“Though the doctrine of separation of power is traceable to Aristotle, the writings of Locke

and Montesquieu gave it a base on which modern attempts to distinguish between the
power of executive, legislature and judiciary is grounded.” With the aid of decided cases and
statutory provisions, examine the applicability of the doctrine of separation of powers and
checks and balances in Uganda.

It was during the middle of 18th century that Montesquieu gave the doctrine of separation of power its
modern famous formulation; it has been argued that in making this formulation. Montesquieu was
concerned to combat despotism of which King Louis XIV has established in France.

Montesquieu was the French Philosopher. He writes the spirit of laws in 1748. In fact, he was impressed
with the British Politician Locke’s views. Montesquieu strongly supported in his theory that there should be
separation of powers.

It is essential to the successful working of the Government that the person entrusted with power in any of
the three organs, Executive, Judiciary and Legislature, shall not be permitted to encroach upon the powers
in any one of the three organs that is Executive, Judiciary and Legislature, shall not be permitted to
encroach upon the powers confided to the others. Concentration of power in one person or a group of
persons result in tyranny. Therefore, the governmental power should be divided and vested in three
different organs. Each of these organs should be independent of the others. No organ should perform
functions belonging to the others.

The Montesquieu doctrine of separation of power had some criticism that there is no pure separation of
power. Apart from this criticism the Montesquieu theory had tremendous impact on development of
administrative law throughout the world.

Example for the doctrine of separation of powers, United States of America is the best example. This
doctrine has been developed in America in highest mark. The Congress has legislative powers, President
has executive power and the Supreme Court and its subordinate courts have the judicial powers. There is
coordination between these three most important organs of the state. In fact, the rule of law in England
hampered the recognition and growth of administrative law, whereas the separation of powers in America
has given an intimate impact on the growth of administrative law Although they have clearly maintained
separation of power in the American Constitution these powers are not complete. This doctrine succeeded
in separating the executive from legislature and yet enabled the Supreme Court to declare invalid act of the
legislature

The Supreme Court of America, in Satinger vs. Philippine1. It was held that “It may be stated ..., as a
general rule inherent in the American Constitutional system, that, unless otherwise expressly provided or
incidental to the powers conferred, the legislature cannot exercise either executive or judicial power, the
executive cannot exercise either legislative or judicial power, the judiciary cannot exercise either executive
or legislature power. Nixon’s Water Gate Case2 is another example of separation of powers in America. In
this world famous case, Nixon, then American President was found guilty by the Supreme Court of
America.

The doctrine of Separation of Powers deals with the mutual relations among the three organs of the

Government namely legislature, Executive and Judiciary. Lord Mustill in R vs. Home Secretary, Ex parte

Fine Brigades Union3 defined the doctrine of separation of powers in England as: - “It is a feature of the

Peculiarly British conception of the Separation of powers that Parliament, the executive and the courts have
each their distinct and largely exclusive domain. Parliament has a legally unchallengeable right to make
whatever laws it thinks right. The executive carries on the administration of the country in accordance with
the powers conferred on it by law. The courts interpret the laws, and see that they are obeyed.”

The doctrine of separation of powers has been further defined as the “Separation of Power of the states
from that of the federal government into three branches (Executive, Legislative and judicial), each of which
has specific powers upon which neither of the others can usurp. These checks and balance are given large
credit for the prevention of a tyrant ever seizing power in the country.

According to Montesquieu: “When the legislative and executive powers are united in the same person, or in
the same body or Magistrate, there can be no liberty. Again, there is no liberty if the judicial power is not
separated from the Legislative and Executive power. Where it joined with the legislative power, the life and
liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator.
Where it joined with the executive power, the judge might behave with violence and oppression. There

1
Satinger vs Philippine, 1986.
2
Nixon’s Water Gate Case 1972-1974.
3
[1995]2 AC 513.
would be an end of everything where the same man or the same body to exercise these three powers...” 4 In
other words, each organ should restrict itself to its own sphere and restrain from transgressing the province
of the other and hence in the long run by so creating separate institutions of this nature, it is possible to
have a system of checks and balances between them.

SEPARATION OF POWERS IN UGANDA

In 1966, Dr. Apollo Milton Obote abrogated the 1962 Independence Constitution replacing it with a new
Constitution. This 1967 constitution reaffirmed Uganda a republic since Uganda was then going to be
governed by an Executive President who is elected by universal adult suffrage and hence also created the
fundamental structure of the state which was the executive, legislature and the judiciary. Each organ was
supposed to operate independently without influence from the others 5. This in other words insinuated the
doctrine of separation of powers in the governance of Uganda.

