The reported impasse between the inspector general of government and the governor Bank of Uganda is, in my view, a situation that can hopefully end in the growth and improvement of our constitutional democracy.
Both officers, whose respective institutions are creations of the Constitution, are, as they ought to be doing, jealously defending their turf. However, in this instance, and in spite of the boisterous and vigorous positions taken by each of them, they cannot both be right.
In the development of our constitutional jurisprudence, one of the principal tenets expounded by our highest courts has been the need to read the Constitution as a whole, to peruse all the provisions thereof with a view to giving coherent meaning and life to them and not seek to set one provision against another. t is only in this way that understanding and meaning can be given and the intention of the framers of the Constitution arrived at and applied. In the context of the above reported impasse, therefore, it is important to read and understand the following provisions of the Constitution together;
“226. The jurisdiction of the Inspectorate of Government shall cover officers or leaders whether employed in the public service or not, and also such institutions, organisations or enterprises as Parliament may prescribe by law.”
The use of the words “and also” creates two distinct subjects to the jurisdiction of the IGG; (a) officers or leaders whether employed in the public service or not and, separately, (b) institutions, organisations or enterprises as Parliament may prescribe by law.
Consequently, all officers or leaders in Uganda whether employed in the public service or not are, by this Article, subject to the jurisdiction of the IGG.
Chapter Two of the Constitution is about “The Republic”. Article 8A (1) thereof states;
“Uganda shall be governed based on principles of national interest and common good enshrined in the national objectives and directive principles of state policy.”
National Objectives and Directive Principles of State Policy No. 1 states as follows;
“The following objectives and principles shall guide all organs and agencies of the state all citizens, organisations and other bodies and persons applying or interpreting the Constitution or any other law and in taking and implementing any policy decisions for the establishment and promotion of a just, free and democratic society.”
Policy No XXVI provides as follows;
i. All public offices shall be held in trust for the people.
ii. All persons placed in positions of leadership and responsibility shall, in their work, be answerable to the people.
iii. All lawful measures shall be taken to expose, combat and eradicate corruption and abuse or misuse of power by those holding political or public offices.
Article 161 (4) of the Constitution is pertinent in this matter. It provides in relation to Bank of Uganda;
“The office of governor and deputy governor shall each be a public office…..
Next, we come to Chapter Four of the Constitution which deals with Protection and Promotion of Fundamental and Other Human Rights and Freedoms, otherwise known as “the Bill of Rights, universally applicable in the entire free world. Article 20 states;
1) Fundamental rights and freedoms of the individual are inherent and not granted by the State.
2) The rights and freedoms of the individual and groups enshrined in this Chapter shall be respected, upheld and promoted by all organs and agencies of government and by all persons. Article 42, also in the Bill of Rights, states;
“Any person appearing before any administrative official or body has a right to be treated justly and fairly and shall have a right to apply to a court of law in respect of any administrative decision taken against him or her.”
Whilst Article 50, also in the Bill of Rights provides that;
1) Any person who claims that a fundamental or other right or freedom guaranteed under this Constitution has been infringed or threatened, is entitled to apply to a competent court for redress which may include compensation.
2) Any person or organisation may bring a action against the violation of another person’s or group’s human rights.”
It is important to note that in none of the above provisions of the Constitution is there any condition set out for their observance and compliance. They are not made “Subject to any other provisions of this Constitution” as are some others. One such other provision is Article 162 (2) which states;
“In performing its functions, the Bank of Uganda shall conform to this Constitution but shall not be subject to the direction or control of any person or authority.”
This is the sub-article that is at the heart of the impasse between the IGG and the governor, Bank of Uganda (BoU).
The IGG says: ‘I have received complaints from individual employees of BoU who claim their rights and freedoms as such employees have been violated and it is my duty to investigate and come to a decision on the complaints’. BoU responds ‘we are not subject to the direction or control of any person or authority so you cannot investigate us’.
Article 162 (2) is clear. The BoU is under constitutional obligation to “conform to this Constitution.”
That means it must conform to and comply with the Articles referred to above, among others, and in particular Article 20 (2) which commands that “The rights and freedoms of the individual and groups enshrined in this Chapter shall be respected, upheld and promoted by all organs and agencies of Government and by all persons”.
