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LAW SCHOOL MATERIAL ANDCASES
Friday, 25 March 2011
NOTES ON ADMINISTRATIVE LAW
NOTES ON ADMINISTRATIVE LAW
1. DELEGATED LEGISLATION
2. LOCAL GOVERNMENT-DEVOLUTION /
DECENTRALIZATION OF POWERS
3. PUBLIC CORPORATIONS
4. DELEGATION OF FUNCTIONS
5. ADMINISTRATIVE TRIBUNALS
6. PUBLIC FINANCE
7. LICENSING
8. ADMINISTRATIVE LAW AS AN EXTENSION OFCONSTITUTIONAL LAW
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DELEGATED LEGISLATION
1. Delegated legislation is a necessary evil. Discuss
2. Delegated legislation is an inevitable part of our process of government in
these modern times. Discuss the legal authority for delegated legislation in
Uganda, the safe guards and control of delegated legislation and the functions of
the same.
Delegated legislation-laws made by subordinate legislative body under the authority of
a statutory power. Delegated legislation also called subordinate or secondary legislation
is made in the form of statutory instrument.
A statutory instrument can be defined as where an Act confers on the President, a
minister or any authority, a power to make a power to exercisable by making
proclamation, rules, regulations by laws, statutory orders or statutory instruments, any
document by which that power is exercised, shall be known as a statutory instrument,
and the provisions of this Decree shall apply there to accordingly.
A delegated legislation must not conflict with the existing law, unless the enabling law so
provides, it cannot override any Act.
Types of Delegated legislation
1. Orders-usually made by ministers e.g. to dissolve a public body
2. Regulations-by ministers. Regulations are the means through which substantive
and detailed law is made, for example setting out how an Act is to be implemented.
3. Rules-set out procedures or the way in which the parent office deals with
applications. May be made by ministers or if specified in the in the parent Act by a senior
judge.
4. Schemes-e.g. schemes made by the charity commission to amend how a charity isgoverned.
5. Directions-are means by which ministers give legally binding institutions to a public
body about the way it exercises its functions
6. Bylaws etc.
The purpose of delegated legislation
1. Technicality of subject matter; legislation on technical matters necessitates prior
consultation with experts and interests concerned.
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2. Flexibility; e.g. the fine for adultery in Penal code is 600 and it is difficult to change
it because it requires the whole parliament to sit and reverse it instead of a simple act of
a minister.
3. Delegated legislation may be given to the executive in order to relieve pressure on
parliamentary time and enable parliament to concentrate on principles rather thandetails. If parliament attempted to enact all legislation itself machinery, the legislative
machinery would breakdown due to too much work(Bills)
4. Emergency action. Deal with emergency without waiting for parliament to sit.
However it should be noted that regulations allowing emergency action apply only in war
time.
5. Allows laws relating to technical matters to be prepared by those with the relevant
knowledge.
6. Parliament may not be the best institution to recognize and deal with the needs of
local people-local councillors know
Demerits of delegated legislation
7. It is subject to less parliamentary scrutiny than primary legislation.
8. Delegated legislation may be viewed as a way of removing controversial matters
from parliament and putting them under the control of the Government because they are
regarded as matters of detail e.g. immigration rules.
9. Lack of publicity.
Safe guard and control of delegated legislation
Reason for control
Delegated legislation is made by non-elected bodies away from democratically elected
parliament members. As a result, many people have to pass delegated legislation which
provides a necessity for control as without control; bodies would pass outrageous and
unreasonable legislations. E.g. in the case ofStr ickland v. Hayes B orrow Counci l
1986, where a bylaw prohibiting the singing or reciting of any obscene language
generally was held to be unreasonable as a result the passing of this delegatedlegislation was rejected.
1. Control by Parliament. This takes the form of laying delegated legislation before
parliament. An act of parliament may require that rules and legislation made are
supposed to be laid before parliament. This gives parliament an opportunity to scrutinize
and criticize those regulations before they come into force. E.g. Section 38 (3) of the
Inspectorate of government Act, No. 5 of 2005, provides that any regulations made
under this section shall be laid down before parliament within 21 days after publication in
the gazette and shall cease to have effect if Parliament annuls them within 21 days after
they are made however, it should be noted that the issue of whether a provision oflaying a legislation before parliament is mandatory or directory will normally depend on
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the wording of the statute, thats why inStarey v. Graham[1899] 1 QB 406, court found
that rules which were supposed to be laid before parliament but were not, were
nevertheless valid.
2. Consultation. Unless the parent act makes it compulsory there is no general duty
to consult interested parties with regard to proposed statutory instruments. It is widelyaccepted that central government apartments take great care to consult those bodies
likely to be affected by legislation. E.g. Agricultural Horticultural and Forestry
Industry training Board v. Aylesbury Mushrooms Ltd. [1972] 1 WLR .190. The
Industrial training act required the Minister to consult any organization appearing to be
(to him) representative of a substantial number of employers. The failure to consult the
mushroom flowers association rendered any order made under the act ultra vires in so
far as it sought to apply to members of the association.
3. Publication. S. 16 of the Uganda Interpretation Act provides, Every statutory
instrument shall be published in the gazette and shall be judicially noticed.The basis forpublication is that in law, ignorance of the law is no defence.
In Simms Motor Units v Minister of Labour [1946] 2 ALL ER 201, it was stated that a
statutory rule or order must be published in a proper way for the information of the public
and those who are bound to comply with the regulations. However, in R v. Sheermetal
Craft Ltd, [1954] 1 ALL ER 542, where court held that after the statutory instrument has
been made by the minister concerned and laid down before parliament; it became a
valid statutory instrument. The other requirements of the act and the regulation in
regards to the printing publishing and issuing of the instrument were merely matters of
procedure and did not affect the validity of the instrument. This was because court wasjustified that reasonable steps had been taken to notify all those affected by the statutory
instrument.
4. Judicial Control. Courts will normally determine the validity of delegated
legislation by applying the test ofultra vires. This is done on this principle basis.
a) If it violates the fundamental law of the land, especially the constitution.
b) If it is not authorized by the parent Act.
c) If it is passed in bad faith
d) If it is unreasonable
e) If it is vague and uncertain
f) If it sub delegates powers delegated upon it by the statute.
g) Once it fails to follow procedure laid down for its enactment.
