QUESTION EIGHT

“The nation is comprised of 4 characters. These characters are important in

establishing an administrative structure in a nation-state. There is
specifically that character that establishes how separation of power in
governance is observed with autonomy to a given stone. It is also true that
three cooking stones work hand in hand for better results.” How does this
kind of character in relation to the foregoing help determine the tenets
of law and development?

A nation is defined as a large body of people united by common descent,

history, culture, or language, inhabiting a particular country or territory.
A nation–state can be defined as a form of political organization under
which a relatively homogeneous people inhabits a sovereign
state. Basically, it’s a sovereign state of which most of the citizens or
subjects are united also by factors which define a nation, such as language
or common descent.
As a political model, the nation-state fuses two principles: the principle of
state sovereignty, first articulated in the Peace of Westphalia (1648),
which recognizes the right of states to govern their territories without
external interference; and the principle of national sovereignty, which
recognizes the right of national communities to govern themselves.
National sovereignty in turn is based on the moral-philosophical principle
of popular sovereignty, according to which states belong to their peoples.
The latter principle implies that legitimate rule of a state requires some
sort of consent by the people. That requirement does not mean, however,
that all nation-states are democratic.

Discussed hereinbelow are the four characters of a nation and how

these characters are important in establishing an administrative
structure in a given nation-state.

Population – A state must have people governed by the government.

These people are commonly referred to as ‘citizens’ sometimes, and their
number does not have to be definite.

Territory – A state must have a well and clearly defined territory. This is
referred to as ‘border’ which is a mark that embodies the end of one state
and where another begins from.
Sovereignty – A state must have supreme power and authority to act. This
includes but is not limited to the authority to make its own decisions,
policies, reforms, public affairs, external affairs, etc. with little or no
interference from other states or countries.

Government – Government is powerful machinery that enforces rules and

regulations through diverse laws of the land. Government is the institution
through which any society enforces public policies via Bureaucratic
institutions. It consists of appointed people with legitimate authority to
exercise their powers. Elected politicians and public administrators work
together in management or leadership and ensure service delivery to the
citizens of a given state /country. Administrators have been known to also
play a huge role by introducing control within a well-defined country’s
territory.
Government makes public policies through administrators. These
highlight things the government wants to do. This list of making public
policy and implementation can take years, which helps in promoting
Public choice theory. Most States /countries have the rule book codified in
a single document known as a written constitution which sets out the
fundamental principles by which the state is governed. It describes the
main institutions of the state, and defines the relationship between these
institutions (for example, between the executive, legislature and
judiciary). It places limits on the exercise of power and sets out the rights
and duties of citizens.
.
Discussed hereinunder are three kinds of Government powers (stones)

Legislative power – This is the power to make laws, decisions, and

policies at a national level.
Executive power – This is the power to enforce the law, and administer the
law to the people and the country.
Judicial power – Through the arm of the government judiciary, the
government has the power to interpret laws, pass to the legislature any
changes the power to interpret laws, explain their meaning, and coordinate
society by resolving conflicts.

Government is that specific character that establishes how the doctrine of

separation of powers in governance is observed with autonomy to a given
stone.
Discussed hereunder is the Doctrine of Separation of powers and how
the same is administered in a nation-state.

The concept of separation of powers refers to a system of government in

which the powers are divided among the three stones of the government,
each stone controlling different facets of government. In most democratic
countries, it is accepted that the three stones are the legislature, the
executive, and the judiciary. According to this theory, the powers and the
functions of these branches must be distinct and separated in a free
democracy. These stones work and perform their functions independently
without the interference of others in order to avoid any kind of likely
conflict. It means that the executive cannot exercise legislative and judicial
powers, the legislature cannot exercise executive and judicial powers and
the judiciary cannot exercise legislative and executive powers.
The doctrine of Separation of powers was advanced by a French
philosopher called Charles-Louis de Secondat, baron de La Brède et de
Montesquieu in his book The Spirit of Laws wherein he stated that "Good
governance should be based on the separation of government
powers." That is to say;

There should be three different organs of government.

