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A few minutes to 10pm on 1st Nov. 2016 President Museveni issued directive closing Makerere University with immediate effect. He vaguely cited “powers vested in me by the Constitution of the Republic of Uganda” and Sec. 26(2) of the Universities and Other Tertiary Institutions Act 2001 as the basis of the directive. Without elaboration, he claimed that the decision was made to guarantee the “safety of persons and property”.

The next morning at 7am, amid an ominous drizzle and without prior warning, mean-looking heavily armed policemen in black outfit complete with riot helmets, bullet proof vests and machine guns surrounded all halls of residence within the university. Students, I inclusive, were ordered to vacate their rooms within 30 minutes, or else ‘maximum force’ would be used. One by one, we befuddled-ly exited our rooms and headed into the cold morning outside with some of the few belongings we managed to gather in tow.

No date was given for re-opening the university, leaving it’s over 40,000 students in indefinite suspense.

What has followed since then is a long and winding debate about the legality of the presidential directive. After considering the relevant provisions of the Constitution and the Act from which M7 claims to have derived his authority, I hope to settle that debate. Whether the closure was necessary is a debate for another day.

WHAT THE LAW SAYS:

Before I go further, it is important to know that no particular provision of a law should be read in isolation from other provisions in the same law. Instead, they must be read as a whole so as to get the true meaning of any particular provision. So whereas the President cited Sec. 26(2) of the Tertiary Institutions Act – the principle legislation that governs all universities in Uganda – he was supposed to counterbalance it with other sections in that Act so as to come to the true meaning of that particular Section.

Sec. 26(2) of the Act stipulates that the visitor shall perform an overall supervisory role over the affairs of every public university. In Sec. 2 of the Act, “Visitor” is defined to mean “the President of Uganda”. Does the supervisory role include powers to order closure of a university? I don’t think so. If this had been the intention of Parliament while passing this Act, they would have explicitly stated so. Interpreted literally, can a “visitor” order you around on when to open or close your house, where you should rent or generally how to exercise your authority over your house?

Sec. 3 lists the objectives of the Act as including “developing a system governing institutions of higher education [such as Makerere] … while respecting the autonomy of those institutions”. Thus, a university expects a reasonable level of autonomy. Any attempt by an outsider to meddle in its affairs without express approval from the university’s top administrative organ would be unlawful.

Sec. 24(2)(a) states that objectives of a public university include providing higher education, promoting research and advancement of knowledge. It should be noted that in the wake of the directive, even the university library – run by non teaching staff – has been ordered closed until the university opens. Hitherto, the library had not only been a one stop centre for all kinds of research for the general Ugandan public but also an invaluable trove of knowledge in whatever field of life.

Sec. 31(1)(a) puts the Vice Chancellor (VC) in charge of the administrative affairs of a public university while Sec. 37(2) makes the Dean of Students (DoS) responsible for students’ welfare. By dint of these provisions, it is only logical to conclude that a decision which concerns administration of the university – such as closing it – and the welfare of students – such as their stay in a hall of residence – can only be rational if it’s made in consultation with the VC and the DoS. An irrational decision is unlawful.

Sec. 40(1) provides that the University Council is the supreme organ of a public university and it’s responsible for the university’s overall administration and ensuring that its objects and functions are fulfilled. The VC is one of its members. Sec. 40(2) buttresses the Council’s supremacy by stating that it shall take all necessary decisions conducive for fulfillment of the objectives and functions of the university.

In my understanding, the implication of Sections 40(1) & 40(2) when read together with Sections 3, 24(2)(a) and 31(1)(a) of the Act is that firstly, the Council has the final say on all administrative decisions regarding the university – ESPECIALLY its closure. Secondly, Council’s approval must be gotten before making any administrative decision that has the effect of impeding the fulfillment of the university’s objectives and functions – just like the presidential directive did. Thus, a decision with implications as grave as those posed by M7’s directive that is made without Council’s approval is tantamount to usurpation of the Council’s power and is to that end unlawful.

Alternatively, since the Tertiary Institutions Act does not explicitly confer authority on the President to close a public university, he does not have any power to do so.

THE 1995 CONSTITUTION:

Being Uganda’s supreme law, the Constitution takes precedence over the Tertiary Institutions Act.

Art. 119 of the Constitution states that the Attorney General is the chief legal advisor of Government – including the President – on any subject. It is therefore only reasonable that the President should seek the AG’s legal advice before taking any action which the law does not explicitly give him powers to take.