In the case ofKasule v Attorney General, [1971] 29 EA, the plaintiff brought a
premium development bank bond the number of which was drawn for a prize. The
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government refused to pay the prize to the plaintiff relying on orders puportingly made
by the minister to regulate the draw and imposing condition that a bond had to be
brought more than two weeks before the draw to be eligible. Court held that the
purported orders were ultra vires the Premium Development Bond Act. The conditions
were therefore invalid and plaintiff entitled to the prize.
LOCAL GOVERNMENT
Question:
1. One of the democratic principles set out in the National Objectives and
Directive Principles of State Policy state thatthe state shall be guided by the
princip le of decentral izat ion and devolut ion o f government func t ions and pow ers
to the people at appr opr iate levels where they can be best managed and direct
their own affairs.
a) Discuss the institutional framework of local government in Uganda meant to give
effect to the above principles.
b) How does a central government monitor and supervise activities at local
government levels.
c) What is the procedure the Local Council should follow before enacting a bylaw?
In Uganda, local governments were first incorporated in 1967 with the first local
government Act. The local governments were to implement the government policies at atime. The government of Uganda has pursued implementation for the decentralization/
decentralized authority and policy which is enshrined in Chapter 11 of the Constitution
and operationalized by the Local government Act, Cap 243 which gives devolution of
functions, powers and services at all levels of local government.
This policy is intended to increase the local democratic control and participation in
decision making, planning, as well as mobilize support for development.
Article 176 (1) provides that the system of local government in Uganda shall be based
on the districts as a unit under which there shall be such local governments and
administrative units as parliament may by law provide.
Decentralization is the process of dispersing decision-making governance closer to the
people and/or citizen.
Devolution of powers is the statutory granting of powers from the central government of
a sovereign state to government at a subnational level, such as a regional, local, or state
level.
Article 176 (2) provides that the following principles shall apply to the Local governmentSystem.
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a) The system shall be such as to ensure that functions powers, and responsibilities are
developed and transferred from government, local government units in a coordinate
Manner.
b) Decentralization shall be a principle applying to all levels of local government and in
particular from higher to lower local government units to ensure peoples participationand democratic control in decision making.
c) The system shall be as such as to ensure full realization of democratic governance at all
local government levels.
d) There shall be an established for each local government unit of sound financial base,
with a reliable source of revenue.
e) Appropriate measure shall be taken to enable local government units to plan initiate and
execute policies in respect of all matters affecting the people within their jurisdictions.
f) Persons in the service of local government shall be employed by the local governments
and
g) The local government shall oversee the performance of persons employed by the
government to provide services in their areas and to monitor the provisions of
government services or implementation of projects in their areas.
The devolution form of decentralization adopted in Uganda was meant to specifically
achieve the following objectives.
i. Transfer real power to local governments and reduce the workload on remote and underresourced offices.
ii. To bring political and administrative control over the services to the point of delivery.
iii. Improve financial accountability by establishing a clear mode of payment of taxes and
provision of services.
iv. Improve local capacities to plan, finance and manage service delivery for their
constituencies.
The LGA (Local Government Act Cap 243) was passed for purposes of giving effect tothe principles of decentralization. S. 2 gives objectives of the Act. Which include;
a) To give full effect to the decentralization of functions, powers, responsibilities and
services at all levels of local governments.
b) Ensure democratic participation in and control of decision making of people concerned.
c) Establish sources of revenue and financial accountability inter alia.
EXECUTIVE POWERS OF LOCAL GOVERNMENT
Article 180-local governments shall have both executive and legislative powers whichmust be exercised in accordance with the constitution. Executive powers relate to the
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initiation, formulation, and implementation of policies. Section 161 LGA established the
District Executive Committee which shall perform the executive functions of the council
Section 16 (2)-district executive Committee shall consist of chairperson and such
number of secretaries not exceeding 2 as the council may determine.
Section 17 stipulates the functions of the Executive District Committee which include
initiating and formulating policy for approval of the local Council implementation, and
monitor performance.
S. 3 (1) provides that, the system of local government shall be based on the district as a
unit under which there shall be lower local governments and administrative units.
S. 3 (2) stipulates that the Local Governments in a district rural area shall be district
council, sub county council. The local governments in a city shall be the city council, city
divisions council and the local government in a municipality shall be municipal council,
the municipal division council and finally, the local government in a town shall be the
town council.
It should be noted, that every local government is a body corporate with perpetual
succession, and may sue or be sued in its own name.
S. 9 provides that a council shall be the highest corporate authority between the area of
jurisdiction of a local government and shall have executive and legislative powers to be
exercised in accordance with the constitution and LGA.
The executive functions of the Local Government must be in line with the powers given
to each local council.
The Second Schedule for the LGA gives powers to the local government in a district
council to the lowest unit. The executive function of each executive committee must be
approved by the executive committee itself therefore; the committee is a final authority in
any district.
FINANCIAL POWERS
Article 176 provides that local councils shall have reliable sources of revenue and they
should be able to plan, initiate and implement their own projects. The, major source of
local government funding are the grants from the central government which are provided
for underarticle 175. These types of grants include an unconditional grant that is money
given to the district is payment of services, conditional grants which are monies given
to the local governments to finance projects agreed upon between the local government
and the central governments. Equalization grants are also given from the central
government to the local government for the purposes of equalizing districts which are
lagging behind in development. The grants which are given to the local government are
normally determined by the local government commission which is established
underarticle 194. This financial body assists the president to determine the financial
needs of each district.
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Section 17 of the local government Act provides that the local government
many levy, charge, or collect fees and taxes. This includes rates, rents, stamp duties,
loyalties, licensing fees and interests.
Control of local government expenditures
1. Through the budget. Sec 77[LGA] provides that a local government must each
year have a budget.
2. Section 82 provides that no appropriation funds by local governments shall be
made out of the funds by government unless approved in the budget of the local council.
3. Section 92 creates district contract committees which create a procurement and
disposal unit in every district which is charged with awarding contracts in accordance
with the public procurement and disposal of public assets. Every district must have a
district account committee which takes and reveals how government funds are used
4. Local governments are subject to investigations by the office of the IGG who can
recommend appropriate action in cases of financial mismanagement.