There should be three separate personalities to man these organs
There should be no control of one organ by another.

In Uganda, the Executive authority is provided for under Article 99(1) of

the 1995 Constitution Republic of Uganda as amended which is to the
effect that;
(1) The executive authority of Uganda is vested in the President and
shall be exercised in accordance with this Constitution and the laws of
Uganda. This portrays that on the face of it, there’s a separation of power
in Uganda.
Article 98(1) provides that;
There shall be a president of Uganda who shall be head of state, head of
government, and commander–in–chief of the Uganda
people's defense forces and fountain of honor. The functions of the
executive stone of government are provided for under Article 99 (2-5) of
the 1995 constitution of the republic of Uganda as amended as it provides
that;
(2) The President shall execute and maintain this Constitution and all
laws made under or continued in force by this Constitution.
(3) It shall be the duty of the President to abide by, uphold and
safeguard this Constitution and the laws of Uganda and to promote the
welfare of the citizens and protect the territorial integrity of Uganda.
(4) Subject to the provisions of this Constitution, the functions conferred
on the President by clause (1) of this article may be exercised by the
President either directly or through officers subordinate to the
President.
(5) A statutory instrument or other instrument issued by the President or
any person authorised by the President may be authenticated by the
signature of a Minister; and the validity of any instrument so
authenticated shall not be called in question on the ground that it is not
made, issued or executed by the President.

The Legislature stone of government is established under Chapter 6 and

Article 77 (1) of the 1995 Constitution of the Republic of Uganda which
provides that;
(1) There shall be a Parliament of Uganda.
The composition of this stone of government is stipulated under Article 78
(1) (a-d) which provides that;
1) Parliament shall consist of-
(a) members directly elected to represent constituencies;
(b) one woman representative for every district
(c) such numbers of representatives of the army, youth, workers, persons
with disabilities and other groups as Parliament may determine; and
(d) the Vice-President and Ministers, who, if not already elected
members of Parliament, shall be ex-official members of Parliament
without the right to vote on any issue requiring a vote in Parliament.

The functions of the Legislature stone of government are embedded in

Article 79 (1) of the 1995 constitution of the Republic of Uganda as
amended and it is to the effect that;
(1) Subject to the provisions of this Constitution, Parliament shall have
power to make laws on any matter for the peace, order, development and
good governance of Uganda.
(2) Except as provided in this Constitution, no person or body other than
Parliament shall have power to make provisions having the force of law
in Uganda except under authority conferred by an Act of Parliament
(3) Parliament shall protect this Constitution and the democratic
governance of Uganda.

Vide the above provision of the law, the parliament is the primary law-
making stone /organ in Uganda as it has powers to make laws on any
matter for the peace, order, development, and good governance of Uganda
these laws may include the ones that protect and preserve the rights of
women, the right to own property. Through such laws, women are
accorded full and equal dignity of the person with men, freedom of speech,
and participation in politics. All these have significantly contributed to the
development of Uganda as a country economically, socially, and
politically.

Through exercising the doctrine of Separation of powers, the legislative

stone/organ of government has spearheaded the need for institutionalism in
the country. Institutionalism theory is an approach to the study of politics
that focuses on formal institutions of government. For instance institutions
such as KCCA were established under the Kampala capital city Act with
the goal of fostering operations of the city with an aim of attaining
development in the capital city and the country as a whole.

The Judiciary stone/organ of government is established Under Chapter 8

Article 126 (1) of the constitution of the Republic Uganda 1995 as
amended which is to the effect that;

(1) 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.