However, the same Article 162(2) gives a window of immunity. It states that “in performing its functions, the Bank of Uganda…..shall not be subject to the direction or control of any person or authority.” What are those “functions”?
The questions that arise then are these: do the “functions” given immunity under Article 162 (2) include internal administrative activities not directly involved in the stability and regulation of the currency system or the banking and credit system?
Did the Constitution intend to give the BoU a blanket immunity over all its activities no matter how remote they may be from the functions set out in 162 (2)?
If I have a tender to supply stationery to BoU and they refuse to pay me though I performed, am I barred from claiming because BoU is not subject to the direction or control of any person or authority, including a Court of law adjudicating a sale of goods dispute between a trader and BoU?
In my humble opinion, that cannot have been the intent of Article 162. If any person or authority were to attempt to give direction or control to the BoU in respect of any function set out in Article 162 (1) then, certainly, BoU would be entitled, as a matter of law, to ignore such direction or control due to that constitutional provision designed to protect and preserve confidence in the economy.
However, in respect of any other activity it would be a question of fact whether such activity is actually so interwoven with the functions under 162 (1) as to be not subject to direction or control.
It would be a question of fact requiring investigation and decision by the investigator/adjudicator if canvassed as a defence by BoU.
A recent example may suffice to elucidate the foregoing. Article 128 of the Constitution states;
1) In the exercise of judicial power, the courts shall be independent and shall not be subject to the control or direction of any person or authority.
2) No person or authority shall interfere with the courts or judicial officers in the exercise of their judicial functions….
3) ………
4) A person exercising judicial power shall not be liable to any action or suit for any act or omission by the person in the exercise of judicial power.
While conducting a criminal session a Judge of the High Court was accused of not remitting allowances for that session to her support staff. She was investigated and ordered to remedy the situation. No attempt was made to raise “judicial immunity”.
Her immunity was clearly only in respect of her “exercise of judicial power”. Any impropriety or impunity outside that exercise was eligible for investigation and appropriate action.
She was directed to refund the concerned support staff. In order to encourage compliance with the Rule of Law and observance with the Bill of Rights this interpretation ought to and should equally apply to Article 162.
In this regard, Article 161 of the Constitution is, again, most significant. sub-article (5) provide as follows;
“The governor, the deputy governor or any other member of the board may be removed from office by the President only for-
a) Inability to perform the functions of his or her office arising from infirmity of body or mind; b) Misbehaviour or misconduct; or c) Incompetence.”
The Constitution does not state how an investigation to establish the grounds for removal of a governor or deputy governor would be carried out but since they are specifically stated to be public officers under Sub-Article (4), then the provisions of Articles 225 and 226 of the Constitution would apply and the IGG would have the authority to exercise her jurisdiction over them to investigate accordingly.
Suffice to say, however, that if the governor of the Bank of Uganda can be subject to investigations that may lead to his removal for misbehaviour or misconduct or incompetence, then it is difficult to appreciate why the bank itself may not be investigated on allegations that do not directly impinge on its functions as set out in Article 162 (1).
In any event there is nothing in Article 162 to prohibit those functions listed therein from being investigated. The caveat is that any purported direction or control emanating from such investigations or other sources may be lawfully ignored by BoU since it is, by constitutional command, not subject to the direction or control of any person or authority in respect to performing its functions.
In the reported impasse between the IGG and the BoU, the IGG cannot certainly issue directions or control in respect of the functions set out in Article 162 (1).
She, however, has, to my mind and based on the above articles, the constitutional authority to investigate anything else within her remit including alleged impunity between employer and employee in a public institution and to act upon any complaints accordingly.
It is a silent but eloquent principle of law that where there is a wrong, there ought to be a remedy. Where the wrong is by the complainant the remedy is dismissal of the complaint with, sometimes, costs.
Where the wrong is by the other party to the complaint the remedy, at the very least, may be damages. Otherwise the Law would properly be called “an ass.”
In conclusion, I would request that the two protagonists remind themselves that they work for the same master, the Constitution and the people of Uganda. It does not bode well for us, the people, to see our respected champions flexing with each other, especially in public. Get together, please, share the issues and find solutions.