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Nathan Nandala Mafabi and 3 Others v Attorney General (Consitutional Petition No. 46 of 2012)

Constitutional Court · [2021] UGCC 3 · 2021 Petition Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional petition under Article 137 challenging the constitutionality of provisions of the Cooperative Societies Act.
Decision
Petition allowed (lead judgment of Obura JCC); the impugned provisions were declared null and void to the extent of their inconsistency, save sections 4(2) and 29(b) which were upheld. Madrama JCC dissented on issues 1 and 3.

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Holding

The petition challenged provisions of the Cooperative Societies Act empowering the Registrar to control cooperative societies. The lead judgment held that sections 6(3), 22(1), 24(2)&(3), 43(1), 45 and 52(3)-(6) contravene Article 40(2) (right to carry on business), and sections 8, 9(6)&(7) and 15 contravene Articles 29(1)(b)&(e) and 40(2), declaring them void to the extent of their inconsistency; sections 4(2) and 29(b) creating the Uganda Cooperative Alliance were upheld. The respondent failed to discharge the Article 43 burden of showing the restrictions demonstrably justifiable in a free and democratic society. Petition allowed with costs to the petitioners. Madrama JCC dissented, finding the impugned provisions valid and the grievances matters for judicial review.

Facts

The petitioners were members and former leaders of Bugisu Cooperative Union Ltd, formed in 1954. In December 2010 the Registrar of Cooperative Societies, exercising powers under section 52 of the Cooperative Societies Act, suspended the entire Board of Directors of the Union. The Resident District Commissioner of Mbale, with police, sealed the Union offices and evicted the Chief Executive Officer, and the Ministry installed a caretaker manager who became the sole signatory to all Union bank accounts. In September 2012 the 277 primary societies petitioned the Registrar to convene a general meeting; he refused. The owners convened a special general meeting attended by 195 societies, resolving to repossess the Union and reinstate the suspended board, but the Registrar declared the meeting and its resolutions null and void. The petitioners alleged the suspension caused substantial financial loss and that numerous provisions of the Cooperative Societies Act unconstitutionally subjected societies to the Registrar's control. They petitioned the Constitutional Court for declarations of inconsistency and redress.

Issues

  1. Whether sections 6(3), 22(1), 24(2) and (3), 43(1), 45, 52 and 56 of the Cooperative Societies Act are inconsistent with and contravene Article 40(2) of the Constitution.
  2. Whether section 23(1) of the Cooperative Societies Act is inconsistent with and contravenes Article 21 of the Constitution (abandoned by the petitioners).
  3. Whether sections 8, 9(6) and (7), 15 and 17 of the Cooperative Societies Act are inconsistent with and contravene Articles 29 and 40(2) of the Constitution.
  4. Whether sections 4(2), 29(b), 43(2) and 49(3) and (4) of the Cooperative Societies Act are inconsistent with and contravene Articles 29 and 40(2) of the Constitution.

Orders

  • Sections 6(3), 22(1), 24(2) & (3), 43(1), 45 and 52(3), (4), (5) & (6) of the Cooperative Societies Act are declared inconsistent with Article 40(2) of the Constitution and null and void to the extent of their inconsistency.
  • Sections 8, 9(6) & (7) and 15 of the Cooperative Societies Act are declared inconsistent with Articles 29(1)(b) and 40(2) of the Constitution and null and void to the extent of their inconsistency.
  • Sections 4(2) and 29(b) of the Cooperative Societies Act are neither inconsistent with nor contravene Articles 29(1)(b) and 40(2) of the Constitution.
  • Sections 43(1) and 46(2) of the Cooperative Societies Act are declared to contravene Articles 29(1)(b) & (e) and 40(2) of the Constitution and null and void to the extent of their inconsistency.
  • The respondent bears the costs of the petition.