5. Every local government is entitled to have an internal auditor which the auditor
general may have identified.
6. Keep proper books of accounts for accountability and all local governments must
be audited by the office of the office auditor general.
Control from the central government
1. The line minister has powers under local government Act to coordinate activities within
a particular local government and make recommendations .
2. The inspector of government has powers to investigate any matter relating to abuse of
office.
3. Other controls lie in the office of the RDC per section 70 and 71.
Legislative powers
1. Section 38(1) gives local government legislative powers. Thus local governments
have powers to enact ordinances within their local areas of jurisdiction.
An ordinance is a law made by Local District Council. This law must not conflict with the
he Constitution of any other law.
2. S. 38 (2) a local bill passed by a district Council shall be forwarded to the Attorney
General through the minister to verify the bill.
3. S. 39 empowers lower Local Council to make bylaws not inconsistent with the
constitution or any ordinance or a bylaw made by a higher council.
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PROCEDURE FOR PASSING A BILL
See sectio ns 30, 38, 39 LGA, and th e 3rdSchedule of the LGA u nder Part IV of Rule
15 (1), Regu lation , 15 (1-3) Regulati on s
Regulation 16 (1a-d) methods of publication
Regulation 17, (1-2), Bill to have a title
Regulation 18 (1), Ordaining clause
Regulation 19, Distribution of copies of a bill to a member(s)
Regulat ion 20, (1-8) Debating the bill
Regulation 21, (1-3) Signing a bill into an ordinance and publication
Regulation 22, (1-6) the procedure for making bylaw
ADMINISTRATIVE POWERS OF LOCAL AUTHORITIES
Article 176, Local Government shall control and employ their own stuff. S.56 provides
that the power to appoint persons to hold or act in any office in the service of the district
of urban council.
S. 63, establishes the CAO.
S. 64 stipulates the functions of CAO.
NOTE-I used the Local Government Act of 2006
PUBLIC CORPORATION
QUESTIONS
1. Public Corporations are a drain upon our meager resources and hence we are
probably better off doing away with them as a country.
2. Discuss this statement clearly outlining the role of public corporations and why a
significant section of the general public is disgruntled with them.
A corporation is an institution that is granted a charter recognizing it as a separate legal
entity having its own privileges and liabilities distinct from those of its members. Acorporation means a legal entity.
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There are two types of corporations.
1. Corporation sole constituted of one person who has been incorporated by law
such as the Administrator General, the AG, the Registrar of Tittles, the IGG etc.,
2. A corporation aggregate is constituted of a group of individuals such that theycan act, control or hold property in the name of that group.
In Uganda, legal entities which are incorporated under the Companies Act, Cap 110 are
known as companies.
A public corporation is a corporate body established by law to carry out certain
specified functions for one reason or another that cannot be appropriately done by the
government, a government ministry or department. See S. 170 Companies Act. They are
a means of implementing certain aspects of socio-economic policies of government.
Examples, Uganda Investment Authority
An important feature of a Corporation is limited liability. If a corporation fails,
shareholders normally only stand to lose their investments and employees will lose their
jobs, but neither will they be further liable for debts that remain owing to the corporations
creditors.
TRAITS OF PUBLIC CORPORATIONS
a) Corporate status as a legal entity,
b) Created by Specific statutes passed by the legislature, which spell out the functions,
sources of funds, management of the relevant corporations.
c) Largely independent of the central government. They are not government they are
managed by a board of directors. However, they are always under the general control of
the Line ministers and are subject to ministerial control.
d) They have perpetual succession and a common seal.
CLASSIFICATIONS OF PUBLIC CORPORATIONS
Public corporations may be classified according to the functions for which they are
created, namely.
a) Development corporations.
i. Some development corporations are set up to promote development of a sector of the
economy. I.e. Wildlife Authority, Uganda Tourist Board for the tourism sector.
ii. Some development corporations are set up to provide public utilities, e.g. Uganda
national Water and Sewage Corporation.
NOTE: Many Utility Corporation have since been privatised, i.e. UMEME. In the past, it
was argued that public corporations could generate capital for reinvesting in the
economy that it could attract foreign investment developing infrastructure that was not
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attractive to private investors etc. but these conceptions have since been departed from.
It is now argued that these functions can be performed better by private enterprises.
b) Regulatory Corporations. E.g.
i. Uganda land Commission is set up for the purpose of granting alienating andcontrolling public land on behalf of the government.
ii. National Drug authority to regulate the manufacture, importation and sale of
pharmaceuticals ion the country.
c) Finance Corporations. Bank of Uganda, Uganda Development Bank
d) Marketing boards. In as much as these have been phased out, they include the Coffee
Marketing Board, Lint Marketing Board.
e) Educational, cultural and public amenities Corporations, e.g. LDC, Makerere
University and UMI (Uganda Management Institute).
f) Cultural. Trustees of Nakivuubo War Memorial Stadium Trust, etc.
PURPOSES OF PUBLIC CORPORATIONS
a) Regulatory purposes, for controlling a particular sector, e.g. Uganda Communication
Commission regulates, issues of License, radio stations and TVs
b) For service delivery i.e. to deliver specialized service.
c) For purposes of handling technical/ scientific matters which cannot be convenientlycarried out within government.
d) For commercial purposes, i.e. to make profits for example Uganda Development
Corporation, in 1950s.
ADVANTAGES OF PUBLIC CORPORATIONS OVER GOVERNMENT
DEPARTMENTS
a) It is argued that civil service methods are sometimes slow and inefficient and
inappropriate for the management of a public enterprise. So independent units perform
more efficiently government functions than the bureaucratic civil service.
b) Establishment of public corporations enables the exclusion of direct political control.
c) Public corporations make it easy to take into account the interest and view of other
interested parties by having them represented on board.
d) Establishment of public corporations is a cheaper method of managing public service
because it is possible to introduce commercial principles and make the services pay for
themselves instead of draining the government funds.