The doctrine of separation of powers has properly been enshrined in the 1995 Constitution of the republic
of Uganda (as amended). It clearly shows that there are three separate arms of government and each
plays a unique role and they are expected to check on each other. Under Article 91 (1)6, it’s stated that the
exercise of the legislative powers is vested in the Parliament of Uganda with power to make laws through
bills passed by Parliament and assented to by the President. Article 126 (1)7 provides that the exercise of
judicial powers is vested in the Judiciary which is derived from the people and is 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. Article 99 (1)8 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.

However, despite the fact that doctrine of separation of powers is the enshrined in our constitution, since
time memorial, we have lived to see many of our leaders more so the executive arm act to the contrary and
in my opinion this doctrine of separation of powers has remained prevalent in Uganda and to a larger extent
has not been adhered to as explained here under;

4
Montesquieu, De L‟ Espirit Des Lois, 1748 Quoted in Justice D.D. Basu: Administrative Law, Edn. 199, p. 23.
5
Oloka Onyango; Judicial Power and Constitutionalism in Uganda, 1993 Pg.42.
6
Constitution of The Republic of Uganda 1995.
7
ibid.
8
ibid.
The habit of usurpation of powers actually began with Obote’s government as early as 1963, in the post
independent Uganda9. In Jowett Lyagoba v Bakasonga10, court held that the installation of the Kyabazinga
of Busoga was illegal. Obote ensured that Parliament passed The Busoga Validation Act, validating the
installation of the Kyabazinga. By doing this, Obote was interfering in the judiciary by making use of his
executive powers. In Ibingira case11, the appellants were arrested on suspicion that they were plotting to
overthrow the Government. They applied for a writ of habeas corpus after being arrested unlawfully under
the Deportation Ordinance. The writ was granted and they were transported to Buganda, set free, and then
re-arrested under Section 165 of The Emergency Powers (Detention) Act 12. When Ibingira appealed to the
East African Court of Appeal, it upheld the Government side. Obote had also dragged the army into politics.
He sent General Amin to raid the Kabaka’s Lubiri in Mengo. He also further usurped powers of Parliament
during the debate on the Administrations (Kingdom) Bill, 1996, where it is observed that Government was
trying to usurp the Parliament’s powers to make laws.

Amin toppled Apollo Milton Obote’s government on 25th January 1971. This 1971 coup sealed what was
already an established fact; the predominance of the executive power. General Amin, who was, on many
occasions, described as a son of Obote’s politics, pursued the non-separation of power to the extreme. He
suspended articles 1, 3, and 63 and Chapters IV and V of the 1967 Constitution. Article 1 emphasized the
superiority of the Constitution; Article 3 dealt with the alternation of the constitution and article 63 dealt with
powers to make laws. He thus enabled himself to enact laws. “this meant that the constitution was no
longer “supreme law”, that it could be altered Without reference to parliament and finally that Parliament
lost its law-making powers to the head of State- now empowered to rule by personal decree. In effect, this
made the president, not only “the supreme law” of the land, but also the sole law-maker.” 13 All this was
contrary to the demands doctrine of separation powers.

In 1986, the NRM came to power through a legal notice No.1 0f 1986 and this was a very new and
fundamental change in the history of our country provided the very many new sui generis ideas most
important of which was the unprecedented 1995 constitution which properly lays down the separation of
powers. It is just so sad that the same framers of constitution that explains and illustrates the doctrine of
separation of powers have not lived to see it grow but have continued to murder it for their own good hence

9
Kivutha Kibwana, Constitutionalism in East Africa, Pg44.
10
(1963) EA 57.
11
Grace Ibingira and others v Attorney General (1966) EA 305/443.
12
Cap48, 164; Laws of Uganda.
13
Oloka Onyango; Judicial Power and Constitutionalism in Uganda, 1993 Pg.44.
sabotaging the doctrine of powers. In the case of Major General David Tinyefuza v. The Attorney General 14,
after a run-in with the Uganda Peoples’ Defence Forces (UPDF) over testimony he gave to a parliamentary
committee investigating the war in Northern Uganda, General Tinyefuza (now known as Sejusa) sought to
resign from the army. However, his petition was blocked by the Head of State/ Commander-in-Chief
(President Museveni) and the-then Minister of Defence (Hon. Amama Mbabazi). This showed how the
executive was interfering with the judiciary which is contrary to the demands of the doctrine of separation of
powers. The manifestations of usurpation of powers in this case, day to day political experiences and other
recent case such as Brigadier Henry Tumukunde vs. Attorney General 15 and Electoral Commission, all
show how the habit of usurpation of powers has remained prevalent and to a larger extent this doctrine of
separation of powers has not been adhered in Uganda as explained by and large.

