Bukenya Church Ambrose v Attorney General (Constitutional Petition No. 26 of 2010)

Constitutional Court · [2011] UGCC 5 · 2011 Statutory Instrument Held Unconstitutional ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Constitutional reference from the High Court under Article 137(5)(b) for interpretation of a constitutional question

Decision

Reference answered in the affirmative; the Judicature (Fundamental Rights and Freedoms) (Enforcement Procedure) Rules, SI No. 55 of 2008, held to contravene Article 50(4) of the Constitution.

The full judgment

Read the complete, verbatim text of this judgment.

Cited — treatment unverified cited in 5 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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Holding

The Constitutional Court answered the reference in the affirmative, holding that the Rules Committee contravened Article 50(4) by enacting the Judicature (Fundamental Rights and Freedoms) (Enforcement Procedure) Rules, SI No. 55 of 2008. The mandatory word "shall" in Article 50(4) makes Parliament the only body empowered to make laws for the enforcement of Chapter Four rights, save under delegated authority under Article 79, which did not apply. The Rules Committee's power under section 41 of the Judicature Act derives from Article 150(1) and extends only to regulating court practice and procedure. The Court nonetheless held that enforcement under Article 50(1) is not in abeyance pending such legislation: the Constitution took effect as a whole, and existing laws saved by Article 274 supply the procedure.

Facts

Government banned bimeeza (open-air ex-studio live radio broadcasts). Applicants filed Miscellaneous Cause No. 13 of 2010 in the High Court under Article 50(1) of the Constitution and Rule 3(1) of the Judicature (Fundamental Rights and Freedoms) (Enforcement Procedure) Rules, SI No. 55 of 2008, seeking declarations that the ban breached the freedoms of speech, expression and the media under Article 29(1)(a), and an order lifting the ban. At the commencement of proceedings before Justice V. T. Zehurikiize, counsel for the Attorney General raised a preliminary objection that SI No. 55 of 2008 was unconstitutional as contravening Article 50(4). Similar objections had been raised in related applications. The trial court framed the question and referred it to the Constitutional Court under Article 137(5)(b) for interpretation.

Issues

Whether the Rules Committee, in enacting the Judicature (Fundamental Rights and Freedoms) (Enforcement Procedure) Rules, SI No. 55 of 2008, contravened Article 50(4) of the Constitution.

Orders

The question referred is answered in the affirmative: the Rules Committee contravened Article 50(4) of the Constitution by enacting Statutory Instrument No. 55 of 2008.

Key headnotes

Enforcement of Rights — Legislative Power Reserved to Parliament under Article 50(4)

Under Article 50(4) of the Constitution, the power to make laws for the enforcement of the rights and freedoms in Chapter Four is, by the mandatory word "shall", reserved exclusively to Parliament, and no other body may exercise it save under delegated authority pursuant to Article 79.

Delegated Legislation — Rules Committee Acting Ultra Vires

The Rules Committee derives its power from section 41 of the Judicature Act, itself enacted under Article 150(1), to make rules regulating the practice and procedure of the courts; it has no power to make laws for the enforcement of fundamental rights under Article 50(4), and in enacting SI No. 55 of 2008 it usurped the powers of Parliament and contravened that provision.

Enforcement of Rights — No Abeyance Pending Legislation

The right to apply for the enforcement of fundamental rights under Article 50(1) is not held in abeyance by Parliament's failure to enact a law under Article 50(4); the Constitution came into force as a whole, and existing procedural laws saved by Article 274 supply the procedure for enforcement.

Constitution Construed as an Integrated Whole

The Constitution must be construed as an integrated whole, with no provision destroying another but each supporting the others, and all provisions concerning an issue must be considered together to give effect to the purpose of the instrument.

Legislation cited (15)

Constitution of Uganda Article 137(5)(b)
Constitution of Uganda Article 50(1)
Constitution of Uganda Article 50(4)
Constitution of Uganda Article 29(1)(a)
Constitution of Uganda Article 79
Constitution of Uganda Article 139(1)
Constitution of Uganda Article 150(1)
Constitution of Uganda Article 274
Constitution of Uganda Articles 20-45
Judicature Act, Cap 13 s.41(1)
Judicature (Fundamental Rights and Freedoms) (Enforcement Procedure) Rules, SI No. 55 of 2008, Rule 3(1)
Fundamental Rights and Freedoms (Enforcement Procedure) Rules 1992, Rule 3(1)
Civil Procedure Act
Law Reform (Miscellaneous Provisions) Act
Government Proceedings Act

Cases cited (5)

Dr. James Rwanyarare & Others v Attorney General (Constitutional Petition No. 7 of 2002)
Abdalla Byabasaija v Major General Kale Kaihura & Attorney General (Miscellaneous Cause No. 4 of 2010)
Titus Atugonza Vs Attorney General & 5 Others
Jane Francis Ananio v Attorney General (Miscellaneous Civil Application No. 317 of 2002)
Mwesigwa Hannington & Others v Attorney General (Civil Appeal No. 2 of 2008)

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