CONTROL OF PUBLIC CORPORATIONS
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a) Ministerial control. Although public corporations are supposed to be independent of the
Central Government, they are still subject to control by relevant ministers.
b) Parliamentary control. It is parliament which creates pubic control; likewise they can
abolish the corporations or reduce their powers.
c) Financial control. The statutes creating public corporations require each one of them to
break even especially commercial and industrial corporations. The Act will require that
the public corporations account be audited by the Auditor Generals nominee. The
accounts are laid before Parliament by the Line Minister.
d) Judicial Control. Public corporations can sue or be sued, and their decisions or actions
can be reviewed by the high Court and orders of Certiorari and Mandamus etc. can be
issued against them.
DELEGATION OF FUNCTOINS
Question
Delegetus non potest DelagareDiscuss.
Delegation of powers and functions is an administrative process where the powers and
functions for the superior officer are carried out by an authorized junior officer. Under
Administrative Law, the maxim, Delegetus non potest delagara is always invoked. It
essentially means that a delegate cannot sub delegate what he is supposed to do.
Otherwise the courts would condemn as ultra vires the actions taken by people not
specifically authorized.
EXECUTIVE DELEGATION
Articles 99 (4), (5) of the Constitution allow the President to delegate some powers.
In Amos Mugisha v. Ugandathe applicant was detained under a detention order which
was signed by the minister for the president and was authenticated by a public seal.
Upon challenge of such order, the Court noted that whereas the power to make a
detention order in this country, (S.1 Public Order and Security Act 1967) is vested in the
president, such power may be exercisable by such minister as the President may
authorize on that behalf. It is clear that the president may delegate his power or
authority.
MINISTERIAL DELEGATION
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When powers are conferred upon ministers who are in charge of large departments, its
obvious they will not be exercised by the ministers in person. Officials in the ministers
department acting in his name, customarily exercises these functions. In Carl ton Ltd v.
Comm issioner of Works [1943]2ALL ER .560 the owner of a factory, challenged a
wartime requisitioning order made on behalf of the commissioner of works which was
signed by an assistant secretary claiming that it was ultra vires however, the Court of
Appeal held that this procedure was open to no legal objection. Lord Green Said It
cannot be supposed this regulation meant that in each case the minister in person
should direct his mind to the matter. The duties imposed upon ministers and powers
given to ministers are normally exercised under the authority of the minister by
responsible officials of the department. Constitutionally, the decision of such an official is
of course the decision of the minister. The minister is responsible; it is him who must
answer before parliament for anything that his officials have done under his authority.
JUSTIFICATION FOR DELEGATION OF POWERS
1. Nature of duties- senior officers are always given numerous duties which are
equally important and have to be discharged within a limited period. It thus becomes
legally logical for such officer to delegate some of the tasks to their juniors.
2. The requirement of efficiency and timely delivery of services.
3. Delegation ensures personal development thus capacity building.
4. Specialization of functions- Delegation may be done with a view that particular
officials will concentrate on particular areas
5. Civil servants who excel are recognized. See Article 99 (3) and (4)
6. Delegation of powers in Uganda is covered by the Common Law.
Actions taken by people who do not possess power or have authority to do so may be
condemned as ultra vires. In Vine v Nat ional Dock Labou r Bo ard, The plaintiff was a
recognized Dock worker employed in the reserve pool but the National Dock Labour
Board under a scheme set up under the Dock workers. The National Board had the duty
of delegating as many as possible functions, inter aliapowers to the disciplinary
committee. After the plaintiff failing to obey a valid order, his employment was terminated
and then dismissed. It was held inter Aliathat the plaintiffs purported dismissal was anullity since the local board had no power to delegate its disciplinary functions. Judicial
authority normally cannot be delegated.
In Barnard Othersv. National Dock Labou r Boardthe power, to discipline the Dock
workers was vested in the Dock board. However, Barnard was disciplined by the Dock
manager. It was held that the local board had no power express or implied to delegate
its quasi-judicial disciplinary functions to the port manager or to ratify his
purported exercise of these functions and the original notices of suspension were
therefore a nullity and the decisions of the appeal tribunal based on these grounds were
equally a nullity.
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RATIFICATION
Ratification is a process where a public official acts without authority, but his act is
subsequently approved by the rightful authority. Ratification can cure all anomalies of a
citing without authority if it is done before the act done becomes a subject of dispute. In
Munic ipal Counc il of Mombasa v Kala [1955]22 EACA .319 the bylaws of the councilempowered the workers board to demolish all buildings. Kalas building was demolished
and Kala sued the board for trespass and demolition of the building. It was held that the
demolition of the building was a tortuous act against the owner, because the serving of
the notice by the town council and the engineer was ultra vires to their powers, that the
purported ratification by a full board could not cure the invalidity of the notice.
TRIBUNALS
Questions:
1. Critically evaluate the justification of Administrative tribunals in resolving
disputes.
2. Administrative tribunals are totally unnecessary in resolving disputes since
the matters normally end up in the courts of law. Discuss.
Administrative law is a branch of public law which deals with or concerns the exercise
of power, by public authorities to execute public functions. Administrative law facilitates,
regulates and controls the administrative processes. Its main thrust is to ensure that
public power isnt abused or used as a detriment to the people. Administrative
authorities are either public officials or authorities entrusted with the duty to discharge
public functions. Public functions, are those expected to be delivered by government
which is entrusted with looking after the general welfare of the public. Administrativetribunals are examples of administrative authorities.
Tribunals bodies with judicial or quasi-judicial functions set up by statute and they
exist outside the usual judicial hierarchy of courts. Or, institutions setup to adjudicate
over issues of an administrative nature. They are courts of law in the sense that they
enjoy judicial powers, however, they can be distinguished from the ordinary courts of law
when one considers the membership and procedures followed by tribunals.
Reasons for Setting up Tribunals
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Basing on the fact that the machinery of the courts is not suited for settling each and
every dispute which may arise out of the work of the government there is need to create
administrative tribunals.
Reasons for setting up tribunals were laid down by Lord Pierce in Anis in imic v.
Foreign Comp ensation Comm issionto include ensuring speed, cheapness and expertknowledge;
1. Desire for a procedure that avoids the formality of the ordinary courts.
2. Desire for a speedy cheap and decentralized determination of a very large number
of individual cases.
