KAMPALA INTERNATIONAL UNIVERSITY

CONSTITUTIONAL LAW NOTES

LECTURER: ANNETTE KARUNGI

JANUARY 2024

CLASSIFICATION OF CONSTITUTIONS

CONTENT AND CLASSIFICATION OF CONSTITUTIONS

Having said that the shape of any constitution depends on the History,
environment and character of the community it is intended to govern, it
necessary follows that there are different kinds of constitutions in the world
since all states differ in many respects. One kind of constitution which suits
one country may be unsuitable for another.

However, three factors may be said to be paramount in any reasonable

constitution namely, democracy, the rights of the individual and of a good just
and effective Government of the people. In the last analysis, the constitution is
judged according to the kind of Government it allows to operate in society
because government is the principle agent the state.

WRITTEN CONSTITUTION
A Constitution is said to be written when the most important constitutional
laws are specifically enacted, that is, all legal rules regulating the allocation of
powers, functions and structures are contained in one or more documents. This
arrangement is commonly approved by a referendum of the electorate.
In such a Constitution, the laws constituting the basis of the state are specified
in one formal document or a series of formal documents which are binding on
the courts and all persons concerned.

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Since it is not practicable for a written constitution to contain more than a
selection of constitutional laws, it is invariably supplemented as prescribed in
the constitution, by amendments passed in the prescribed manner, by organic
laws and other legislation passed in the ordinary way from time to fill in gaps
usually by judicial decisions interpreting the written documents and by
customs and conventions regulating the working of the machinery of
government.
Almost all constitutions in the world happen to be written constitutions.

UNWRITTTEN CONSTITUTION
A Constitution is said to unwritten where some of the fundamental laws are to
be ascertained from sources other than the written document. In such
circumstances, there only exists a system of laws, customs and conventions
which define the composition and powers of organs o f the state and regulate
the relations of the various state organs to one another and to the private
citizen.
An example is the British Constitution which is described as “Unwritten”
because it is not embodied wholly or mainly in any enactment or formally
related series of enactments.
UNITARY AND FEDERAL CONSTITUTIONS

UNITARY CONSTITUTION

A Unitary Constitution is characterised by a single constitution which is the

only document referred to in the governance of the country and it gives powers
to different organs, individuals and institutions.

All power is concentrated in the central government. All powers and functions
of the local government are determined by the central government and its
organs like the executive and legislature. The Judiciary may at any time limit

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those local government powers because they are entrenched by the government
of the day.

Unitary Constitution tend to be flexible in terms of amendment, that is, there is

no requirement to consult any regional assembly or council to carryout the
amendment. It will usually have a single parliament which adopts a uni-
cameral ministry at the national level.

REASONS FOR RECOMMENDING FOR A UNITARY

CONSTITUTION
Unitary systems of government bring about equal development or balance
throughout the country. It is one government which plans and is conscious of
the needs of the different regions. In federal systems, some areas may lark
behind because of the uneven distribution of resources.

Unitary systems create national unity because it promotes the idea of one
nation and symbol hence people begin to think nationally in contrast to federal
where people think more about their states.

Its argued that federal systems are expensive to maintain, for example, the
privileges that are given to various leaders therefore a unitary system reduces
the cost burden on a poor country.

It is also argued that a unitary system leads to maximum exploitation of all

national resources both human and material. There is free flow of humans
from one state to another in contrast with federal which has a restriction
leading to a deficit in some areas. It also leads to uniformity in decision
making, that is, decisions are made and apply to the whole country
discrimination or favour.

FEDERAL CONSTITUTIONS

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The general characteristic of a federal Constitution is that powers are
distributed between the central government and local authorities by the
constitution itself and any violation can lead to a constitutional crisis.

In a federal system of government, there will be a national constitution of the

sovereign state, and each state will have its constitution, in other words,
everybody will at all times be subject to two constitutions but in all these cases,
the states constitution should not contradict the national constitution.

