KAMPALA INTERNATIONAL UNIVERSITY

CONSTITUTIONAL LAW NOTES

LECTURER: ANNETTE KARUNGI

JANUARY 2024

LAW MAKING PROCESS

The President as Chief Executive has several powers and duties. It is not practicable for
him/her to personally attend to all the details of those powers and duties. For this reason,
he/she can transfer or delegate powers and duties.

Article 99 allows the President to exercise his/her power either directly or through
officials subordinate him/her.

For example, under the Transfer of Powers and Duties (No. 2) Order, S.I No. 200 of
1965, the powers of the President to appoint commissions of inquiry was transferred to
the responsible Minister for the time being. This principle is still binding upon the sitting
president.

SUBSIDIARY/DELEGATED LEGISLATION:

Under Article 79(1) of the Constitution, Parliament has powers to make laws on any
matter for the peace, order, development and good government of Uganda.

However, it is not possible for Parliament to enact laws with enough detail to cater for
every situation. For this reason, Parliament delegates to administrative authorities the
power to make legislation in particular cases. Such legislation is called
subsidiary/delegated legislation.

Article 70(2) provides that no person or body other than Parliament shall have power to
make provisions having the force of law in Uganda except under authority conferred by
an Act of Parliament.

The power to make subsidiary/delegated legislation is given by an Act of Parliament.

REASONS NEED FOR DELEGATION OF LEGISLATION IN UGANDA:

1. The need to deal with matters which are technical.

2. To save the time of Parliament so that it concentrates on principles and leave the
details to the relevant authority.

3. To enable the time of Parliament so that it concentrates on principle and leave the
details to the relevant authority.

4. To enable an Act to be adaptable to changing social, economic and political

conditions.

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5. It saves parliament from unnecessary costs and expenses.

6. Parliament does not have the expertise that is required for certain places of legislation
for example, issues which directly pertain a given profession like engineers, doctors,
lawyers etc. The technical details are therefore better left to the experts with the
relevant knowledge.

7. Delegated legislation allows attendance to emergencies, for instance when parliament

is in recess.

8. Local authorities will make laws that are appropriate for the local problems.

THE CHALLENGES OF DELEGATED LEGISLATION:

 Sometimes such legislations are ultra vires.

 Delegated legislation erodes the power of Parliament.
 It may be regarded as undemocratic since it may be made by a single individual who
was not voted by the people.
 Due to lack of academic qualifications, delegated may lack the requisite capacity to
legislate.
 There is minimal publicity of delegated legislation visa vis primary legislations.
 It may be difficult to enforce delegated legislation since most intended beneficiates
are illiterate or ignorant of the law.

PROCEDURE FOR SUBSIDIARY DELEGATED LEGISLATION:

S.114 of the interpretation Act states that where any Act confers on the President, a
Minister or any other authority, a power to make or a power exercisable by making
proclamations, rules regulations, by laws, statutory orders or statutory instruments, any
document by which that power is exercised =shall be known as a statutory instrument.

Therefore, in Uganda subsidiary delegated legislation is made through the making of

statutory instruments.

Under S.16 of the Interpretation Act, every statutory instrument must be published in the
Gazette.

S. 16(2) A Statutory instrument may be made to operate retrospectively to any date which
is not earlier than the commencement of the Act under which the instrument is made.

S.16 (3) No statutory instrument can make a person liable to any penalty whatsoever in
respect of any act committed before the date on which such instrument was published in
the Gazette.

When an Act gives an administrative authority to make subsidiary delegated legislation,

it may also specify procedures to be followed. We have already seen that the authority
must issue a statutory instrument to exercise the power. But there may be other steps to
be taken before during the making and after the making of the statutory instrument.

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(a) Antecedent Publicity: The authority may be required publicize the proposed
subsidiary legislation. For example, S.39 (1) of the Local Governments Act gives a
District Council powers to make laws (bye-laws).

However, under Regulation 169(1) of the Local Governments Councils Regulations

(third Schedule to the Local Governments Act), before a Bill is debated by the
Council, the draft must be published.

(b) Statutory Consultation: an Act of Parliament may require consultation before the
making of delegated legislation. For example, under S.27 of the Dairy Industry Act
1997, the minister may, after consultant on with the Diary Development Authority,
make Regulations relating to registration and licensing of milk producers etc.

(c) Subsequent Publicity: This is a requirement for delegated legislation to be published

after it is made.

S.16 of the Interpretation Act requires every statutory instrument to be published in

the Gazette.

(d) Approval: This is a requirement that a subsidiary legislation be approved by a

particular person or body. Example is a local bill passed by a District Council S.30(2)
of the Local Amendments’ Act requires that before it is signed by the Chairperson as
it must be forwarded to the Attorney General to certify that it is not inconsistent with
the Constitution or any other law.

Under S.176(2) of the Local Governments Act, the Minister may, with approval of the
Cabinet, amend, replace, alter or revoke any of the provisions to the Act.

For example S. 176 of the Local Government Act requires that any delegated legislation
made under it be laid before Parliament before it comes into force. The objective is to
make Parliament aware of the delegated legislation which has been made.

CONTROL OF DELEGATED LEGISLATION:

Judicial Review as a control measure is the exercise of a courts power to inquire and
determine the legality of an administrative act. Since delegated legislation made by
administrative authorities, it may be subject to judicial review by the courts.

Delegated legislation can therefore be subject to judicial review on several grounds e.g;

1. Procedural errors e.g. failure t comply with the statutory procedure when making the
delegated legislation.

2. Ultra vires i.e. excess of power, Delegated legislation must conform to the power
granted and not conflict with the constitution of any statute. Where the delegated
legislation exceeds the powers granted or conflicts with the constitution or a statue, it
is said to be ultra vires and shall be declared null and void.

3. Unreasonableness or uncertainty: When Parliament gives an administrative authority

power to granted and not conflict with the constitution or any statute. Where the
delegated legislation is arbitrary, ambiguous or unreasonable, the courts will declare it
void. Unreasonable and uncertainty are an extension of the ultra vires principles.
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4. Sub-delegation: The general rule is that statutory powers should not be delegated. If
parliament confers power on a particular person or body, only he or it should exercise
these powers. He or it should not sub-delegate. This principle is expressed in the
Latin maxim delegates non protest delegate.

5. However, it is possible for delegated legislation to be partially invalid. The court

should therefore declare void only those provisions which are invalid on grounds as
above.