From the 1995 constitutional cocktail

By Joseph Bossa

State House invitations to NRM caucus show why Museveni should be prime minister and Mbabazi the president

It has become common practice that whenever there is a crucial vote before Parliament, the most recent one being the passing of an amended budget and more lately the one instituting an inquiry into oil exploration contracts, the President invites members of Parliament of the ruling Party and lobbies them directly to support his stance. Political commenters have cried foul; that the president, who is head of the executive branch of government, is interfering with the legislative branch, which should be separate and independent according to doctrine of separation of powers.

The problem is probably not so much with one branch interfering with another as to the way the doctrine of separation of powers was incorporated and applied in the 1995 constitution.

Within the English speaking world we have two models-the American and the British models. With the American model the separation of powers is complete: the executive, the legislature and the judiciary are separate institutions manned by different people. The president of the USA, as the head of state and head of the executive, and his ministers do not sit in Congress. Indeed if a seating member of Congress is appointed minister he or she resigns the seat. The doctrine was so strictly observed that up to the 16th president, the President never stepped in Congress and if he had a communication to make as in the state of the union his statement would be read in Congress by a clerk. The President cannot be removed by congress except through impeachment which takes the form of a criminal trial.

In Britain the doctrine is applied differently. The Prime Minister is the head of government but not the head of state. He is an elected Member of Parliament and so are his ministers. Parliament cannot remove a Prime Minister separately but usually does so by removing the entire government through a vote of no confidence.

Therefore, whilst in America there is separation of powers between the executive (the President and his ministers) and the legislature, in Britain there is fusion of powers between the Prime Minister, Cabinet and Parliament.

What do we have in Uganda? The framers of the 1995 constitution made a cocktail by borrowing from both the American application and the British practice of the doctrine.

Like America, the Ugandan President is the executive head of state elected by universal suffrage. Neither sits in Parliament (the legislative). But unlike the USA, the Ugandan President’s ministers including his vice President are part of the legislature as well. The Ugandan Vice President is appointed by the President like the rest of the ministers and is equally subject to vetting by Parliament. The American Vice President is elected (as a running mate) together with the president as a team. The only non-elected vice President and President in living memory was Gerald Ford who was appointed Vice President after Agnew had been forced to resign and went on to become President when Richard Nixon who had appointed him himself resigned.

Comparison with Britain yields interesting insights. Whereas the President of Uganda is an elected executive head of state, the British Queen is a non-elected, non-executive head of state. She is a ceremonial head of state born to be so. The chief executive in Britain is the Prime Minister appointed as a matter of course by the Queen, his real appointment being derived from the fact that he is the head of the political party with a majority of members in Parliament and is himself an MP. Uganda’s Prime Minister is appointed by the president like the rest of ministers. He need not even be an elected MP. He can be fired like any other minister by the President. Indeed when a cabinet reshuffle is pending he and the vice President also wait with bated breath. The British Prime Minister is elected by his Party and can be removed by his Party or by Parliament as a whole while his term still runs.

However, we have a curious situation in Uganda where both the Vice President and the Prime Minister are members of Parliament but the latter is the head of government business in the House. This gives him an edge over the Vice President who is constitutionally his boss. Beyond that the Prime Minister has no influence over fellow ministers. He does not appoint them, reshuffle them or fire them. Nor do they elect him. There is nothing prime about Uganda’s prime minister. A non-executive Prime Minister should be inconceivable.

The President of Uganda being the chief executive and the head of his party (in case of NRM) inevitably has keen interest in the goings on in Parliament. The question is whether he should not work through his prime minister to achieve his ends. Is it a commentary on the prime minister that the President sometimes deems it necessary to deal directly with the MPs? It is the observation of this writer that the present President, Yoweri Museveni, is by temperament a hands-on person who would rather be Prime Minister on the British, Australian and Indian model. The present Prime Minister, Amama Mbabazi, is aloof by temperament and would rather be a non-executive President. The two could swap posts. Why don’t they have a chat with Vladimir Putin and Dmitry Medvedev of Russia?

Maybe we should go back to a real Prime Minister but with a ceremonial President elected by Parliament as was the case soon after independence and as prevails in Israel. We should do away with the present imperial presidency and instead have a prime minister who is indeed a first among equals.

In meantime, the Vice President should be given some real work by being made leader of government business in Parliament rather than being “caucused” like the rest of NRM MPs and suffer what one American vice president described as the worst job ever contrived by man.

Joseph Bossa is the Vice President of the Uganda Peoples Congress