President Tibuhaburwa Museveni took the Oath of President a week ago and swore to uphold, preserve, protect and defend the Constitution and observe the laws of Uganda.
However, the insolent character of the persons who served in the expired fifth term cabinet, who have insisted on clinging on to public property such as cars, bring the president in sharp conflict with the oath. Some of those persons have continued to carry on working as ministers whereas their government was dissolved. The question is whose government are these ministers serving?
A senior constitutional law lawyer, Wandera Ogalo described the situation as sad. “We have a situation where the law is well and good until it stands in the way of the president,” Ogalo said.
“The laws no longer matter. The norms no longer matter. There is no rule of law. And rule of law simply means every one including the leaders are equally subject to the same rule of law,” Ogalo added.
Interviewed for a comment on Monday, Peter Ogwang, the minister of state for ICT, said, “Right now there’s no parliament, there’s no speaker and deputy speaker, even if people were appointed, they would not take those positions because there’s no parliament to approve them…”
“So, to the best of my knowledge, all these ministers are holding these positions in a transition manner waiting to hand over. Even me the Ngariam MP-elect, I am waiting to hand over,” he said.
According to the cabinet handbook, (www.cabinetsecretariat.go.ug), which, among other things, outlines the organisation and function of the Executive as well as the management of transitions, the existing Government lapsed as soon as the incoming president assumed office on May 12, 2021.
According to Article 98 (30 of the Constitution, a person elected president takes Oath of Allegiance and the Presidential Oath specified in the Constitution before assuming the duties of the Office of the President. President Museveni was sworn in as president on May 12, 2021 at Kololo Ceremonial grounds.
The oaths were administered by the Chief Justice Alfonse Owiny-Dollo. The chief justice handed over instruments of power to President Museveni. The instruments of power are the Constitution, the National Flag, the Presidential flag (Standard), a copy of the National Anthem, the Coat of Arms and the Republic Seal.
The act of President Museveni taking the oaths signified that the previous government had been dissolved and he is expected to issue new instruments of appointments of ministers for his new government.
In defiance of these dictates and the Constitution, some ministers have continued to conduct their ministerial duties. For instance on May 14, the Uganda Media Centre informed media houses that the minister of Works and Transport, General Katumba Wamala would be addressing the public about road safety.
Further, the UMC also announced that the minister of Finance, Planning and Economic Development, Matia Kasaija would be launching the National Budget Month (Uganda’s Budget Overview and Accountability).
However, one government official who preferred anonymity said that the ministerial term had not expired.
“What expired is the presidential term in office and MPs. The ministers are merely appointed in office by the same person who is president and he is yet to disappoint them. He did not appoint them for the period similar to his term as president,” he said.
“From the above, one can safely say all ministers including Kasaija are officially and legally holding office. This includes ministers who may have lost re-election as MPs,” the official added without referring to any provision of the law or Constitution.
Ideally, the attorney general (AG), as the chief government legal adviser, is expected to give the president and other government agencies the best view of what the law allows or as to application of the law to certain issues in dispute.
The word best, in this context, is understood to mean that the answer should not be unlawful or depart from established principles in a democratic society.
In giving this legal opinion, it is generally accepted that the legal adviser, especially the government one, ought to address sources that are potentially contrary to his position in order to alert the client (president or government) to counter arguments, weaknesses, and risks.
And because the opinion of the AG is treated as binding by the executive or the president and, at times, influences what government does thereafter, this alone imposes a heavier duty on the AG to do justice to both the addressee and the nation at large.
Unfortunately, the performance history of Uganda’s AGs appears not to meet that basic standard. It appears the office of the AG has been obsessed with finding out what the client wants or how the client can be helped to manipulate the law to his benefit, however absurd and embarrassing the results turn out to be.
Again, in May 2011, a day before President Museveni was sworn in, the Attorney General then, Prof. Khidu Makubuya and Amama Mbabazi wrote to the president confirming that cabinet and the vice president and prime minister’s term of office was not pegged on the term of office of the president.
He relied on articles 108 (5) and 108 A (4) and 116 which spelt out when the offices of the vice president, prime minister and cabinet ministers become vacant. According to these provisions, these offices become vacant when the office holder’s appointment is revoked by the president, or resigns, dies or is disqualified to be a member of parliament.
Makubuya went ahead to draft a document entitled “Instrument of Authority to Act” which the president signed in May 2011, instructing his then vice president, prime minister and ministers to remain in office in acting capacity until a new government was constituted.
