The executive constitutional mandate. Demystifying the fountain of honor. Presidential powers overreach in Uganda

Abstract

When a counrty is hurtling towards its destruction merit and intergrity are sacrificed at the Alter of atavisitic ethnic jingoism camofaulegled through processes that are carefully choreographed to hoodwink the casual observers (Prof. PLO Lumumba) In my much coveted book Obuntu Bulamu and the Law: An Extra Texual Aid Statutory Interpretation Tool (Lubogo 2020), I explain how Prof. Oloka-Onyango in Ghosts & the Law, An Inaugural Lecture, explores how the ghosts have infested the law in Uganda concerning, for example, judicial restraint and conservatism. He considers the Political Question Doctrine (PQD) as the essence of the ghost of ex parte Matovu, (in the case of Uganda v. Commissioner of Prisons, ex parte Michael Matovu1 ), which influenced the outcome of most cases which even simply challenged the exercise of executive power. (which this book intends to achieve) Thus, in the case of Opoloto v. Attorney General2 which concerned the dismissal of the then army commander for refusing to execute the order to attack the Kabaka’s palace, the court held that the Ugandan president had inherited the prerogative powers of the British monarch to dismiss at will officers in its service. 3 This is a demonstration of the spill-over of the Western colonial influence on post-independent legal system in Uganda. The author contends that Matovu’s case has found a way of holding the courts ransom in several court decisions. 4 In his judgment in the Tinyefuza case5 in the Supreme Court, Justice Kanyeihamba observed that certain boundaries existed over which the Judiciary should not cross, he however, overruled the decision in Opoloto’s case, arguing that “In this age of modernity, democracy and entitlement to human rights and freedoms, Opoloto’s case can no longer be treated as good law. 6 Prof. Oloka-Onyango (2017) in his book, when Courts Do Politics: Public Interest Law and Litigation in East Africa, considers how courts relate to and are affected by politics such as in the appointment of Judges by the executive. He contends that the present defenders of impartial judiciary would not easily claim that courts have nothing to do with politics. The political operation of the courts, he suggests can be determined by examining where the Judges come from, what they did prior to getting onto the bench, and how they got there. For those that rose through the ranks, their decisions in the lower courts could be examined. For those from academia, a review of their published works could be examined. Such analysis could help determine a Judge’s ideological orientation, what he describes as judicial politics. The author dispels any guarantee of a status quo once a Judge has been appointed, and argues that such orientation and perceived loyalty to the appointing authority was prone to change.