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QUESTION:
Discuss the different constitutional principles that govern administrative
law and analyze whether they are a reality.
Introduction
Article 42 of The Constitution1[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, Montesquieu4[4] from whom this doctrine
was developed described government in this form;
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 legislatures 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
unscathed8[8].
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 incident11[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
law12[12]. Therefore, every government authority that does not act which
is otherwise wrong for example taking ones 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
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.
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 loss20[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 Otto21[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
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.
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
anyones 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 arrests29[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 todays Uganda. Of course, due to the fact that they have to
27[27] - 1971 -1979.
28[28] - [1966] E.A 514.
29[29] - U.S Department of State Human Rights Report on Uganda, 2008.
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.
BIBLIOGRAPHY
BOOKS
WEBSITES
www.independent.co.ug/691
www.kituchakatiba.co.ug/bazara99.htm
www.state.gov/g/
www.hrusa.org/thisismyhome/project/what-hr.shtml