Mwondha ceased being IGG on february 23, 2009
ON June 18, Elly Karuhanga contributed to the ongoing IGG saga. His analysis was very enlightening and will go a long way in helping clarify this problem.
By Peter Mulira
ON June 18, Elly Karuhanga contributed to the ongoing IGG saga. His analysis was very enlightening and will go a long way in helping clarify this problem.
Although Karuhanga appears to be an admirer of Justice Faith Mwondha’s work as IGG, he was able to rise above personal considerations and rightly advised that the underlying issue in the standoff is whether this country is going to be governed according to the rule of law.
The rule of law concept stipulates that all persons and governments are subject to law and that government work must be conducted within the framework of recognised rules. Unfortunately, the tone of public debate over the IGG issue ever since it unfolded has reflected the arbitrariness which has come to characterise our society.
It is often argued that African societies have always been governed by the arbitrary rule of subsistence and that feudal overlordship colonialism introduced the rule of law into our governance through the subjection of native customs and laws to the test of good conscience and equity.
As post-colonial African states, including Uganda, continued to slide to one-party states in the 60s and after, the world watched as the rule of law became eroded leading to arbitrariness in our public affairs. A whole generation has grown up in militarised societies characterised by ignorance or neglect of the rule of law and apathy toward its operation in Africa.
In the absence of an appreciation of the rules which should govern our interactions all too often public debate is reduced to the level of personalities. This has been exhibited in the debate over the IGG issue with supporters of Mwondha claiming that it was corrupt or wicked people trying to do her in.
This trend is in stark contrast with the experience in western countries where the supremacy of the law has been fully established over the years.
As an example, by the 17th century, the English parliament had established the supremacy of its laws as against the personal whims of those who occupied public office although there was no written constitution.
However, this idea of parliamentary supremacy did not find favour with the American revolutionaries of the 18th century who argued that there must be a fixed constitution which was antecedent to government and that laws must be part of such a constitution for if this was not so the constitution would not be able to limit government. The result of this debate was the written constitution of the United States which was adopted in 1784 which became the supreme law of the land. Like the constitution of the United States, our constitution is supreme over any individual and authority—article 2(1). This means constitutional provisions apply to everybody without exception including article 113 (3) which provides that the Attorney General shall be the principal legal officer of Government whose functions among others is “to give legal advice and legal services to the government†and according to the civil service standing orders the advice given by the Attorney General to the government is final.
This means when the Attorney General gave advice to government that Mwondha had to be approved by parliament before she could serve a second term as IGG he could not be challenged, not even in a court of law because the advice was not given to an individual. The Attorney General’s stand is augmented by article 253(1) of the constitution which provides that “Where any person has vacated an office established by this constitution, that person may, if qualified, again be appointed or elected to hold that office in accordance with the provisions of this constitution.†Mwondha automatically vacated office the minute her term of four years expired on February 23, 2009. However she is eligible to be again “appointed†and not “reappointed†according to the provisions of the constitution.
The constitution provides that a person appointed to the office of IGG has to be approved by Parliament and that is that. It does not speak of reappointment. Mwondha was considered by the appointing authority unable to perform her duties due to the circumstances surrounding the appointment including a petition to the constitutional court. As a result the President appointed an acting IGG pending the outcome of the petition.
Article 257(7) provides that “Where power is vested by this constitution in any person or authority to appoint any person to act or perform the functions of any office if the holder is unable to perform those functions, no such appointment shall be called in question on the ground that the holder of the office was able to perform those functions.â€
Mwondha has called in question the President’s power to appoint an acting IGG by going back to the office uninvited and that is an exercise in futility.
Mwondha’s action is allegedly justified by a claim that she is in possession of an instrument reappointing her as IGG which is signed by the President.
If this is true, the power was exercised prematurely before parliament approved the appointment and as we have stated there is no power of “reappointment†which is alluded to by Mwondha’s supporters.
Article 99(1) provides that “The executive power of Uganda is vested in the President and shall be exercised in accordance with this constitution and the laws of Uganda.â€
An instrument appointing an IGG signed without approval of parliament is a nullity and as every lawyer knows, no right can accrue from a null document. The upshot of all this is that Mwondha is not the Inspector General of Government as from February 23, 2009 however one may try to juggle the law.
The provisions of the constitution on the matter are clear, succinct and imperative. The procedure for one to become an IGG involves nomination of his or her name by the President, approval of the nomination by parliament followed by appointment by the President.
In the absence of any of those three steps one cannot be an IGG unless we were to throw the rule of law to the wind. Justice Mwondha should only be judged according to the law and her job performance. To do that will strengthen the rule of law.
