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Krispus Ayena Odongo v Attorney General Parliamentary Commission (Constitutional Petition No. 30 of 2017)

Court of Appeal · [2020] UGCA 31 · 2020 Petition Partly Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional petition under articles 50 and 137 of the Constitution challenging the manner of funding of the Judiciary
Decision
Petition partially succeeded; declarations issued on the constitutional mode of funding the Judiciary; petition against the Parliamentary Commission struck out

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Holding

The Court held that the petition disclosed no cause of action against the Parliamentary Commission, which has no power to enact laws, and that allegations about unequal remuneration failed to specify which constitutional provisions were contravened as required by article 137(3). However, the Court found that the administrative expenses of the Judiciary, including salaries, allowances, gratuities and pensions, are charged on the Consolidated Fund by article 128(5) and need not pass through an Appropriation Bill. The practice of funding the Judiciary through an Appropriation Act was declared inconsistent with articles 128(5), (6) and 154(1)(a). The petition succeeded in part.

Facts

The petitioner, an Advocate and member of the Uganda Law Society and former Member of Parliament, filed a public interest petition alleging that judicial officers were paid at a much lower rate than other government employees and that the Judiciary's finances were unconstitutionally subjected to Executive budgetary control. He contended that, under article 128(5) and (6) of the Constitution, the administrative expenses of the Judiciary, including salaries, allowances, gratuities and pensions, are charged directly on the Consolidated Fund and should not pass through the Appropriation Bill process operated by the Executive. He also alleged that the Parliamentary Commission failed to enact laws guaranteeing equal pay and the independence of the Judiciary. The Attorney General did not file an answer or written submissions. The Parliamentary Commission objected that it has no power to enact laws and that no cause of action lay against it. The petitioner relied on comparative material on judicial independence and financial security from Canada, Nigeria and other jurisdictions.

Issues

  1. Whether the petition disclosed a cause of action against the Parliamentary Commission given that it has no power to enact laws.
  2. Whether the petition raised a question requiring interpretation of the Constitution and whether the petitioner had locus standi.
  3. Whether the practice of funding the Judiciary through the Appropriation Act presented by the Executive contravenes articles 128(5), (6) and 154(1) of the Constitution.
  4. Whether the alleged lower remuneration of judicial officers and failure to enact laws ensuring equal pay disclosed a cause of action under article 137(3).

Orders

  • Petition against the Parliamentary Commission struck out for disclosing no cause of action, with costs.
  • Prayers in paragraphs viii, ix, x, xii and xiii dismissed for disclosing no cause of action.
  • A declaration that the remuneration, salaries, allowances and recurrent expenditures of the Judiciary are charged by the Constitution on the Consolidated Fund and do not form part of the estimates to be included in the annual Appropriation Bills.
  • A declaration that the Judiciary is only obliged to send its financial estimates of revenue and expenditure to the President for laying before Parliament without any review or amendment, though they may be accompanied by comments of the President.
  • A declaration that the practice of funding the Judiciary through an Appropriation Act is inconsistent with articles 128(5), (6) and 154(1)(a) of the Constitution.
  • A declaration that the Judiciary may, if it chooses, present its annual budget for administrative expenses in collaboration with the Ministry responsible for Finance to Parliament for approval without going through an Appropriation Bill.
  • Petition partially succeeded; costs of the petition awarded to the petitioner, to be paid by the First Respondent.

Key headnotes

Constitutional Law — Independence of the Judiciary — Financial Independence — Charge on the Consolidated Fund
The administrative expenses of the Judiciary, including all salaries, allowances, gratuities and pensions payable to persons serving in the Judiciary, are charged directly on the Consolidated Fund by article 128(5) of the Constitution and need not pass through the Appropriation Bill process under article 156.
Constitutional Law — Withdrawal from Consolidated Fund — Distinction between Charge and Appropriation
Under article 154(1), monies charged on the Consolidated Fund by the Constitution or an Act of Parliament are withdrawn without an Appropriation Act, distinct from expenditure authorised through appropriation; thus funding the Judiciary through an Appropriation Act is inconsistent with articles 128(5), (6) and 154(1)(a).
Constitutional Law — Constitutional Interpretation — Sui Generis and Harmonisation Principles
A Constitution must be construed on the basis of its own language as a sui generis instrument, and its provisions read in harmony with one another so that no provision is segregated or rendered ineffective in relation to others.
Civil Procedure — Constitutional Petitions — Pleading Requirement under Article 137(3)
A constitutional petition under article 137(3) and rule 3 of the Constitutional Court (Petitions and References) Rules 2005 must specifically allege which provision of the Constitution has been contravened; a mere assertion of violation without identifying the provision discloses no cause of action.
Administrative Law — Statutory Bodies — Capacity to be Sued — Parliamentary Commission
The Parliamentary Commission, established under article 87A and the Administration of Parliament Act, has no function of enacting laws; a petition seeking declarations premised on its failure to enact laws discloses no cause of action against it.
Constitutional Law — Locus Standi — Public Interest Constitutional Petition under Article 137
A person alleging that an act or omission of any authority is inconsistent with the Constitution may petition under article 137; such a petition is properly a public interest petition seeking constitutional interpretation rather than an action under article 50(2).