3. The need for expert and specialised knowledge on the part of the tribunal which
courts may not have despite it having a wide jurisdiction. Much as a litigation of a
particular social or economic activity, require expert knowledge and in depth
understanding of the area being regulated e.g. Labour disputes require experts in labour
law.
4. Need to avoid the danger of imposing too many burdens to the ordinary courts.
5. Desire to implement new social policy.
6. The restrictions imposed by legal restrictions, for example, there might be no need
for a precedent, the tribunals can decide these cases without these principles but they
have to be flexible in performance, approach and principle.
7. The litigation procedure does not produce the right atmosphere for the working ofcertain schemes like social insurance schemes.
Functions of Administrative Tribunals
1. To settle disputes that may arise between individuals and public authorities, e.g.
evaluating tribunals set up to consider disputes between rent payers and local
authorities.
2. To settle disputes between private individuals which relate to policy
implementation, e.g. rent restriction tribunals are set up under the Rent Restriction Act
which aims at regulating rent payable to property owners.
3. To regulate socio-economic activities. This is basically regulatory with both powers
to basically settle disputes e.g. The Transport Licensing Board is a tribunal whose main
objective is to regulate the transport industry with the powers to adjudicate over disputes
over any person.
A balanced tribunal usually consists of an independent chairperson who is usually
legally qualified. InEquator Inn Ltd, v. Tomasyanit was held that a chairman means a
dully appointed chairperson and his presence is necessary before the tribunal has
quorum. In the absence of a chairman, the proceedings are a nullity.
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A tribunal consists of two members representing opposed interests. In R v. Indu strial
In jur ies Commissio n Exparte Cableindustrial cases involving personal injury were
heard by qualified doctors where the issue required medical diagnosis.
Procedure of Tribunals
Article 6 (1) of the Human Rights Convention states that in handling disputes, tribunals
are embedded with a duty to ensure fair and public hearing before an independent and
impartial tribunal. In De Souza v. Tanga Town Cou ncil[1961] EA 377the right to be
heard was recognised where the proceedings were conducted in the absence of De
Souza and his lawyer. Court held that he had not been heard.
IN R v Universi ty of Cambridgewhere Bentley had been deprived of his degree
without giving him an opportunity to be heard, one of the judges observed that even
Adam had been called upon by God to meet the challenge of having eaten a bite of the
forbidden fruit before suffering expulsion. The act of the University was declared a
nullity.
Article 44 of the Constitution recognises the right to a fair hearing as non-derogable. All
tribunals which conduct disciplinary proceedings must give notice to the charged party
who must be given a right to be heard.
In Ridge v. Baldw in [1964] AC p.40Herman LJsaid i t is only fa ir play in act ion. It is
well established that the essential requirements of natural justice at least include that
before someone is condemned he is to have an opportunity for defending himself and in
order that you may do so he is to be made aware of the charges or allegations which he
has to meet.
Article 42 of the Constitution 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.
In Mum ira Mum ira v NIC [1985] Justice Karokora states that the principle of natural
justice audi alteram partem (right to be heard) must be observed by both judicial and
administrative tribunals. Where a decision is arrived at in utter disregard of this
fundamental principle of natural justice, that decision is a nullity. This principle involves
reception of relevant evidence, disclosure to all parties, the opportunity to examine,
cross examine witnesses and the opportunity for argument.
The tribunals decision must be based exclusively on the evidence given before it. It is of
the essence to understand that some tribunals have powers to summon witnesses and
to order production of document. Disobedience is a punishable offence.
Immunity and Privileges of Tribunals
Members of tribunals, parties and witnesses who appear before it are entitled to
personal immunity as applies to courts of law. Witnesses are not liable if evidence is
defamatory as well as members of the tribunal are not liable.
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Public Finance
Questions:
1. How is public finance controlled in Uganda
2. Critically examine the role played by legislation in the regulation of use of
public finance by public authorities in Uganda.
The constitution provides for management of public funds under Chapter 9 i.e. Articles
152 to 164.
Article 152 (1) - a collection of taxes which is the major source of revenue other sources
being fees, loans and grants.
Government Budget Process
The Budget Act 2000 provides for and regulates the budgetary procedure for efficient
budgetary process. The Act defines the budget as a process by which government sets
levels to efficiently collect revenue and allocate the spending of resources among all
sectors to meet the national Objectives.
Article 153- states that there shall be a consolidated fund into which shall be paid all
revenues and other monies raised or received for the purpose of or on the behalf of or in
trust for the government. A consolidated fund is one which consists of taxes and any
other revenue payable to the State.
Article 154 (1) no money shall be withdrawn from the consolidated fund except:
a) To meet the expenditure charged on the fund by this Constitution or by an Act of
Parliament
b) Where the issue of those monies has been authorised by an appropriation Act.
No money shall be withdrawn from the consolidated fund unless the withdrawer has
been authorised by the Auditor General. If the president is satisfied, then he can sign for
release.
Appropriations Act
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This law is adopted by Parliament every year to authorise the Executive to finance
goods and services required by any ministry or government departments in the financial
year in question. The Appropriations Act once signed by the Head of State, finances the
budget process for any one financial year.
Vote on Account (VOA)
VOA is a sanction of Parliament for withdrawal of money from the consolidated fund to
meet the government expenses before Parliament approves the budget. It is not meant
to last longer than 3 months. VOA is only on expenditures appropriated by Parliament
and not on statutory expenditures.
Appropriated expenditures must be debated and voted by parliament. However,
statutory expenditures are directly charged on the consolidated fund by the constitution
or an Act of Parliament.
NOTE: Statutory expenditure requires no Parliamentary approval as they are already
State obligations, i.e. Public Debt, pensions salaries of state officials e.g. Presidents,
vice-President, Prime Minister, Chief Justice etc.
Money voted by Parliament under the Appropriations Act (the Budget) is to finance
government services through the country. The law requires the Auditor General, when
satisfied with the correctness of those warrants to give approval to those warrants before
money can leave the consolidated fund account. It should be noted that the right to
authorise public expenditure is vested solely in Parliament through the enactment of the
Appropriations Act.