The writer is a lawyer
ON June 18, Elly Karuhanga contributed to the ongoing IGG saga. His analysis was very enlightening and will go a long way in helping clarify this problem.
Although Karuhanga appears to be an admirer of Justice Faith Mwondha’s work as IGG, he was able to rise above personal considerations and rightly advised that the underlying issue in the standoff is whether this country is going to be governed according to the rule of law.
The rule of law concept stipulates that all persons and governments are subject to law and that government work must be conducted within the framework of recognised rules. Unfortunately, the tone of public debate over the IGG issue ever since it unfolded has reflected the arbitrariness which has come to characterise our society.
It is often argued that African societies have always been governed by the arbitrary rule of subsistence and that feudal overlordship colonialism introduced the rule of law into our governance through the subjection of native customs and laws to the test of good conscience and equity.
As post-colonial African states, including Uganda, continued to slide to one-party states in the 60s and after, the world watched as the rule of law became eroded leading to arbitrariness in our public affairs. A whole generation has grown up in militarised societies characterised by ignorance or neglect of the rule of law and apathy toward its operation in Africa.
In the absence of an appreciation of the rules which should govern our interactions all too often public debate is reduced to the level of personalities. This has been exhibited in the debate over the IGG issue with supporters of Mwondha claiming that it was corrupt or wicked people trying to do her in.
This trend is in stark contrast with the experience in western countries where the supremacy of the law has been fully established over the years.
As an example, by the 17th century, the English parliament had established the supremacy of its laws as against the personal whims of those who occupied public office although there was no written constitution.
However, this idea of parliamentary supremacy did not find favour with the American revolutionaries of the 18th century who argued that there must be a fixed constitution which was antecedent to government and that laws must be part of such a constitution for if this was not so the constitution would not be able to limit government. The result of this debate was the written constitution of the United States which was adopted in 1784 which became the supreme law of the land. Like the constitution of the United States, our constitution is supreme over any individual and authority—article 2(1). This means constitutional provisions apply to everybody without exception including article 113 (3) which provides that the Attorney General shall be the principal legal officer of Government whose functions among others is “to give legal advice and legal services to the government†and according to the civil service standing orders the advice given by the Attorney General to the government is final.
This means when the Attorney General gave advice to government that Mwondha had to be approved by parliament before she could serve a second term as IGG he could not be challenged, not even in a court of law because the advice was not given to an individual. The Attorney General’s stand is augmented by article 253(1) of the constitution which provides that “Where any person has vacated an office established by this constitution, that person may, if qualified, again be appointed or elected to hold that office in accordance with the provisions of this constitution.†Mwondha automatically vacated office the minute her term of four years expired on February 23, 2009. However she is eligible to be again “appointed†and not “reappointed†according to the provisions of the constitution.
The constitution provides that a person appointed to the office of IGG has to be approved by Parliament and that is that. It does not speak of reappointment. Mwondha was considered by the appointing authority unable to perform her duties due to the circumstances surrounding the appointment including a petition to the constitutional court. As a result the President appointed an acting IGG pending the outcome of the petition.
Article 257(7) provides that “Where power is vested by this constitution in any person or authority to appoint any person to act or perform the functions of any office if the holder is unable to perform those functions, no such appointment shall be called in question on the ground that the holder of the office was able to perform those functions.â€
Mwondha has called in question the President’s power to appoint an acting IGG by going back to the office uninvited and that is an exercise in futility.
Mwondha’s action is allegedly justified by a claim that she is in possession of an instrument reappointing her as IGG which is signed by the President.
If this is true, the power was exercised prematurely before parliament approved the appointment and as we have stated there is no power of “reappointment†which is alluded to by Mwondha’s supporters.
Article 99(1) provides that “The executive power of Uganda is vested in the President and shall be exercised in accordance with this constitution and the laws of Uganda.â€
An instrument appointing an IGG signed without approval of parliament is a nullity and as every lawyer knows, no right can accrue from a null document. The upshot of all this is that Mwondha is not the Inspector General of Government as from February 23, 2009 however one may try to juggle the law.
The provisions of the constitution on the matter are clear, succinct and imperative. The procedure for one to become an IGG involves nomination of his or her name by the President, approval of the nomination by parliament followed by appointment by the President.
In the absence of any of those three steps one cannot be an IGG unless we were to throw the rule of law to the wind. Justice Mwondha should only be judged according to the law and her job performance. To do that will strengthen the rule of law.
The writer is a lawyer