Wakilii

Atugonza v Brig. Mugira & 5 Ors (Constitutional Petition No. 28 of 2011)

Constitutional Court · [2019] UGCC 10 · 2019 Reference Answered ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional reference from the High Court under Article 137(5)(b), arising from High Court Miscellaneous Cause No. 118 of 2009
Decision
Constitutional question answered in the negative; file remitted to the High Court to proceed with trial

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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 declined to answer the referred question afresh because the identical question had already been conclusively determined by the Supreme Court in Bukenya Church Ambrose v Attorney General (Constitutional Appeal No. 3 of 2011), where it was answered in the negative. The Court emphasised, by way of guidance, that the absence of specific procedural rules for enforcing human rights cannot bar a litigant from accessing the courts, which possess inherent power to permit an appropriate procedure for redress under Chapter Four of the Constitution. It ordered the file returned to the High Court to proceed with the trial.

Facts

A constitutional reference was made by the High Court (Bamwine J) in High Court Miscellaneous Cause No. 118 of 2009, seeking an answer to whether the committee, in enacting the Judicature (Fundamental Rights and Freedoms) (Enforcement Procedure) Rules SI 55 of 2008, contravened Article 50(4) of the Constitution. When the reference came up for hearing, counsel for the petitioner sought to withdraw it, but the Court declined the withdrawal and required the reference to proceed. The Court ascertained that the question stated was exactly the same as that already raised in Bukenya Church Ambrose v Attorney General (Constitutional Petition No. 26 of 2010) and answered in the negative by the Supreme Court on appeal in Constitutional Appeal No. 3 of 2011.

Issues

  1. Whether the committee, in enacting the Judicature (Fundamental Rights and Freedoms) (Enforcement Procedure) Rules SI 55 of 2008, contravened Article 50(4) of the Constitution.

Orders

  • The question referred is answered in the negative.
  • The file is returned to the High Court to proceed with the trial without further delay.

Key headnotes

Civil Procedure — Constitutional Reference — Withdrawal by counsel
A constitutional reference, being made by the referring court to obtain an answer to a stated question, cannot be withdrawn by counsel; the Constitutional Court must answer the question unless the court that preferred the reference withdraws it.
Constitutional Law — Constitutional Reference — Question already determined on appeal
Where the question in a constitutional reference is identical to one already conclusively answered by the Supreme Court, there is nothing further for the Constitutional Court to determine and it will adopt that answer.
Human Rights — Enforcement of Fundamental Rights — Access to court despite absence of procedural rules
The absence of specific rules of procedure for the enforcement of fundamental rights and freedoms does not bar a litigant from accessing the courts; courts have inherent power, including under section 98 of the Civil Procedure Act, to permit a litigant to proceed under an appropriate procedure for redress under Chapter Four of the Constitution.

Legislation cited (5)

  • Constitution of Uganda Article 137(5)(b)
  • Constitution of Uganda Article 50(4)
  • Judicature (Fundamental Rights and Freedoms) (Enforcement Procedure) Rules SI 55 of 2008
  • Civil Procedure Act s.98
  • Court of Appeal Rules (SI 13-10) Rule 2(2)

Cases cited (5)

  • Bukenya Church Ambrose v Attorney General (Constitutional Petition No. 26 of 2010)
  • Bukenya Church Ambrose v Attorney General (Constitutional Appeal No. 3 of 2011)
  • In Re Rivas and the Belize Advisory Council [1993] 3 LRC 261
  • Attorney General v Ali and others [1989] LRC 474
  • Juandoo v Attorney General of Guyana (1971) AC 972
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.