Keith Busingye Constitutional Law Guiding Questions and answers.

Keith Busingye law, constitutional law Guide, question and answers.

Questions:

•      What is a republican constitution

•      Give one distinction between federalism and decentralization

•      Define collective responsibility of a cabinet

•      What is dual citizenship

•      Explain what you understand by presidential assent to a bill

•      State one remedy of a person who alleges that legislation is unconstitutional

•      Name one right in the constitution which is non derogable

•      How did the 1995 constitution deal with the problem of untitled occupants of land

•      State the doctrine which is now generally accepted as an alternative to the strict separation of powers between the organs of the state.

•      Outline one constitutional provision meant to ensure independence of the judiciary.

•      Distinguish between the constitution and constitutionalism

•      State one country with an unwritten constitution

•      Briefly explain the contribution of Hans Kelsen to constitutional law

•      What is meant by entrenched articles of the constitution

•      Define a secular republic

•      Briefly state the advice you would give to the minister of foreign affairs if the presidential and affairs committee of parliament ordered him to establish a Uganda Embassy in Somalia

•      Distinguish between a presidential and parliamentary system of government

•      What is a constituent  assembly

•      Define universal adult suffrage

•      What is a regional tier

•      Different types of constitutions and their definitions

•      Different scholars and their contributions to constitutional law

•      Different types of states and their definitions

•      Look at the articles of constitution

•      Organs of the government and their constitutional provisions

•      Separation of powers and system of checks and balances

•      What problems did the 1995 constitution solve.(what lacuna did the constitution fill)

WHAT IS A CONSTITUTION?

•      A body of fundamental principles of government in a nation, either implied in its laws, institutions and customs or embodied in one fundamental document or in several.

•      Or the fundamental law that is put in place to govern a particular society.

•      It consists of the basic and fundamental laws which the inhabitants of the state consider to be essential for their governance and well being.

What are the characteristics of a constitution?

•      Supremacy; This constitution is the supreme law of Uganda and shall have binding force on all authorities and persons throughout Uganda; Article 2(1) (Salvatori Abuki vs. A.G)

•      Timeless; it is made to last for undefined period of time. It is not restricted in its time of operation unless it is stated that it is an interim constitution and that it can be changed any time.

•      Certainty; the provisions of the constitution should be well known.

•      Flexible; it should be flexible by nature and should be acceptable at all times

•      Satisfactory; it should satisfy the majority opinion of the citizens so that they give it habitual obedience and loyalty.

The sources of the constitution

•      Legislation; constitutional law is ascertained by the various laws passed by the sovereign state.

•      Judicial precedents/case law; procedures are decisions of the courts of authority. It is important because it discusses the principals of the constitution.

•      international conventions; they are accepted practices over along period of time . They may not be in writing but people respect them. (UDHR, ICCPR, ICESCR)

•      Authoritative writings there are different writers on constitutional matters such as Justice Kanyeihamba, Justice Benjamine Odoki, Oloka Onyango and others

•      Customs different customs and cultures followed by particular can be used as basis for some laws that are found in the constitution

Types of constitutions

•      The written and unwritten constitutions

•      The rigid and flexible constitutions

•      The General and Detailed constitutions

•      Constitutions may also be classified according to the type of government they create. : http://www.constitution.org/cons/prin

The written and unwritten constitutions

A written constitution is where all the legal rules regulating the allocation of functions and structures are contained in one or more documents which passes the law in force

•      An unwritten constitution is where some of the fundamental laws are to be ascertained from sources other than a written document.

•      An example is the constitution of the United Kingdom and Northern Ireland.

The Rigid and Flexible constitutions

•      The Rigid constitution  is where the methods of amendments make it deliberately difficult to change the provisions of the constitution

•      A constitution is regarded as flexible where there is an ease in the amendment of the constitution which may be through a simple Act of parliament

The General and Detailed constitutions

•      A general constitution is one which is concerned with the establishing a general frame work of governance and stops at it.

•      A detailed constitution is one which has detailed use of the powers, functions and resources.

Classification of constitutions based on the type of government it creates.

