THE IDEAL UGANDA: MY PERSPECTIVES BY PROF. VENANSIUS BARYAMUREEBA SEPARATION OF POWERS Separation of powers is a political doctrine of constitutional law under which the three arms of government (executive, legislature, and judiciary) are kept separate to prevent abuse of power. Also known as the system of checks and balances, each arm is given certain powers so as to check and balance the other arms of government. The Separation of Powers aims at doing one primary thing: to prevent the majority from ruling with an iron fist. Any good Constitution should not give any arm of government too much power. The separation of powers provides a system of shared power known as checks and balances. The way to safeguard against tyranny is to separate the powers of government among three arms of government so that each arm checks the other two through checks and balances. As Ugandans we need to work towards the day when the respect for the principle of separation of powers is deeply entrenched in every Ugandan. For example the Executive headed by the President should be concise and watch their steps while attempting to either curb the powers of / or undermine the honorable Supreme Court of Uganda. Separation of Powers Provisions in the Constitution of Uganda Article 91 (1) provides that exercise of the legislative powers is vested in the Parliament of Uganda i.e. Subject to the provisions of this Constitution; the power of Parliament to make laws shall be exercised through bills passed by Parliament and assented to by the President. Article 99 (1) provides that the executive authority of Uganda is vested in the President and shall be exercised in accordance with this Constitution and the laws of Uganda. Article 126 (1) provides that the exercise of judicial powers is vested in the Judiciary i.e. Judicial power is derived from the people and shall be exercised by the courts established under this Constitution in the name of the people and in conformity with law and with the values, norms and aspirations of the people of Uganda. Shortcomings in the Checks and Balances The checks and balances are provided for in the 1995 Constitution of Uganda as amended. However, at the time of enactment, we had a movement system of government and there was oversight on what would happen to these checks and balances under a multiparty political dispensation. Nobody envisaged that under a multiparty political dispensation, the Executive would fuse with the Party parliamentary caucus and usurp the powers of Parliament. Today it’s common knowledge that most of the parliamentary business is decided upon in the NRM-O parliamentary caucus under the influence of the Executive Arm of Government. When it comes to the Judiciary, the framers of the 1995 Constitution of Uganda never envisaged a situation where the President would take more than two years before submitting to Parliament nominations for the positions of Chief Justice and Deputy Chief Justice. Absence of the Chief Justice and the Deputy Chief Justice has for lack of a better word crippled the judiciary, which is a very important arm of the government. Article 133 of the Constitution of Uganda provides for the Administrative functions of the Chief Justice as follows: (1) The Chief Justice— (a) Shall be the head of the judiciary and shall be responsible for the administration and supervision of all courts in Uganda; and (b) May issue orders and directions to the courts necessary for the proper and efficient administration of justice. (2) Where the office of the Chief Justice is vacant or where the Chief Justice is for any reason unable to perform the functions of his or her office, then until a person has been appointed to and has assumed the functions of that office or until the Chief Justice has resumed the performance of those functions, those functions shall be performed by the Deputy Chief Justice. The framers of the 1995 Constitution never envisaged a scenario where both the Chief Justice and Deputy Chief Justice positions would be vacant at the same time. But now there are and have been so for quite some time. Article 130 of the Constitution provides that The Supreme Court shall consist of— (a) the Chief Justice who shall be the head; and (b) such number of justices of the Supreme Court, not being less than six, as Parliament may by law prescribe. Article 134 of the Constitution provides that the Court of Appeal shall be headed by the Deputy Chief Justice and (1) The Court of Appeal of Uganda shall consist of— (a) The Deputy Chief Justice; and (b) Such number of justices of Appeal not being less than seven as Parliament may by law prescribe. (2) An appeal shall lie to the Court of Appeal from such decisions of the High Court as may be prescribed by law. Article 132 of the Constitution of Uganda provides for the Jurisdiction of the Supreme Court as follows: (1) The Supreme Court shall be the final court of appeal. (2) An appeal shall lie to the Supreme Court from such decisions of the Court of Appeal as may be prescribed by law. (3) Any party aggrieved by a decision of the Court of Appeal sitting as a constitutional court is entitled to appeal to the Supreme Court against the decision; and accordingly, an appeal shall lie to the Supreme Court under clause (2) of this article. Now the frames of the 1995 Constitution never envisaged a situation where one person would serve as both Acting Deputy Chief Justice and Acting Chief Justice and preside over the court of Appeal and Supreme Court yet the Supreme Court handles appeals from the Court of Appeal as provided for under Article 132 Section 2 of the Constitution of Uganda. In short the Court of Appeal is headed by the Deputy Chief Justice and the Chief Justice is not a member. The Chief Justice is the Head of the Supreme Court. If this not a mockery of justice then what is it? In light of these and other lapses in the checks and balances within the three arms of government, Parliament needs as a matter of agency to come up with proposals to amend the constitution and strengthen the checks and balances. Such Proposals should include among others: (a) In regard to the Chief Justice. 1. The Judicial Service Commission should forward two names for the position of Chief Justice at least 6 months before the position falls vacant to the President with a preferred candidate for the position; 2. The President shall, within thirty days after receiving the recommendations of the Judicial Service Commission either forward one name to Parliament for approval or return the recommendations back to the Judicial Service Commission with the reasons for the rejection of the recommendations in writing; 3. Where the Judicial Service Commission recommends the same names to the President for the 2nd time and the President rejects the recommendations, Parliament shall vet both candidates and decide on who becomes the Chief Justice and send the name to the President for appointment. 4. The President shall within thirty days after receiving the nomination for the position of Chief Justice from Parliament issue the Instrument of Appointment for the Chief Justice. (b) The appointment of the Deputy Chief Justice should fall a similar process like that of the Chief Justice. (c) Similar checks and balances should be introduced where the President has the prerogative of sending nominations to Parliament for approval. (d) We need to amend the Constitution and provide for powers where the Vice President and Cabinet Ministers can vote that the President is unable to discharge his duties by two-thirds majority. After the vote of no confidence, the process for the removal of the President should follow the same process as laid out for the removal of the President under Article 107 (3) after Cabinet has communicated its position containing grounds for removal to the Speaker of Parliament. This would check the powers of the President in Cabinet and ensure that Cabinet is more powerful than the person of the President. Parliament should also maintain powers to remove the President from office as provided for in Article 107 of the Constitution of Uganda. (e) To avoid fusion of Parliament with the Executive, all Cabinet Ministers should not be members of Parliament and the parliamentary caucus of the Members of Parliament of the ruling Party should be barred from discussing and taking binding positions on Parliamentary business with the Executive. Parliamentary caucuses should interface with the their parties through the party organs and not through the executive; (f) The Constitution of Uganda should be amended to ensure that the person holding the position of Party Chairman or Party President should not qualify to be nominated as a Presidential Candidate of the party. This will ensure that the ruling party can also check the powers of the President of Uganda, as the President will not serve as Chairman or President of the Party at the same time as President of Uganda. (g) The Constitution of Uganda should be amended to ensure that the Speaker, Deputy Speaker and Leader of Opposition don’t hold any positions in their parties. You cab get yourself a copy of the book The Ideal Uganda: My Perspectives by Prof. Baryamureeba, from Mukono Bookshop, Plot 4, Pilkington Road, Kampala.
Posted on: Mon, 12 Jan 2015 03:49:10 +0000
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