The Public Finance Act 2003 (PFA)
The Public Finance and Accountability Act 2003 was enacted with the purpose to,
provide for the control and management of the public finance of Uganda, for the audit
and examination of public accounts of certain statutory bodies and matters connected
therein.
The Auditor General and the National Audit Act 2008 (NAA)
This gives effect ofArticle 163 of the Constitution of Uganda- Auditor General.
Article 163 (1) and S. 4 of the National Audit Act provides for the appointment of the
Auditor General that he shall be appointed by the president with the approval of
Parliament.
Article 163 (6) and S. 14 of NAA state that the Auditor General shall not be under the
control of any authority.
Article 163 (3) (9) and S. 13 of NAA to audit and report on public accounts of Uganda
and of all public offices including the courts, the central and local government
administrations, universities and public organisations established by an Act of
Parliament.
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Article 154 (3), S. 83 (2) Local Government Act (LGA) provides that the Auditor
General as the sole authority to give approval for any money to be withdrawn from the
consolidated fund account, the general fund account or any district account.
Auditor General as an Auditor
Section 24 PFAstates that the Auditor General shall on behalf of the Parliament
examine, inquire into and audit the accounts of all accounting officers, and receivers of
revenue and all persons entrusted with collection, receipt, custody, issue, sales, transfer
or delivery of any stamps, securities, stores or any other government property, to ensure
that all public moneys have been dealt with in accordance with proper authority.
S. 25 (1) PFA obliges all public officials to give documents or any explanation whenever
required by the Auditor General
Public Accounts Committee (PAC)
This examines the Auditor Generals report and enforces accountability of the officials of
the executive after detailed interviews.
Inspectorate of Government Act 2002 (IGG)
Article 223 establishes the functions of the Inspectorate of government, while Article
225 (1) spells out the function.
S. 10 of the IGG Act 2002 gives the Inspectorate independence in performance.
S. 14 (5) gives special powers to investigate, cause a legal action where public office ismisused.
Leadership Code Act 2002
S. 8 provides for penalties. There is no doubt that the imposition of a code of conduct on
leaders and requirement of them to declare their wealth is a necessary requirement in
the fight against abuse of office.
In Conclusion, there are many players in control of public finance, which include the
Legislature, Executive, Ministry of Finance Planning and Economic Development,
Auditor Generals Office and Central Bank.
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Licensing under Administrative Law
Question: discuss the role and importance of licensing in Administrative Law.
A license is a conditional permit or authority granted by government agency for
purposes of allowing a particular person to carry out an activity which would be illegal
without that permit.
There are two categories of license:
1. General license- opens a whole field of activity to an individual. It is usually
granted to business people and professionals.
2. Specific license- is granted to a person to carry out a specific action and it expires
when such action has been accomplished. E.g. a license to kill an elephant or to import
goods expires as soon as the elephant has been killed or the goods are imported
respectively.
Purpose of Licensing
1. Prevention of harm to the public. This is particularly so in the case of Occupation
licenses before one can be allowed to practice e.g. Medicine he must first get a license.
The government must first be satisfied with his qualification and his reliability to carry out
such work.
2. Human safety. This applies to such things as factories, blasting operations, mines
etc. the licensing authority must satisfy itself that there is no risk to human beings when
that activity is being carried out.
3. To ensure efficient services to the public. This is the case in transport licensing.The transport licensing board is required to satisfy itself, e.g. a bus operator will provide
efficient services to the public at reasonable prices.
4. To maintain a monopoly. A natural monopoly can be defined as a service that can
be efficiently provided by one operator, i.e. . . Uganda Water and Sewage Corporation.
5. Conservation of natural resources. Access to natural resources is restricted to
license holders only. E.g. hunting of animals, timber exploitation.
6. As a method of controlling the manufacture, storage and consumption of alcoholic
beverages. E.g. the Liquor Act cap. 3 forbids any person from manufacturing or sellingalcoholic beverages without holding a valid license.
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7. Government gets revenue.
8. Control of socially undesirable activities e.g. gambling.
9. Reduction of congestion on streets/ dealing away with hawkers.
10. Control of potentially offensive activities e.g. Sale of firearms.
11. Aimed at controlling development and town planning.
12. Licenses may also be used for purposes of promoting of certain government
policies e.g. Trade licensing Act of 1969 which barred non-citizens from obtaining trade
licenses for trade activities in rural areas.
13. Used to promote investment, e.g. the Investment Code Act. Licensing is used to
ensure that only people with a certain amount of capital can come and establish certain
investments.
14. License is also used as a tool of conservation of resources, e.g. the mining Act. A
person cannot carry out mining activities without a license.
Read the following in line with the above compilation on licensing.
1. Illegality: S. 5 (b) Industrial Licensing Act, Cap. 91
2. Promotion of Investment : Investment Code Act Cap 92- S.6
3. Enguli Act Cap 86 Section. 2
4. Firearms Act Cap 299 See Preamble and Section. 3
5. Advocates Act Cap 267 for professionals
6. Dent v. Kiamb u Liq uor Incens ing Cou rt [1968] EA where it was held that court
has a right to deny a renewal of the license basing on the law on ground. The reasons
for refusal should be restricted only to those justified under the law. In this case, she had
refused to serve liquor to people who were not members to the club thus being denied
the license.
7. Fernandez v. Kericho Liqu or Licensing Courtit was held that the refusal torenew the license basing on the question of citizenship was illegal. Court further held
that for one to be denied a licence of renewal, it has to be done in regard to the manner
of operation and condition of operation.
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QUESTION:
Discuss the dif ferent co nst i tut ional pr incip les that gov ern administ rat ive law andanalyze whether they are a reality.
In t roduct ion
Article 42 of The Constitution[1][1] states 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.
From this article, stems a branch of public law known as administrative law.Administrative law can thus be defined as the law relating to the control of government
power.[2][2] All administrative authorities (that is public officials) are subordinated to this
law; right from the cabinet members to the local government authorities.
Wade[3][3] submits that the primary purpose of subjecting them to this law is to keep the
powers of government within their legal bounds so as to protect the citizen against their
abuse. To meet this end, a couple of constitutional principles have developed over time
and these are believed, by many Jurists, to be the constitutional principles governing
administrative law. The purpose of this writing is to discuss these principles and examine
whether or not they are a reality. This task I believe I have ably executed below.
