Abid and Another v Attorney General (Constitutional Petition No. 43 of 2017)

Constitutional Court · [2021] UGCC 27 · 2021 Petition Partly Allowed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Constitutional petition under Article 137(3) challenging the constitutionality of acts of a Commission of Inquiry.

Decision

Petition partly succeeded; declarations issued that the Commission unconstitutionally exercised judicial power, permanent injunction granted restraining it from exercising judicial powers, and costs awarded to the petitioners.

The full judgment

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Holding

The Constitutional Court held that the Land Commission of Inquiry exercised judicial power—reserved exclusively to courts under Article 126(1)—when it issued an order preserving the status quo over the petitioners' land and a warrant of arrest against the first petitioner for obstructing its work, contravening Articles 2(2) and 126(1). The Commission's quasi-judicial powers under the Commissions of Inquiry Act could not be equated with the judicial power of the courts. The Court found the Commission did not exercise prosecutorial powers, since ordering arrest and detention is a judicial rather than prosecutorial function. The petition partly succeeded: a permanent injunction issued restraining the Commission from exercising judicial powers, with costs to the petitioners. Madrama JCC dissented on jurisdiction.

Facts

The second petitioner, a commercial farming company managed by the first petitioner, was the registered proprietor of approximately 10,000 acres in Mubende District. By Legal Notice No. 2 of 2017 the President established a Commission of Inquiry into land matters. Families of ex-world war servicemen complained to the Commission, claiming lawful interests in the land and alleging that the petitioners had violently evicted them. The Commission held public hearings, visited the land, and initiated mediation between the parties, directing preservation of the status quo. When the first petitioner allegedly breached the mediation and continued evictions, the Commission, on 7 November 2017, issued a warrant for his arrest for obstructing its work and disregarding its directives, together with a detention instruction. He was arrested and detained at Wandegeya Police Station and released on bond after undertaking not to interfere with the status quo. The petitioners alleged that the Commission acted ultra vires and unconstitutionally by exercising judicial and prosecutorial powers reserved to the courts and the Director of Public Prosecutions.

Issues

Whether the petition disclosed any question of constitutional interpretation so as to fall within the jurisdiction of the Constitutional Court under Article 137(1).
Whether the Land Commission of Inquiry exercised judicial power in respect of the petitioners.
Whether a Commission of Inquiry can exercise judicial power under the 1995 Constitution.
Whether the Land Commission of Inquiry exercised prosecutorial powers.
Whether a Commission of Inquiry can exercise prosecutorial powers under the 1995 Constitution.
Whether a permanent injunction and damages should be granted to the petitioners.

Orders

The acts of the Land Commission of Inquiry of exercising judicial power by issuing orders preserving the status quo on the second petitioner's land and issuing a warrant of arrest of the first petitioner were in contravention of Articles 2(2) and 126(1) of the Constitution.
The act of the Land Commission of Inquiry in directing or ordering the arrest of the first petitioner for violating the mediation settlement violated the petitioner's rights to land, liberty and fair hearing.
The Land Commission of Inquiry did not exercise prosecution powers when it issued a warrant of arrest against the first petitioner.
All disputes relating to ownership, use or access to land can only be determined by a court of law established under Article 129 of the Constitution.
A permanent injunction issues restraining the Land Commission of Inquiry from exercising judicial powers.
Costs of the petition are awarded to the petitioners.

Key headnotes

Constitutional Law — Judicial Power — Exclusive Vesting in Courts under Article 126(1)

Judicial power under Article 126(1) of the Constitution may be exercised only by the courts established under the Constitution, and a body such as a Commission of Inquiry that exercises judicial power acts beyond its powers and in usurpation of the powers of the courts.

Administrative Law — Commissions of Inquiry — Quasi-Judicial Powers Distinguished from Judicial Power

A Commission of Inquiry possesses only quasi-judicial powers, which depend ultimately on the exercise of executive discretion; such powers cannot be equated with the judicial power vested in the courts of judicature by the Constitution.

Constitutional Law — Status Quo Orders and Arrest Warrants — Unconstitutional Exercise of Judicial Power

Issuing an injunctive order affecting a party's proprietary rights, and issuing a warrant of arrest to enforce compliance with the directives of a Commission of Inquiry, are exercises of judicial power that contravene Articles 2(2) and 126(1) of the Constitution.

Statutory Interpretation — Existing Law under Article 274 — Modification to Conform to Constitution

The Commissions of Inquiry Act, Cap 166, being existing law, must be construed with the necessary modifications to bring it into conformity with the Constitution, and cannot be relied on to authorise a Commission of Inquiry to exercise judicial power.

Administrative Law — Prosecutorial Powers — Distinction from Power to Order Arrest and Detention

The power to order the arrest and detention of a person is a judicial power vested in the courts, not a prosecutorial power, so a Commission causing such arrest and detention does not thereby exercise the prosecutorial powers reserved to the Director of Public Prosecutions under Article 120.

Constitutional Law — Jurisdiction of the Constitutional Court — Requirement of a Question as to Interpretation under Article 137(1)

Per Madrama JCC (dissenting): the Constitutional Court's jurisdiction under Article 137(1) is engaged only where the petition discloses a genuine question or controversy as to the interpretation of the Constitution; a mere allegation under Article 137(3) that a provision has been contravened is insufficient to confer jurisdiction.

Legislation cited (18)

Constitution of Uganda 1995 art.2(2)
Constitution of Uganda 1995 art.120
Constitution of Uganda 1995 art.126(1)
Constitution of Uganda 1995 art.129
Constitution of Uganda 1995 art.137
Constitution of Uganda 1995 art.257(1)
Constitution of Uganda 1995 art.274
Constitution of Uganda 1995 art.50
Commissions of Inquiry Act Cap 166 s.1(1)
Commissions of Inquiry Act Cap 166 s.9
Commissions of Inquiry Act Cap 166 s.11
Commissions of Inquiry Act Cap 166 s.16
Penal Code Act s.94
Penal Code Act s.99
Civil Procedure Rules Order 16 rule 10
Civil Procedure Rules Order 7 rule 11
Civil Procedure Rules Order 6 rule 29
Legal Notice No. 2 of 2017

Cases cited (12)

Male H. Mabirizi Kiwanuka and 2 Others v Attorney General (Constitutional Appeal Nos. 2, 3 and 4 of 2018)
P.K. Ssemwogerere v Attorney General (Constitutional Appeal No. 1 of 2002)
Attorney General v Tinyefuza (Constitutional Appeal No. 1 of 1997)
Attorney General v Salvatori Abuki (Constitutional Appeal No. 1 of 1998)
Attorney General v Uganda Law Society (Constitutional Appeal No. 1 of 2006)
Livingstone Okello Okello v Attorney General (Constitutional Petition No. 4 of 2005)
Ismail Serugo v Kampala City Council and Attorney General (Constitutional Appeal No. 2 of 1998)
Centre for Health, Human Rights and Development (CEHURD) and 3 Others v Attorney General (Constitutional Appeal No. 1 of 2013)
Nurdin Ali Dewji v G.M.M. Meghji & Co. (1953) 20 EACA 132
Attorney General v Kabourou [1995] 2 LRC 757
Minister of Home Affairs v Fisher [1979] 3 All ER 21
R v Big M Drug Mart Ltd [1986] LRC 332

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