A Constitution can provide for a list of powers or functions which are to be

enjoyed or exercised by the central government. This implies that the rest of
the powers not mentioned in this list are within the province of the local
authority, for example, powers of security, defence and foreign affairs usually
belong to the central government.

Each federal state has a fully fledged government, ministries, a judicial body,
and members of parliament. Furthermore, the power to raise taxes may be
shared between the national government and the federal government. Federal
tax will be clearly stated in the constitution and so will state taxes.

Federal constitutions usually require elaborate procedures for amendment and

there is usually a clause which provides that any amendment in the constitution
which affects the distribution of power between the central government and the
state should seek the consent from the people concerned.

Federal constitutions usually provide bi-cameral legislations, that is, composed

of two distinct bodies for example the United States of America which has the
congress and the house of senate. The upper chamber is basically to protect
the federal structure so that without its consent, the constitution cannot be
amended.

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REPUBLIC AND MONARCHIES
A Constitution may be classified according to the method by which the head of
state is elected.
It may be a monarchical or republican constitution.
A Constitution is said to be monarchical where a head of state is not elected
but becomes head of state by virtue of his birth. In such constitution the head
of state usually succeeds either his father or somebody within the limited royal
line.

Monarchical constitution may vary from one country to another, both in form
and in the way powers are granted to the monarchy. In that respect, a
monarchy may be constitutional or absolute.

A Constitutional monarchy is that one which rules according to an established

constitution and it is written down. Its role and powers are set out in the
constitution which usually limits the power that may be enjoyed or exercised
by the monarchy. In such monarchs, the head of state, the king or queen does
not have executive powers; the powers of government are usually left to be
exercised by elected leaders, for example the British monarchy.

A monarch may also be absolute, that is, one who rules without reference to
democratic institutions which do not exist. He exercises all powers whether
they are executive, legislative or judicial.

N.B
Most monarchs are constitutional.

POSITIVE POINTS OF A MONARCH

It is an embodiment of a nation and is usually a unifying factor as far as both
domestic and international cares are concerned. A monarch by its very nature

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usually avoids first hand politics and therefore becomes acceptable to the
majority of the people.

A monarch can be used as a tool for mobilizing all resources from the country
for development purposes because its political views, opinions and
recommendations are not treated with suspicion.

They tend to preserve culture and cultural institutions which is their main role
so they perpetuate the good points in people’s way of living.
A monarch tends to avoid conflicts over leadership because no body aspires to
rule unless he has been ordained by God. Sometimes, it promotes good
training for purposes of leadership hence the creation of experience leaders.

NEGATIVE ASPECTS
They tend to be undemocratic institutions, people are not given a chance to
either reject or accept a particular leader and he rules until he dies.

Some monarchs tend to be arbitrary and dictatorial where there are no strong
democratic institutions to check them, so if it accumulates a lot of power, it is
likely to be undemocratic.

Monarchs tend to be parasitic in that they live on the sweat of the population
without a corresponding contribution to society.
It negates the idea of equality of persons, that is, some people get privileges
and others are denied opportunities by virtue of their birth. Allocation of
resources may be according to class.

Because of the nature of the monarch, where loyalty calls for obedience, this
tends to result into lack of accountability and transparency.

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REPUBLIC CONSTITUTIOIN
A Republic or Republican constitution or government is where the leaders are
elected by the people, that is, a system which enables people to participate in
determining which person will be their leader and they will be able to change
that person.

It provides for equality of all persons and lays no emphasis on special

privileges. Titles and traditional rights.
All persons are deemed to be equal and subject to the constitutional
requirements. All persons are eligible to hold public office at all levels and
there is no discrimination on grounds of birth.

PARLIAMENT AND PRESIDENT

These are derived from the concept of separation of powers as postulated by
the philosopher Montesque in his book, “The Spirit of the Laws”. The concept
of separation of powers basically meant the following;

Each organ of the state should be composed and constituted by different

people, that is, no one individual should be a member of two or three organs of
the state. In effect, there should be separation in terms of composition.

Each organ of the state must exercise or perform a distinct function in

government. In effect no one government organ should be seen to perform or
exercise functions of other organs.

