Wakilii

Legal Brains Trust (LBT) Ltd v Basajjabalaba & 18 Ors (Constitutional Petition No. 4 of 2012)

Constitutional Court · [2020] UGCC 5 · 2020 Petition Partly Allowed; Referred to High Court ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional petition under Article 137 for interpretation, met by a preliminary objection challenging the Court's jurisdiction.
Decision
Petition partly succeeded; preliminary objection overruled, contracts concluded without the Attorney General's advice declared void under Article 119(5), and the matter referred to the High Court to determine redress and liability.

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Cited — treatment unverified cited in 2 (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 overruled the respondents' preliminary objection, holding that although clumsily drafted the petition raised a genuine question for constitutional interpretation: whether agreements for Kampala's city markets and the Constitutional Square concluded without the Attorney General's legal advice contravened Article 119(5). Following Nsimbe Estates and Anold Brooklyn, the Court held such contracts are void ab initio under Article 2(2). It further held that the lease of the Constitutional Square breached Article 237(2)(b) protecting ecological public land, so no compensation could arise from an illegal contract. The petition partly succeeded; the question of redress and liability was referred to the High Court, each party bearing its own costs.

Facts

Between 2000 and 2011, Kampala City Council (later KCCA) entered into a series of management contracts, subleases and joint-venture agreements with companies controlled by Hassan Basajjabalaba (the Haba Group) over Nakasero Market, Nakivubo Shauriyako Market, St Balikuddembe (Owino) Market and the Constitutional (City) Square. Several arrangements were concluded without the legal advice of the Attorney General required by Article 119(5). Public resistance led Government to cancel the contracts. The Haba Group sought compensation; an inter-ministerial committee recommended about UGX 54 billion, but the Attorney General later directed payment of about UGX 142 billion, partly effected through letters of comfort issued by the Bank of Uganda and credit advanced by commercial banks drawing on the Consolidated Fund. A KPMG value-for-money audit found nothing was owed, and the Attorney General alleged the claims rested on forged documents, including a purported consent judgment. Legal Brains Trust, a civil society organisation, petitioned for declarations that these arrangements and payments were unconstitutional. Most respondents objected that the petition raised no question for constitutional interpretation, while the Attorney General in substance conceded the petition.

Issues

  1. Whether the petition, in its form, complies sufficiently with the rules of the Constitutional Court for it to be entertained.
  2. Whether the petition raises any question for constitutional interpretation so as to clothe the Constitutional Court with jurisdiction under Article 137.
  3. Whether the management contracts, subleases and joint-venture agreements for the city markets and square, concluded without the Attorney General's legal advice, contravened Article 119(5) and related provisions of the Constitution.
  4. Whether the lease of the Constitutional (City) Square contravened Article 237(2)(b) of the Constitution.
  5. Whether money paid under a contract that is illegal or void ab initio is recoverable.
  6. What remedies are available to the parties in the circumstances.

Orders

  • The preliminary objections to the jurisdiction of the Court are dismissed.
  • The petition is referred to the High Court to investigate and determine the appropriate redress and/or liability of each party for the conceded constitutional violations of Article 119(5) in relation to the management contract for St Balikuddembe Market, the management contract for Nakasero Market, and the sub-lease for Shauri Yako Market.
  • The Attorney General should enforce whatever remedies and/or liabilities are found against those who violated Article 119(5).
  • Each party to bear its own costs.

