Wakilii

Uganda Law Society v Attorney General (Constitutional Petition No. 52 of 2017)

Constitutional Court · [2020] UGCC 4 · 2020 Petition Partly Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional petition under Article 137 challenging the constitutionality of statutory provisions and executive acts affecting the Judiciary's budgeting and financial autonomy.
Decision
Petition allowed in part; declarations and injunctive relief granted requiring the Judiciary's administration and finances to be controlled by the Chief Justice, with the certificate-of-financial-implications challenge dismissed.

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Holding

The Court held that judicial independence under Articles 128 and 155 of the Constitution includes the Judiciary's financial and budgetary autonomy; an arm of government dependent on another for its financial decisions cannot be independent. As a self-accounting organ, the Judiciary must submit its estimates through the Chief Justice directly to the President, to be laid before Parliament without revision by the Executive. Sections 9 and 11 of the Public Finance Management Act 2015 are not unconstitutional per se but cannot lawfully apply to the Judiciary; their application, and the involvement of the Ministers of Finance and Justice and the Secretary to the Treasury, is unconstitutional. The certificate-of-financial-implications requirement was upheld. Petition allowed in part, no order as to costs.

Facts

The Uganda Law Society petitioned the Constitutional Court alleging that the Judiciary's budgetary process was subjected to the control of the Minister of Justice and Constitutional Affairs, the Minister of Finance and the Secretary to the Treasury, offending the principles of separation of powers and judicial independence. It alleged the Judiciary was treated as a department within the Justice, Law and Order Sector, its budget routinely revised downward and cut, leaving it underfunded—reportedly under 50% of its needs, with only 200 of 429 gazetted courts operational—and contributing to case backlog. The petition relied on affidavits of Francis Gimara and the public-finance expert Dr. Fred Muhumuza. It challenged Sections 9 and 11 of the Public Finance Management Act 2015, Section 10 of the Budget Act 2001, and the certificate-of-financial-implications requirement, and the failure of the Executive and Legislature to enact a Judiciary Administration Bill. The Attorney General denied the allegations, contending the impugned provisions were constitutional, that judicial independence concerned only the adjudicative function, and that government followed lawful, transparent budgeting within a limited resource envelope.

Issues

  1. Whether the petition is bad in law, frivolous, prolix and does not raise any issue for constitutional interpretation.
  2. Whether Sections 9(1), (2), (5) and 11(3)(a) of the Public Finance Management Act, 2015 are inconsistent with or in contravention of Article 155(2) and (3) of the Constitution.
  3. Whether the act of the Secretary to the Judiciary submitting the Judiciary's budget framework to the Minister of Justice and Constitutional Affairs contravenes Article 155(2).
  4. Whether the act of the Minister of Justice and Constitutional Affairs approving the Judiciary's budgetary framework and submitting it to the Minister of Finance contravenes Articles 128(6) and 155(2).
  5. Whether the requirement that all Bills be tabled only with a certificate of financial implications cleared by the Minister of Finance is inconsistent with Article 79.
  6. Whether the failure by the Executive and Legislature to enact a law implementing the Judiciary's budgetary autonomy contravenes Articles 128(3)(b), 150(1), 79(1) and 155(2) and (3).
  7. Whether allocating inadequate resources to the Judiciary and subjecting it to a budgetary process outside Article 155(2) contravenes Articles 126(2)(b), 128(3) and 128(6).
  8. What remedies, if any, is the petitioner entitled to.

Orders

  • The petition is allowed in part with no order as to costs.
  • It is declared that the mandatory involvement of the Minister responsible for Finance and the Secretary to the Treasury in the budgeting process of the Judiciary contravenes Articles 128(1),(3),(6) and 155(2) and (3) of the Constitution.
  • It is declared that the involvement of the Minister responsible for Justice in the budgeting process of the Judiciary contravenes Articles 128(1),(3),(6) and 155(2) and (3) of the Constitution.
  • It is declared that the involvement of the Permanent Secretary/Secretary to the Judiciary in the budgeting process of the Judiciary, beyond providing technical advice, contravenes Articles 128(1),(3),(6), 133(1) and 155(2) and (3) and is void to that extent.
  • It is declared that the failure by the Executive and Parliament to enact a law implementing the Judiciary's autonomy contravenes Article 8A, National Objective VIII and Article 128(3).
  • It is declared that the allocation of inadequate resources to the Judiciary contravenes Article 8A, National Objective VIII and Article 128(3).
  • It is declared that any attempt to apply Sections 9 and 11 of the Public Finance Management Act to the Judiciary is unconstitutional.
  • It is declared that the practice of requiring a certificate of financial implications before tabling a bill is not inconsistent with Articles 79 and 93 of the Constitution.
  • The administration of the Judiciary shall be the responsibility of the Chief Justice, who may delegate to a public officer such as the Secretary to the Judiciary.
  • The management and distribution of finances in the Judiciary shall be the responsibility of the Chief Justice, assisted by public officers attached to the Judiciary.
  • Until arrangements are made, any person responsible for authorising the Judiciary's finances shall continue to do so under the supervision and approval of the Chief Justice.
  • Steps should be taken, and a report made to court within 6 months, to place all employees under the Judiciary within the jurisdiction of the Judicial Service Commission.
  • The Attorney General shall report to court once every three months on the steps taken to pass the requisite legislation.