Each of the organs of the state should be independent of the others. In effect
there should be an absence of control or direct interference by one organ in the
functioning of the other organs.
Most modern states and constitutions do not provide for a clear-cut and pure
application of the principle of separation of powers. The clauses that the
constitution approximates Montesque’s view of separation of powers is

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probably the American constitution. The United States’ constitution clearly
separates the composition of the three organs of government given that
members of the cabinet are drawn from persons who do not belong to congress
or senate.

Over the years, it has been argued that rather than using the term separation
powers, preference should be given to viewing the relationship between the
organs of government as one of checks and balances.
The concept of checks and balances recognizes that although there are three
organs of government, these organs must exist in a situation of mutual
independence and interdependence and that the exercise of powers and
functions of the various organs must be subject to an operate within a system
of checks and scrutiny.

The argument for checks and balances is that one organ should be able to
scrutinise and oversee the exercise of functions and powers of another organ in
order that the other organ does not exceed powers and functions granted to it
under the constitution. In effect the concept of checks and balances is intended
to prevent arbitrary and irresponsible exercise of powers by any of the three
organs.

The 1995 Constitution of the Republic of Uganda attempts to draw on both the
principles of separation of powers and the principle of checks and balances.
The constitution recognizes in separate chapters and provisions the organs of
the Legislature, Executive and Judiciary under Articles 79, 98 and 128
respectively.

Although legislative power is foremost given to the Legislature, there are

instances in which members of the executive are given legislative powers
under Acts of parliament to make law by way of statutory instruments.

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Furthermore, Local governments are also granted power under particular Acts
of parliament to make law by way of Regulations and bye-laws.
Such delegated on every matter and in respect of every single part of the
country.

The Executive powers are primarily exercised by the President and a cabinet of
ministries. However the exercise of these powers is subject to a system of
scrutiny by legislature.
Examples include:
- Parliamentary approval of presidential appointments.
- Parliamentary oversight and scrutiny of budgets and performance of
Ministers.
- Parliamentary censure of ministers.

In terms of membership and composition of organs of government, the concept

of separation of powers is inapplicable in as far as the Legislature and the
Executive is concerned give that members of parliament are eligble to
appointment as Ministers and therefore members of the executive. As a
consequence, cabinet ministers seating during the sessions of parliament have a
right to vote on the passage of laws. On the other hand, the constitution
doesnot appoint a person who is not a member of parliament as a minister and
that person also attends sessions of parliament but without a right to vote.

The danger passed by having members of parliament as cabinet ministers is

that the parliament with a significant portion of it as cabinet ministers is less
effective as a check on the Executive and tha tin most cases it acts as a rubber-
stamp to decisions of the Executive.

SUPREMACY OF PARLIAMENT
Supremacy of parliament means the unlimited legislative component of
parliament, that is, parliament has power to make law without restriction.

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The parliament has the power to direct and influence all political development
in the country or within the state.
Sovereignty of parliament is usually ascertained with the following:

- The sovereignty of parliament usually exists under a frame work which

allows separation of powers. This will enable separation of functions and
also ensure that no organ of government controls the other so in
exercising the legislative function, constitutions usually provide that
parliament is supreme.
- The relationship between the legislature and Executive, supremacy exists
in situations where parliament has power to act as a watch dog over
executive functions or where the Executive is responsible to the
legislature for its legislative activities. Parliament can question the
activities of the Executive or it may censure ministers.
- Under Article 107 of the Constitution, parliament has power to remove
the president from his office on behalf of the people of Uganda.
- The issue of collective responsibility; in the exercise of its executive
functions, the cabinet may from time to time be called upon to explain the
executive policy, procedures or actions. This may be done during
question time or when parliament is debating executive programmes by
way of communication from the leader of government business.
- The allocations of executive functions. Constitutions which provide for a
supreme parliament usually reserve all legislative powers and functions
for the Legislature. (Article 77).
The power to make law is geographical and estends throughout Uganda
from boarder to boarder.
Legislative functions also cover all individuals and there is no restriction
on the categories of individuals.