Even in present day in Uganda, we have continued to witness the habit of usurpation of powers. One of the
most recent examples was on 27th September, 2017 were witnessed a joint force of presidential guards,
the elite Special Forces Command (SFC) soldiers and police officers in an operation that was commanded
by Kampala Metropolitan Police Commander, Frank Mwesigwa, attached to parliament forcibly pulling out
several legislators opposed to lifting the age limit from the chambers of parliament. This was a very clear
example of the executive arm of the government interfering with the work of another arm of government
which is the legislature which in the long run is contrary to the demands of the doctrine of separation of
powers which calls for all the three arms of government to act independently.

Another unforgettable example is one that happened on Wednesday November 16, 2005 in the “PRA
(People`s Redemption Army) Suspects case” 16, where a group of men who later came to be known as the
Black Mambas, raided the High Court in Kampala. The hooded men were on a mission to re-arrest
suspected members of the People’s Redemption Army, a shadowy rebel outfit, upon being granted bail by
Justice Edmond Ssempa Lugayizi which clearly showed the executive interfering with the work of the
judiciary by trying to intimidate the judicial officers and contrary to the demands of the doctrine of
separation of powers which calls for all the three arms of government to act independently.

14
Constitutional Petition No 1 of 1996.
15
Constitutional Appeal No 2 of 2006)) [2008] UGCC 14 (13 October 2008).
16
[2005] High Court of Uganda, Kampala.
Furthermore, to drive the point home, in January 2017, we saw a very interesting scenario where the then
Deputy Chief Justice, Justice Steven Kavuma also issued an orders barring for debating the Shillings 6
billion bonuses issued to 42 top government officials for their role in the Heritage Oil tax case. This angered
the speaker prompting her to describe the court orders as ‘stupid order” 17. The speaker of parliament
Rebecca Alitwaala Kadaga faulted court for issuing the orders stopping parliament from doing its work,
saying the Parliaments (Powers and Privileges) Act, says no process issued by any court in Uganda in the
exercise of civil jurisdiction shall be served or executed within the precincts of Parliament while Parliament
is sitting or through the Speaker, the Clerk or any other officer of Parliament. According to Kadaga, there
have been attempts in the recent past by the judiciary to encroach on the powers of parliament. She says
there is need for clear separation of powers between the different arms of government to help each other in
fulfilling their mandates. These explained just above leaves me with no doubt that the doctrine of separation
of powers has been adhered to in my mother land Uganda but to a smaller extent and hence a lot needs to
be done to turn the tables and avoid this kind of evil of usurpation of the doctrine of separation of powers
from becoming the new normal.

The President’s condemnation of the courts over granting bail to suspects is an affront on the
independence of the Judiciary. This occurred during the President’s State of the Nation address.yuyu It is
commendable that the Chief Justice issued a statement stating that courts will continue to be guided by the
Constitution and the law on matters of bail.

There is a notion that “You cannot bite the hand that feeds you” and many people have argued that this
explains the habit of usurpation of powers which is a very wrong and unconstitutional argument that makes
the future of our country blurry. Therefore, we should seriously strive and ensure that there is
independence of these organs of the state. However, as per the words of Thomas Jefferson, a former and
the third president of U.S.A who once said “There is no country in the world that observes the Doctrine of
separation of powers to its eternity.” 18, it’s therefore also important to note that the achievement of the
doctrine of separation of powers seems to be a difficult task because even the countries from which the
notion emanated from inter alia, America, Britain and France, do not fully have separation of powers.

17
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18
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Our constitution pays homage to the doctrine of separation of powers as discussed above, however a pure
separation of powers no longer works like Montesquieu envisaged and instead scholars have chosen to
use the phrase checks and balances as a way of dealing with the need to ensure that there is some
separation and the same time recognizing that there is an overlap of these organs of the state. There, the
doctrine of checks and balances is taken to mean that the organs of state exist in a situation of mutual
independence and interdependence so that if there is overstepping of the like by one of these organs, there
is an ability to check that excessive action.

Through the doctrine of checks and balances, an effort is made to ensure that no one organ becomes more
powerful than the other. The organs of government are like three stones under a pot and each of them
functions to ensure that the food in the pot is effectively cooked and also that the pot does not fall over.

