ULS STATE OF RULE OF
JANUARY – MARCH 2017
ULS STATE OF RULE OF LAW REPORT
TABLE OF CONTENTS
B. DUE PROCESS AND THE CLIMATE OF LEGALITY
C. THE STATE OF HUMAN RIGHTS
D. TRANSPARENCY AND ACCOUNTABILITY
The 1995 Constitution provides a broad framework for observance of the Rule of Law. In
its most basic form, the Rule of Law is about the principle that no one is above the law. The
principle is intended to be a safeguard against arbitrary governance, whether by a totalitarian
leader or by mob rule. It guards against excesses by the State, its agencies and the people
that would foment dictatorship and anarchy. It fosters the welfare of the people and their
nation by stipulating observance of rights and freedoms, security of persons and property and
effective service delivery and guarding against injustices in all spheres of life.
The Uganda Law Society (ULS) Strategic Plan (2017 – 2021) has provided for the promotion
and upholding of the Rule of Law as its third strategic thrust. In a bid to roll out this
strategy, the ULS has:
a) Set up a High-Level Rule of Law Advisory Panel supported by an in-house Rule of Law
b) Introduced the ULS Quarterly State of the Rule of Law Report;
c) Established the Annual High-Level Stakeholders’ forum on rule of law issues in October;
d) Enhanced its strategic Public Interest Litigation and Advocacy campaign;
e) Created the Coalition in Support of the Independence of the Judiciary (CISTIJ);
f) Set up a Rule of Law Club programme to be rolled out in universities and secondary
schools; and is
g) Working towards establishment of an effective and supportive Rule of Law Fund.
This Report is the first of the new series intended to highlight positive developments and
major challenges registered during each quarter of the year with regard to the Rule of Law,
and to offer proposals for improvement.
The Report selects specific incidents affecting the Rule of Law indicating their legal implications
and pointing to issues of concern that require additional attention and follow-up by all the key
For sources, the Report draws from Government documentation, the media, the legal fraternity
and members of the public. In each of the Reports, issues of concern will be clustered under
five main headings namely: checks and balances, due process and a climate of legality, human
rights, transparency and accountability and general issues.
It is our belief that a continuous follow-up on the recommendations in the report will lead
to the creation of an environment that promotes and upholds the Rule of Law at all times.
Working with strategic partnerships among the JLOS institutions and stakeholders, the ULS
will follow up on the practical recommendations made for the attention of policy and decision
On behalf of the Executive Council, I would like to commend the ULS High Level Rule of Law
Advisory Panel together with the secretariat team for their tremendous contribution to this
President - Uganda Law Society
ULS STATE OF RULE OF LAW REPORT
In its most basic form, the Rule of Law is about the principle that no one is above
the law. The principle is intended to be a safeguard against arbitrary governance,
whether by a totalitarian leader or by mob rule. It is particularly designed to guard
against excesses by the State, its agencies and the people, with the goal of avoiding
dictatorship and ensuring that we do not revert to a state of anarchy. It fosters
the welfare of the people and their nation by stipulating observance of rights and
freedoms, security of person and property, effective service delivery and guarding
against injustices in all spheres of life.
According to the 2016 World Justice Project Rule of Law Index, Uganda ranks
out of 113 countries assessed during the period. This ranking brings Uganda
to 10 positions lower than the 2015 ranking.