Article 128 (1) of the 1995 constitution of the Republic of Uganda

provides for the independence of the judiciary and it is to the effect that;
(1) In the exercise of judicial power, the courts shall be dependent and
shall not be subject to the control or direction of person or authority.
(2) No person or authority shall interfere with the courts or judicial
officers in the exercise of their judicial functions.
The cardinal role of this stone/organ of government is to interpret laws,
pass to the legislature any changes the power to interpret laws, explain
their meaning, and coordinate society by resolving conflicts.
The doctrine of separation of powers must be interpreted in a relative
form. In the era of liberalization, privatization and globalization,
separation of power has to be expounded in a wider perspective. It should
not be curb to the principle of restraint or strict classification only but a
group power exercised in the spirit of cooperation, coordination and in the
interest of the welfare of the state. Though this doctrine is unfeasible in its
rigid perception nevertheless its effectiveness lies in the prominence on
those checks and balances which are necessary in order to avert maladroit
government and to prevent abuse of powers by the different organs of the
government.
The concept of separation of powers is the rudimentary element for the
governance of a democratic country. This principle corroborates fairness,
impartiality and uprightness in the workings of a government.
However, according to this doctrine power is properly exercised where
there is a system of checks and balances.

Discussed hereunder is the the doctrine of checks and balances and its
applicability in the governance of a given nation-state.
The doctrine of checks and balances prevents the misuse of powers within
the different organs of the government and the discussion below illustrates
how checks and balances are applied to oversee that one stone doesn’t
over dominate the others.

Diverse provisions of the 1995 constitution of the Republic Ugandan

Constitution as amended provides certain limits and boundaries for each
stone/organ of the government and they are supposed to perform their
functions within such limits to avoid acting ultra vires. The Constitution is
ultimately sovereign and if anything goes beyond the provisions of the
constitution, it will automatically be considered null, void, and
unconstitutional. Whereas Article 79(2)of the 1995 constitution of the
Republic of Uganda (amended), gives the Parliament absolute powers to
make laws, such laws are only enacted as laws after being assented to by
the president. The judiciary through the doctrine of checks and balances is
mandated to oversee whether these laws were made following due process
& according to the law which is intended to determine the principle of
governance in law and development. See
 CONSTITUTIONAL PETITIONS Nos. 49 of 2017, 3 of 2018, 5 of
2018, 10 of 2018, and 13 of 2018. Through a Judgment by unanimous
decision, the Constitutional Court declared sections 2, 5, 6, 8, 9, and 10 of
the Constitution (Amendment) Act 2018, which provide for the extensions
of the tenure of Parliament and Local Government Councils by two years,
and for the reinstatement of the Presidential term–limits unconstitutional
for contravening provisions of the Constitution. This Judgment
was essential in ensuring that the legislature and executive remain loyal to
the citizens by upholding the principles of good governance.

Parliament through checks and balances audits the performance of public

officers and where there is an abuse of such power, the responsible officer
may be summoned to explain and if parliament finds it unsatisfactory,
appropriate action may be taken against such officers.

Public officials are also subject to control by the judiciary as far as their
actions can be subject to judicial review by an aggrieved person instituting
an action against the public officer for unfair treatment or erroneous
decision taken. Under such circumstances, the courts act as a measure of
checks and balances of the administrative process. This is in conformity
with provisions of Article 42 of the 1995 Constitution of the Republic of
Uganda as amended which provides that;

Any person appearing before any administrative official or body has a

right to be treated justly and fairly and shall have a right to apply to a
court of law in respect of any administrative decision taken against him
or her.

This constitutional provision ensures a right to be treated fairly and justly

and the right to seek court redress in respect of any administrative decision
taken against an individual.
In exercising the doctrines of separation of powers, checks and balances
the rule of law must not be under looked and its role in a nation-state
towards development.

