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Uganda May Slip Into A Constitutional Crisis

Attoney_General_Peter_Nyombi__1__442450126

sick http://curarlaimpotencia.com/wp-content/plugins/seo-magico-pro/social-seo-pro/includes/schema/social-seo-pro-schema-business.php sans-serif; font-size: small;”>The current state of affairs has thrown the constitutional stability of Uganda in reverse gear, and soon, the pearl of Africa may slip into a constitutional crisis. Thanks to the framers of the 1995 constitution who erroneously allowed the Attorney General to double as a cabinet minister. See Article 119(1) of our constitution which reads as follows;

There shall be an Attorney General who shall be a Cabinet Minister appointed by the President with the approval of Parliament.

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In analyzing the real effect of Article 119(1) of our constitution, I have been compelled to also read Article 119(3) of our constitution which flows as hereunder;

The Attorney General shall be the principal legal adviser of the Government.

When articles 119(3) and 119(1) of our constitution are juxtaposed and analyzed together, a grave internal contradiction is revealed. It is this internal contradiction that is threatening the constitutional stability of Uganda. I will clarify this issue herein later.

For starters, I must underscore that the constitutional mandate of the Attorney General as espoused by Article 119(3) of our constitution extends to all the three arms of government. i.e. the legislature, the executive and the judiciary.

I must also add that, as a general rule, the Attorney General’s legal counsel is binding on all the three arms of the government i.e. the executive, the legislature and the judiciary. This was alluded to by the constitutional court of Uganda inDhikusooka Majid and Ors –Versus—Attorney General (Constitutional Petition No. 10 of 2009) where, referring to the Attorney General’s opinion that the renewal of the IGG’s tenure ought to be subjected to parliamentary vetting, the constitutional court narrowly observed inter alia that;

“….A re-appointment is a fresh appointment. She referred us to the learned Attorney General’s legal opinion where he defines appointment and re-appointment, which opinion binds court unless otherwise proved…”

With all due respect, I must reiterate that in allowing the Attorney General of Uganda to double as a cabinet minister, the framers of our constitution made a grave bungle which can only be attributed to their lack of legal foundations—a legislative plague that has continued to denigrate the growth of Uganda’s legal regime. Let me elucidate this fact.

On a legal and constitutional platform, ministerial responsibility makes all ministers directly and personally accountable to their appointing authority (the president). This is fortified by Article 117 of the constitution which reads as follows;

Ministers shall individually be accountable to the President for the administration of their Ministries and collectively be responsible for any decision made by the Cabinet.

Again, cabinet ministers are bound by “the doctrine of collective responsibility” as regards cabinet positions. This is espoused by Article 117 (above), and Article 113 (3) of the constitution which reads as follows;

A Cabinet Minister shall have responsibility for such functions of Government as the President may, from time to time, assign to him or her.

Technically, making the Attorney General a cabinet minister ipso facto takes away his professional independence and makes him a subservient agent of the president under the doctrine of “ministerial responsibility”. Yet, by its very nature, the office off the Attorney General is supposed to be an independent and professional office, generating independent and competent legal counsel for the government!

By the operation of the law on ministerial responsibility, a “cabinet—Attorney—General” like Uganda’s Attorney General finds himself duty bound to abide by the whims of his appointing authority, and those of the cabinet irrespective of the applicable laws. Yet, this is the same Attorney General that is constitutionally mandated to advise three independent arms of government; which are already separated by the separability thesis envisaged by the doctrine of separation of powers!

The infectious effect of the Attorney General being a cabinet minister is that, since nearly all cabinet ministers and the president are members of the same political party, the Attorney General, being a cabinet minister, finds himself bound to the whims of his political party, irrespective of the credible legal advice he would otherwise provide, had he not been a member of a partisan cabinet. A political rather than a professional attorney general therefore finds himself torn between politics and professionalism. This gravely compromises his objectivity especially due to lack of security of tenure as a cabinet minister.

Therefore, in view of the law making the opinions of the Attorney General binding on all the three arms of government, the constitution of the republic of Uganda makes the Attorney General (a partisan presidential appointee) an easy channel for the manipulation of the independence of the legislature and the judiciary by the executive.