Legislation cited (32)

  • Constitution of the Republic of Uganda 1995 art.2
  • Constitution of the Republic of Uganda 1995 art.40(1)(b)
  • Constitution of the Republic of Uganda 1995 art.50(1)
  • Constitution of the Republic of Uganda 1995 art.50(2)
  • Constitution of the Republic of Uganda 1995 art.50(3)
  • Constitution of the Republic of Uganda 1995 art.79
  • Constitution of the Republic of Uganda 1995 art.79(2)
  • Constitution of the Republic of Uganda 1995 art.85
  • Constitution of the Republic of Uganda 1995 art.87A
  • Constitution of the Republic of Uganda 1995 art.93
  • Constitution of the Republic of Uganda 1995 art.126
  • Constitution of the Republic of Uganda 1995 art.128
  • Constitution of the Republic of Uganda 1995 art.128(5)
  • Constitution of the Republic of Uganda 1995 art.128(6)
  • Constitution of the Republic of Uganda 1995 art.129
  • Constitution of the Republic of Uganda 1995 art.137(1)
  • Constitution of the Republic of Uganda 1995 art.137(3)
  • Constitution of the Republic of Uganda 1995 art.146
  • Constitution of the Republic of Uganda 1995 art.147
  • Constitution of the Republic of Uganda 1995 art.150
  • Constitution of the Republic of Uganda 1995 art.153
  • Constitution of the Republic of Uganda 1995 art.154
  • Constitution of the Republic of Uganda 1995 art.155
  • Constitution of the Republic of Uganda 1995 art.156
  • Constitution of the Republic of Uganda 1995 art.257
  • Administration of Parliament Act Cap 257 s.2
  • Administration of Parliament Act Cap 257 s.6
  • Administration of Parliament Act Cap 257 s.20
  • Parliamentary (Remuneration of Members) Act Cap 259 s.1
  • Parliamentary (Remuneration of Members) Act Cap 259 s.4
  • Parliamentary (Remuneration of Members) Act Cap 259 s.5
  • Constitutional Court (Petitions and References) Rules 2005 r.3

Cases cited (18)

  • Parliamentary Commission v Twinobusingye Severino and Attorney General (Constitutional Application No. 53 of 2011)
  • Tororo Cement Company Ltd v Frokina International Ltd (Civil Appeal No. 2 of 2004)
  • Colter v Attorney General for Kenya (1938) 5 EACA 18
  • Auto Garage v Motokov (1971) EA 514
  • Queen v Beauregard [1986] 2 S.C.R. 56
  • Valente v The Queen, [1985] 2 S.C.R. 673
  • Olisa Agbakoba v FG, The NJC & National Assembly; Suit No: FHC/ABJ/CS/63/2013
  • Minister of Home Affairs and another v Fisher and another [1979] 2 All E.R. 21
  • State v Makwanyane and Another [1995] 1 LRC 269
  • Dow v Attorney General (of Botswana) [1992] LRC (Const.) 623
  • South Dakota v North Carolina 192 U.S. 286 (24 S. Ct. 269, 48 L. Ed. 448 (1940))
  • National Council for Higher Education v Anifa Kawooya Bangirana (Constitutional Appeal No. 4 of 2011)
  • Ismail Serugo v Kampala City Council and Attorney General (Constitutional Appeal No. 2 of 1998)
  • Mwesigye Wilson v Attorney General and the Parliamentary Commission (Constitutional Petition No. 31 of 2011)
  • Parliamentary Commission v Mwesigye Wilson (Constitutional Appeal No. 8 of 2016)
  • Pinner v Everett [1969] 3 All E.R. 257
  • Maunsell v Olins [1975] A.C. 373; [1975] 1 All ER 16
  • Jones v Director of Public Prosecutions, [1962] AC 635
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.