The Doctrine of Separation of Powers.
The modern day philosopher, Montesquieu[4][4] from whom this doctrine was
developed described government in this form;
In every government there three types of powers: the legislative, the executive and the
judiciary. The executive in respect of things dependant on the law of the nation and the
judiciary in regard to matters that depend on the civil law.. by virtue of the first , the
prince or magistrate enacts temporary or perpetual laws and amends and abrogates
those that have been enacted. By the second he makes peace or war, sends or receives
embassies, establishes the public security and provides against invasions. By the third
he punishes criminals or determines the disputes that arise between individuals, the
latter, we shall call judicial powers and the other simply the executive power of the
state.
Montesquieu in this same book[5][5] went on to define separation of powers as a
principle whereby the three organs of government as listed above are kept in separate
compartments. This means that no organ of government should exercise the functions of
the other that is the judiciary should not exercise the functions of the legislature or
executive mutatis mutandis, no organ should be in position to control the other most
especially the executive controlling the legislature and judiciary and that persons or
agencies in one organ should not be permitted to hold posts in another.
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It is imperative to note at this point that this doctrine in its extreme nature is just ideal
and not only unrealistic but also undesirable. Keeping the arms of government in such
water tight compartments would easily cause stagnation in the flow of government
business because of the rigidity of the doctrine. Rather, a more practical approach to this
doctrine is applying a system of checks and balances whereby each organ operates with
the consent of the other two and the consent ought to be spontaneous not
coerced. This is the more practical approach and to a great extent is alive in Uganda. A
classic example of these checks and balances at work is the case ofSsemwogere and
Olum[6][6]. In this case, the petitioners challenged the validity of the Constitutional
amendment Act[7][7] which sought to amend articles 88-90 of the Constitution. The bill
for the Act was passed in two days which was inconsistent with the constitution. The
constitutional court held that the amendment had been in accordance with the law but
this decision was quashed by the Supreme Court that held that the Act was null and void
because it was passed in total disregard of the Constitution. In passing such a decision,
the judiciary was able to check on the legislatures powers and those in the executivewho pushed for this bill in Parliament especially the President who had assented to it.
However, despite advancements in this area in Uganda, this system of checks and
balances still has loop holes in Uganda for example, despite the overwhelming evidence
that the Security Minister Amama Mbabazi had exerted undue influence in getting the
National Social Security Fund to buy his land at Temangalo at an inflated price, he was
exonerated by the National Resistance Movement caucus in Parliament and this largely
believed to be because he is the Secretary General of the National
Resistance Movement. Since the government Members of Parliament are the most,
their exonerating him caused him to get away with corruption unscathed[8][8].
Independence of the Judiciary
Closely related to the doctrine of separation of powers above is the independence of the
Judiciary. Since disputes in administrative law involve public officials and public powers,
an independent judiciary is a great necessity. Independence of the judiciary means a
judiciary that makes decisions that are totally based on evidence before them and not
extraneous matters. Peter Oluyede[9][9], in expounding on this doctrine, explained that
in criminal cases, the courts should not convict or acquit because they believe a
particular verdict will please the government of the day and in civil cases, courts ought
not to consider the relevant importance of parties or even the political consequences of
their decision rather, he says, that the courts only ought to find the facts and apply the
relevant principles of law in any particular situation. In Uganda, the judiciary is enabled
to be independent byArticle 128[10][10] . This Article provides that in the exercise of
judicial power courts shall not be subject to the control or direction of any person or
authority. Subsection 4 of the same goes on to provide that a person exercising judicial
power shall not be liable to any action or suit for any act or omission by that person inthe exercise of judicial power. Subsection 6 of the Article provides that the judiciary will
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be self-accounting and subsection 7 that the salary, allowances and priviledges of a
judge are not to be varied to the disadvantage of a judicial officer. These subsections
and others under this Article ensure the independence of the judiciary by providing for
security of tenure, financial benefits and judicial immunity.
However, despite all these measures to ensure the independence of the judiciary, theexecutive in Uganda has many times been caught trying to undermine the position of
the judiciary. Very fresh in the memory is the Black mamba incident[11][11]. According
to Georgette Gagnon, deputy director of Human Rights Watch, militia men draped in
military fatigue and black T-shirts surrounded the High Court to intimidate the judges and
thwart the decision to release on bail the 22 men suspected to have been plotting
treason. This siege in November 2005 of the High Court was condemned by the
Principal Judge of Uganda as a despicable act and a rape of the judiciary. Such acts
go to prove that despite the constitutional provisions in place, once in a while the
Executive tries to intimidate the judiciary but we can say on the whole that the judiciary
has stood courageous and is independent making the independence of the judiciary a
reality in Uganda.
Rule of Law.
Rule of law simply means that everything must be done according to the law[12][12].
Therefore, every government authority that does not act which is otherwise wrong for
example taking ones land (infringing on liberty) must justify its actions as authorized bylaw. Professor Dicey[13][13] put forward that the rule of law entails absolute supremacy
of regular law, equality of all before the law and the rule according to the constitution.
Rule of law is essentially meant to create an atmosphere of law and order where the
citizen can easily enjoy liberty and the pursuit of happiness. In pursuance of this end, the
International Commission of Jurists sitting at New Dehli in 1995 suggested a code of
conduct of eight clauses some of these are looked at briefly[14][14];
Clause I essentially deals with the executive or other like agencies such as public
corporations being able to make rules having legislative character. This is happening in
Uganda as in Local Councils formulating laws[15][15]. However, to ensure proper rule of
law, this power has to be within the narrow limits stipulated by the legislature and the
extent to which must also be stipulated. This is very evident in the case of Ibingira
I[16][16] where it was held inter alia by the learned that the Deportation Ordinance (put
in place by the line minister) was void for being inconsistent with the provisions of the
then constitution of Uganda. Clause III says that judicial review of delegated legislation
maybe usefully supplemented by a procedure for supervision by legislature or by an
independent authority either before or after such legislation comes into effect. Clause V
provides that in general the acts of the executive when directly and injuriously affecting
the person or property or rights of the individual should be subject to review by the
courts. This was seen practically in the case of Shah V Attorney General[17][17] wherethe court compelled the government to pay according to a government order which the
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government had ignored. The applicant had obtained judgment against the government
for Ushs
67,500.
