Wakilii

British American Tobacco Ltd v Attorney General & Anor (Constitutional Petition No. 46 of 2016)

Constitutional Court · [2019] UGCC 4 · 2019 Petition Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional petition under Article 137 challenging the constitutionality of numerous provisions of the Tobacco Control Act 2015
Decision
Petition dismissed with costs to the respondents

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Cited — treatment unverified cited in 1 (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 dismissed the petition challenging numerous provisions of the Tobacco Control Act 2015. The Court held that the rights invoked under Articles 40(2), 26 and 29(1)(a) are not absolute but subject to the limitations in Article 43, and that the burden of justifying a limitation lies on the State. Given overwhelming evidence of tobacco's lethal health effects, the 65% graphic health warning requirement and other restrictions were rationally connected to a sufficiently important legislative objective and constituted minimal impairment justifiable in a free and democratic society. A registered trademark confers only negative rights to exclude others, not a positive right to use, so restricting display space did not unconstitutionally appropriate intellectual property. Most grievances raised no question of constitutional interpretation under Article 137.

Facts

British American Tobacco Limited, a company dealing in cigarette sale, distribution and marketing in Uganda for over 30 years and listed on the Uganda Securities Exchange, challenged numerous provisions of the Tobacco Control Act 2015, which came into force on 18 May 2016. The petitioner contended that provisions including the requirement for graphic health warnings covering not less than 65% of the principal display area (s.15(2)), the prohibition on smoking in public places (s.12), restrictions on the sale and display of tobacco products (s.16), employment restrictions on persons connected to the tobacco industry (s.25), and personal liability of company directors and officers unjustifiably curtailed its right to practise a lawful trade and its intellectual property rights in its trademarks. The petitioner conceded that tobacco consumption poses real health risks and that the trade may lawfully be regulated. The respondents adduced extensive scientific and international evidence on the lethal health effects of tobacco and the effectiveness of large health warnings, contending the measures were necessary, appropriate and proportional.

Issues

  1. Whether Section 15(2) of the Tobacco Control Act, requiring graphic health warnings to occupy not less than 65% of the principal display area, is inconsistent with Articles 40(2), 26(1) and 29(1)(a) of the Constitution.
  2. Whether the various impugned sections of the Tobacco Control Act (sections 12, 14(10), 15(7), 16, 17(7), 23 and 25) unjustifiably limit the petitioner's right to practise a lawful trade, occupation or business under Article 40(2) and related rights.
  3. Whether the limitations imposed on the petitioner's rights by the Tobacco Control Act are justifiable in a free and democratic society within the meaning of Article 43 of the Constitution.
  4. Whether the matters raised in the petition genuinely require constitutional interpretation under Article 137 of the Constitution.

Orders

  • The petition is dismissed in its entirety for having neither merit nor substance.
  • Costs of the petition awarded to the respondents.

Key headnotes

Constitutional Law — Limitation of Rights — Article 43 — Justifiable Limitation in a Free and Democratic Society
All rights in the Bill of Rights, except the non-derogable rights under Article 44, are subject to limitation under Article 43; a limitation is valid only where it is acceptable and demonstrably justifiable in a free and democratic society and amounts to minimal impairment strictly warranted by the exceptional circumstance.
Constitutional Law — Limitation of Rights — Burden of Proof — Onus on the State
Where a petitioner shows that a right is being infringed by an impugned law, the onus of proving that the limitation is reasonable and demonstrably justified in a free and democratic society lies on the party seeking to uphold the limitation, namely the State.
Intellectual Property — Trademarks — Nature of Rights — Negative Right to Exclude, Not Positive Right to Use
A registered trademark confers only a negative right to exclude others from using the mark, not a positive right of the proprietor to use it; a law that limits the space within which a proprietor may display its trademark therefore does not appropriate the intellectual property and is not unconstitutional.
Constitutional Law — Economic Rights — Article 40(2) — Tobacco Health Warnings — Proportionality
A statutory requirement that graphic health warnings occupy not less than 65% of tobacco product packaging is rationally connected to the legislative objective of protecting public health, is not arbitrary or excessive in light of comparable international practice, and constitutes a justifiable limitation on the right to practise a lawful trade under Article 40(2).
Constitutional Law — Jurisdiction of the Constitutional Court — Article 137 — Constitutional Interpretation Distinguished from Enforcement
The jurisdiction of the Constitutional Court under Article 137 is limited to the interpretation of the Constitution; grievances that concern policy debate or the enforcement of rights under Article 50, rather than genuine questions of constitutional interpretation, do not fall within that jurisdiction.
Constitutional Law — Right to Life and Healthy Environment — State Duty to Regulate Harmful Products
The State's duty to protect the right to life under Article 22 and the right to a clean and healthy environment extends to enacting laws and policies that limit the trade in products which, when used as intended, cause death and adverse health effects to users and others exposed to them.

