Dorothy Nandugga Kabugo v Attorney General (Constitutional Petition No. 39 of 2010)

Constitutional Court · [2014] UGCC 108 · 2014 Petition Dismissed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Constitutional petition under Article 137 of the Constitution challenging the constitutionality of provisions of the Public Health Act

Decision

Petition dismissed; impugned provisions of the Public Health Act held constitutional

The full judgment

Read the complete, verbatim text of this judgment.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions — always read the source judgment before relying on it.

Holding

The Constitutional Court dismissed a petition challenging provisions of the Public Health Act. It held that the power of a local authority to pull down or remove works constructed in contravention of building rules affects only the superstructure and not the land, and so does not amount to compulsory acquisition or deprivation of property under Article 26; compulsory deprivation must be total or complete. The 28-day notice under section 72 affords the owner an opportunity to be heard, satisfying Article 28. Section 72(3) protects rather than discriminates against owners. The right to own land is distinct from the right to use it, and land-use restrictions imposed to protect public health are a justifiable limitation under Article 43.

Facts

The petitioner, an advocate of the High Court, brought a petition under Article 137 of the Constitution challenging several provisions of the Public Health Act (Cap 281). She contended that sections 72(1), (2) and (3), 59, 60(5) and 61(1) of the Act empowered the State and local authorities to pull down or demolish a private citizen's property without alternative accommodation or prompt and adequate compensation, to make arbitrary exclusion orders without a hearing, to treat owners discriminatorily, and to require courts to implement the decisions of local authorities, thereby contravening the constitutional rights to property, privacy, a fair hearing, equality and judicial independence, and amounting to banishment and denial of livelihood. The Attorney General responded that the Public Health Act is an Act to preserve public health, consistent with the right to a clean and healthy environment under Article 39, and that the impugned provisions were not inconsistent with the Constitution.

Issues

Whether the impugned provisions of the Public Health Act are inconsistent with or in contravention of the specified articles of the Constitution, and if so, what remedies are available to the petitioner.
Whether the power to pull down or demolish works constructed in contravention of the law under sections 72(1) and (2) of the Public Health Act amounts to compulsory acquisition or deprivation of property contrary to Article 26.
Whether the 28-day notice procedure under section 72 of the Public Health Act denies an affected property owner a fair hearing contrary to Article 28.
Whether section 72(3) of the Public Health Act is discriminatory contrary to Article 21.
Whether sections 60(5) and 61 of the Public Health Act erode the independence of the judiciary or amount to banishment and denial of livelihood.

Orders

The petition fails and is hereby dismissed.
Each party shall bear its own costs.

Key headnotes

Constitutional protection of property — Compulsory acquisition — Demolition of unlawful works distinguished

The demolition or pulling down of works constructed in contravention of building rules under the Public Health Act affects only the superstructure and not the land or ownership thereof; the owner is not deprived of the property and the local authority acquires no proprietary interest, so such demolition does not amount to compulsory acquisition or deprivation of property within the meaning of Article 26 of the Constitution.

Right to property — Meaning of compulsory deprivation

Compulsory deprivation of property under Article 26(2) of the Constitution means total or complete deprivation; a limitation on the use of land that leaves the proprietary interest intact is not a deprivation of property.

Right to a fair hearing — Statutory notice period as opportunity to be heard

A statutory requirement that a property owner be given 28 days' notice before unlawful works are removed, demolished or altered affords the owner an opportunity to comply with or challenge the notice, and the right to be heard under Article 28 is sufficiently embedded in that notice period.

Ownership and use of land — Restrictions on use as justifiable limitation

The right to own land is separate and distinct from the right to use it; while ownership is protected under Article 26, the use of land may be restricted by laws made by Parliament, including laws protecting public health and the environment, and such restrictions constitute a justifiable limitation under Article 43 and do not deprive the owner of the proprietary interest.

Equality and non-discrimination — Differential treatment without prohibited ground

A statutory provision that places a time limit on the issuance of enforcement notices protects landowners and does not contravene Article 21; differential treatment that is not based on a prohibited ground such as sex, race, religion or political opinion, and for which a reasonable distinction exists, does not constitute discrimination.

Separation of powers — Conferment of quasi-judicial powers on administrative bodies

There is nothing unconstitutional about a law that grants judicial, quasi-judicial or administrative powers to two distinct bodies; conferring such powers on a local authority alongside the courts does not create unconstitutional parallel jurisdiction.

Legislation cited (28)

Constitution of Uganda art.137
Constitution of Uganda art.20
Constitution of Uganda art.21
Constitution of Uganda art.26
Constitution of Uganda art.27
Constitution of Uganda art.28
Constitution of Uganda art.39
Constitution of Uganda art.43
Constitution of Uganda art.44
Constitution of Uganda art.45
Constitution of Uganda art.126
Constitution of Uganda art.128
Constitution of Uganda art.237(7)
Constitution of Uganda art.274
Public Health Act Cap 281 s.59
Public Health Act Cap 281 s.60
Public Health Act Cap 281 s.60(5)
Public Health Act Cap 281 s.61
Public Health Act Cap 281 s.61(1)
Public Health Act Cap 281 s.72(1)
Public Health Act Cap 281 s.72(2)
Public Health Act Cap 281 s.72(3)
Public Health Act Cap 281 s.5
Land Act Cap 227 s.43
Land Act Cap 227 s.45
Registration of Titles Act Cap 230 s.104
Witchcraft Act s.7
National Environment Act Cap 153

Cases cited (8)

Attorney General v Salvatori Abuki (Constitutional Appeal No. 001 of 1998)
Advocates Coalition for Development and Environment and 40 others v Attorney General (Constitutional Petition No. 4 of 2011)
South Dakota Vs North Carolina 192 US 268 194 LED 448
Paul K. Semwogerere and 2 others v Attorney General (Constitutional Appeal No. 1 of 2002)
Uganda Law Society v Attorney General (Constitutional Petition No. 18 of 2005)
Advocates for Natural Resource Governance and Development and 20 others v Attorney General and Another (Constitutional Petition No. 40 of 2013)
Amooti Godfrey Nyakana v National Environment Management Authority and 6 others (Constitutional Petition No. 03 of 2005)
Sheer Property Limited v NEMA (Miscellaneous Cause No. 232 of 2008)

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