What is the Rule of Law?
Rule of law is the doctrine that entails that all organs, persons, and authorities within a state be bound by laws and their implications.
The
doctrine of Rule of Law was defined by Prof
Albert Venn Dicey / A.V Dicey a constitutional theorist who pointed out that the rule of law consists of the following
principles;
· Equality of all persons before the law
· A government of rules and law as opposed to arbitrariness
· The supremacy of the constitution
In 1959, the International Coalition for Jurists (ICJ) sat in Geneva and
discussed the indicators of rule of law in any setting. These include;
a) Existence of a representative Government.
There
must be the existence of a government that is democratically elected by the people.
Art. 1 of the constitution provides
for the Sovereignty of the People.
Furthermore,
under Art 1 (4) it provides that the
people shall express their will and consent on who shall govern them and how
they should be governed, through regular, free and fair elections of their
representatives or through referenda.
This can be realized through holding free and fair democratic elections to elect leaders that have been chosen by the people.
For example, the 2021 Presidential Elections saw
Yoweri Kaguta Museveni Tibuhaburwa emerge as the overall winner of the
Presidential seat for the term of 2021-2026.
b) The existing government must be one guided by rules and law.
The
ruling government must not be under the arbitral influence but follow the
frameworks of law in carrying out its operations. For example it should follow
the required procedure in appointment of public officers as enshrined under Art 172 (a) of the constitution, formulation
and implementation of policies.
c) Equality of persons before the law.
People
should not be discriminated against because of their ethnicity, sex, religion,
colour, or social or economic status. Equality of all persons before the law is
further enshrined under Art.21 of
the Constitution of the Republic of
Uganda 1995 (as amended) which guarantees protection of all persons
irrespective of their social, political, economic, social and cultural life.
d) Independence of the Judiciary.
The Judiciary as an interpreter of the law should not be under any influence or control from the other organs of government. The independence of the Judiciary in Uganda is proclaimed under Art. 128 of the Constitution
To realize the Independence of the Judiciary the following should be ascertained;
· Security of tenure of judges
· Transparency in the appointment of judges
· Adequate remuneration of Judges
· Immunity from court proceedings
· Judges should be ethical, honest and commendable
For
instance, in Masalu Musene V Attorney
General, it was held that taxation interfered with the independence of the Judiciary.
Also Read: The Rules of Statutory Interpretation
e) Protection and Observance of Human Rights
Rule of law entails that Human rights are not granted by the state but are God-given. The state has no right to take such privileges from a person. The 1995 Constitution of Uganda (as amended) readily provides for human rights under Chapter four.
It goes ahead to provide
for machinery for enforcement of such rights by putting in place bodies such as
the Uganda Human Rights Commission under
Art 51 to realize such rights.
f) Supremacy of the Constitution
There
must be the supremacy of the constitution. Art.
2 of the Constitution provides that
the constitution is the supreme law of Uganda and has a binding force on all
persons and authorities in Uganda.
The constitution must be a consequence of the rights of individuals.
In Joseph Tumushabe V Attorney General, the
Constitutional Court held that all provisions of the Constitution are binding
on all authorities in Uganda unless specifically excepted by the Constitution
itself.
g) Observance of International laws.
International
laws promote peace, justice and stability among nations. International laws are
also vital in the protection of Human rights. For example the Universal
Declaration of Human Rights (UDHR).
h) Principles of Administrative law
Rule
of law suggests that there be in place sound principles of administrative law.
This means that the public officials, administrative tribunals and bodies
should know their functions, follow the rules of procedure and ensure proper
treatment of individuals before it.
Art. 42 of the Constitution promotes
such principle as it provides for just and fair treatment of individuals
appearing before administrative tribunals.
Furthermore,
individuals aggrieved by the decisions of the administrative bodies can go
ahead and seek for remedies like judicial review in respect of the decisions
made against them.
Also Read: Sources of law in Uganda
i) Social Justice for Individuals
Individuals
must be able to enjoy social amenities, services and infrastructures. Social
Institutions must be put in place to realize such objectives for the
enjoyment of individuals. Access to services such as clean water, and electricity
among others.
j) Fair law criminal process
Individuals
should be accorded a fair and just process of hearing criminal cases. Article 28 of the Constitution of Uganda
secures such rights by providing for elements of the presumption of innocence, a notice of intention to sue, right to legal representation, and right to information
about the charges in a suitable language among others.
