Mr. Deus Mukalazi

 

By Deus Mukalazi

 

This week the President posted on his twitter handle firing Dorsi Akol as the Commissioner General (CG) of the Uganda Revenue Authority (URA) and replaced her with Johnson Musinguzi Rujoki. Akol confirmed her dismissal also on the CG URA’s twitter handle. The decision has  sparked yet another debate over the President’s power to effect appointments of high-ranking officials during this time when the country is fervently battling the corona virus pandemic.

It’s been argued that the 1995 constitution gives much powers to the President yet according to him a lot of it is concentrated in the legislature – he said so while opening the 20th Judges conference in January 2018.

Over the last 25 years period, various incidents have been happening regarding this contested presidential powers. The notable one regarding appointments being the appointment of Benjamin Odoki as an Acting Chief Justice after he clocked 70 years of age against the advice and reservations of the Judicial Service Commission and the provisions of the Constitution. The Constitutional Court nullified the president’s decision on grounds that it contravened Articles 133, 142, 144, 147 of the Constitution on the position of substantive Chief Justice and his or her appointment and qualifications.

The issue of presidential powers and its limits seems to have again resurrected by his recent disappointing of Akol and appointing of Musinguzi. Section 9 of the URA Act empowers the Minister of Finance to appoint a CG of the URA on recommendation of the Board of URA. This has aroused a number of issues given the manner in which this was done. First, there are those who argue that the President is by implication the Minister of Finance and so he has the powers to make the appointment. Others think this is a grey area considering the laws of delegation as I will show later. Secondly, the Minister appoints the CG on recommendation of the Board of URA. Third, for the appointment to be made there ought to have been a vacancy. In essence the former CG Akol should have either been relieved of her duties, resigned or contract expired for the appointment to be legally made.

Article 99 of the constitution vests all executive powers in the Presidency. Article 99(4) gives the President powers to exercise these executive powers directly or through officers subordinate to the President. Further, Article 113(3) says a Cabinet Minister shall have responsibility for such functions of Government as the President may, from time to time, assign to him or her.  Section 9 of the Uganda Revenue Authority Act gives powers to the Minister of Finance to appoint the CG of URA on recommendation of the Board. Further S.31 of the Interpretation Act is to the effect that were a power is conferred on a minister by any Act, it can either be exercised by the President or the Minister. Therefore, in this case the president seem to have exercised his powers as the chief executive and more so as the minister of Finance.

Reading the provisions of the law above together, some people have argued, the President, even after appointing a subsisting Minister of Finance retains the powers to exercise the powers he delegated. This, in my view, seems to go against the established principles of delegation, and could not have been the intention of the law makers. It’s a cardinal principle of delegation that once a person has delegated his power, he ceases to have the same powers to be exercised concurrently. Once the President opts to exercise the option of delegating his powers to a Minister, he can not purport to retain them. It can’t be the intention of the law makers that a law would create a situation where the Minister Kasaija now can sack the newly appointed CG.

Also, the Interpretation Act does not indicate at what point the President is supposed to exercise the powers conferred upon the minister, is it when the minister is incapacitated or active? The appointment of the CG is regulated by the URA Act and not the Constitution as S.9 of the URA Act provides. It cannot be inferred that the intention of parliament was to give the powers of appointment of CG to the President as a Finance Minister even when the appointed minister is available. The argument that he exercised his powers under 99(4) is saddled with problems and is a grey area that should be put to a litigation test.

However, assuming the President was indeed justified in assuming powers of the Minister, there are limitations. Section 9 of the URA Act requires the Minister to appoint the CG on recommendation by the Board. There seems to be no evidence of involvement of the Board in this appointment. In the case of Gerald Karuhanga v Attorney General, while nullifying the appointment of Benjamin Odoki as Acting Chief Justice, the court emphasised that where the law provides for another body to advise on the appointment by the President, the President cannot bypass this process. Should it be true that the Board wasn’t involved in this appointment, then the appointment is null and void.

Related to the above, the Act further guides that the CG can only be relieved of his or her duties by the Minister after consulting with the Board. This can be for misbehaviour, inability to perform functions of his or her office or any other sufficient cause. Doris Akol, had just served 5 months of her 5-year term which was renewed by Minister Kasaija in 2018. Her contract should have been terminated by the minister upon recommendation by the Board and the process of getting a new CG undertaken by the Board and thereafter recommends to the minister. The appointment of a CG is not the same with ministers.

The laws put in pace to guide and regulate such appointments are not merely procedural. The law makers in putting in place such guidelines are reinforcing the doctrine of checks and balances which is essential for good governance. It’s important that the President follows the law in exercise of his duties as provided for under Article 99 (2) and (3) of the constitution. His powers are not absolute.