The origins of the doctrine of the separation of powers can be traced back as far as ancient Greece.

The doctrine

in theory was first articulated and advanced by a French philosopher by the name of Charles de Montesquieu.

According to Montesquieu in his book “L'Esprit des Lois (the Spirit of the Laws)1”, he said that “good

governance should be based on the principles of separation of governmental powers”. There must be 3 separate

organs of government. There must be the organ that makes the law i.e. the Legislature, there must be the

organ that executes law i.e. the Executive and lastly there must be a body to interpret the law and to mediate

disputes over the law i.e. the judiciary. In summary, it meant that there should be 3 different organs, operated

by different people and there should be no control of one organ by another. In his Second Treatise of Civil

Government2, English philosopher John Locke noted the temptations to corruption that exist where…” the

same persons who have the powers of making laws to have also in their hands the power to execute them…"

Since 1748, this principle has been widely used in the development of many democracies, thus placing the

doctrine of separation of powers at the heart of constitutional governance. The 1995 constitution3 provides for

the principle of separation of powers. It creates each of the three organs of the state that is the legislature4,

the executive5 and the judiciary6 and demarcates powers and responsibilities among these organs as well as

providing checks and balance among them. Under the system of checks and balances, each branch acts as a

restraint on the powers of the other two. The application of this principal guarantees constitutionalism and the

rule of law while promoting and protecting human rights of the governed. The doctrine of separation of powers

was exemplified in the case of MAJOR GENERAL DAVID TINYEFUZA V ATTORNEY GENERAL7

wherein Kanyeihamba JSC noted the principle that in performing their functions, the three arms of government

shall be independent so that no other arm should interfere with what, how and when the other does its exclusive

business. He went on to say that the principle of non-interference by the judiciary in legislative and executive

matters should prevail save for exceptional circumstances involving the deprivation of the liberty of a citizen.

In Uganda, the case of Parliament, subject the Constitution, it shall perform all its functions assigned to it

without hindrance or interference, from either of the remaining two arms. In the case of the Executive, its

policymaking or administrative powers, including the power to raise and determine the distribution and

1
1748
2
1632-1704
3
Republic of Uganda
4
Chapter Six of the Constitution of Uganda
5
Chapter Seven of the Constitution of Uganda
6
Chapter Eight of the Constitution of Uganda
7
Constitutional App. No. 1 of 1997
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expenditure of public funds, should not be interfered with. If it be the Judiciary, the doctrine means that no

one or the other arms of government should interfere with the way it exercises its judicial powers. However

no single organ is able to exercise complete authority but they are inter connected in the execution of their

duties, each being interdependent on the other. This means that you cannot have a complete separation of

powers because some of the roles of the Parliament, the Executive and the Judiciary overlap. For example,

ministers who belong to the Executive are also members of Parliament. High Court Judges are appointed by

the President and approved by Parliament, parliament has been rendered powerless in the exercise of its

oversight role over the executive. Through the NRM caucus, members of parliament are intimidated, harassed,

and bribed in order to give in to the executive’s desires which has even give rise to rebel MPs (those who

don’t submit to the executive’s wishes). Therefore, none of the organs exercises complete authority on its

own.

Unlike in biblical terms where the Lord is the judge, the lord is the lawgiver and the Lord is the king (all in

one)8. The principal of separation of powers provides for the different three state organs performing different

functions with each of the organs providing a check on the other. The 1995 constitution has adopted the

doctrine of checks and balances to serve as an exception of separation of power which is to the effect that

there is equilibrium between the organs of state that is in non-antagonistic relationship, as argued in the case

of MTIKILA V ATTORNEY GENERAL9 where the judge stressed that “the court came only to interfere

in the executive or legislative action in order to protect and promote the rights of individual citizens, beyond

that courts will not go” thus in the above case, it was demonstrated that the doctrine of separation of power

has been eroded, instead what has developed is the doctrine of checks and balances thus the doctrine of

separation of power as to Montesquieu in Uganda has less application instead the doctrine of checks and

balances has been adopted.

In Uganda, the system of checks and balances has been adopted. The checks of the executive and legislature

powers have been provided for under the constitution and some of them include the following as discussed

below.

8
Isaiah 33:13-22.
9
Case No. 5 of 1993
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Under Article 10610 Presidential tenure is supposed to check on the president. Here the notion is that the

executive power has to be constrained within a particular period of time. However it is worth noting that the

parliament amended the constitution by removing the age limitation.

The president’s powers to appoint cabinet minister and other ministers under Article 113 and 11411

respectively are also checked by parliament first vetting and approving the named persons. This prevents

dictatorship, tyranny and appointing of substandard public servants by the sitting president.

As regards to impeachment or removal of the president, this is the most extreme sanction that can be issued

against a certain president. It can also be a vote of no confidence in a certain president and the process for the

removal of the president involves or entails all the other organs of the state. So if any of the grounds provided

in Article 107(1)12 have been found to exist, then the legislature has to take action. It sets in motion that

ultimate check of the president and this must be supported by 1/3rd of the legislature. The second stage involves

the judiciary because the petition has to be transmitted to the chief justice who sets up a tribunal to assess the

allegations. The tribunal reports back to parliament. Parliament will then vote on the issue and if 2/3rd vote

against the president, he will go out of office.

Under Article 9213 (parliament not to pass any law to alter the decision or judgment of any court as between

the parties to the decision or judgment) was effectively meant to ensure that parliament could not pass a law

that effectively overturned the decision of court.

As to the powers of the judiciary, what is important is the independence of the judiciary as provided for under

Article 12814 which has to some extent been undermined case in point when boda boda riders invaded court

when the IGP was summoned to appear before court.

Conclusively, If Uganda had a clearly defined separation of powers, it would have been a better place stay

though currently it has expressly appears to have failed to operate some of the roles of the Parliament, the

Executive and the Judiciary overlap an as a feature of constitutionalism, rules imposing limits upon

government power must be entrenched, either by law or by way of constitutional conventions. In other words,

individuals whose powers are constitutionally limited must not be legally entitled to change or expunge those

limits at their pleasure.

10
The 1995 Constitution of the Republic of Uganda
11
Ibid
12
Ibid
13
Ibid
14
Ibid
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