Hence, it is clear that the Rule of
Law continues to decline on account of issues such as the level of corruption, the
disregard of court orders, executive excess, weaknesses in the justice system, police
brutality, unlawful arrests and detention, and malicious prosecutions among other
negative developments. The economy is undergoing shocks and pressures with
negative consequences because of the linkage between the Rule of Law and overall
While in the 1990s Uganda was largely regarded as a success story with respect to
Rule of Law and good governance issues, recent statistics are less flattering. According
to various reports, Uganda is a country with a superficial democracy, characterised
by a semblance of the Rule of Law but in actual fact the respect of the rule of law is
As part of its 2017 to 2021 Strategic Plan, the ULS has adopted a more proactive
approach in dealing with issues relating to the rule of law in a bid to curb impunity,
promote transparency and ensure the observance of due process of the law at all
times. Under Strategic Objective 3 of the Plan which is “to promote the Rule of Law
and human rights protection” the ULS shall continue to protect and assist the public
in Uganda in all matters touching, ancillary or incidental to the law and to assist the
Government and the courts in all matters affecting legislation and the administration
and practice of law in Uganda; respectively.
The achievement of the objective entails creating strategic partnerships with relevant
stakeholders including the JLOS institutions, to carry out research, produce and share
evidence-based position information on relevant issues. This Report is among the
many steps taken towards the achievement of the objectives of ULS with respect to
the Rule of Law.
1 The change in rankings was calculated by comparing the positions of the 102 countries measured in 2015 with the
rankings of the same 102 countries in 2016, exclusive of the 11 new countries indexed in 2016
OVERVIEW OF ISSUES
A. CHECKS AND BALANCES
The Rule of Law ideally requires those who govern to limit their power to what
is confined in the law. The constitutional principle of the Separation of Powers is
designed to ensure that there is a balance of power and that no one organ of the
State becomes overly powerful in relation to the others and especially with respect
to the population at large.
The three arms of government are separate but mutually supportive in exercising their
functions in order to prevent the abuse of power. A system of Checks and Balances
has been adopted by modern societies by putting in place constitutional, institutional
and non-governmental constraints to limit the reach of government officials. The
essence of the system is that governmental power should not go unchecked as it
may lead to abuse of authority, wasted resources, and ineffectiveness in achieving
the most basic purposes of government.
During the reporting period, the following issues pertaining to the observance of
checks and balances arose:
a) The award of UGX 6 Billion Bonus Payment by Government
through the Uganda Revenue Authority
42 public officials received a total of UGX 6 billion from H.E. the President Yoweri
Museveni as a reward (dubbed the “presidential handshake”) for their participation
and success in arbitral proceedings in two tax disputes against Heritage Oil and Gas
Ltd (HOGUL) and Tullow Oil Uganda Ltd.
The issue triggered public outrage and raised fundamental questions regarding the
legality and the procedural propriety of the award. In the absence of an official
policy, concerns were raised that such awards would set a dangerous precedent and
provide a foundation for future payments of large bonuses by those who claim to
have contributed in one way or another in this and future similar ventures when the
oil money begins to flow.
The Parliamentary Committee on Commissions, Statutory Authorities and Staff
Enterprises (COSASE) was subsequently tasked to investigate the circumstances of
the handshake. Among other stakeholders,
the ULS President was invited to meet
with the members of the Committee on 20
February 2017 to offer guidance on the
procedural propriety of this award.
The ULS offered a detailed position
noting inter alia that although it has severally been
opined by among others the Attorney General (who is the Principal Legal Advisor to
2 Including the Uganda Revenue Authority, the Attorney General, the Ministry of Energy and Mineral Resources among
3 See the detailed ULS Legal Opinion on the Legality of the award of Uganda Shillings Six Billion awarded to public
servants for winning arbitration case with M/s Heritage Oil & Gas Limited.
ULS STATE OF RULE OF LAW REPORT
the Government of Uganda) that the awards were authorised by the President under
Articles 98 and 99 of the Constitution, a careful reading of the said articles does not
afford the President carte blanche to make such awards to public servants or indeed
to any other individual without a supportive legal framework. A detailed reading of
the said Articles reveals that the prerogative power asserted by the Attorney General
and the recipients of the award is not absolute and must be exercised in accordance
with the Constitution.
The ULS further contended that if the President is to exercise his prerogative to
reward individuals who have made an outstanding contribution to public service
through monetary rewards that will have an effect on the Consolidated Fund; the
same must be done through an Appropriation or Supplementary Appropriation Act.
