Wakilii

Binega v Attorney General & Anor. (Constitutional Petition No. 1 of 2016)

Constitutional Court · [2019] UGCC 7 · 2019 Petition Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional petition under Article 137(3) challenging the constitutionality of a statutory provision and the Solicitor General's opinion
Decision
Petition dismissed with costs to the respondents

The full judgment

Read the complete, verbatim text of this judgment.

Sign in to read the full judgment
Treatment recorded in citing cases distinguished in 1 Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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 the petition, holding that section 19(1)(a) of the Income Tax Act, which treats gratuity as taxable employment income, is not unconstitutional. The word "pension" in Article 254(2) of the Constitution, which exempts pension from tax, does not include "gratuity"; the two are distinct concepts treated differently in the Pensions Act, Income Tax Act and NSSF Act. The petitioner, a contractual employee of the Inspectorate of Government, was not eligible for pension under the Pensions Act and his terminal gratuity was therefore taxable. The Solicitor General's opinion that the gratuity was taxable was correct. The challenge to section 9 of the Pensions Act was res judicata.

Facts

The petitioner, an advocate employed as a Senior Inspectorate Officer with the Office of the Inspectorate of Government (IGG) on a four-year renewable contract, was entitled under his contract to gratuity equivalent to 30% of basic annual salary for each completed year of service. On 23 December 2015 the Solicitor General opined that gratuity paid to Inspectorate staff was taxable income under section 19(1)(a) of the Income Tax Act, which defines employment income to include gratuity. The respondents accordingly treated the petitioner's gratuity as subject to income tax. The petitioner contended this contravened Article 254(2) of the Constitution, which exempts pension from tax, arguing that "pension" should be read to include "gratuity" and that section 8 of the Pensions Act exempts both. The respondents argued that the Pensions Act applies only to public officers on permanent and pensionable terms, that the petitioner was a contractual employee not eligible for pension under that Act, and that the Constitution exempts only pension, not gratuity.

Issues

  1. Whether section 19(1)(a) of the Income Tax Act Cap 340, which defines employment income to include gratuity and thus makes it liable to income tax, is inconsistent with and in contravention of Articles 2, 26, 40 and 254(2) of the Constitution.
  2. Whether the opinion of the Solicitor General dated 23 December 2015, maintaining that gratuity paid to staff of the Inspectorate of Government is taxable under section 19(1)(a) of the Income Tax Act, is inconsistent with and in contravention of Articles 2, 20, 24, 26, 40 and 254(2) of the Constitution.
  3. Whether section 9 of the Pensions Act Cap 286, which bars proceedings on the ground that a provision of the Act has not been complied with, denies access to redress from the courts and is inconsistent with Articles 2, 21, 28, 126, 128, 137 and 254 of the Constitution.
  4. Whether the petitioner is entitled to the orders and declarations sought.

Orders

  • The petition is dismissed.
  • Costs awarded to the respondents.

Key headnotes

Constitutional Interpretation — Ordinary and Natural Meaning — Words Capable of Only One Meaning
In interpreting a constitutional or statutory provision the first endeavour is to ascertain the natural and ordinary meaning of the words; where the words are clear and unambiguous there is no need to resort to rules of construction, and a court may not attach to a provision a meaning the words cannot reasonably bear.
Tax Exemption — Pension Under Article 254(2) of the Constitution — Whether Includes Gratuity
The word "pension" in Article 254(2) of the Constitution, which exempts pension from tax, refers to a periodic and regular payment made on retirement and does not include gratuity, which is a lump sum payable at the pleasure of an employer or on the ending of a contract; pension and gratuity are distinct and are treated separately in the Pensions Act, the Income Tax Act and the NSSF Act.
Income Tax — Section 19(1)(a) Income Tax Act — Constitutionality of Taxing Gratuity
Section 19(1)(a) of the Income Tax Act, which defines taxable employment income to include gratuity, is a provision of general application to all categories of employees and is not inconsistent with Article 254(2) of the Constitution; the Constitution exempts pension and retirement-fund contributions, not gratuity.
Pension Eligibility — Pensionable Office — Contractual Public Officers
A public officer is only eligible for pension under the Pensions Act where the terms of appointment expressly include eligibility for the grant of a pension under that Act; an officer of the Inspectorate of Government employed on contractual terms entitling him only to a terminal gratuity is not pensionable under the Pensions Act and the exemption in section 8 of that Act does not apply to him.
Constitutional Court Jurisdiction — Opinion of Solicitor General — Whether Justiciable Under Article 137
A legal opinion of the Solicitor General given in exercise of the Attorney General's constitutional mandate raises no question for constitutional interpretation under Article 137; an opinion may be erroneous but cannot be unconstitutional on account of error alone.
Res Judicata — Prior Determination of Constitutionality of a Statutory Provision
Where a statutory provision has already been declared null and void in an earlier constitutional petition that was not appealed, a fresh challenge to the same provision is res judicata and will not be re-determined.