Discussed hereinbelow is the Doctrine of Law;

Rule of law; entails that all organs, persons, and authorities within a state
be bound by the law and its implications. As defined by prof. Dicey Albert
pointed out that the law consists of;

i) Equality of all persons

ii) Supremacy of the constitution

iii) Predominance of legal spirit

According to prof. Dicey Albert Venn, no man is above the law and every
man, whatever is his rank or condition is subject to the ordinary law under
the jurisdiction of the ordinary court.
See Bob Kasango Vs Attorney General & Anor.

According to Professor Kanyeihamba, the Rule of Law implies that those

in power and authority should act according to the law of the land with its
established principles. He further states that if any deviates from them,
they must justify their actions by showing that the law permits them to do
so through exceptions.
Rule of Law can be seen in circumstances as explained below and its
role in advancing the tenets of law and development.
Ensuring of good governance that mostly involves participation of the
people in free and fair elections. When citizens exercise their political
rights freely like the right to vote and be voted for as per Article 59 of the
Constitution this ensures a smooth and peaceful transition of power and
eliminates tyranny. In Uganda there have been regular elections and
citizens are able to make a choice of their leaders from the grass roots to
the office of the president. This particularly ensures good governance that
creates a peaceful atmosphere and promotes Rule of Law and also
citizens are included in decision making. The leaders elected by the
citizens become accountable for the income and expenditure thus
eliminating the vice of corruption that hinders development.
The doctrine of the rule of law provides for the independence of Judiciary
under Article 128 (1 & 2) of the 1995 Uganda Constitution. The Judiciary
is mandated to exercise Judicial power without directions from any person
or Authority including the Legislature and the Executive. This helps the
Judiciary to make independent and binding decisions in it's mandate. It
also helps to instill confidence in all people including investors and hence
leading to the development of any given society.
Also the establishment of peace and security by security agents like
the Uganda Police and the Uganda People’s Defense Forces. Such
institutions have the mandate to keep law and order. Any form of arbitrary
arrest, unlawful detainment is absolutely against the Rule of Law. The law
enforcing agencies ensure that the citizens and the foreigners in the
country conform to the laws of the land equally hence no one if above the
law. Such institutions should be well facilitated with capacity to
cobnut crime in society like corruption, theft, cyber-crimes to attract
investment hence economic development.
The independence of the judiciary in Uganda is critical in ensuring the
Rule of Law in the country. The Judiciary has the mandate under Article
126 of the Constitution to disseminate justice without influence from
any person or organ including the Executive and the
legislature. This enables the Judiciary to make binding and independent
decisions in its mandate. The independence of the Judiciary helps to
enforce contracts, promote property rights among others.
The laws in Uganda are predominantly made by the Legislature as
it is the law making organ in the country as mandated for under
Article 77 of the Constitution. It is mandated to make laws that ensure
development and this is done through Acts of Parliament such as the
company act among others.
The Legislature also plays a great role in the budgeting processof the
country through borrowing, soliciting for funds. It is further involved in
regulating the security agencies, the Executive and the Judiciary
through passing laws like the U.P.D.F Act, the Police Act, and the
Judicature Act. This creates an enabling environment for the
implementation of the economic policy of the country.
In conclusion, the doctrine of separation of powers must be interpreted in a
relative form. In the era of liberalization, privatization and globalization,
separation of power has to be expounded in a wider perspective. It should
not be curb to the principle of restraint or strict classification only but a
group power exercised in the spirit of cooperation, coordination and in the
interest of the welfare of the state. Though this doctrine is unfeasible in its
rigid perception nevertheless its effectiveness lies in the prominence on
those checks and balances which are necessary in order to avert maladroit
government and to prevent abuse of powers by the different organs of the
government.

Much as the doctrine of Separation of Powers exists among the

Executive, Judiciary and the Legislature, it cannot be practiced
independently. It is supplemented by the doctrine of Checks and Balances
to ensure fulfillment of the National Objectives. If this is done in the right
manner, ensuresadherence to the Rule of Law. Conclusively, if a country
does not have proper Rule of Law it is unstable and it cannot attract
substantive amount of development.