Opinion: Why doctrine of separation of powers is archaic
Sam Mayanja
Uganda is a Constitutional democracy.
The Constitution is the supreme law of the land with binding force on all authorities and persons.
The Constitution expressly states that the people of Uganda shall express their will and consent on who shall govern them and how they should be governed, through regular, free and fair elections or through referenda.
The people of Uganda opted for a multiparty democracy.
Political parties in a bid to capture the mantle of leadership of the country, conduct spirited campaigns during elections to garner enough votes for its presidential candidate to win the presidential slot.
It's to also earn at least two thirds of both the parliamentary seats and of the district councils ensuring that the programs of the party as set out in the manifesto will sail through unhindered.
In addition, the party’s two thirds majority enables it to choose a Speaker and Deputy Speaker of Parliament from among its members.
With that majority the party would where the occasion demand, be able to even amend the Constitution.
The winning party presidential candidate, voted for under adult universal suffrage, becomes president of Uganda.
All executive authority of the country vests in him.
He takes over as Head of State, Head of Government, Commander in Chief of Uganda People’s Defense Forces, Fountain of Honour and takes precedence over all persons in Uganda.
The president appoints a cabinet composed of himself, the Vice President, the Prime Minister and such other number of Ministers as may appear to him to be reasonably necessary for the efficient running of the State.
Cabinet ministers are appointed by the president from among Members of Parliament or persons qualified to be elected Members of Parliament.
These ministers are accountable to the president for the administration of their ministries.
The president also appoints an Attorney General who is the chief legal advisor to government and whose legal opinion binds all Government departments and agencies.
He is both a member of the cabinet and parliament.
There is therefore no separation of personnel between the legislature and the executive, where one seesaw overlaps because members of the executive are also members of the legislature.
It is noteworthy that in some instances as provided in Article 202 (1) (b) of the Constitution, the president may with the approval of two thirds of all the members of Parliament, assume the executive and legislative powers of any district where a State of emergency has been declared or in Uganda generally.
Clearly the leader of the party which won the Presidency and garnered at least two thirds majority of Parliament, is in control of both the executive and legislature.
Under Article 142 of the Constitution the President has the mandate to appoint the Chief Justice, the Deputy Chief Justice, the Principal Judge, Justices of the Supreme Court and Judges of the High Court subject only to the advice of the Judicial Service Commission whose members are appointed by the President with the approval of Parliament.
The approval of Parliament is effected by a vetting committee, the majority of whose membership is from the party in power including the Speaker, who chairs it.
In this scheme of things, the ruling party controls the executive, the legislature and through the appointments system, the Judiciary.
It therefore cannot be in dispute that in a modern dispensation where citizens adopt a written constitution, the doctrine of separation of powers has no place.
It was a tool of much use to medieval scholars analyzing the budding constitutional evolution.
Apparently they saw the tyranny around them being perpetuated by a group of leaders or officials who simultaneously held executive, legislative and Judicial authority.
They therefore believed that the tyranny was caused by a situation where the same the person or the same body of officials, were to exercising the three powers namely: that of making laws, that of executing the public resolutions, and that of judging crimes or disputes of individuals.
Civilizations grow and change and decline- they are not remade. Certainly the era of doctrine of separation of powers is long lost in the night of time.
It has no place in the modern day democratic system of governance under a written constitution which spells out the leadership of the country under a head of state who has come to power as a result of him personally and his party garnering the majority votes and commanding two thirds majority membership both in Parliament and at the district level.
Ugandans opted for a written constitution.
There is no room to create artificial distinctions of power centers and sowing the seeds of petty strife with one department demonizing the other for having interfered in their sphere of authority!
The issue of the day therefore, is not the archaic doctrine of separation of powers, but an understanding of the applicability of a written constitution within a multiparty democracy. In the absence of that understanding, there will be no constitutional progress, and no transformation.
Only the abyss.
The author is a senior partner at Kampala Associated Advocates