Art 28 provides for a fair
speedy and fair hearing to ensure that justice is served appropriately.
The
right to a fair hearing was further pronounced in Uganda v Commissioner of Prisons, ex parte Michael Matovu 1966
where the court made findings that the respondent had failed to observe court
proceedings such as failure to file a notice of motion, name a proper respondent
and reliance on defective affidavits.
The court considered Art 126 (e) that the liberty
of a citizen was at stake and so decided to let substance prevail over form
hence observing the right to a fair hearing.
k) Existence of a Strong and Effective government
The government must be strong and respectable. The government must be one which
issues orders that are obeyed by its citizens.
Also Read: Separation of Powers in Uganda
Relevance of Rule of Law in Uganda
Rule of law promotes Equality for all persons in Uganda.
All people should be treated the same way irrespective of their sex, religion or ethnicity.
This was illustrated in the case of Uganda Association of Women Lawyers & ors V Attorney General [2004], in which the petitioners challenged the provisions of the Divorce Act that made divorce available only to men.
Court held that the provisions of the Divorce Act were inconsistent
with Art.21 (1), 33(1) & (6) of the constitution and
granted the option of divorce to also be available for women.
Rule of Law observes and promotes human rights in Uganda.
The Constitution of Uganda observes
human rights under chapter four, such
rights include; the rights of women, rights of children, rights to property, and rights
to education among others.
Furthermore, efforts for enforcement of such rights have been put in place and remedies in
case of violation of these rights. This is illustrated under Art. 50 which provides for redress such
as compensation, and appeal if one’s right has been violated.
Rule of law promotes the principles of natural justice in Uganda.
Rule of law fronts the principles of
natural justice. It ensures that individuals’ pleas and justifications are heard
before reaching any decision.
In Kataryeba Zackary V Uganda HCB 1996, the trial magistrate had purported to enter a plea of guilty in respect of one of the accused who had not been arraigned before him. The accused was charged jointly with 3 others who had appeared before the court except for him.
It was held
by the High Court on appeal that there had been a failure on the part of the
trial magistrate to appraise himself with the provisions of Article 28 (5) which entitles the
accused to be present at his trial save for the cases where his conduct renders
his presence impracticable.
Based
on the instant case, natural justice in form of a fair hearing was observed.
It ensures the observance of principles of natural justice in Uganda.
Rule of law ensures the effective
promotion of the principles of natural justice i.e. that the right to a fair
hearing and the rule against bias is observed.
In George Karuhanga V Attorney General,
counsel for the plaintiff G.W Kanyeihamba requested for the recusal of the
Justice Augustine Nshimye and another on grounds that they had been biased and
had no standing to hear the case at hand due to the partisan behaviour they had exhibited
in deciding the preceding case concerning the NRM rebel MPs. The court granted the
recusal and the judges excused themselves from the case.
Rule of law promotes governance of rules as opposed to the governance of arbitrariness.
It ensures that government is guided by rules of procedures, and laws and not influenced by the arbitrariness and mere influence of individuals.
In Ssemogerere & Olum V Attorney General, the legality of the
passing of the Referendum and other
Provisions Act 1999 was successfully
challenged by the petitioner on grounds that Parliament did not follow the
pre-requisite procedure in passing of such an act.
Rule of law ensures the observance of international laws.
It should be noted that International laws
help to promote justice, peace and prosperity among countries. Countries in
certain, regions are subject to various international laws. Uganda is subject
to laws such as the Geneva conventions 1949, Fin
In Uganda V Kwoyelo, it was held that
customary international law is applicable in Uganda’s domestic courts.
Rule of law ensures independence of the Judiciary.
It promotes the impartial operation of the
Judiciary. According to Art. 128 of
the Constitution of Uganda 1995 (as
amended) the Judiciary should not labour under any control or influence of other
authorities or organs.
In a nutshell, although the Rule of Law is of great standing in Uganda, there have been instances where it has been greatly abused. This has been evidenced through the interference of other organs in the activities of the other i.e.
In Uganda V Kiiza Besigye where the defendant was granted bail by the court and on orders of
the executive, the military surrounded the court in order to re-arrest Kiiza
Besigye to be re-tried in the court-martial. This violated the doctrine of the
independence of the Judiciary as envisaged by rule of law.
Other instances include detaining and torturing prisoners in custody, and refusal of obeying writ of habeas corpus by courts as was the case in the Kakwenza Rukirabashaija saga among others.