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Ayena Odongo v The Attorney General & Anor (Constitutional Petition No. 30 of 2017)

Constitutional Court · [2020] UGCC 2 · 2020 Petition Partly Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional petition under articles 50 and 137 of the Constitution challenging the manner of funding of the judiciary
Decision
Petition partially succeeded; declarations issued on the mode of funding the judiciary; petition struck out against the Parliamentary Commission with costs; costs of the petition awarded to the petitioner against the first respondent.

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Holding

The Constitutional Court held that the administrative expenses of the judiciary, including salaries, allowances, gratuities and pensions, are charged directly on the Consolidated Fund by article 128(5) and therefore do not pass through the Appropriation Bill process under articles 154 and 156. Funding the judiciary through an Appropriation Act is inconsistent with articles 128(5), (6) and 154(1)(a). The petition was struck out against the Parliamentary Commission, which has no power to enact laws under article 79(2), so no cause of action lay against it. Allegations of unequal pay disclosed no cause of action for failing to plead a specific contravened constitutional provision as required by article 137(3). The petition partially succeeded.

Facts

The petitioner, an advocate and former member of Parliament, petitioned the Constitutional Court alleging that the financial independence of the judiciary was being compromised. Under the prevailing practice, the judiciary submits its annual budget estimates to the Executive's budget office for inclusion in the Appropriation Bill, leaving the judiciary dependent on the Executive for its budgeting and the release of funds. The petitioner contended this contravened article 128(5) and (6) of the Constitution, which charge the administrative expenses of the judiciary on the Consolidated Fund and provide that the judiciary shall be self-accounting and may deal directly with the Ministry responsible for finance. He also alleged that judicial officers were paid less than other members of the legal profession employed elsewhere in government, and that the Parliamentary Commission had failed to enact laws ensuring equal pay and providing for the administration of the judiciary. The Attorney General filed no answer to the petition and made no submissions. The Parliamentary Commission objected that, having no power to enact laws, it was improperly joined and the petition disclosed no cause of action against it.

Issues

  1. Whether the petition disclosed a cause of action against the second respondent, the Parliamentary Commission, given that it has no power to enact laws.
  2. Whether the petition raised a question as to the interpretation of the Constitution such that the Constitutional Court had jurisdiction, and whether the petitioner had locus standi.
  3. Whether funding the judiciary through an Appropriation Bill presented by the Executive, rather than as a direct charge on the Consolidated Fund, contravenes articles 128(5), (6) and 154(1)(a) of the Constitution.
  4. Whether the alleged failure to enact laws ensuring equal pay for judicial officers, and the alleged lower remuneration of judicial officers, disclosed a cause of action under article 137(3).

Orders

  • A declaration that the remuneration, salaries, allowances and recurrent expenditures of the judiciary are charged by the Constitution on the Consolidated Fund and do not form part of the estimates to be included in the annual Appropriation Bills.
  • A declaration that the judiciary is only obliged to send its financial estimates of revenue and expenditure to the President for laying before Parliament without review or amendment, though accompanied by the President's comments.
  • A declaration that the practice of funding the judiciary through an Appropriation Act is inconsistent with articles 128(5), (6) and 154(1)(a) of the Constitution.
  • A declaration that the judiciary may, if it chooses, present its annual budget for administrative expenses under article 128(5) and (6), in collaboration with the Ministry responsible for finance, to Parliament for approval without going through an Appropriation Bill.
  • The petition is struck out as against the second respondent, the Parliamentary Commission, with costs, for disclosing no cause of action.
  • The petition partially succeeded; costs of the petition awarded to the petitioner, to be paid by the first respondent.