Legislation cited (25)

  • Income Tax Act Cap 340 s.19(1)(a)
  • Income Tax Act Cap 340 s.19(2)(g)
  • Income Tax Act Cap 340 s.21(1)(n)
  • Pensions Act Cap 286 s.8
  • Pensions Act Cap 286 s.9
  • Pensions Act Cap 286 s.10(2)
  • Pensions Act Cap 286 s.15
  • Pensions Act Cap 286 s.1(g)
  • Constitution of the Republic of Uganda 1995 Article 254(1)
  • Constitution of the Republic of Uganda 1995 Article 254(2)
  • Constitution of the Republic of Uganda 1995 Article 254(3)
  • Constitution of the Republic of Uganda 1995 Article 137(3)
  • Constitution of the Republic of Uganda 1995 Article 175
  • Constitution of the Republic of Uganda 1995 Article 152(1)
  • Constitution of the Republic of Uganda 1995 Article 17(1)(g)
  • Constitution of the Republic of Uganda 1995 Article 274
  • Constitution of the Republic of Uganda 1995 Article 45
  • Constitution of the Republic of Uganda 1995 Article 119
  • National Social Security Fund Act Cap 222 s.6
  • National Social Security Fund Act Cap 222 s.38
  • Public Service Act 2008 s.2
  • Public Service Act 2008 s.6
  • Inspectorate of Government Act 2002 s.4(2)
  • Inspectorate of Government Act 2002 s.4(4)
  • Inspectorate of Government Act 2002 s.16(1)

Cases cited (16)

  • Baku Raphael Obudra & Another v Attorney General (Constitutional Appeal No. 1 of 2013)
  • PK Ssemwogerere & Anor v Attorney General (Constitutional Appeal No. 1 of 2002)
  • Hon. Sam Kuteesa & 2 Others v Attorney General (Constitutional Petition No. 46 of 2011)
  • Davis Wesley Tusingwire v Attorney General (Constitutional Appeal No. 4 of 2016)
  • Unity Dow v Attorney General of Botswana [1992] LRC (Const) 623
  • R v Greenwood (1992) 7 O.R. (3d) 1
  • Stanbic Bank & Ors v Uganda Revenue Authority (HCCA No. 170 of 2007)
  • Uganda Revenue Authority v Siraje Hassan Kajura (Civil Appeal No. 9 of 2015)
  • Dr James Rwanyarare & Another v Attorney General (Constitutional Petition No. 5 of 1999)
  • Registered Trustees of Kampala Institute v Departed Asian Property Custodian Board (Civil Appeal No. 21 of 1993)
  • Foundation for Human Rights Initiative v Attorney General (Constitutional Petition No. 20 of 2006)
  • Attorney General v Salvatori Abuki (Constitutional Appeal No. 1 of 1998)
  • Christopher Martin Madrama Izama v Attorney General (Constitutional Petition No. 12 of 2008)
  • Pinner v Everett [1969] 3 All ER 257
  • Maunsell v Olins [1975] AC 373
  • Jones v Director of Public Prosecutions [1962] AC 635
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.