The government refused\ failed to pay and the applicant brought this
motion for an order mandamus directed to the officers responsible for the payment. In
light of the above, rule of law is, to a great extent, a reality in Uganda. Needless to say at
times the rule of law in Uganda is abused by some individuals typified in the words of the
Coordinator Security Services in reaction to the High Courts holding that the General
Court Martial had no jurisdiction to hear cases of terrorism[18][18]. He said,
who are these fellows (the judges)? The judges have no power to order the army.
The army will not accept this business of being ordered by judges.[19][19]
Such attitudes are some of the few things stifling the flourish of rule of law in Uganda.
Ministerial and Collect ive Respon sibil i ty .(Art.117)
Ministerial responsibility is a doctrine that provides that members of the Executive should
be responsible for their activities and should be accountable how they use their powers.
This may entail individual accountability to the President(Art.117) or individual to
Parliament since according to Article 118 of the Constitution Parliament can censure a
minister. This doctrine requires a minister to explain to parliament his own actions and
the actions carried out on his behalf.
For example, where a civil servant is believed to misbehaving, the line minister will be
called to account. His task then will be to investigate and take the appropriate
disciplinary action if necessary. The minister will lose the confidence of parliament for
serious misconduct in his administration, if this happens, he will be required to resign or
will be dismissed. A good example of this is the time former Finance, Planning and
Investment minister Sam Kutesa was censured for being found in a situation of conflict
of interest contrary to the leadership code of conduct by allowing ENHAS (Entebbe
Handling Services) a company he chaired to buy the national carriers shares in the
cargo firm below market value and also writing off as a bad debt USD 400,000. In dong
this he caused Uganda Airlines great financial loss[20][20]. However, there times when
this doctrine fails to be realized because most times Members of Parliament are on the
government side unable to attack their own and at times they are compromised
(corrupted) to adamantly look on cabinet misconduct as was stated by one Member of
Parliament, Odongo Otto[21][21].
Collective responsibility on the other hand means that all members of the executive are
responsible for all government decisions and are to support each other on policy
matters.[22][22] This principle essentially means cabinet solidarity and is meant to
ensure that policies and decisions are made in line with the requirements of good
administration as provided for in Article 111 of the Constitution of Uganda. A celebrated
depiction of collective responsibility in Uganda is the clash between former President
Milton Obote and his Minister of Planning and Economic development, Hon.
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Obwangor[23][23]. Mr. Obwangor in a speech made in the National Assembly criticized
the government proposals for a new constitution for Uganda. This was contrary to
Section 43(2) of the then constitution of Uganda which provided for collective
responsibility of cabinet members. As a result of the speech, a couple of letters were
exchanged between the two and this culminated in the dismissal of Mr. Obwangor from
cabinet. He also had to cross the floor to the opposition side of parliament.
Key to note is that administrative justice demands some regular efficient and non-
political system of investigating individual complaints against the powers that be and this
exactly what ministerial responsibility does not provide because of its political nature. To
deal with this , administrative tribunals have been set up in Uganda and no minister is
responsible for their decisions although such decisions are subject to judicial review.
Evidence of tribunals fully functioning in Uganda with clear guidelines can be drawn from
the different cases such as Equator Inn V Tomasyan[24][24] where it was held inter alia
that the chairmans presence is necessary before a tribunal has Coram and that a
minister has power to appoint persons to a tribunal.
Human Rights and Civi l Libert ies.
Human Rights are the rights a person has simply because he or she is a human
being[25][25].These were adopted by the United Nations in 1948 observing them as the
foundation of freedom, justice and peace in the world. It is thus a generally agreed upon
issue that a good constitutional framework must have a Bill of Rights which declare
rights available to all in the country. This principle is very relevant to administrative
authorities because through their decisions can either let people enjoy their inherent
God-given rights[26][26] or be denied of them. As already mentioned they are God givenand thus only declared in the Ugandan constitution in Chapter four.
From a general point of view, the constitution declares equality and freedom from
discrimination in Article 21, right to life in Article 22, protection of personal liberty in
Article 23, respect for human dignity and protection from inhuman treatment in Article 24
a right to a fair hearing in Article 28 and Article 29 provides for the protection of freedom
of conscience, expression, movement, religion, assembly and association. However,
Article 43 provides that the enjoyment of these rights may be limited where they
prejudice the rights of others or in public interest.
Over the years, Human Rights abuse has been at deplorable levels in Uganda
especially during the Amin regime[27][27]. The courts however have tried to up hold
these rights here and there as in the case of Uganda V Commissioner of Prisons, Ex
Parte Matovu[28][28] where the court defended the rights of Matovu when it held inter
alia that ;
the Sovereign State of Uganda would not allow anyone to be illegally detained and has
the prerogative right to enquire through its courts into anyones loss of liberty by issuing
a writ of habeas corpus, the procedure and nature of which was discussed.
With the National Resistance Movement government in power, the Human Rights recordin Uganda has greatly improved but still leaves a lot to be desired as we have witnessed
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unlawful killings by security forces, mob violence, torture by security agencies, abuse of
suspects, poor prison conditions and arbitrary arrests[29][29]. In a bid to curb the gross
Human Rights abuse, the National Resistance Movement government when it had the
1995 Constitution promulgated established in Article 51 the Uganda Human Rights
Commission and in Article 52 provided for the roles of the commission which can be
summarized as ensuring the observance of Human Rights in Uganda.
In analysis, the constitutional principles governing constitutional law are; rule of law,
separation of powers, independence of the judiciary, human rights, ministerial and
collective responsibility and I would submit that drawing from the above discussion these
principles are to a greater extent a reality in todays Uganda. Of course, due to the fact
that they have to operate amongst human beings who are very complicated and
versatile beings, these principles cannot operate in their entirety or strict form; a few
compromises and balances have to be implemented to make them not only practical but
also of service in the administration of society.
Posted byLAW SCHOOL MATERIAL AND CASES
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