The judiciary is considered to have the duty to uphold and protect the constitution and to be the chief
arbitrators over all disputes in the country. With specific regards to disputes between individuals and the
other two organs of government, the courts are seen as a check on the arbitrary and excessive use of
powers. In the case of Masalu Musene & 3 others v AG 19, justice Mpagi Bahigeine noted that judicial
officers are charged with safeguarding the fundamental rights and freedoms of the citizenry. In the
performance of their duties, they are entrusted with checking the excesses of the executive and legislature.

Courts through judicial review of administrative actions, keep those persons and public bodies with
delegated powers within the scope of the power conferred upon them by parliament, thus if a minister of the
executive or a local authority or other public body exceeds the power granted, the courts nullify the decision
taken and require the decision maker reach a decision according to the correct procedure.

An independent judiciary is essential to preventing executive initiatives that are outside the bounds of
national constitutional frameworks or inconsistent with international standards. In a prominent public
interest case in Uganda, a member of parliament challenged the President’s appointment of a retired judge
as interim Chief Justice, arguing that it was unconstitutional. A judicial panel reviewed the case and, in a
majority ruling, put a stop to the appointment.

When the president appoints the ministers, judges and other public officers as required by the constitution
of Uganda, he is supposed to forward his list to the parliament which may approve them or reject them.
This way the powers of the president are checked.

19
Constitutional Petition No5 of 2004.
The parliament is granted powers to pass a vote of no confidence on the president as envisaged in Article
107. This is supposed to keep the president in check to see that he upholds the constitution of the country.

The president is given powers to assent on the bills of parliament before they are passed into law, this way
he is able to scrutinize laws best for the development and well-being of the citizens of the country.

The checks and balances are provided for in the 1995 Constitution of Uganda as amended as discussed
above. 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 its 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.

Apart from use of majority party representation, the president has used executive rewards and awards
favors to compromise the effectiveness of the parliament. The constitution grants the president powers to
appoint ministers and currently, more than 95% of ministers are appointed from the members of parliament,
this commits part of the parliament to executive and makes it impossible for such members to perform their
oversight role. The other effect of appointing MPs as ministers is that most members refrain themselves
from being critical of their executive as they anticipate executive favor to be appointed as ministers.
President Museveni has mastered this game by leaving several cabinet posts vacant to draw most MPs in
waiting and by favor; this has impacted on the parliamentary performance.

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;

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.
The Parliament has an uphill task to free itself from the executive controls and abuses. Gladly, the
Ugandan constitution grants the clear cut power to the parliament by all means; from approving all
executive appointments, to making and reviewing laws including those that govern the executive.  What is
more worrying is that multiparty dispensation has brought about party caucusing which undermines the
position of the parliament.   Multiparty has also weakened of individual merit, MPs who were more able and
willing to speak out and that under the multi-party dispensation they are required to toe the party line.  It is
therefore important to note that good governance and sustainable development are only possible under an
accountable political system where the Parliament enjoys authority, autonomy and independence to
perform its legislative responsibilities.

In a conclusion, non-separation of powers has been a common phenomenon in Uganda and is a kind of
evil that has continuously become the new normal as explained by and large. This in the long run shows
that the habit of usurpation of powers has remained prevalent in Uganda and the demands of the doctrine
of separation of powers have not been to a larger extent adhered to as explained by and large. Therefore,
this brings me to a suggestion that endless Efforts should hence be made to separate the different powers
of the organs of state, as much as possible so as to have a better tomorrow.

BIBILIOGRAPHY

Constitution of The Republic of Uganda 1995

Kivutha Kibwana, Constitutionalism in East Africa, Pg44

Montesquieu, De L‟ Espirit Des Lois, 1748 Quoted in Justice D.D. Basu: Administrative Law, Edn. 199, p.
23

Oloka Onyango; Judicial Power and Constitutionalism in Uganda, 1993 Pg.42

‘Www.Goodreads.Com’

‘Www.Monitor.Co.Ug’

(1963) EA 57

[1995]2 AC 513

[2005] High Court of Uganda, Kampala

Constitutional Appeal No 2 of 2006)) [2008] UGCC 14 (13 October 2008)

Constitutional Petition No 1 of 1996

Constitutional Petition No5 of 2004

Grace Ibingira and others v Attorney General (1966) EA 305/443

Nixon’s Water Gate Case

Satinger vs Philippine, 1986

Cap48, 164; Laws of Uganda.