Legislation cited (24)

  • Constitution of Uganda 1995 Article 137
  • Constitution of Uganda 1995 Article 40(2)
  • Constitution of Uganda 1995 Article 26(1)
  • Constitution of Uganda 1995 Article 29(1)(a)
  • Constitution of Uganda 1995 Article 21(1)
  • Constitution of Uganda 1995 Article 21(2)
  • Constitution of Uganda 1995 Article 28(1)
  • Constitution of Uganda 1995 Article 43
  • Constitution of Uganda 1995 Article 43(2)(c)
  • Constitution of Uganda 1995 Article 44
  • Constitution of Uganda 1995 Article 22
  • Constitution of Uganda 1995 Article 39
  • Constitution of Uganda 1995 Article 50
  • Tobacco Control Act 2015 s.12
  • Tobacco Control Act 2015 s.15(2)
  • Tobacco Control Act 2015 s.16
  • Tobacco Control Act 2015 s.23
  • Tobacco Control Act 2015 s.25
  • Trademarks Act 2010 (Cap 217) s.36
  • Trademarks Act 2010 (Cap 217) s.37
  • Copyright and Neighbouring Rights Act 2006
  • Industrial Property Act 2014
  • Civil Procedure Act s.39
  • Constitutional Court (Petitions and References) Rules 2005 (S.I. No. 91 of 2005)

Cases cited (18)

  • Charles Onyango Obbo and Andrew Mujuni Mwenda v Attorney General (Constitutional Appeal No. 2 of 2002)
  • R vs Oakers 26 DCR (4) 2000
  • British American Tobacco UK Ltd v Department of Health [2016] EWHC 1169
  • British American Tobacco UK Ltd v Secretary of State for Health [2016] EWCA Civ 1182
  • Inter Lotto (UK) Ltd v Camelot Group Plc [2003] EWHC 1256 (Ch)
  • Amooti Godfrey Nyakaana v National Environment Management Authority and Others (Constitutional Appeal No. 5 of 2011)
  • Dorothy Nandugwa Kabugo v Attorney General (Constitutional Petition No. 039 of 2010)
  • Mark Gova & Another vs Minister of Home Affairs & Another, [S.C. 36/2000: Civil Application No. 156/99]
  • Mbabaali Jude v Hon. Edward Kiwanuka Ssekandi (Constitutional Petition No. 0028 of 2012)
  • Serugo v Kampala City Council and Attorney General (Constitutional Appeal No. 2 of 1998)
  • Attorney General v Major General David Tinyefuza (Constitutional Appeal No. 1 of 1997)
  • British American Tobacco Kenya Ltd vs Cabinet Secretary The Ministry of Health, Tobacco Control Board and The Attorney General No. 143 of 2016
  • British American Tobacco South (pty) Ltd vs Minister of Health and National Council Against Smoking, Supreme Court of Appeal South Africa No. 463 of 2011
  • K. Ramakrishnan & others vs The State of Kerala & others High Court at ERNAKULAM No. 24160 of 1998
  • Ms Shehla Zia & others vs Water and Power Development Authority (WAPDA) Pakistan Supreme Court Case No. 15-K of 1992
  • Juan Antonio Oposa & others vs Hon. Fulgencio Factoran & another Supreme Court of the Philippines GR. No 101083
  • British American Tobacco v The Environmental Action Network Ltd (Miscellaneous Application No. 27 of 2003)
  • Caceres Corrales v. Colombia, Judgment C-830110, Corte Constitutional de Colombia [Constitutional Court] (2010)
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