Africa-Press – Uganda. The Ugandan legal framework provides for an MP to double as a minister appointment by the President. There has ensued debates on the constitutionality of such provisions considering the principles of separation of powers and public interest.
The Constitutional Court on March 18 delivered a landmark judgement in the Constitutional Petition No. 16 of 2016, in which the Court emphasised that a judicial officer, who has not resigned their judicial position/office, cannot at the same time work in a public office following the appointment by the Executive as this breaches the principle of separation of powers among others. It is now clear that a judicial officer cannot serve with one leg in the Executive and the other in the Judiciary as this offends judicial independence.
It is now time to look into steering clear of the fusion between the Executive and the Legislature as a number of MPs are appointed as ministers by the Executive, which in my opinion, also offends the separation of powers. And we hope that this confusion can now be settled by the landmark petition depending on the school of thought one subscribes to. We still have MPS doubling as ministers, an issue we need to put to rest as it breaches the principle of separation of powers and delegated citizens power through the periodic social contracts.
First, having MPs double as ministers violates the principle of separation of powers. The Executive is fused with the Legislature by the appointment of an MP to the Executive. The minister is supposed to be bound by the collective responsibility principle even if it affects the people they represent.
What happens in scenarios where Cabinet decisions are not in favour of the Constituents? The voters lose their delegate power to an MP, who later becomes minister and much as voters vouch for the appointment of their MPs as ministers, this they do in ignorance because it takes away their power. This fusion of the Executive and Legislature needs to be broken for there to be a clear separation of powers.
The Constitutional Court has on various occasions dealt with the principle of separation of powers especially where the Executive appointments fuse with other arms of government such as the Judiciary – the jury is already out on this in the recent court ruling. I do hope that as the new government sets in, they consider breaking the fusion and confusion and leave MPs to serve their purpose and appoint ministers from elsewhere to avoid another constitutional conundrum. If this advice falls on deaf ears, perhaps we shall invite the court to look into it again for we need to guard our democracy and constitutionalism.
Second, how do we guard against double payments? Do MPs who are ministers reject the privileges and allowances for an MP – mileage allowances and cars, among others? When a minister who is an MP visits their constituency, do they use their car for an MP, or the one under their ministry? Do they use the fuel as per the MP mileage allowance, or that of the ministry? How do we draw the lines especially on these costs! Could it be that MPs who double as ministers are getting double allowances? We need to dig deep into this issues otherwise we might be losing billions on these expenditures.
Thirdly, there is a representation gap. Does an MP who doubles as minister have time to represent their constituents effectively in the house? How often do they attend plenary in the house as opposed to travels abroad and the frequent state assignments? How do we guard against conflict of interest in as far as balancing between ministerial collective responsibility and the interests and views of the voters?
For instance, how do you expect the Minister for Lands to articulate grievances of their voters in opposition to a government Bill on land? How will they present both views? If they are bound by the collective responsibility principle, then who represents the dissenting views of their constituency? This means their voters are left with no representation on this issue.
Mr Michael Aboneka is an advocate and partner with Thomas and Michael Advocates.
