UGANDA CHRISTIAN UNIVERSITY

SCHOOL OF LAW

Course
BACHELOR OF LAWS

Course unit

CONSITUTIONAL HISTORY

Submitted to
MRS. HARRIET NABANKEMA
Submitted by
GROUP 4 A

No. Name Reg. No. No. Name Reg. No.

1. Abano Promise AKM2B11/001 12. Kenjubu Larisa Maria AKM23B11/072
Kemigisha
2. Kwiocwiny Bridget AKM23B11/081 13. Nahurira Tish Dinorah AKM23B11/153
3. Akamukunda Julian AKM23B11/011 14. Akimbabazi Lucia AKM23B11/150
4. Kironde Ronald AKM23B11/076 15. Mugisha Joshua AKM23B11/149
5. Nakachw Shanitah AKM23B11/113 16. Kabara Happy AKM23B11/056
6. Akakwasa Crimia AKM23B11/013 17. Nayebale Juliet AKM23B11/125
7. Tewelde Asema Zerai AKM23B11/148 18. Kigwana Shiela Peninah AKM23B11/074
8. Nsiima Ruth Lynda AKM23B11/129 19. Nabagereka Desire Tendo AKM 2311/103
9. Gizema Christo Willow AKM23B11048 20. Muhumuza Ronny AKM 23B11/142
10. Grace Muganzi AKM23B11/050 21. Ogwal Solomon Ogwal AKM 23B11/131
11. Ssali Junior AKM23B11/143 22. Tusasirwe Kellen AKM2311/146

YEAR ONE SEMESTER ONE

Question:

Discuss the extent to which the order in council undermined the principle of separation of
power in line with how the same has reincarnated today in relation to the current political regime.
 Baron Montesquieu, a French judge, man of letters, historian, and political philosopher, is
regarded as the principal source of the theory of separation of powers, which is implemented in
many constitutions throughout the world today. In his view, political authority must be divided
into Legislature, Executive and Judicially. He asserted that for liberty to prevail, these three arms
have to act independently “Trias Politica”
His publication “ Spirit of the Laws “ is considered one of the great works in history of politics
and jurisprudence and it inspired the declaration of rights of man and the constitution of the United
States of America.
The doctrine of the separation of powers requires that the principal institutions of state—
executive, legislature and judiciary—should be clearly divided in order to safeguard citizens'
liberties and guard against tyranny.

The 1902 order-in-council formalized colonial rule in Uganda and was the fundamental
Law of the protectorate. The order in council was in exercise of power granted to His Majesty’s
government under the Foreign Jurisdiction Act of 1890 to legislate with regards to foreign
territories of the United Kingdom. 1902 orders-in-council dealt with several matters of
constitutional significance ranging from the provincial and administrative divisions, structures of
government. Administration of justice and the maintenance of law and order to the applicable laws.
Most important elements of this with regards to the separation of powers are in the following
articles;
It provided for the office of the Commissioner under Article 4 and 5 who was to take overall control
of the administration of the protectorate as the chief representative of His Majesty’s government.
The commissioner would later become the Governor under the provisions of the 1920 order-in-
council.
The Order-in-Council empowered the commissioner to make laws under Article 8-10. In 1920,
this function was placed in the hands of a legislative council. However, by virtue of the 1902 order-
in-council, the commissioner was able to make laws for peace, order and good governance in the
protectorate between 1902 and 1920. 5). The Order-in-Council established a system of exercise of
judicial power comprising of the Courts of Justice, in particular the High Court which was to have
full civil and criminal jurisdiction on all persons and matters in Uganda. This was provided for
under Article 15 (clause1). The court was referred to as His Majesty’s High Court of Uganda.
The Order-in-Council provided for the power of the commissioner to order the removal or
deportation of any undesirable person from the protectorate, in order to preserve peace, order and
good governance. This favor was provided under Article 24 and 25. An order of removal or
deportation was not subject to judicial appeal before the courts as a result of the provisions of
Article 24 and 25. The commissioner made laws for removal and deportation:
These articles overlooked the doctrine of separation of powers given that the legislative and
exercise of powers were vested in the one person of the commissioner. This order also undermined
the power of the Buganda Lukiiko as had been granted by the 1900 agreement.

The 1995 Uganda constitution was promulgated on the foundation of not repeating our past
mistakes, the doctrine of separation of power of powers was recognized and Articles 137, stipulates
the role and functions of the judiciary, Article 79 shows the roles and functions of the Legislature
and Article 79 is for the executive.
Despite the good intent of the framers of the constitution there have been instances where the state
has failed to respect the doctrine of separation of powers, the largest number of our cabinet
ministers are also members of parliament which undermines the principle of separation of powers,
because the y belong to both the executive and the legislature.
There have also been instances where the judiciary has appeared to be working under the influence
of the president like in the case of Kyagulanyi Ssentamu v Yoweri Museveni Tibuhaburwa and 2
Others (Civil Miscellaneous Application No. 1 of 2021) [2021] Supreme Court of Uganda. The
applicant withdrew his application citing alleged interference of the state.
Article 146 and 147 of the Uganda 1995 constitution sets up and outlines the roles of the judicial
service commission respectively, which is assists the president in appointing all judicial officers,
however all the commissioners are appointed by the president which makes it impossible for them
to act impartially. This too under mines the doctrine of the separation of power.
Over all, although the 1902 and 1920 order in council in Uganda have not had a direct impact on
contemporary politics in Uganda, the legacy of colonialism is still felt in the concentration of
power in the hands of the president and the ruling party. This has undermined the principle of
separation of power, leaving Uganda’s political regime open to the abuse of power and violations
of democratic governance.