•      The Democratic government; it is a government in which the people participate fully in the decisions which affect the country.

•      Dictatorship government; is where the power is in the hands of one person or a small group of people.

•      The Monarch government; is the system of government where the ascension to office is determined by the persons descend and is usually determined by blood relations. Only a particular group of people can be leaders.

•      The Republic  government; A system of government in which the people hold sovereign power and elect representatives who exercise that power (pg 1330 Black’s Law dictionary)

The unitary and the federal government

•      The unitary state is one that is organized under a single central government.

•      In  Federal state or government, the powers of the government are divided between the central and the constituent government

The doctrine of separation of powers / checks and balances

•      The doctrine of separation of powers can be defined as the division of the government authority into branches of government that is the executive, the legislature and the judiciary.

•      In its strict terms the doctrine advocates that the three organs of the state should be kept in separate compartments?

•      The doctrine has three distinct meanings; that person or agencies of one organ should not be allowed to hold a position in the other two organs, no organ should exercise the functions of the other two organs and no organ of government should interfere with any other organ of government. (Montesquie)

•      Marburg vs. Madison; the judiciary is independent of both the executive and the legislature and has the power of declaring invalid the acts of the executive and the laws of the legislature if they are repugnant to the constitution.

The doctrine of separation of powers

•      Director of public prosecutions vs. Daudi Pete the court stated that the doctrine of separation of powers is infringed upon when either the executive or the legislature takes over the functions of the judiciary involving the interpretation of the laws and the adjudication of the rights and duties in disputes either between individual persons or between the state and the individual persons.

•      Rev. Christopher Mtikila vs. A.G, courts could only interfere in the executive or legislative action to protect and promote the rights of an individual. They could not formulate the government policy nor compel legislation.

The system of checks and balances

•      There is no absolute separation of powers but rather the system of checks and balances. It is the system where no single organ should usurp the authority at the expense of others.

•      Though the constitution provides for the checks and balances, the courts encourage more of the doctrine of separation of powers. Rtd Col. Dr. Kizza Besigye vs. The Electoral Commission and Yoweri Museveni. The judiciary was seen to check the executive.

•      This has not always been the case, in the high Court; the Black Mambas besieged the court. “The raping of the temple of justice” by Justice Ogoola.

The doctrine of parliamentary supremacy Art. 79

•      The doctrine of parliamentary supremacy means that the parliament stands supreme with the power to influence all political organs of the state. It is based on the concept that parliament, because of it composition that represents the will of the people thus when it acts, it acts on the will of the people. It also suggests that the power of the parliament is unlimited.  However this doctrine is limited in Uganda today because of the supremacy of the constitution under Article 2(1) of the constitution. Zachary Olum and another vs. the A.G and Paul Ssemwogerere and another vs. A.G

•      This therefore shows that the judiciary has the power to declare actions and Acts of parliament unconstitutional

Judicial independence Art.128

•      The judiciary should not be subjected to any direction or control and this should be ensured through

1. Securing the tenure of judicial officers
2. Adequate payment
3. Given the necessary facilities
4. Judicial immunity of judicial officers

Ngoma Neima v. Byanyima the where allegations that officials from the presidents office where not only seen around the court but also called the principle Judge instructing him to remove the sitting Judge from the election petition.

CITIZENSHIP

•      Article 9;  Every person, on the commencement of this constitution, is a citizen of Uganda shall continue to be such a citizen

•      Creates a legal relationship between the state and the individual

•      Allegence

•      Free movement

•      Jurisdiction

•      Types of citizenship

1. By birth; Article 10
2. By adoption; Article 11
3. By registration; Article 12, 14
4. By naturalization; Article 13
5. Dual citizenship; Article 15

Loss of citizenship Art.14

•      Take arms against Uganda or collaborate with its enemy

•      If acquisition was by fraud, deceit, bribery or forged.

•      Espionage against Uganda

The Rule of Law

•        Means that both the governed and the rulers are equally subject to the same law of the land. Under the rule of law the authority of the law does not depend so much on the law’s instrumental capabilities, but on its degree of autonomy ,is, the degree to which the law is distinct and separate from other normative structures such as politics and religion. Prof. Dicey

It means governing according to the law, every government action must be done in conformity with the law i.e the law takes precedence over government action, thus all laws must be just and equal.

