Constitutional Law CW
Constitutional Law CW
Constitutional Law CW
REG.NO: 2019-B411-12400
YEAR/SEMESTER: 4TH/1
DATE: 22/11/2022
QUESTION
myth or a reality?
The Doctrine of Separation of Powers has been defined by Granner 1. to mean that the
three powers of government that is, the Executive, Legislature and Judiciary must in
free democracy, be kept separate and never become exercisable by the same organs of
government.
According to Montesquieu in his book The Spirit of the Laws [1748], 2there must be
three separate organs of government. There must be the organ that makes law which
is, the legislature, there must be the organ that executes Law, that is Executive and
there must be a body to interpret the Law and to mediate disputes over the Law,
which is the Judiciary.
Montesquieu goes ahead and says that separation of powers meant 3 basic things as
explained below;
i. Each organ of the state should be operated by different people meaning that it
should not be one individual running all the three organs so that at no time
should a Judge make the Law nor should he be involved in an executive func-
tion.
ii. That each of the state organs should be independent of one another that is,
there should be an absence of control, influence or direction by one organ of
state over another meaning that there should be autonomous operation.
iii. No one organ of the state should take over the powers of the other.
Article 99(1) of the 1995 Uganda constitution 5as amended vests the Executive
power in the hands of the president. It lays down the duties that the executive is
charged with the duty of administering, implementing, and enforcing government
policies.
Article 128(2) is to the effect that no person or authority shall interfere with the courts
or judicial officers in the exercise of their judicial functions and under Article 128(3)
all organs and agencies of the State shall accord to the courts such assistance as may
be required to ensure the effectiveness of the courts. In Masalu Musene, Mpagi
Bahigeine JA noted that the maintenance of judicial independence as enshrined in
article 128 depends upon public support for the judicial process to run effectively and
5 1995 Uganda constitution
6 Attorney General v Major General David Tinyefunza
independently. It is the public respect, for that principle that sustains it. By public is
meant the government to reinforce and facilitate the effectiveness of the independence
which makes the reality of this doctrine achievable.
The Executive arm has a lot of influence on the Judiciary Article 282(c) 166 provided
that daily prerogative functions which under the executive lay or rests in the president
shall be exercised by the President under common law prerogatives in Engrailed were
hailed over to the present also equivalent to Article 99(1).
In 2006, a uniquely, dramatic and movie style like, the so called the black Monday,
in the case of The Uganda Law Society V Ag 7 where Dr. Kiiza Besigye and other
accused after being granted a bail, the court was surrounded by the black mambas
from the army on the orders of the executive and the applicants were rearrested
symbolizing the un independence thus the doctrine being a myth.
Another most recent case was that of 2017, referred to as tl1e stupid order15 under
which deputy chief justice Steven Kavuma granted an interim order stopping
7 The Uganda Law Society v Ag Constitutional Petition No. 18 Of 2005
parliament from debating, investigating or inquiring into the "Presidential handshake"
16. It was an act of violating the embodiments of the principle of separation power
Articles 225 and 230 of the 1995 Uganda Constitution 8as amended gives powers to
the Inspector General of Government to investigate arrest, cause arrest, and prosecute
or cause prosecution in respect of cases involving corruption. This role could not be
legally performed by a sitting Judge as it would contravene the doctrine of separation
of powers as enshrined in the Constitution and this was further explained in the case
of Bob Kasango v Attorney General & Ors 9where it was stated that “the duty of a
judge is to adjudicate disputes in society and to interpret and enforce the law. In do-
ing so the judicial officer and judiciary are independent of any person or authority.
On the other hand, the duties and functions of the IGG, include, the powers to invest-
igate, arrest, cause arrest, prosecute, cause prosecution in respect of cases involving
corruption, abuse of authority or of public office. Now, it is a cardinal principle of
our jurisprudence that a judge must be Independent, Impartial and just to all manner
of people. He must take the judicial oath to inculcate these principles in his person.
“This therefore, makes the doctrine a myth.
Under Articles 2 and 128 (1), (2) and (3) of the 1995 Uganda Constitution 10as
amended, the judiciary is protected and is guaranteed independence. This same prin-
ciple was portrayed in the case of Attorney General v Walugembe Danie,11 where the
Court of Appeal emphasized that court judgments, and or orders cannot be comprom-
ised or interfered with by orders issues by any other arm of Government, and to do so
would be interference in the separation of powers and independence of the Judiciary.
However, this principle or doctrine was contravened with by COSASE as seen in the
case of Ssekatawa v Attorney General & 2 ors 12where it was stated that COSASE
violated the principle of the independence of the Judiciary as it is known under the
relevant provisions of the Constitution.