Constitutional Law, Democracy and Development

Decentralisation and Governance in Uganda

Douglas Karekona Singiza

• Publisher: Routledge
• Year: 2019
• ISBN:
  9780429757921
• Edition: 1
• Topic: Derecho
• Subtopic: Teoría y práctica del derecho

Uganda, like many African countries in the 1990s, adopted decentralisation as a state reform measure after many years of civil strife and political conflicts, by transferring powers and functions to district councils. The decision to transfer powers and functions to district councils was, in the main, linked to the quest for democracy and development within the broader context of the nation state. This book's broader aim is to examine whether the legal and policy framework of decentralisation produces a system of governance that better serves the greater objectives of local democracy, local development and accommodation of ethnicity. Specifically, the book pursues one main aim: to examine whether indeed the existing legal framework ensures the smooth devolution process that is needed for decentralised governance to succeed. In so doing, the book seeks, overall, to offer lessons that are critically important not only for Uganda but any other developing nation that has adopted decentralisation as a state-restructuring strategy. The book uses a desk-top research method by reviewing Uganda's decentralisation legal and policy frameworks.

1 Introduction

1.1 Background to the study

This book describes the policy, constitutional and legislative framework of decentralisation in Uganda. The analysis of the institutional architecture is situated within the context of a normative and international discourse on decentralisation, the examination of which will form part of the study.

The book examines the history of district councils in Uganda and the latent features of both district councils and central government, beginning with the Buganda Agreement in 1900 with the British colonial government and the introduction of indirect rule across the country.

It explores current trends towards decentralisation and local government in Africa by describing and analysing international instruments of decentralisation. On the basis of these norms in the international legal framework, the book proceeds to restate the theoretical framework on decentralisation.

Thus, the book’s description of the legal reforms introduced by the 1995 Ugandan Constitution is against the backdrop of the normative framework flowing from the emerging international ‘soft’ law on decentralisation.

1.2 Statement of the problem

For many African countries, decentralisation has been predicated on three important factors: the quest by local citizens for democracy; respect for human rights; and the pressure exerted by requirements that countries restructure themselves as a precondition for receiving financial assistance from developed countries and the World Bank.¹ Decentralisation is also associated with sustainable development, democratic governance, the promotion of diversity and political stability; essentially, it is meant to lead to improved accountability and transparency.

As stated, the book studies the policy, constitutional and legislative framework of Uganda’s system of decentralisation, several features of which make it an attractive case study. First, as one of the first of Africa’s large-scale decentralisation projects, it was adopted after a long spell of political instability and civil war. Second, whereas many less developed countries were forced to decentralise because structural adjustment programmes were a precondition for further financial assistance from the World Bank and/or the International Monetary Fund (IMF), Uganda’s decentralisation process was a relatively ‘home-grown’ initiative. Consequently, the relatively ‘voluntary’ nature of Uganda’s decentralisation implies that its constitutional and legal institutions were nurtured by local conditions that gave it better prospects for success than those in other countries. This book will identify six features, viz.: the integrity of local government institutions; functional local government authority; adequate fiscal autonomy; administrative autonomy; equitable intergovernmental transfers; and sound intergovernmental relations and links those features to what makes decentralisation more or less effective. When the six essential features are applied to Uganda’s decentralisation progress, evidence of limited, intrusive, ‘hard-edged’ top-down centralism that is incapable of facilitating local democracy, local development and accommodation of diversity is revealed. Thus, Uganda’s decentralisation fails to meet the test of the above proposition.

1.3 Research objectives

While much has been written about decentralisation in Uganda from a development-studies and public-management perspective, no study has been conducted yet from a legal background on the legal design of Africa’s first large-scale decentralisation project. This book aims to examine whether the legal and policy framework of decentralisation produces a system of governance that better serves the greater objectives of local democracy, local development and accommodation of ethnicity.

The inquiry into the structure of Uganda’s district councils and the powers and functions that devolve thereto pursues one main aim: to examine whether indeed the existing legal framework ensures the smooth devolution process that is needed for decentralised governance to succeed. In so doing, the study seeks, overall, to offer lessons that are critically important not only for Uganda but any other developing nation that has adopted decentralisation as a state-restructuring strategy.

1.4 Methodology

The study uses a desk-top research method in that its primary sources of information are the 1995 Constitution, different Acts of Parliament, Ministerial Declarations, case law, books, conference papers and articles in law journals. Relevant historical materials such as the Buganda Agreement of 1900, the 1962 Constitution, the 1967 Constitution, the Odoki Commission Report and Constituent Assembly (CA) debates are examined. Where foreign constitutional or legislative provisions are cited, this is done with minimal comparative intention but for the purpose of explaining the best practices in other jurisdictions. Likewise, where foreign case law is cited, this has been done not for comparative purposes but in order to aid interpretation of certain constitutional and statutory provisions in Uganda that are similar to ones found in other jurisdictions, an approach taken especially in situations where no relevant jurisprudence exists locally.