Meaning of the rule of law

•      Equality before the law. No man is above the law but every man whatever be his rank or condition is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals.

•      Rule of law as the regulator of government power/ supremacy of the law of the land. Government cannot act other than in the accordance of the law of the land.

Existence of the rights of the individual that is enforceable by the ordinary courts of the land; (Pg 110 Introduction to the study of Law of the Constitution A.V Dicey

Land under the Constitution Art.237

•      Who may acquire land-

•      citizens and leases for non citizens

Land tenure systems in Uganda

1. Customary
2. Freehold
3. Mailo
4. Leasehold

The constitution provides for acquisition of certificates for untitled land or conversion to freehold

Uganda Land Commission

District Land Boards

Inspectorate of Government (ombudsman)

•      What consists of who – IGG  and deputy inspectors General

•      Who qualifies –judge of H/C, citizen, high moral character, experienced in public affairs

•      Who appoints-president with the approval of parliament

•      How long is the term-4 years and is eligible for reappointment only once

•      Functions of IGG

1. Adherence to the rule of law and principles of natural justice
2. Eliminate corruption, abuse of authority and of public office
3. Promote fair, efficient and good governance
4. Supervise the enforcement of the leadership code of conduct
5. Stimulate public awareness on values of constitutionalism

The principles of constitutional interpretation

•      Article 137 provides for the questions as to the interpretation of the Constitution. This is done in courts following certain principles.

•      A.G vs. Lohay Akonaay and Joseph Lohay civil Appeal 1994. Tanzania, the constitution is supreme to every other law or institution and cannot be interpreted in a manner that surbondiates it to any other law.

The principles of constitutional interpretation

•      The liberal interpretation of the constitution [the purpose and effect interpretation of the constitution]

•      The principle of integration or harmonization of the provisions of the constitution

•      Cases; Major General Tinyefuza vs. Attorney General and Dr. Paul Ssemwogerere and another vs. Attorney General

•      Articles; article 50-58,  126(2)(c), and 137

Human rights [chapter 4 of the constitution]

•      Art.30 right to education, (Sharon vs. Makerere University)

•      Art. 29 protection of the freedom of conscience, religion, expression, movement, assembly and association, (Oyango Obbo and Andrew M vs. A.G)

•      Art.26protection from the deprivation of property, (Salvatori Abuki vs. A.G)

•      Art.24 respect for the dignity and protection from inhuman and degrading treatment. (Salvatori Abuki vs. A.G)

•      Art.41 right to access of information, Re; (Jim Katugugu and others vs. A.G)

•      Art.21 Equality and freedom from discrimination, (Julias Ishengoma and another vs. A.G)

•      Art  22 protection of the right to life( Salvatori Abuki vs. A.G)

Limitations on human rights

Article 43(1) In the enjoyment of the rights and freedoms prescribed in this chapter no person shall prejudice the fundamental or other human rights and freedoms of others or of the public interest. (Dimanche Sharon V. Makerere University)

Article 44 Non- derogable rights;

•      Freedom from torture and cruel, inhumane or degrading treatment or punishment (Salvatori Abuki vs. A.G)

•      Freedom from slavery or servitude (Tinyefuza vs. A.G)

•      The right to a fair hearing  (Vincent l’Emoru vs. A.G)

•      The right to an order of habeas corpus (Re Sheik Abdul K.S. & another)

Constitutional Amendment

•      Chapter 18 provides for amendment

•      There has to be an Act of Parliament Article 259(2)

•      It should be supported by a second and third reading by not less than two thirds of members of parliament

•      It should be approved through a referendum Article 260

•      Paul Semogerere &2 others V. AG SCCA 1/02

Constitutional Amendment

•      Chapter 18 provides for amendment

•      There has to be an Act of Parliament Article 259(2)

•      It should be supported by a second and third reading by not less than two thirds of members of parliament

•      It should be approved through a referendum Article 260

•      Paul Semogerere &2 others V. AG SCCA 1/02