DOCTRINE OF SEPERATION OF POWERS

Doctrine of  Separation of Powers:

By Hon Dr. Miria Matembe 

(Paper presented during the First National Conference on the Constitution)

The origins of the doctrine of the separation of powers can be traced back as far as ancient Greece. It was made popular much later by French philosopher Charles de Montesquieu in 1748 in his work L'Esprit des Lois (the Spirit of the Laws). He wrote that a nation's freedom depended on the three powers of governance—legislative, executive and judicial—each having their own separate institution. 

Since that time this principle has been widely used in the development of many democracies, thus placing the doctrine of separation of powers at the heart of constitutional governance.

Human government is a man made institution starting from the days of the mighty hunter, Nimrod. The numerous nations in our deficient world are all ruled by some sort of government. No matter how the function of governing is executed each one encompasses three aspects which operate in accordance with the principal of administering, legislating and adjudicating. 

Even in the excessively dictatorial countries of our woeful world? Government structure subscribes to these three branches of rule. There is no alternative unless people support the cruel utopia of anarchism or the quirky aberration of the sharia law. 

In his Second Treatise of Civil Government, English philosopher John Locke (1632-1704) noted the temptations to corruption that exist where…” the same persons who have the powers of making laws to have also in their hands the power to execute them…"

As a feature of constitutionalism, rules imposing limits upon government power must be entrenched, either by law or by way of constitutional conventions. In other words, individuals whose powers are constitutionally limited must not be legally entitled to change or expunge those limits at their pleasure. 

Unlike in biblical terms where the Lord is the judge, the lord is the lawgiver and the Lord is the king (all in one) Isaiah 33:13-22. The principal of separation of powers provides for the different three state organs performing different functions with each of the organs providing a check on the other.

Therefore the doctrine of separation of powers separates the organs of the state into three branches: legislature, executive and Judiciary. Under this doctrine, the power to govern is distributed among these three organs to avoid one group having all the power.  The legislature makes the laws the executive enforces the laws and the judiciary interprets them and adjudicates over controversies. The powers and functions of each are separate and are carried out by separate personnel. The object of separation of powers is to develop mechanisms to prevent power being over concentrated in one arm of government.

However no single organ is able to exercise complete authority but they are inter connected in the execution of their duties, each being interdependent on the other. Power thus divided, should prevent absolutism (as in monarchies or dictatorships where all branches are concentrated in a single authority) or corruption arising from the opportunity unchecked power offers.

Uganda

Uganda constitution provides for the principle of separation of powers. It creates each of the three organs of the state and demacates powers and responsibilities among these organs as well as providing checks and balance among them. Under the system of checks and balances, each branch acts as a restraint on the powers of the other two. The application of this principal guarantees constitutionalism and the rule of law while promoting and protecting human rights of the governed.

However you cannot have a complete separation of powers because some of the roles of the Parliament, the Executive and the Judiciary overlap. For example, ministers who belong to the Executive are also members of Parliament. High Court Judges are appointed by the President and approved by Parliament. Therefore, none of the organs exercises complete authority on its own.

Challenges in Uganda today

The NRM government is credited with the restoration of constitutional order in Uganda and this can be traced from the spirit of the Odoki Commission, the Constitutional Assembly debates and the promulgation of the 1995 Constitution of the Republic of Uganda, which is largely celebrated as one of the best Constitutions in Africa.

However, the same government faces a crisis of legitimacy and credibility on a number of issues arising from failure to fully implement the Constitution. There is failure to uphold the doctrine of separation of powers; failure to fight corruption; violations of civil/political rights; cases of unlawful detentions, unfair trials and torture. Around the country, people continue to suffer extreme poverty, social injustice, fear, intimidation and harassment especially during elections.

The constitutional order has sine the removal of the presidential term limit long been over thrown and replaced by militarism and monetization of elections. 

The letter of the constitution by itself is neither enabling nor constraining. For constitutional provisions to operate meaningfully and effectively institutional and cultural apparatus to implement, enforce and safeguard the constitution must be in place. The rule of law is one key component of the constitution’s implementing and safeguarding apparatus. An independent judiciary and the notion of the supremacy of law all work together to ensure that the letter and spirit of the constitution are honoured in the workings of a constitutional government. Unfortunately in Uganda it is rule by law rather than the rule of the law which operates. Therefore in Uganda we have a constitution without constitutionalism.

Challenges facing the Principle of Separation of Powers in Uganda

·  The president abuses his powers with the assistance of his majority NRM party in the parliament; the president oversteps his authority and thus undermines the authority of the other organs. For instance the power to make political appointments which he is supposed to share with other organs i.e. parliament and the judicial service commission. I.e. the case of Hon Nantaba, the case of Hon Aronda and finally the case of  Justice Odoki

  The executive violates the principle of independence of the judiciary; the judiciary has been subjected to either verbal or physical artillery and is under constant intimidation and threat. Right now it has no substantive head simply because the president has refused to appoint one in accordance with the law.

   i.            The president kept craving for the time when he would” liberate “the judiciary by appointing judges who are carders of the movement party.

   ii.            Recently he has been able to achieve that to a certain extent.

  iii.            But tell me how can cadres of the movement party administer justice independently? Are they national cadres?

  iv.            Sometime ago when the president was addressing the judiciary at the judges conference he publically accused some of them of bias wondering as to what should be done to biased judges (but who determines as to whether a judge is biased or not?) what are the appellant channels for, if it is the president to declare that a judge is biased simply because cases are not decided in his favor?

 v.             In the ongoing Lukwago case, you all heard the declarations of the prime minister and the attorney general in relation to the courts order on injunction.

 vi.            You all remember of the mamba’s invention of the judiciary and the kiboko guards within the judiciary premises.

 vii.            You might also remember when the boda boda guys were mobilized to invade and attack judiciary simply because a constitutional case was not decided in favor of the executive.

 viii.            Judiciary needs to be free from political intervention in order to administer justice fairly without fear or favor.

  ix.            Such a judiciary is lacking in Uganda.

·  The parliament has been rendered powerless in the exercise of its oversight role over the executive. Through the NRM caucus members of parliament are intimidated, harassed, and bribed in order to give in to the executive’s desires. Many incidences including the rebel (whom I call redeemer MPs case testify to this fact)

·  In a situation where the Parliament and the Executive are fused together while the judiciary is threatened and intimidated, one cannot talk of the principle of separation of powers. I am afraid, that is the situation in Uganda. The president (Not even the presidency) is the authority.

Proposals for Reform

·  Ministers should not be MPs

·  The speaker and the deputy speaker should not be MPs, but should rather be elected from outside parliament for the whole term of parliament so that they are not easily intimidated by the executive.

·  The army which is part of the executive and supposed to be non partisan should not be represented in parliament.

·   The president should have no right to reject the vetting of parliament and the judicial service commission in carrying out political appointments.

·  The president should have limited time within which to make the appointments after they have been vetted.

·   The vetting of political appointments by parliament should be transparent and subject to public scrutiny.

·   Judges should be appointed by the judicial service commission through public interviews and scrutiny and appointment by the president should be by way of endorsing those who have successfully gone through the interviews.