A couple of months ago – on May 19, 2023 to be exact – an apparently new legal instrument emerged upon our landscape: the ‘Executive Order.’
In an interview with The Monitor, published on May 25, 2023, the attorney general argued that this instrument was ‘legal and in conformity with the law.’ I do not agree.
In the first place, there is some opacity regarding this new instrument – the May 19 Order purported to be the third such instrument issued in 2023. It is unclear what the first and second were – a significant problem since governmental functions should generally be exercised transparently.
Secondly, while the Order was purportedly in exercise of powers granted to the president under Article 99 (2) of the Constitution, a cursory review of that provision makes this difficult to sustain. That clause actually obliges the president to ‘execute and maintain’ the Constitution and all laws made under its authority.
It is simply too slippery and tenuous a ground upon which to create a strange new instrument for the exercise of presidential power.
Thirdly, it is appropriate to question why this is the first time, since the adoption of the 1995 Constitution, that this novel and dubious creature is being introduced into our legal system.
Fourth, and most substantively, I do not think that this instrument is in keeping with the letter and spirit of the Constitution. History and context, matter. Uganda’s history, like that of many other African countries, is that of executive – indeed, more specifically, presidential – overreach.
It is one in which heads of state have routinely usurped, either abruptly or in a creeping fashion, powers more legitimately exercised by the other two branches of government. In Uganda, the root of this malaise can actually be traced to the 1902 Order-in-Council, Article 12 which fused executive and legislative power in the hands of one official – the Commissioner – who was empowered to make laws ‘for the peace, order and good government’ of the protectorate.
As might be expected, much of the legislation from that era was neither ‘good’ nor ‘peaceful’ – for the ‘natives’, at least. It was this period that delivered such laws as the Removal of Undesirable Natives Ordinance of 1907; the Deportation Ordinance of 1908; and the Native Authority Ordinance of 1919 (which created autocratic local chiefs in the non-kingdom areas, themselves similarly exercising a fusion of legislative, executive and even judicial power).
This ignominious situation would only be somewhat modified in 1920 (about 18 years later) under the 1920 Order-in-Council, under the terms of which the head of the protectorate (now called the governor) would only wield executive power, while legislative power was to be exercised by a Legislative Council (the Leg Co).
The challenge was that the Leg Co was composed of very few persons, and the governor retained a strong veto over its decisions. In addition, it was exclusively populated by Europeans. The first non-European participant would be the Asian, Chinubhai Jethabai Amin, who took his seat in 1926.
Black Africans would only be represented in that body in 1945, following the end of the Second World War, and in the momentum towards decolonization. The legacy of the 1920- 1945 period, too, was not a good one for the ‘natives’, witnessing the passage of such laws as the Trading Ordinance of 1938 (which restricted Africans from trading within ten miles of urban centers).
It was these historical injustices which the 1962 Constitution aimed at curing, through the institution of a fully-fledged parliament and judiciary. Nonetheless, the tendency of executive overreach, evidenced at least since the 1902 Order-in-Council, continued to bedevil our political life.
Perhaps the lowest point of this in the post-independence period was reached with Idi Amin’s Legal Notice No. 1 of 1971, by whose terms parliament was suspended, allowing Amin to rule by Presidential Decrees from 1971 until his removal in 1979. Again, the legacy of that period is evident in such laws as the Suspension of Political Activities Decree (1971); the Detention (Prescription of Time Limit) Decree (1971); the Military Police (Powers of Arrest) Decree (1971); the Miniskirts Decree (1972); Expulsion of Asians Decree (1972); the Estates of Missing Persons Decree (1973); and the Trial by Military Tribunals Decree (1973), among others.
This traumatic history is part of that which was explicitly invoked in the preamble to the 1995 Constitution, which was expressed to have been made while ‘recalling our history which [had] been characterized by political and constitutional instability’ and ‘recognizing our struggles against the forces of tyranny, oppression and exploitation.’
This is the true problem with the notion of the ‘Executive Order.’ It is simply not in keeping with the spirit of the 1995 Constitution, aimed at restraining all forms of power, and particularly intended for the achievement of a constitutionally-limited president. In light of the history briefly outlined above, it is not inconceivable that this seemingly innocuous instrument may portend a further slide down what by this time seems to be an inexorable descent further into autocratic rule.
It is evident that the framers of the 1995 Constitution sought to limit presidential power, including through the two-term limit (the original Article 105 (2)) and the age limit (the original Article 102 (b)). Unfortunately, both of these checks on presidential power were subsequently (in)famously removed – in 2005 and 2017 respectively. The result is that since 1995 (leaving aside 1986 for the moment), we have had several parliaments (and Speakers) as well as several judges (and Chief Justices) – and one President.
The corrosive effect of this anomaly can be appreciated by taking just one aspect of the notion of separation of powers and checks and balances – a limited presidential power regarding judicial appointments.
As of today, every single one of the current superior judicial officers in Uganda ( judges of the High court and justices of the Court of Appeal and Supreme court) serves under an instrument of appointment signed by one man – President Yoweri Kaguta Museveni Tibuhaburwa. This is not – and cannot be – a healthy state of affairs.
Evidently, there is something deeply torn in our constitutional fabric. The ideal of a constitutionally-limited president has been replaced by the reality of an imperial president – essentially a monarch – inordinately towering over both parliament and the judiciary. It is this constitutional cancer which has increasingly metastasized over the past years and which has led some observers to pronounce the effective death of the document promulgated in 1995.
The truly pernicious nature of the ‘Executive Order’ is the further permission it grants to both its issuer (the president) and its various addressees, to think of the president in imperial terms rather than in the terms of Articles 2 (1) of the Constitution (which reminds us that the Constitution is superior and binding upon all persons and authorities in Uganda) and 99 (1) and (3) (which require that presidential power be exercised only in accordance with the Constitution).
To the extent that the constitutional cancer referred to above might be treatable (and this is quite debatable), this treatment must start with rejecting any actions and instruments, such as ‘Executive Orders’ which directly or implicitly exaggerate executive (or presidential) power over parliamentary or legislative power, and which – like the famed Chinese death by a thousand cuts – continue to gradually deprive (especially younger) Ugandans of any faith or hope in the possibility of a return to a government of the people, by the people, and for the people.
The writer is senior lecturer and acting director of the Human Rights and Peace Centre at the School of Law, Makerere University, where he teaches Constitutional Law and Legal Philosophy
