Home | News | Discussion | FAQ | Federal Model | Papers | Seminars | What's New

Becoming the president of a country means being given the sacred trust to guide the destinies of millions of people. To guide the destinies of millions effectively, the president must be given a lot of powers over the people, their lives, their properties and their general governance. It is the function of the constitution to strike the balance between the effectiveness of the president and his duty not to misuse the powers vested in him. Government is a service, and not an instrument of oppression. Government exists to promote and protect public welfare and not to oppress the people. It is the duty of the president to ensure that he and all those working under him strive to achieve this supreme goal of the state. In this paper we shall be examining how presidents are elected; what powers are vested in them; what duties are imposed upon them and how the constitutions attempt to put checks on the performance of their functions in order to ensure that they do not abuse their powers.

Two categories of presidential systems can be identified around the world. Countries which have adopted British parliamentary form of government usually have constitutional presidents. A constitutional President has no executive powers. He is a titular Head of State and carries out his functions on the advice of the Prime Minister in whom executive powers are vested. Countries with constitutional presidents include India, West Germany, Austria, and Zimbabwe. Most countries have presidents with executive powers. Executive Presidents do not necessarily possess the same powers, carry out the same functions nor are they elected and removed in the same way.

Status

The constitutions accord the Presidents the highest position. A President takes precedence over all other persons in his country and, in order to ensure that this position is not compromised, the constitution gives him certain privileges and immunities. His salary is fixed and charged on the consolidated fund. He cannot be prosecuted for alleged offences while he is in office; he is not subject to the processes of the courts, that is, he cannot be compelled to appear before the courts as a witness. The constitution normally bars the institution of civil actions against him. In Tanzania, however, the Constitution and the Presidential Affairs Act, 1962, allow civil actions to be brought against the President. This must be done in the prescribed manner as spelled out in the Constitution and the Presidential Affairs Act. The procedural requirements are as follows:

(a) At least thirty days before the proceedings are instituted, notice in writing must be sent by the prospective plaintiff in the manner prescribed in the Presidential Affairs Act, 1962.
(b) The notice must state the nature of the proceedings, the cause of action, the name, the description and the place of residence of the party by whom the proceedings are instituted and the relief which he claims.
(c) Proceedings can be instituted only in the High Court and notice of the action together with the plaint must be delivered to the Principal Secretary to the President.
(d) Even if the Court is of opinion that the plaintiff is entitled to a relief, it cannot make an order, judgement, decree or relief, other than a declaratory judgement. The court, in other words, only declares the legal rights of the plaintiff against the President, but not an order that can be enforced by law.
(e) This leaves the President free to decide whether to pay compensation to the aggrieved party or not.
(f) If by the time the President ceases to hold office he has not satisfied the claim of the plaintiff, the plaintiff may, within ninety days of the former President's leaving office, apply to the High Court for the appropriate order which the court would have issued if the defendant were not the President at the time of the original hearing.
(g) Even during the hearing of the case against the President, the President enjoys certain privileges and immunities:
(i) He cannot be arrested for not appearing before the court.
(ii) A court cannot issue process requiring the personal appearance of the President or his attendance in any capacity, whether as a party or as a witness to the dispute before the court.
(iii) The President cannot be required by the Court to produce any person or thing.
(iv) If a party requires the presence of the President as a witness or requires him to produce anything, the court only communicates to the President that his presence is required or that production of a certain thing by him is requested. It is up to the President to come up and give evidence or produce the thing asked for.
(h) Judicial process cannot be served on the grounds of the State House or any other place where the President is residing without the prior authorisation of the President.

However, even in those countries where the Presidents enjoy immunity this does not mean that they are above the law. Far from it. The immunity lasts only as long as he is holding office as President. But he answers for his wrong doing committed while he is in office as President, after he ceases to hold that office. Again immunity from civil suits is only for alleged wrongs he commits in his personal capacity. If the wrong is done in the course of discharging official duty, suits are maintainable against the state.

