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Are ministers in office illegally?

Former Lands minister Daudi Migereko¡¯s official car parked outside his office in Kampala yesterday. Photo by Stephen Otage

Thursday, 26th May 2016

The continued stay in office by ministers, three weeks after President Museveni dissolved Cabinet, has raised questions about the legality of their actions and whether such decisions would be legally binding.
President Museveni on May 4, hosted the ministers to a formal farewell luncheon at State House Entebbe and described the achievements of the outgoing Cabinet as "tremendous¡± and one, which, according to him, "almost took Uganda to a middle income status¡±.

Whereas Mr Freddie Ruhindi, the outgoing Attorney General, said the President broke no law by keeping ministers in office until they are re-appointed or their replacements are appointed, other lawyers have raised the red flag.

"Whatever is going to these individuals (ministers) in form of salaries, allowances and protection is robbery because they long ceased to be ministers,¡± Mr Medard Lubega Sseggona, the deputy shadow attorney general in the last Parliament, said.

He added: "I hope none of those individuals is making decisions purporting to be a minister because that would have very serious implications.¡±

The Constitution is silent on how the transitional period is supposed to be handled, particularly the bit regarding the status of ministers after an incumbent president has won re-election, and has been sworn in, but is yet to name a new cabinet.

Some of the ministers have continued to execute official work as if nothing has changed.
For instance, former Foreign Affairs minister Sam Kutesa yesterday, and in his official capacity, presided over the Africa Day celebrations at Vienna College in Namugongo, Wakiso District.

His former junior Oryem-Okello, a day earlier addressed a press conference at the ministry headquarters in Kampala, putting the DR Congo government on notice that Uganda could invoke rights of self-protection if cross-border incursions by Congolese forces do not stop.

This followed the weekend killing of four Ugandan policemen allegedly by the DR Congo army.

Whereas some ministers have left office, others have not. This newspaper understands that many attended a Cabinet meeting at State House Entebbe yesterday.
This state of affairs has opened the way for varying interpretations.

Uganda Law Society president Francis Gimara said for anyone to continue to work as a minister after Museveni swore in for a fresh presidential tenure requires them to have been "appointed afresh with the approval of Parliament.¡±

"Whoever is doing work now is not working as Cabinet minister but they are undertaking delegated executive functions by the President,¡± said Mr Gimara, adding: "This is though strange because the practice normally in many Commonwealth jurisdictions is that in such situations it is the technocrats who hold fort as a new cabinet is awaited.¡±

Mandated
Article 99 of the Constitution vests all Executive authority in the President and the ministers, in the statecraft, exercise a delegated function for and on behalf of the President.

"The President, as the appointing authority, is not the final authority; his appointments are supposed to be subjected to parliamentary approval before they take effect,¡± Mr Sseggona said.
The vetting of ministers by Parliament, he said, must be repeated at the beginning of every term even for those individuals who get re-appointed ministers.

Mr Peter Nyombi, who was the Attorney General between 2011 and 2015, opens up even more controversy. He says it is not clear whether the President¡¯s term ends when a new one is sworn in on May 12, or it extends until May 31.

In any case, Mr Nyombi says, the ministers should stay in office until a new team is appointed "in order to ensure a smooth handover¡±. 
Outgoing Attorney General Ruhindi said he advised the President to allow the ministers to continue in office until a new team is named because he was guided by a precedent set in 2011 when the then Attorney General, Dr Khiddu Makubuya, issued similar counsel.

Source:http://www.monitor.co.ug/News/National/Are-ministers-in-office-illegally/-/688334/3218966/-/oco6hxz/-/index.html