of the 5 years fresh elections must be conducted .

Also under article 84 of the constitution, a member of parliament may be recalled from office on
grounds which includes misconduct , mental problems , persistent disserting of office and
misbehavior .

How the Judiciary is checked

As for the Judiciary, what is more crucial is the independence of the Judiciary as it is enshrined
under article 128 of the constitution of the Republic of Uganda

However under article 144(2) “A judicial officer may be removed from office only if i) inability to
perform the functions of his office arising from infirmity of body or mind; ii) his behavior or
misconduct and iii) incompetence. ”

In conclusion, the system of checks and balances as provided for under the 1995 constitution of
the Republic of Uganda are a big improvement from the previous constitution of Uganda
however the threat of military power and use of military to dispose of every political conflict is
still a challenge in Uganda.

REFRENCES
1. The 1995 Republican constitution of Uganda
2. The Evolution of Constitutional law and Public law & Government
3. Attorney General v kabaziguruka constitutional petition 02 of 2021
4. Uganda v Atugonza Francis Constitutional reference no 31 of 2010
5. Joseph Tumushabe v Uganda constitutional appeal no 03 of 2005
6. Kesavananda Bharati v state of kerala ( 1973) 4 SCC 255

BIBLIOGRAPHY

Primary sources

The 1995 constitution of the Republic of Uganda

Case law

Secondary sources

Textbooks