Presidential Elections

In Tanzania and United States, the President is elected by the people directly. In Tanzania, the people vote yes or no to a single candidate nominated by the Electoral Conference of the ruling party, the Chama cha Mapinduzi (CCU) (Part of the Revolution). The nominee of the conference must be a member of the party, who has attained the age of thirty years and he stands as a sole candidate. If the majority of the votes cast by the electorate are in favour of the candidate, he is declared as the President. If the majority of the votes cast are not in favour, the Electoral Conference nominates another candidate as the sole presidential candidate and the voting is held again.

Under the 1967 Constitution of Uganda, the President was elected indirectly by the people (Constitution, Art. 26). He would be the leader of the party with the greatest numerical strength in the National Assembly. The President was elected at the same time the general elections took place for the National Assembly. Every political party taking part in the general elections nominated one of its members as a presidential candidate, and very person nominated as a parliamentary candidate must, at the same time of his nomination, declare which presidential candidate he supported. Unless he so declares, his nomination would not be valid, unless he himself was a presidential candidate. The presidential candidate nominated by the party having the greatest numerical strength of elected members in the National Assembly, and consisting of not less than forty per cent of all the elected members of the National Assembly, becomes the President.

This, in fact, meant that the President was elected by a Delegates Conference of the Party - a very small section of the population.

All constitutions limit the term of office of the President. And some constitutions limit the number of times a person may serve as President; for example, in the United States, the President is eligible for re-election only once. In other words, the maximum period he may serve is limited to eight years (Constitution, Art. 11). In Switzerland, the President is elected for one year and he cannot succeed himself (Constitution, Art. 98).

Collegiate Executive

Some constitutions have trans-personalised the powers of the executive. In the USSR, executive powers are vested in the Council of Ministers (Constitution, Art. 64). In Switzerland, supreme executive authority is exercised by the Federal Council. In France the Constitution distributed powers between the President and the Prime Minister. The Constitution of the Republic of Uganda trans-personalised the executive powers of the state by giving wide powers to the cabinet to control the functions and powers of the President. Responsibility for the affairs of Uganda was expected to be collective rather than personal.

The President was expected to shoulder, with his Ministers, the load of governmental authority. The cabinet was not merely advisory to the President; it was collectively responsible for the formulation and implementation of the policies of the government of Uganda, and in the performance of this function, the cabinet was collectively responsible to parliament. By Article 38(2) of the Constitution, the President was required, as far as possible, to attend and preside at all meetings of the cabinet. If the President was incapable of discharging the functions of his office, any member of the cabinet could propose a motion, in a cabinet meeting, that the question of the physical or mental incapacity of the President be investigated. On a majority of the vote of the members of the cabinet, the Chief Justice would initiate proceedings for the investigation of the President's mental or physical health. If he is found unwell he would be removed.

There are certain things the President could not do without the the advice of the Cabinet. For example, under Article 64 of the Constitution, the President exercises his law-making powers only if advised by the Cabinet but exceptional circumstances existed which rendered it necessary for him to take immediate action. Again emergency powers were granted to the President by the Constitution to take immediate action to deal with a critical situation in the country. But before he could take action, he must be advised by the Cabinet about the expediency of the action.

The President was required to seek the advice of the Cabinet before taking certain other actions. For instance, the President could not remove a member of the Public Service Commission unless so advised by the Cabinet. He was required to act in accordance with the advice of the cabinet. The same requirement prevailed in removing a member of the Teaching Service Commission. The international agreements of Uganda, must be in such terms as approved by the Cabinet (Constitution, Art. 95).

Presidential Functions

All executive powers are vested in him. He is the Head of State and the Head of Government. In that capacity, he constitutes public offices. Some constitutions limit the exercise of the executive powers of the President. For example, in the United States the President makes political appointments with the Advice and consent of the Senate. Though the President is the Commander-in-Chief of the Armed Forces, power to declare war is vested in the Congress. Some Constitutions create executive public service commissions. For example, under the Constitution of Kenya, the power to appoint public officers, to exercise disciplinary control over them and the power to remove them, is vested in Public Service Commission. The President has powers of appointment, discipline, control over and removal of judges, the Attorney General, Auditor General, Permanent Secretaries, Ambassadors, and the Commissioner of Police (Constitution, Art. 107).