Key headnotes

Constitutional Law — Jurisdiction of the Constitutional Court — Article 137
The jurisdiction of the Constitutional Court under Article 137 is confined to the interpretation of the Constitution; a petition must show on its face that interpretation of a constitutional provision is required, and it is not enough merely to allege that a constitutional provision has been violated.
Constitutional Law — Limitation of Rights — Article 43 — Burden of Proof
Where a law derogates from a fundamental right or freedom guaranteed under Chapter Four of the Constitution, the burden of proving that the limitation is acceptable and demonstrably justifiable in a free and democratic society rests on the party seeking to uphold the limitation.
Human Rights — Economic Rights — Right to Carry on Business — Article 40(2)
Statutory provisions subjecting a cooperative society's choice of auditor, budget estimates, borrowing, investment of funds and management to the approval, opinion or control of the Registrar unjustifiably fetter the society's right to carry on lawful trade or business and are inconsistent with Article 40(2).
Human Rights — Freedom of Thought and Association — Article 29(1)(b) & (e)
Empowering the Registrar to direct and effect amendments to a society's byelaws, and to grant or refuse written permission for a company to become a member of a society, limits the freedoms of thought and association and is unconstitutional where no justification within Article 43 is demonstrated.
Statutory Interpretation — Constitutional Construction — Harmony and Purposive Interpretation
Constitutional provisions are construed by their natural and ordinary meaning, read as an integrated whole with no provision destroying another, and provisions on fundamental rights are given a purposive and generous interpretation so as to secure the maximum enjoyment of the rights guaranteed.
Administrative Law — Discretionary Statutory Powers — Ultra Vires and Judicial Review
Statutory discretionary powers conferred for public purposes are not unfettered but are held on trust to be used only for the proper purpose intended by Parliament; the Registrar's powers under the Cooperative Societies Act are amenable to judicial review for illegality, irrationality and procedural impropriety (per Madrama JCC).

Legislation cited (23)

  • Constitution of Uganda 1995 art.137
  • Constitution of Uganda 1995 art.40(2)
  • Constitution of Uganda 1995 art.29(1)(b)
  • Constitution of Uganda 1995 art.29(1)(e)
  • Constitution of Uganda 1995 art.43
  • Constitution of Uganda 1995 art.42
  • Constitution of Uganda 1995 art.2(2)
  • Cooperative Societies Act (Cap 112) s.6(3)
  • Cooperative Societies Act (Cap 112) s.22(1)
  • Cooperative Societies Act (Cap 112) s.24(2)
  • Cooperative Societies Act (Cap 112) s.24(3)
  • Cooperative Societies Act (Cap 112) s.43(1)
  • Cooperative Societies Act (Cap 112) s.45
  • Cooperative Societies Act (Cap 112) s.52
  • Cooperative Societies Act (Cap 112) s.56
  • Cooperative Societies Act (Cap 112) s.8
  • Cooperative Societies Act (Cap 112) s.9(6)
  • Cooperative Societies Act (Cap 112) s.9(7)
  • Cooperative Societies Act (Cap 112) s.15
  • Cooperative Societies Act (Cap 112) s.4(2)
  • Cooperative Societies Act (Cap 112) s.29(b)
  • Cooperative Societies Act (Cap 112) s.46(2)
  • Cooperative Societies (Amendment) Act 2019 s.19

Cases cited (22)

  • Attorney General v Major General David Tinyefuza (Constitutional Petition No. 1 of 1997)
  • Ismail Serugo v Kampala City Council and Attorney General (Constitutional Appeal No. 2 of 1998)
  • Zachary Olum and Another v Attorney General (Constitutional Petition No. 6 of 1999)
  • Dr. James Rwanyarare and Another v Attorney General (Constitutional Petition No. 5 of 1999)
  • Twinobusingye Severino v Attorney General (Constitutional Petition No. 47 of 2011)
  • Attorney General v Susan Kigula and Others (Constitutional Appeal No. 3 of 2006)
  • Attorney General v Salvatori Abuki and Another (Constitutional Appeal No. 1 of 1998)
  • Onyango Obbo and Another v Attorney General (Constitutional Appeal No. 2 of 2002)
  • National Council for Higher Education v Anifa Kawooya Bangirana (Constitutional Appeal No. 4 of 2011)
  • R v Oakes [1986] 26 DLR (4th) 200
  • Pinner v Everett [1969] 3 All ER 257
  • Maunsell v Olins [1975] 1 All ER 16
  • Minister of Home Affairs v Fisher [1979] 2 All ER 21
  • S v Makwanyane [1995] 1 LRC 269
  • South Dakota v North Carolina 192 US 286 (1904)
  • Leech v Deputy Governor of Parkhurst Prison [1988] 1 All ER 485
  • IRC v National Federation of Self-Employed and Small Businesses Ltd [1981] 2 All ER 93
  • Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374
  • Commissioners of Customs and Excise v Cure & Deeley Ltd [1961] 3 All ER 641
  • Secretary of State for Education v Tameside MBC [1977] AC 1014
  • Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997
  • Liversidge v Anderson [1942] AC 206
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