ULS also noted that the Attorney General’s Chambers was affected by a conflict of
interest which compromised the ability of the office to provide unbiased technical
advice to the President, given that several officials in his Chambers were reported to
have been beneficiaries of the award.
Furthermore under Section 58 of the Public Finance Management Act (PFMA),
withdrawals from the Petroleum Fund must be done strictly via an Appropriation Act
and upon sanction of the Auditor General. In the instant case, the award was alleged
to be a withdrawal from the Petroleum Fund. If that was indeed the case, such award
ought to have been done in accordance with the above-mentioned law.
Under Section 32 (1) of the Public Finance Management Act the withdrawal of any
monies from the Consolidated Fund can only be executed by a warrant of expenditure
issued by the Minister of Finance to the Accountant General upon issuance of a grant
of credit by the Auditor General.
Legal issues arising:
1. Whether the President as the fountain of honour can give awards under Articles
98, 99 of the Constitution without an enabling legal framework
2. Section 79 of the Public Finance Management Act, No. 3 of 2015 makes it an
offence to incur unauthorized expenditure on behalf of Government or to divert
public funds for unauthorized Activities. On conviction, such an offence attracts
a sentence of a fine not exceeding five hundred Currency points or imprisonment
for a period of four years.
3. Breach of the procedure stipulated under the Public Finance Management Act,
No. 3 of 2015 —which requires Parliament’s approval of all payments made out
of the consolidated fund.
1. There is a need for clear guidelines on the award/reward of public officials from
the Consolidated Fund of the recently-established Petroleum Fund in order to
award exceptional performance while maintaining the requisite accountability
2. All payments made out of the Consolidated Fund and Petroleum Fund must be
executed in full compliance with the laws governing these institutions; and
3. As the principal legal advisor to Government, the Office of the Attorney General
should avoid situations which lead to a conflict of interest.
b) Issuance of the Justice Kavuma interlocutory order and its
implications for relations with Parliament
January 2017, the Deputy Chief Justice Steven Kavuma sitting as a single Judge
issued an interim injunction in a constitutional matter restraining Parliament, any
person, or authority from investigating, questioning or inquiring into the impugned
UGX 6 Billion award and staying all proceedings of whatever nature which may be
pending before any fora until the final Petition was disposed of. The order arose out
of an application by a lawyer named Eric Sabiiti who sought the interim order in a bid
to bar any person from investigating the presidential handshake.
The order raised concerns about the legality of issuing an injunction against Parliament
stopping it from exercising its constitutional mandate to provide oversight on the
spending of public resources. There were also concerns regarding the overall mutual
respect of the arms of governance in the performance of their functions.
Under the Constitution, Parliament exercises legislative and deliberative functions.
The Judiciary is mandated to determine whether legislative outcomes conform to
the Constitution. It is most unusual for the Judiciary to intervene by stopping the
deliberative process of Parliament. This is so because no issue of legality is likely to
arise until the final outcome of the deliberations. Therefore, the misgivings over the
interim order issued by a single judge of the Constitutional Court should be viewed
in this context.
The other concern is that the order was issued without proper due process, in that
the other parties concerned such as Parliament were not given an opportunity to be
heard. Parliament rightly protested the court order as being improper but it obeyed
and refrained from continuing with the investigations. The ULS commends Parliament
for this development which was in accordance with the Rule of Law.
ULS STATE OF RULE OF LAW REPORT
Legal Issues arising:
1. Under the Constitution, Parliament is empowered to legislate and deliberate matters
of public interest and the Judiciary is empowered to test the legality of legislation
made by Parliament
2. The Judiciary has no power to bar the deliberations of Parliament, which was an
apparent infringement of the Separation of Powers principle, and undermines the
power of the Judiciary to act as a necessary check on Parliament in future cases
where the latter institution has erred.
