Wakilii

Ssajabi and Another v Attorney General and Another (Constitutional Petition No. 51 of 2013)

Constitutional Court · [2021] UGCC 24 · 2021 Petition Allowed in Part ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional petition under Article 137 challenging the constitutionality of statutory provisions and acts of state agencies.
Decision
Petition allowed in part: sections 118 and 124 of the Financial Institutions Act declared unconstitutional and the freezing orders discharged; the seven-year property restraint declared unconstitutional; declarations on the Anti-Corruption Division and section 34 of the Anti-Corruption Act refused; damages declined.

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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 Court held that the Anti-Corruption Division of the High Court was validly created by the Chief Justice as an administrative division under Article 133(1)(b), not a special court under Article 232(2)(e). Section 34 of the Anti-Corruption Act, allowing court-ordered restraint of suspected proceeds of crime, is a justifiable limitation under Article 43. However, sections 118 and 124 of the Financial Institutions Act, read together, unconstitutionally bar aggrieved account holders from challenging Bank of Uganda freezing directives in court, contrary to Article 21(1). Maintaining freezing orders on the petitioners' property for over seven years was a disproportionate, unconstitutional restraint. The petition was allowed in part; damages were refused for lack of evidence.

Facts

From September to November 2012 the 1st petitioner was investigated over a publicised pension corruption scandal involving questionable East African Community beneficiaries; he had been National Secretary of EACOBA. The 2nd petitioner is a company in which he is a shareholder and director. In about November 2012 the Bank of Uganda directed the freezing of the petitioners' bank accounts on suspicion that the funds were proceeds of crime, and a court order made in 2013 placed restrictions on their property under section 34 of the Anti-Corruption Act. At the hearing in 2020 the freezing orders and restraint were still in force, over seven years after they were made. The petitioners challenged the constitutionality of the Anti-Corruption Division of the High Court, section 34 of the Anti-Corruption Act and section 118 of the Financial Institutions Act, and the prolonged freezing of their property, seeking declarations, discharge of the orders, compensation and general damages.

Issues

  1. Whether the Anti-Corruption Division of the High Court was constitutionally established.
  2. Whether the freezing and continued restraint of the petitioners' property infringed their constitutional right to property.
  3. Whether section 34 of the Anti-Corruption Act is unconstitutional.
  4. Whether section 118 (read with section 124) of the Financial Institutions Act is unconstitutional.
  5. Whether the petitioners are entitled to the remedies sought, including damages.

Orders

  • Petition allowed in part.
  • The creation of the Anti-Corruption Division of the High Court was done in accordance with the Constitution.
  • Section 34 of the Anti-Corruption Act does not contravene the Constitution.
  • Sections 118 and 124 of the Financial Institutions Act are inconsistent with and in contravention of Articles 2, 20(2), 21, 22, 28(1),(3)(a), 42, 44(c) and 126 of the Constitution.
  • The continued existence of a court order placing restrictions on the use of the petitioners' property over a period of 7 years is unconstitutional.
  • The bank account freezing orders placed on the petitioners' accounts on the directives of the 2nd respondent are discharged.
  • The 1st respondent to put in place regulations ensuring section 34 of the Anti-Corruption Act is applied in conformity with the Constitution.
  • General damages declined for insufficient evidence.
  • No order as to costs.

Key headnotes

Constitutional Law — Courts — Anti-Corruption Division of the High Court — Establishment by Chief Justice
The Anti-Corruption Division established by the Chief Justice under Legal Notice No. 9 of 2009 is a valid administrative division of the High Court created under the power in Article 133(1)(b), and not a special court that may only be established by Parliament under Article 232(2)(e); its creation and exercise of jurisdiction conform to the Constitution.
Constitutional Law — Limitation of Rights — Article 43 — Demonstrably Justifiable in a Free and Democratic Society
A limitation on the enjoyment of constitutional rights is permissible under Article 43 only where the limitation is acceptable and demonstrably justifiable in a free and democratic society, a yardstick that operates as a limitation upon the limitation.
Human Rights — Right to Property — Restraint Orders — Proportionality and Duration
Even where interference with the right to property is authorised by law, it must pursue a legitimate aim and be proportionate; maintaining restraint or freezing orders over a person's property for over seven years, absent any contributory conduct by that person, is a disproportionate and unconstitutional restraint on the right to property.
Criminal Law & Procedure — Proceeds of Crime — Anti-Corruption Act s.34 — Restraint of Property
Section 34 of the Anti-Corruption Act, which permits a court on application by the DPP or IGG to restrain property suspected to be proceeds of crime, serves the public interest in combating corruption and is a justifiable limitation under Article 43 that does not contravene the Constitution.
Banking & Finance — Financial Institutions Act ss.118 & 124 — Freezing Orders — Access to Court
Sections 118 and 124 of the Financial Institutions Act, read together, unconstitutionally bar an account holder aggrieved by a Bank of Uganda freezing directive from challenging it in court and shield the Central Bank from legal proceedings, denying access to court and equal protection of the law contrary to Article 21(1).
Statutory Interpretation — Constitutionality — Purpose and Effect of Legislation
In determining the constitutionality of legislation, both its purpose and its effect must be considered; legislation may be unconstitutional by reason of either an unconstitutional purpose or an unconstitutional effect.

Legislation cited (15)

  • Anti-Corruption Act s.34
  • Anti-Corruption Act, 2009 (No. 6 of 2009)
  • Financial Institutions Act 2004 s.118
  • Financial Institutions Act 2004 s.124
  • Penal Code Act s.254
  • Penal Code Act s.261
  • Penal Code Act s.309
  • Constitution of Uganda 1995 art.43
  • Constitution of Uganda 1995 art.21(1)
  • Constitution of Uganda 1995 art.26
  • Constitution of Uganda 1995 art.133(1)
  • Constitution of Uganda 1995 art.137(4)
  • Constitution of Uganda 1995 art.232(2)(e)
  • Constitutional Court (Petitions and References) Rules S.I 91 of 2005
  • Legal Notice No. 9 of 2009

Cases cited (10)

  • Akankwasa Damian v Uganda (Constitutional Petition No. 5 of 2011)
  • Charles Onyango Obbo and Another v Attorney General (Constitutional Appeal No. 2 of 2002)
  • Davis Wesley Tusingwire v Attorney General (Constitutional Petition No. 2 of 2013)
  • Chapman v United Kingdom, Application No. 27238/95
  • R v Waya [2012] UKSC 51
  • R v Rezvi [2002] UKHL 1, [2003] 1 AC 1099
  • R v Rafilovich, 2019 SCC 51
  • Handyside vs. The United Kingdom, Application No. 5498/92
  • Kevin Francis Donnelly case {201 OJ NIQB
  • Dyer (2004) 1 AC 379
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.