That document had problems because it did not cite any provision of the Constitution where the president derived such powers to create an acting cabinet. Its opening paragraph only stated: “In accordance with the Constitution of the Republic of Uganda and any other enabling laws, I direct that…”
Naturally, this was defective and the AG, having failed to cite specific provisions in the Constitution, found comfort in unhelpful general terms. Makubuya’s opinion was again relied on by Fredrick Ruhindi (then AG) in an opinion written on May 10, 2016 when he advised the president in similar terms except that, this time round, Ruhindi advised the president not to sign the instrument of authority to act. And it’s because he knew that instrument had no legal effect.
Ruhindi, too, relied on the provisions cited by Makubuya (108(5), 108A (4), and 116). They all conveniently ignored articles 98(1) (2), 99(1), (2), (3), 105(1), 111, 113(1), 115 of the Constitution. All these provisions had to be read together and harmonized, and not read in isolation. And because they read 108(5), 108A (4) and 116, in isolation, that is why their advice was absurd.
Even the secretary to cabinet, John Mitala, wrote to the AG and was concerned that the chief legal advisor had failed to refer to any constitutional provision, which allowed the president to authorize an acting cabinet.
While giving his state-of-the-nation address in June 2016, President Museveni quickly responded to murmurs when he recognized the vice president, prime minister and ministers, by saying that the minister’s term expires when he revokes the appointment, advising those aggrieved by the interpretation to go to court and the chief justice (who was also present) would give the same answer.
But the Speaker of parliament, Rebecca Kadaga, refused, and rightly so, to recognize them and reminded the president that his government had not been constituted.
“We should be reminded that on May 3, 2016, the president dissolved cabinet and even held a farewell luncheon for them at State House, Entebbe. By that act alone, it meant that the old cabinet had discharged its duties for that government and ceased to exist,” she said.
The executive power remained with the president for the time remaining and he got new executive powers (article 99) for a new government when he was sworn in on May 12, 2016 for another five years.
The argument that the minister loses his appointment when the president revokes it defeats logic and the context of articles 111 and 116. In the instant case, the expiration of the term of office of the president and his subsequent taking of oath meant that the old government had also expired and, by necessary implication, the ministerial appointments had been revoked.
If the old government was still in existence, then Mr Museveni would not have taken the presidential oath on May 12. He should have carried on his business as usual. Would the same condition obtain if the election had been won by another person and taken the presidential oath? Would the ministers remain in office arguing that their appointing authority had not revoked their appointment? Certainly not!
Sensing a legal standoff in June 2016, while presenting the budgetary estimates for 2016/17, the president delegated the powers to read the budget to a member of parliament from Buyanja, Matia Kasaija. The president specifically referred to Matia Kasaija as member of parliament, and not minister of finance.
The question we need to ask and answer is who a minister is or how does one become a minister. Article 111 provides for the cabinet, which consists of the vice president, prime minister and such a number of ministers as there may appear to the president to be reasonably necessary for efficient running of the state.
Article 113 gives powers to the president to appoint ministers with the approval of parliament and article 115 enjoins a minister prior to assuming the duties of office to take and subscribe to the oath of allegiance and the oath of minister. In essence, a person can only be made a minister after nomination by the president, approval by parliament and taking oath.
Therefore, Uganda’s ministers’ terms of office expired when the term of their appointing authority expired. They cannot purport to act under a special instrument which is not backed by law or Constitution. Ruhindi’s cut-and-paste opinion is blighted with legal lacunae because the 11th parliament is already in place.
And Ruhindi’s opinion seems to be upheld by the current AG, William Byaruhanga, who has not advised otherwise. Perhaps he could not advise as his term also expired with the swearing in of the new president.
According to the cabinet handbook paragraph, 4.4, outgoing ministers are supposed to return all cabinet documents they have been handling to cabinet office.
“In this regard, the outgoing minister would hand over the all government property including all cabinet documents to the permanent secretary who in turn hands over to the cabinet office. In addition the outgoing minister should write a hand over report and hand it to the Permanent Secretary,” the handbook says in part.
Efforts to talk to Mitala and the outgoing Attorney General to clarify the matter were futile as they could not be reached on their known official numbers.
Ministers who are not members of parliament are required to take an oath as ex-officio MPs before they are accepted in parliament. Right now, a person acting as prime minister, Ruhakana Rugunda, cannot conduct matters as leader of government business because he has not taken oath.
There are many others such as Gen Jeje Odongo, who can only be admitted in parliament as strangers. So, this is the folly of interpreting the law according to the whims of the appointing authority; sometimes the absurdity catches up with the manipulator.
Article 99(1) vests the executive authority in the president, but at the same time requires him to exercise that authority in accordance with the Constitution and the laws of Uganda. Mr President, the act of maintaining an illegal cabinet offends the Constitution, and it is impeachable.