Key headnotes

Constitutional Law — Separation of Powers — Judicial Independence — Financial Autonomy
Judicial independence under Articles 128 and 155 of the Constitution includes the financial and budgetary autonomy of the Judiciary; an arm of government wholly dependent on another arm for its financial decisions and budgeting cannot be regarded as independent.
Constitutional Law — Judiciary — Self-Accounting Status — Budget Estimates
As a self-accounting organ under Articles 128(6) and 155(2), the Judiciary must submit its budget estimates through the Chief Justice directly to the President, to be laid before Parliament without revision by the Executive, which may only make recommendations at that point.
Statutory Interpretation — Public Finance Management Act 2015 — Application to a Constitutional Organ
Sections 9 and 11 of the Public Finance Management Act 2015 are not unconstitutional per se, being lawfully applicable to other government departments, but they cannot lawfully apply to the Judiciary; their application to the Judiciary contravenes Articles 128, 133 and 155 of the Constitution.
Constitutional Law — Administration of the Judiciary — Chief Justice — Permanent Secretary
Article 133 vests the administration and supervision of the Judiciary solely in the Chief Justice; the Permanent Secretary/Secretary to the Judiciary may act only as a delegate of the Chief Justice and cannot derive independent control of the Judiciary's expenditure from Article 174.
Constitutional Law — Adequate Resourcing of the Judiciary — Duty of the State
The State has a constitutional duty under Article 8A, National Objective VIII and Article 128(3) to accord adequate resources to the Judiciary as an equal arm of government; allocating inadequate resources contravenes those provisions.
Constitutional Law — Certificate of Financial Implications — Private Members' Bills
The requirement of a certificate of financial implications before tabling a bill, under Section 76 of the Public Finance Management Act 2015 and Section 10 of the Budget Act 2001, is constitutional and operationalises Article 93's restriction on private members' bills imposing a charge on the Consolidated Fund.
Constitutional Law — Remedies — Judicial Restraint — Separation of Powers
In granting redress under Article 137(4), the Constitutional Court will act judiciously and refrain from imposing a rigid timeframe ordering the Executive to table legislation, instead requiring periodic reporting on the steps taken so as to avoid undue intrusion into the affairs of the other arms of government.

Legislation cited (19)

  • Constitution of Uganda art.8A
  • Constitution of Uganda art.79
  • Constitution of Uganda art.93
  • Constitution of Uganda art.94
  • Constitution of Uganda art.99(4)
  • Constitution of Uganda art.126(2)(b)
  • Constitution of Uganda art.128
  • Constitution of Uganda art.133
  • Constitution of Uganda art.137
  • Constitution of Uganda art.150(1)
  • Constitution of Uganda art.155
  • Constitution of Uganda art.174
  • Constitution of Uganda art.257(1)
  • Constitution of Uganda National Objective VIII
  • Public Finance Management Act 2015 s.9
  • Public Finance Management Act 2015 s.11
  • Public Finance Management Act 2015 s.76
  • Budget Act 2001 s.10
  • Parliamentary (Remuneration of Members) Act s.5

Cases cited (16)

  • Attorney General v Tinyefuza (Constitutional Appeal No. 1 of 1997)
  • Ismail Serugo v Kampala City Council & Anor (Supreme Court Civil Appeal No. 2 of 1998)
  • Jim Muhwezi & 3 Others v Attorney General & IGG (Constitutional Petition No. 10 of 2008)
  • Masalu Musene v Attorney General (Constitutional Petition No. 5 of 2004)
  • Krispus Ayena Odongo v Attorney General & Parliamentary Commission (Constitutional Petition No. 30 of 2017)
  • Parliamentary Commission v Mwesigye Wilson (Constitutional Appeal No. 8 of 2016)
  • Trop v Dulles 356 US 86 (1958)
  • Valente v R [1985] 2 SCR 673
  • Lithuania Constitutional Court ... Constitutional Justice Case No.16/98 of 21 December 1999
  • Smith v Miller, 153 Colo. 35 (1963)
  • Commonwealth ex rel. Carroll v Tate, 442 Pa. 45 (1971)
  • In re Alamance County Court Facilities, 329 N.C. 84 (1991)
  • Mowrer v Rusk, 95 N.M. 48 (1980)
  • Deddens v Cochise County, 113 Ariz. 75 (1976)
  • Judges for the Third Judicial Circuit v County of Wayne, 383 Mich. 10 (1969)
  • Vishaka & Others v State of Rajasthan (Supreme Court of India, 13 August 1997)
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.