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Hon Lady Justice Julia Sebutinde v The Attorney General (Constitutional Reference 5 of 2005)

Constitutional Court · [2005] UGCC 11 · 2005 Reference Answered in the Negative ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional reference from the High Court under article 137(5), arising from High Court Tax Appeal No. 7 of 2003.
Decision
Reference answered in the negative; the appellant's commission remuneration held liable to taxation and no remedy granted.

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Holding

The Constitutional Court considered whether a High Court judge's remuneration for chairing a commission of inquiry into corruption in the Uganda Revenue Authority was exempt from taxation under article 128(7) of the Constitution. The Court held that although the appellant was a judicial officer under article 151, her honorarium was not part of her terms and conditions of service as a judicial officer and was not derived from the exercise of judicial power. A commission of inquiry is an administrative tribunal, not a court, and does not exercise judicial power within articles 126(1) and 128(7). The remuneration was therefore taxable. The reference was answered in the negative, with each party bearing its own costs.

Facts

The appellant, a judge of the High Court, was appointed in March 2002 by the Minister of Finance to chair a commission of inquiry into allegations of corruption in the Uganda Revenue Authority, for an honorarium of Ug Shs 9 million per month. From October 2002, URA began deducting Pay As You Earn (PAYE) tax from the honorarium. The appellant protested, contending that as a sitting judge her income was protected from taxation under article 128(7) of the Constitution. The Commissioner General of URA refused to lift the tax or refund the deductions, communicating a final decision by letter dated 20 June 2003. The appellant appealed that decision to the High Court. During the hearing of High Court Tax Appeal No. 7 of 2003, the Principal Judge, by consent of counsel, referred to the Constitutional Court the question whether the remuneration was exempt from taxation under article 128 of the Constitution.

Issues

  1. Whether the appellant's remuneration as chairperson of the commission of inquiry into allegations of corruption in the Uganda Revenue Authority is exempted from taxation by virtue of article 128 of the Constitution.
  2. Whether the appellant was, at the material time, a judicial officer within the meaning of article 151 of the Constitution.
  3. Whether the taxed remuneration formed part of the appellant's terms and conditions of service as a judicial officer and was derived from the exercise of judicial power.
  4. Whether a commission of inquiry under the Commissions of Inquiry Act is a court exercising judicial power within the meaning of articles 126(1) and 128(7) of the Constitution.

Orders

  • The question referred is answered in the negative.
  • The appellant is not entitled to any remedy from the court.
  • Each party to bear its own costs of the reference.

Key headnotes

Constitutional Law — Independence of the Judiciary — Scope of tax protection under article 128(7)
The protection in article 128(7) of the Constitution extends only to remuneration that forms part of a judicial officer's terms and conditions of service and is derived from the exercise of judicial power; income from other activities falls outside the protection and remains liable to taxation.
Administrative Law — Commissions of Inquiry — Whether a court exercising judicial power
A commission of inquiry established under the Commissions of Inquiry Act is an administrative tribunal appointed by a Minister, not a court of judicature, and does not exercise judicial power within the meaning of articles 126(1) and 128(7) of the Constitution; its findings are advisory recommendations not binding on the appointing Minister.
Constitutional Law — Meaning of 'judicial officer' — Article 151
A judge of the High Court is a judicial officer within the meaning of article 151 of the Constitution, but that status alone does not bring all of the officer's income within the tax exemption in article 128(7), which is confined to income earned in the exercise of judicial power.
Statutory Interpretation — Definition of 'court' and 'judicial power' — Articles 257(1) and 126(1)
The constitutional definition of 'court' as a court of judicature established by or under the Constitution, read with the definition of 'judicial power' as the power to dispense justice, excludes commissions of inquiry, whose proceedings are not conducted as judicial proceedings and whose decisions are merely advisory.

Legislation cited (10)

  • Constitution of Uganda art.128(7)
  • Constitution of Uganda art.126(1)
  • Constitution of Uganda art.137(5)
  • Constitution of Uganda art.151
  • Constitution of Uganda art.257(1)
  • Constitution of Uganda art.129(1)
  • Commissions of Inquiry Act (Cap 166) s.6
  • Commissions of Inquiry Act (Cap 166) s.8
  • Commissions of Inquiry Act (Cap 166) s.9
  • Commissions of Inquiry Act (Cap 166) s.11

Cases cited (4)

  • Masalu Musene Wilson and 3 Others v Attorney General (Constitutional Petition No. 5 of 2004)
  • Royal Aquarium and Summer and Winter Garden Society Ltd v Parkinson [1892] 1 QB 431
  • Dawkins v. Lord Rokeby
  • Evans vs Gore
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.