The President and the Judiciary

The relationship between the executive President and the judiciary is always a crucial one. On the one hand, the constitution must ensure that adequate safeguards are provided to guarantee the independence of the judiciary; on the other hand, the Head of State has a legitimate interest to see to it that the right persons are appointed to the Bench and that such persons are removed from office for misbehaviour. The compromise is to place huddles before the Head of State in exercising his powers in relation to the judiciary.

In Tanzania, to safeguard the independence of the judiciary, some of the President's power with regard to it are limited by the Constitution. He appoints puisne judges after consultation with the Chief Justice. A judge of the High Court cannot be removed by the President unless he is advised to do so by an impartial judicial tribunal appointed by him to look into the alleged reason for the removal of the judge and the tribunal recommends his removal on the results of the investigation. Furthermore, the President may not abolish a judicial office when there is a substantive holder thereof (Constitution, Art. 108 - 111).

In Uganda the President is required to act in accordance with the advice of the Judicial Service Commission in appointing judges (Constitution, Art. 84). Judges cannot be removed unless the Cabinet advises the President that they should be removed. A judicial tribunal is also required to be set up to investigate the propriety of the removal of the judges; and the President is required to act in accordance with its recommendation. The President also acts in accordance with the advice of the Judicial Service Commission in appointing Magistrates, Registrar of the High Court and other judicial officers.

Removal of the President from Office

Because he is elected by the people a president is cognate with the legislature. He can be removed from office by a vote of no confidence. Again if a President commits a serious crime, he can be impeached, and if the impeachment is successful, he stands removed. This is, for example, provided by the Constitution of Nigeria (Constitution, Art. 132), Ghana and the United States (Constitution, Art. 1, Section 3(6)).

In Nigeria, the process of impeachment is initiated by not less than one-third of the members of the National Assembly signing a notice of alleging that the President has been guilty of gross misconduct in the performance of his office. The notice is sent to the President of the Senate who is required within seven days to serve the notice on the President and on each member of the National Assembly. When the President answers, his reply must also be served on each member of the National Assembly. Whether the President replies to the allegations or not, each House of the National Assembly is required to sit within fourteen days to resolve by motion without any debate, whether the allegation should be investigated or not. Such a motion must be passed by not less than two-thirds majority of all the members of each House. Within seven days after a motion has been passed that the allegations must be investigated, the President of the Senate appoints a committee of seven persons of high integrity to investigate the allegation. The Committee must not include on its membership any public officer, a member of any legislative house or a political party. During the investigation, the President has the right to defend himself in person and to be represented by a legal practitioner of his own choice. The Committee must report its findings to each House of the National Assembly within three months. If the Committee reports that the allegations have not been proved, no further proceedings are to be taken in respect of the matter. However, if the Committee reports that the allegations have been proved, within fourteen days after that, each house of the National Assembly considers and may adopt the report of the committee by a two-thirds majority. If the report of the committee is adopted by that required vote of the members of each House of the National Assembly, the President shall stand removed from office. Impeachment process is not questionable in a court of law.

The President must cease to hold office if a resolution is passed by a two-thirds majority of vote of all the Ministers of the federation declaring that the President is incapable of discharging the functions of his office. Such a declaration must be verified by a team of five doctors appointed by the president of the Senate, one of whom must be the personal physician of the President. Where the medical team certifies in its report that in its opinion the President is suffering from such infirmity of body or mind as renders him permanently incapable of discharging the functions of his office, a notice signed by the President of the Senate and Speaker of the House of Representatives is published in the Official Gazette. Upon such publication the President must step down.

These provisions are designed to ensure that the man at the helm of the affairs of the nation is both mentally and physically fit. His responsibilities to the people are great. He must therefore be a very healthy man.