PRIVILEGES OF PARLIAMENT

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There are established privileges and immunities which have been recognized
and are applicable over the ages in as far as parliament is concerned.
1. Rules of procedure. Article 94 of the Constitution provides that
parliament may regulate its own procedure that is, there is not law made
by the Constitution or statute which regulates how parliament may
conduct itself, decisions are made by consensus.
2. Remuneration. Article 85 of the Constitution provides that a member of
parliament shall be paid such emoluments and such gratuity and shall be
provided with such facilities as may be determined by parliament.
3. Parliament enjoys certain immunities which are intended for it to carryout
its duties. These immunities exist in order to promote freedom of speech
which is regarded as a pre-requisite of free representation of people.

Aspects of Immunity
1. Immune from arrest within the premises of parliament while its in
session. This gives importance to the institution itself.
2. In criminal law, members of parliament are immune from prosecution
from any matter that arises in their speech during their session.
3. In civil cases, in the law of defamation, no case of defamation may be
founded on the basis of words spoken in the course of parliamentary
proceedings.
4. Similarly, proceedings of parliament are privileged, that is, they cannot be
produced as evidence to support any criminal or civil case.
5. Discipline: It has the privilege of disciplining its own members. The
disciplinary procedures may be contained in the rules of procedure made
by parliament itself.

PRESIDENTIAL
The president falls under the Executive arm of government.

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Article 99 of the Constitution provides that the Executive authority of Uganda
is vested in the president and shall be executive in accordance with the
Constitution and the law of Uganda.

Article 98 of the Constitution establishes the office of the president of Uganda

who shall be the head of the state, head of government and commander-in-
chief of the Uganda Peoples Defence Forces and the fountain of honour.

Executive authority normally means powers to run government of which its

head is always head of government with power to constitute who the members
of government are whenever he/she wants.

Functions of the Executive

1. To initiate policies for management and development of the country, for
example environmental, Economic and education policies.
2. To ensure implementation of policies once formulated this explains why
ministers are appointed and made in charge of government institutions
rooted in various ministries.
3. To maintain law and order: Article 99 (2) of the Constitution states that
the president shall execute and maintain this constitution and all laws
made under the laws of Uganda in order to maintain law and order
throughout the country.
4. Subsidiary legislation: These are laws which are made by the minister in
exercise of powers vested in him by parliament.
5. To constitute and make appointments for relevant offices to the public
service, for example, ambassadors, permanent secretaries.

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COMPOSITION OF THE EXECUTIVE
The president under Article 99 of the Constitution enjoys all executive powers.
However, the constitution establishes other constitutional offices which are for
the purpose of assisting the president perform his functions. These are
regarded as part and parcel of the Executive.

Article 108 of the Constitution establishes the office of the vice president and
his/her role is to deputize the president of Uganda.
Article 111 of the Constitution provides that there shall be a cabinet which
shall consist of the president, the vice president and such other ministers as the
president may prescribe to be reasonably necessary in the efficient running of
the state.

Article 111(2) of the Constitution provides for the functions of the cabinet
which shall be to determine, formulate and implement the policy of
government.
Article 114 of the constitution provides for the appointment of other ministers
to assist cabinet ministers in the performance of their functions.

Other offices include,

The office of the Attorney General to advise the president on all legal matters.
The office of the Directorate of Public Prosecutions which is to assist in the
prosecution of persons who have committed crimes and to maintain law
andorder (Article 120).
Other departments include.
The police force, the office of the Inspector General of Government established
by government.

ELECTION OF THE PRESIDENT

For a person to be elected a president, he/she must be a Ugandan by birth and
not by registration or nationalization. The rationale is that a person must have

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sufficient allegiance to the country so tht they are patriotic enough to plan for
the country.

A person must be between 35 years of age and not more than 75 years old.
He/she must have qualified to be a member of parliament under Article 102
and 80 of the constitution.
A person must also comply with the requirements of the electoral law.

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