It has become commonplace for the President of the Republic of Uganda to issue directives and orders to ministers, government agencies and officials, with the public generally believing that these orders must be strictly followed. Recently, the High Court in Nanding Christine v. Attorney General has held that presidential directives are self-enforcing and carry the force of law.
The decision has sparked controversy and raised uncertainty surrounding the legality, force, and strength of these presidential directives as it contradicts provisions of the law and earlier decisions by superior courts.
Background
The President of Uganda instructed the Ministry of Finance to raise the salaries of lawyers working within the Uganda Police Force, to align with their counterparts working with Attorney General’s chambers and the Directorate of Public Prosecutions. However, in 2022, the Ministry of Public Service reduced the salaries, citing overpayment. The affected lawyers contended that this reduction violated the presidential directive and their established salary entitlements.
The Decision
The High Court held that executive directives and orders are self-enforcing and once the government official acts, the order is then carried out.
The Court further held that the decision of the Minister of Public Service to revise/revert the salary of the applicants was in breach of the principle of legitimate expectation and thus illegal, on the basis that the presidential directive had already equated the salaries.
This ruling contradicts the Constitution and established precedents from higher courts. The upshot of the above holdings is that presidential directives or orders carry the force of law without any qualifications.
The Law
The Constitution of Uganda provides that subject to the provisions of the Constitution, only Parliament or a person or body authorised by Parliament, has the power to make laws.
Executive authority of the President is provided for in the Constitution. This executive authority can only be exercised in accordance with the Constitution and the laws of Uganda. The President has the power to make law through a statutory instrument.
The Constitution provides that a statutory instrument issued by the President “may be authenticated by the signature of a Minister and the validity of any instrument so authenticated shall not be called in question on the ground that it is not made, issued or executed by the President.”
Reconciling Positions
In Horizon Coaches v. Mbarara Municipal Council, during the pendency of the suit, the President wrote a letter to the Minister of Local Government advising the parties to find a way of resolving the dispute amicably, but attempts were unsuccessful and the dispute reached the Supreme Court. Subsequently, the applicant filed a Constitutional petition, arguing that the first respondent acted unconstitutionally by not allocating the disputed land to him, despite the Presidential directive. Importantly, the President's letter did not specifically instruct the first respondent to allocate the land to the applicant.
The Constitutional Court held that there is nothing in the Constitution that suggests that public bodies or public servants must comply with executive orders or directives. The President must exercise his executive authority in accordance with the Constitution and the laws of Uganda.
In Nakasero Market Sitting Tenants (NAMASITE) Ltd v. Nakasero Market Sitting Vendors & Traders Ltd, the Court of Appeal held that a presidential directive not anchored in legislation, has no force of law.
In Male Mabirizi v. AG, the Court was faced with a judicial review challenge against presidential directives on the Covid-19 pandemic and the lockdown that had been imposed by the Government. The contention was that no statutory instrument was made in respect of the directives rendering them illegal. A statutory instrument had however been made by the Minister of Health and the presidential directives were upheld by the Court.
However, in Namuganza Persis Princess v. Attorney General, the applicant challenged a Parliamentary ad-hoc report for referring to several presidential directives that were never availed to the committee. The Court held that the President could issue oral directives and the same had to be enforced by the addressee or concerned minister as they are self-enforcing. The Court in Nanding, followed this decision and did not consider precedents set by the Court of Appeal or the Constitutional Court.
A holistic interpretation of the law indicates that oral presidential directives alone, cannot carry the force of law. The law envisages a written instrument that is gazetted.
Conclusion
With respect, the decisions in Nanding and Namuganza Persis were decided contrary to the law and decisions of superior Courts. They do not refer to the earlier Court of Appeal and Constitutional court decisions which held that presidential directives are not self-enforcing and do not, without legislative backing, carry legal force.
The Attorney General of Uganda has lodged an appeal to the Court of Appeal of Uganda against the Court`s ruling in Nanding on grounds that the Court erred in holding that presidential directives are self-enforcing and carry the force of law. The appeal aims to examine the boundaries of presidential authority within the Ugandan legal system. Its outcome will be closely monitored by legal experts, policymakers, and the public, as it will have significant implications for the framework of rule of law in Uganda.
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