Key headnotes

Constitutional Law — Jurisdiction of the Constitutional Court — Article 137 — Concurrent jurisdiction
The Constitutional Court has jurisdiction under Article 137 where the dispute cannot be resolved without first interpreting the Constitution; even where a petition is clumsily drafted, a question genuinely requiring constitutional interpretation must be answered rather than struck out with the rest of the petition.
Statutory Interpretation — Constitutional interpretation — Reading the Constitution as an integrated whole
No single provision of the Constitution is to be considered in isolation; all provisions bearing on a subject must be read together as an integrated whole so that each provision sustains rather than destroys the others.
Administrative Law — Government contracts — Article 119(5) — Legal advice of the Attorney General
An agreement, contract, treaty, convention or document to which Government is a party or in which it has an interest, concluded without the legal advice of the Attorney General as required by Article 119(5), contravenes the Constitution and is void ab initio under Article 2(2) to the extent of the inconsistency.
Land & Property — Public trust land — Article 237(2)(b) — Ecological and green public spaces
Land reserved for ecological purposes, including urban green spaces, is held in trust for the people under Article 237(2)(b), and neither Government nor a local or urban authority has power to lease or otherwise alienate it; any such lease is void ab initio.
Contract Law — Illegal and void contracts — Recovery of money — Parties in pari delicto
A court will not enforce an illegal contract or assist a party who must rely on the illegal transaction to make out a claim; money paid under a contract void ab initio is irrecoverable where the parties are in pari delicto, and no compensation can arise from such a contract.
Constitutional Law — Kampala Capital City — Article 5 — Status of KCCA as 'Government'
Because Kampala, as the capital city, is administered by the Central Government under Article 5, Kampala City Council/KCCA is not an ordinary local government and the Central Government retains a constitutional interest in its administration, so Article 119(5) applies to its contracts.
Constitutional Law — Separation of powers — Political question doctrine — Justiciability
The political question doctrine has only limited application in Uganda; acts or omissions of the Executive or Legislature are immune from judicial review only insofar as they conform to the Constitution, and once alleged to be inconsistent with the Constitution they become justiciable before the Constitutional Court.

Legislation cited (17)

  • Constitution of Uganda 1995 art.2(2)
  • Constitution of Uganda 1995 art.5(4)
  • Constitution of Uganda 1995 art.119(5)
  • Constitution of Uganda 1995 art.119(6)
  • Constitution of Uganda 1995 art.126
  • Constitution of Uganda 1995 art.137
  • Constitution of Uganda 1995 art.162(2)
  • Constitution of Uganda 1995 art.237(2)(b)
  • Constitution of Uganda 1995 art.237(8)
  • Local Government Act (Cap 243) s.67(4)
  • Local Government Act (Cap 243) s.86
  • Leadership Code Act 2002 s.13(3)
  • Leadership Code Act 2002 s.15(7)
  • Public Finance and Accountability Act 2003 s.25
  • Bank of Uganda Act s.29
  • Land Act (Cap 227) s.44(1)
  • Registration of Titles Act

Cases cited (20)

  • Nsimbe Holdings Ltd v Attorney General and Inspector General of Government (Constitutional Petition No. 2 of 2006)
  • Anold Brooklyn & Company v Kampala Capital City Authority (Constitutional Reference No. 23 of 2013)
  • Attorney General v Tinyefuza (Constitutional Appeal No. 1 of 1997)
  • Ismail Serugo v Kampala City Council & Attorney General (Constitutional Appeal No. 2 of 1998)
  • Centre for Health, Human Rights and Development v Attorney General (Constitutional Appeal No. 1 of 2013)
  • Jude Mbabali v Edward Kiwanuka Ssekandi (Constitutional Petition No. 28 of 2012)
  • Baku Raphael Obudra and Obiga Kania v Attorney General (Constitutional Appeal No. 1 of 2003)
  • Wycliffe Kiggundu v Attorney General (Civil Appeal No. 27 of 1993)
  • Davis Wesley Tusingwire v Attorney General (Constitutional Petition No. 2 of 2013)
  • Charles Kabagambe v Uganda Electricity Board (Constitutional Petition No. 2 of 1999)
  • Uganda Network on Toxic Free Malaria Control Ltd v Attorney General (Constitutional Petition No. 14 of 2009)
  • Male Mabirizi and 4 Others v Attorney General (Constitutional Petition No. 49 of 2017)
  • Equator Touring Services Ltd v Kampala City Council (HCCS Nos. 738 and 278 of 2010)
  • Engineer Investments Ltd vs Attorney General and Kampala Capital City Authority
  • Active Automobile Spares Ltd v Crane Bank and Rajesh Pakesh (Civil Appeal No. 21 of 2001)
  • Sinba (K) Ltd v Uganda Broadcasting Corporation (Civil Appeal No. 3 of 2014)
  • Fibrosa Spolka Akcyjna v Fairbairn Lawson Combe Barbour Ltd [1943] AC 32
  • Advocates Coalition for Development and Environment v Attorney General & NEMA (Miscellaneous Cause No. 100 of 2004)
  • Minister of Health v Treatment Action Campaign 2002 (5) SA 721 (CC)
  • Kizza Besigye v Yoweri Kaguta Museveni & Another (Election Petition No. 1 of 2001)
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