But assuming that the President has such power, I now proceed to analyze various provisions in the Constitution to demonstrate that that power must be exercised rationally, otherwise any decision made will be rendered incurably defective.

Art. 99 of the Constitution vests the executive authority of Uganda in the President. The Article adds that a President must exercise this authority in accordance with other provisions of the Constitution. Two inferences may be made here: (1) The President is given very broad powers by the Constitution. (2) But broad as they may be, these powers are not absolute. The wording of Art. 99 is meant to promote the rule of law in the country. It ensures that the President does not exercise his authority as and however he wishes but rather in a fair, rational and transparent manner. True to this assertion, the Constitution has a number of provisions meant to guide the exercise of executive powers. It would be irrational to disregard them.

The contention that a President has no absolute power is best exemplified in the Constitution in two of the most critical situations envisaged under Articles 110 and 124.

Art. 110 provides that the President may after consulting with Cabinet and with approval of more than half of all Members of Parliament declare a state of emergency in Uganda or any part of it in which the security or the economic life is threatened. The circumstances must necessitate the taking of measures necessary for securing public safety and maintaining order. Further, that the state of emergency cannot last more than 90 days. Therefore in the case of Makerere, an indefinite closure – moreover made without getting the mandatory approval from Council –  is simply unlawful. People’s rights cannot be ‘suspended’ indefinitely just because the President has decreed so.

Art. 124 states that “The President may, with the approval of Parliament, given by resolution supported by not less than two-thirds of all the MPs, declare a state of war between Uganda and any other country. Where it is impracticable, the President may declare a state of war without the approval but shall seek it immediately after the declaration, but in any case not later than 72hrs”.

Articles 110 & 124 alone make it quite evident that the framers of the Constitution did not intend for the President’s powers to be absolute. The constitutional requirement for approval by Parliament before the President can declare a state of emergency or war in Uganda ensures that even at the most critical hour for national security and welfare of citizens, the President does not arbitrarily exercise his power ostensibly just “because the situation demands so”. Was Makerere’s situation more critical than the scenarios envisaged in Arts. 110 and 124 that it warranted M7’s arbitrary directive? No.

Keeping with the analogy of Articles 110 and 124, read together with Art. 119 and Sections 3, 24(2)(a), 31(1)(a), 40(1) and 40(2) of the Tertiary Institutions Act, Mr. Museveni had to seek the approval of Makerere’s University Council before or immediately after his directive to close the university. He never did. Although he later claimed en passant to have been “advised by Council” to close the university, there was no Council resolution to that effect – which renders his decision a nullity.

If I may stretch the argument, it goes without saying that the Council has the power to pass a resolution reversing the closure if they didn’t find it justified. If Council has the power to approve, then they equally have the power to disapprove and reverse. Announcing at 10pm the directive to close Makerere and the subsequent eviction of students early the following morning – before Council could meet – was a well calculated move to forestall any attempt by Council to assert its authority against the directive – if it could dare to, anyway.

Now, having failed to engage the University Council before directing for the closure of Makerere, one would think that M7 at least sought legal advice from the AG in line with Art. 119. The circumstances instead point to the contrary.

After considering the foregoing provisions of the law, I now turn to turn to Art. 30 of the Constitution which re-affirms that every person has a right to education. While this right is not non derogable, Article 43(2) provides that “any limitation of the enjoyment of the [derogable] rights must not go beyond what is acceptable and demonstrably justifiable in a free and democratic society”. Having been made in an arbitrary, high-handed and irrational manner as I have demonstrated in the foregoing paragraphs, the President’s directive was not only unlawful but also an unacceptable and unjustifiable limitation of the affected students’ right to education.

CONCLUSION

In light of the foregoing analysis of the various legal provisions relevant to MAK’s indefinite closure, I am left with two conclusions.

Firstly, President Museveni’s directive was unlawful, null and void ab initio because he has no such authority to order the closure of a public university.

Lastly, even if the President had the authority, his decision was irrational, ultra vires, and inoperative [because it was not gazetted before being implemented, contrary to the law]. Thus, it was and remains a total nullity.

By conveniently side-stepping any provision of the law that would have put his decision-making process in check before consequently ordering for Makerere’s closure, Pres. M7 acted as if he is the alpha and omega, and not subject to the law.


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Saasi Marvin

Saasi Marvin, an 18th January 2019 graduate of of law from Makerere University, contributes to Campus Bee in the areas of law, politics, human rights and social justice.

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