1. The ULS urges the respective arms of Government to maintain mutual respect of
each other’s mandates in the performance of their functions.
2. That Government should consider the implementation of the Commonwealth
(Latimer House) Principles on three braches of Government to enable the
development of a better relationship between them based on respect of rule of
law, the promotion and protection of fundamental human rights and entrenchment
of good governance based on the highest standards of honesty, probity and
B. DUE PROCESS AND THE CLIMATE OF LEGALITY
The concept of due process speaks to fair treatment as a citizen’s entitlement through
the normal judicial system. No person shall be deprived of the right to life, liberty or
property without due process of law. It guards against practices and policies which
violate basic precepts of fundamental fairness in court and related proceedings.
At its very basis, the principle of legality can be described as a mechanism to ensure that
the state, its organs and its officials do not consider themselves to be above the law in
the exercise of their functions but remain subject to it.
Over the review period, the following incidents pertaining to the due process of law and
a) Constitutional Court Decision on Interim Orders
On the 23
February 2017, three Justices of the Constitutional Court (namely Fredrick
Egonda-Ntende, Kenneth Kakuru, and Elizabeth Musoke JCC) delivered a landmark
decision in the case of Murisho Shafi & 5 Others v. Attorney General & Inspectorate of
The main import of the ruling was that any decision rendered by a single
Judge or a panel of three Justices in a constitutional matter did not conform to the
4 Constitutional Application No.2 of 2017; < http://www.ulii.org/ug/judgment/constitutional-court/2017/1/>.
jurisdictional requirement of Article 137(2) of the Constitution which stipulates as
follows: “When sitting as a Constitutional Court, the Court of Appeal shall consist of a
Bench of five members of that court”.
The ruling was of considerable significance on account of the fact that since the 1995
Constitution was enacted, several interlocutory matters before the Court have been
decided by a coram of fewer than five members. Indeed, a practice had developed in
which a single judge of the court—as in the Eric Sabiiti ruling reviewed in the previous
section of this report—would preside over a matter and deliver a ruling. Many of those
rulings had the effect of stifling further action on the substantive cause. For instance,
interlocutory orders by a single judge of the Court have prevented the continuance of
prosecutions at the Anti-Corruption Court and by the Director of Public Prosecutions.
Therefore, in making their judgment in the Murisho case the judges must have been
alive to the fact that interim orders issued especially by single Judges—even when
well-intentioned—had been grossly abused by both courts and litigants. Indeed, in the
recent past the ULS has expressed its dissatisfaction with some of the decisions issued
by a number of justices of the Constitutional Court in outright disregard of the law and
In his ruling, Justice Egonda-Ntende stated that fidelity to the law (an essential strand
underpinning the Rule of Law) would compel the Court of Appeal to respect the
provisions of Article 137(2), however inconvenient; the inconvenience in this case
being the necessity of assembling a full Bench of the Court to determine an application
for interim relief. In making this recommendation, the court was also alive to the fact
that decisions made without jurisdiction are a nullity whether declared so or not.
Controversy has however been created by the consequential orders and directives
issued by Justice Kakuru. In addition to an order referring the matter before them to a
coram of five Justices of the court, Justice Kakuru made the following consequential
(i) All interim orders issued by a single Justice of the Constitutional Court which are
still in force are null and void and of no effect;
(ii) Any interim or substantive orders of injunction issued by a coram of three Justices
of the Constitutional Court which are still in force are null and void and of no
(iii) The Registrar of the court was directed to place all pending constitutional
applications before a full coram of the Constitutional Court for determination.
Such applications should include all those made by either a single justice or a coram
of three—but whose rulings had not been delivered by the time of the ruling.
A number of clarifications need to be made with respect to Justice Kakuru’s ruling:
(i) The majority decision in the case is that by Justices Egonda-Ntende and Musoke;
(ii) The views of a minority judge although relevant, do not carry the day;