1.5 Structure

Chapter Two examines policy debates surrounding the system of decentralisation, and, in turn, reviews the different declarations that have been made both globally as well as in Africa on the subject of decentralisation. The review points to a growing international trend towards state decentralisation and provides the basis for assessing the main features of a decentralised system.

Chapter Three identifies six primary features for a good decentralised system of government, namely, the integrity of local government institutions; functional local government authority; adequate fiscal autonomy; administrative autonomy; equitable intergovernmental transfers; and sound intergovernmental relations. These features provide a basis upon which to examine the history of Ugandan decentralisation (discussed in Chapters Four and Five) as well as to critique the post-1995 constitutional and legal institutional architecture (undertaken in Chapters Six, Seven, Eight and Nine).

Chapter Four traces Uganda’s local government from the historical perspective of the Buganda Kingdom and its role in British indirect rule, providing the background for the post-1995 local government reform. Chapter Five reviews the constitution-making process, the establishment of Uganda as a constitutional state and the role courts play as the ultimate arbiters of legal and constitutional conflicts; it also highlights the constitutional guarantees of the local government institutions, the recentralisation of Kampala City and the proposed establishment of the Regional Governments.

Chapter Six describes the intrusive institutional design and governance structures of the district councils, in the process raising the question of whether they are suitable for democracy, sustainable development and the accommodation of ethnic diversity. The chapter reveals how Uganda’s decentralisation has not allowed for an adequate test for these three propositions.

Chapter Seven deals with the powers and functions that are devolved to the district councils. The chapter examines the legislative powers of the district councils, and in turn questions the intrusive role of the central government in the exercise of the district councils’ legislative autonomy. The chapter also examines the administrative autonomy of district councils as well as the appointment and disciplining of senior district council managers. The recentralisation of district council senior managers not only undermines the political autonomy of district councils but places their development preferences under the central government’s control.

Building on the assessment in Chapter Seven, Chapter Eight examines the nature of district council finances. In doing so, the chapter illustrates not only the narrow revenue raising discretion that vests in the district councils, but also discredits the intrusive role of the central government in the fiscal transfer system.

Chapter Nine highlights the nature of intergovernmental relations (IGR) in Uganda and draws a distinction between less and more intrusive IGR. District councils are generally over-regulated and the spaces afforded to them in their interaction with central government inadequate. The conclusion of this chapter is that Uganda emphasises the more intrusive or ‘hard-edged’ forms of IGR, whereas an appropriate decentralised system should favour ‘soft-edged’ IGR.

Chapter Ten concludes the book by pointing out that the existing constitutional and legal environment does not foster a democratic and responsive decentralised system.

1.6 Definition of key terms

Six key terms are deployed in this study: decentralisation; subsidiarity; deconcentration; delegation; devolution; and fiscal decentralisation. Their conventional meanings are defined in the discussion below, after which a working definition is set out in order to indicate the way in which their interrelationship is understood for the purposes of this book.

1.6.1 Decentralisation

Writers define the term ‘decentralisation’ differently. Some define it with reference to the transfer of powers and responsibilities. These powers generally include the power to plan, the power to manage and the power to mobilise and distribute resources. According to Work, decentralisation focuses on the transfer of authority to deliver services from central government to other orders of government, representatives or field offices.² This, therefore, means that the power formerly vested in the central government and its agencies goes to the lower orders of government. The United Nations Development Programme (UNDP) defines decentralisation as:

the restructuring of authority so that there is a system of co-responsibility between institutions of governance at the central, regional and local levels according to the principle of subsidiarity, thus increasing the overall quality and effectiveness of the system of governance, while increasing the authority and capabilities of sub-national levels.³

Decentralisation is primarily about the transfer of political power. Accordingly, in this book the working definition is that decentralisation is the transfer of political power and authority from the central government to sub-national levels of government.

1.6.2 Subsidiarity

Decentralisation is grounded in the principle of sub...

Table of contents

• Cover
• Half-Title
• Title
• Copyright
• Contents
• 1 Introduction
• 2 Decentralisation: international, political and policy context
• 3 Critical features of decentralisation
• 4 Decentralisation in Uganda: history and overview
• 5 Local governments’ institutional integrity, sub-national ethnic questions and politics in the post-1995 Constitution
• 6 District council government
• 7 District councils’ powers and functions
• 8 District council finances
• 9 Intergovernmental relations in Uganda
• 10 General conclusions and recommendations
• Bibliography
• Index