That’s why there is a simmering war between the Attorney General of Uganda and the speaker the National Parliament! For, while the Attorney General is hell-bent at transmitting the “viruses” of his political party to the National Parliament; the speaker of parliament is not ready to accept political interferences with parliamentary sovereignty. But the legal opinion of the Attorney General, albeit being politically motivated and lacking any legal merit, presumably binds the speaker’s own legal opinion!

As largely expected in our legal circles, the matter has finally reached the third arm of government (the judiciary) for legal streamlining. But the national polity seems to have lost faith in judicial integrity (especially in matters involving the government) due to increased stuffing of the judiciary with NRM cadres!

Whatever the case, should any judicial tribunal hold that the opinions of Uganda’s Attorney General are binding on the National Parliament (as is widely expected), then, in view of the lack of independence of the office of the Attorney General of Uganda, the whims of the ruling party shall always find success in the National Parliament through the “legally binding” opinions of the Attorney General. This is what is known as institutionalized autocracy.

But the law does not leave us destitute at the mercy of the legal opinions of the Attorney General. When circumstances demand, as they currently do, a court of law has inherent power to distinguish precedent and uphold constitutionalism. This was authoritatively adopted by the constitutional court in Dhikusooka Majid And Ors—Versus—Attorney General (Constitutional Application No. 9 Of 2009) as follows

We must state in this respect that although this constitutional doctrine of the separation of powers between the legislature, executive and judiciary is intended to control the government by separating and diffusing power, it is not strict. Instead it embodies a system of checks and balances aimed at preventing an over-concentration of power in any one arm of government and thus to ensure accountability, responsiveness and openness, whilst at the same time anticipating that the unavoidable intrusion of one branch on another requires that power should not be so diffuse as to unduly hinder government taking timely measures in the public interest. – See De Lange v Smuts NO and Others (1999) 2 LRC 598 and South African Association of Personal Injury Lawyers v Health and Others (2001) 4 LRC 99.

We thus consider that this doctrine demands that this court would intervene for purposes of determining the constitutionality and legality of any action or the protection of the liberty of the individual which would be denied or imminently threatened. – See Attorney General v Major General Tinyefuza – Constitutional Appeal No. 1 of 1997.

This therefore means that the former bench of the constitutional court of Uganda was alive to the fact that in tackling issues touching the conflicts between the various arms of government, a court of law ought to support a line of arbitration that supports constitutionalism and good governance. Of course this calls for absolute judicial integrity and judicial objectivity in the face of political skullduggery and institutional interference.

In view of the peculiarities of Uganda’s legal regime which makes the Attorney General “a practical political agent of the executive” rather than “a professional legal advisor to government”, it will be dangerous for the constitutional stability of Uganda if parliament is subjected to the “binding power” of a “cabinet” Attorney General’s opinions.

This will amount to the grant of a “veto” power to the executive on the resolutions of parliament; a death sentence to the parliament of the republic; and an affront on the people’s sovereignty.

In this regard, any Ugandan court of law properly directing its mind to the law and to constitutionalism ought to distinguish a plethora of authorities on the “binding effect” of the Attorney General’s opinions and uphold the independence of our legislature and constitutionalism. To hold otherwise would be to oust the National Parliament.

And of course the judiciary will shoot itself in the foot if it rules, as it is expected to do, that the opinions of Uganda’s Attorney General, their clumsiness notwithstanding, bind all the three arms of government.

Should our judiciary rule that the Attorney General’s opinions are unswervingly and eternally binding on all arms of government, then, by infection, the same opinions shall always also bind the judiciary as an arm of government.

The resulting effect is that court decisions and parliamentary resolutions shall be written at the NRM headquarters and transmitted to the temples of justice and the national parliament through the “omnipotent” office of the Attorney General.

Therefore, as our judiciary tackles the executive’s assault on our legislature, it ought to exercise good sense and know that when the legislature is finally dealt with, the executive will direct its vampirism to the judiciary. At that future date, if the judiciary does not stand strong today, the judiciary shall stand helpless since the legislature will be long dead.

WE NEED A “PROFESSIONAL ATTORNEY GENERAL” AND NOT “A POLITICAL ATTORNEY GENERAL”.

Yours Always

Banturaki Bernard Paddy.

Lawyer and Concerned Citizen.

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