Key headnotes

Constitutional Law — Independence of the Judiciary — Financial Independence — Charge on the Consolidated Fund
The administrative expenses of the judiciary, including all salaries, allowances, gratuities and pensions payable to or in respect of persons serving in the judiciary, are charged directly on the Consolidated Fund by article 128(5) of the Constitution.
Constitutional Law — Public Finance — Withdrawal from the Consolidated Fund — Charged Expenditure
Expenditure charged on the Consolidated Fund by the Constitution or by an Act of Parliament is withdrawn under article 154(1)(a) without the authority of an Appropriation Act and does not feature in an Appropriation Bill under article 156(1).
Constitutional Law — Independence of the Judiciary — Funding through Appropriation Act Unconstitutional
Funding the judiciary through an Appropriation Act, rather than as a direct charge on the Consolidated Fund, is inconsistent with articles 128(5), (6) and 154(1)(a) of the Constitution.
Constitutional Law — Constitutional Petitions — Pleading — Specific Provision Alleged to be Contravened
A petition under article 137(3) of the Constitution must specifically plead the provision of the Constitution alleged to be contravened; a bare allegation that a constitutional provision has been violated is insufficient to disclose a cause of action.
Constitutional Law — Parliamentary Commission — No Power to Enact Laws — Proper Parties
The Parliamentary Commission has no power to enact laws and is barred from legislating by article 79(2) of the Constitution; a petition seeking a declaration that it failed to enact a law discloses no cause of action against it.
Statutory Interpretation — Constitutional Interpretation — Sui Generis and Harmonisation Principles
A constitution must be construed on the basis of its own language as a document sui generis, and its provisions must be read in harmony so that effect is given to all of them rather than one being neutralised by another.
Constitutional Law — Independence of the Judiciary — Self-Accounting — Dealing with Ministry of Finance
Under article 128(6) the judiciary is self-accounting and may deal directly with the Ministry responsible for finance in relation to its finances, and may present its budget to the President for laying before Parliament without review or amendment by the Executive.

Legislation cited (27)

  • Constitution of Uganda 1995 art.2
  • Constitution of Uganda 1995 art.40(1)(b)
  • Constitution of Uganda 1995 art.50
  • Constitution of Uganda 1995 art.79(2)
  • Constitution of Uganda 1995 art.85
  • Constitution of Uganda 1995 art.87A
  • Constitution of Uganda 1995 art.93
  • Constitution of Uganda 1995 art.126
  • Constitution of Uganda 1995 art.128(5)
  • Constitution of Uganda 1995 art.128(6)
  • Constitution of Uganda 1995 art.129
  • Constitution of Uganda 1995 art.137(3)
  • Constitution of Uganda 1995 art.146
  • Constitution of Uganda 1995 art.147
  • Constitution of Uganda 1995 art.150
  • Constitution of Uganda 1995 art.153
  • Constitution of Uganda 1995 art.154(1)
  • Constitution of Uganda 1995 art.155
  • Constitution of Uganda 1995 art.156(1)
  • Constitution of Uganda 1995 art.257
  • Administration of Parliament Act Cap 257 s.2
  • Administration of Parliament Act Cap 257 s.6
  • Administration of Parliament Act Cap 257 s.20
  • Parliamentary (Remuneration of Members) Act Cap 259 s.1
  • Parliamentary (Remuneration of Members) Act Cap 259 s.4
  • Parliamentary (Remuneration of Members) Act Cap 259 s.5
  • Constitutional Court (Petitions and References) Rules 2005 (SI 2005 No 91) r.3

Cases cited (18)

  • Parliamentary Commission v Twinobusingye Severino and Attorney General (Constitutional Application No. 53 of 2011)
  • Tororo Cement Company Ltd v Frokina International Ltd (Supreme Court Civil Appeal No. 2 of 2004)
  • Colter v Attorney General for Kenya (1938) 5 EACA 18
  • Auto Garage v Motokov (1971) EA 514
  • Queen v Beauregard [1986] 2 S.C.R. 56
  • Valente v The Queen, [1985] 2 S.C. R. 673
  • Olisa Agbakoba v FG, The NJC & National Assembly; Suit No: FHC/ABJ/CS/63/2013
  • Minister of Home Affairs and another v Fisher and another [1979] 2 All E.R. 21
  • State v Makwanyane and Another [1995] 1 LRC 269
  • Dow v Attorney General (of Botswana) [1992] LRC (Const.) 623
  • South Dakota v North Carolina 192 U.S. 286 (24 S. Ct. 269, 48 L. Ed. 448 (1940)
  • National Council for Higher Education v Anifa Kawooya Bangirana (Constitutional Appeal No. 4 of 2011)
  • Mwesigye Wilson v Attorney General and the Parliamentary Commission (Constitutional Petition No. 31 of 2011)
  • Parliamentary Commission v Mwesigye Wilson (Constitutional Appeal No. 8 of 2016)
  • Ismail Serugo v Kampala City Council & Attorney General (Constitutional Appeal No. 2 of 1998)
  • Pinner v Everett, [1969] 3 All E.R. 257
  • Maunsell v Olins, [1975] A.C. 373; Maunsell v Olins and another [1975] 1 All ER 16
  • 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.