Wakilii

Kikungwe and Anor v Attorney General (Constitutional Petition No. 30 of 2006)

Constitutional Court · [2021] UGCC 34 · 2021 Petition Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional petition under Article 137 challenging a Government–BIDCO oil-palm agreement as inconsistent with the Constitution
Decision
Petition dismissed; several grounds struck out for want of jurisdiction; no order as to costs

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Cited — treatment unverified cited in 3 (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 dismissed a petition challenging a 2003 Government–BIDCO oil-palm agreement as unconstitutional. The lead judgment held that most grounds (Articles 119, 152, 154, 159, 163) raised no genuine question as to interpretation of the Constitution under Article 137(1) and were enforceable instead by judicial review in the High Court; only the Article 21 equality and Article 40(2) economic-rights issues were considered on merits and both failed because no law was challenged and the right to trade does not bar government favouring one sector. A concurring judgment held the petition incompetent as a barred re-filing of a petition dismissed for non-appearance (Order 9 rr.22–23) and a violation of BIDCO's fair-hearing rights for non-joinder.

Facts

On 4 April 2003 the Government of Uganda and BIDCO Oil Refineries Ltd executed an agreement for the development of the oil palm industry in Uganda, arising from an IFAD-funded project. The agreement granted BIDCO extensive incentives, including exemptions from various taxes and stamp duty for 25 years, government undertakings to pay duties and VAT, an indemnity against changes in law, support for a MIGA investment guarantee, and roles on pricing and development bodies. The petitioners, then Members of Parliament, contended that these terms discriminated against and sidelined existing Ugandan oilseed producers and processors, were granted without legislative authority, and drew on the Consolidated Fund without parliamentary or Auditor General approval. They petitioned under Article 137 for declarations that specified clauses were inconsistent with the Constitution. BIDCO, a party to the impugned agreement, was not joined as a respondent. The first petitioner died in November 2017 and the petition abated as to him.

Issues

  1. Whether the Constitutional Petition was properly before the court, given that it was a re-filing of an earlier petition dismissed for non-appearance and a principal party to the impugned agreement (BIDCO) was not joined.
  2. Whether the petition disclosed any question as to interpretation of the Constitution under Article 137(1).
  3. Whether Article 2(2) of the Government–BIDCO agreement violated Articles 2 and 21 of the Constitution (equality and freedom from discrimination).
  4. Whether Article 5(1)–(12) of the agreement contravened the right of other Ugandan oil producers and processors to carry on lawful trade and business under Article 40(2) of the Constitution.
  5. What remedies, if any, the parties were entitled to.

Orders

  • Petition dismissed.
  • Several grounds struck out for want of jurisdiction (no question as to interpretation of the Constitution).
  • No order as to costs.

Key headnotes

Constitutional Law — Jurisdiction of the Constitutional Court — Question as to interpretation under Article 137(1)
The Constitutional Court has jurisdiction under Article 137(1) only where the petition shows on its face that interpretation of a constitutional provision is genuinely required; a mere allegation that a clear and unambiguous provision has been infringed discloses no question as to interpretation and is enforceable by a court of competent jurisdiction under Article 50.
Constitutional Law — Article 137(3) — Cause of action distinct from jurisdiction
A petition under Article 137(3) must allege that an Act of Parliament, other law, or an act or omission is inconsistent with the Constitution; the mere execution of an agreement cannot itself contravene the Constitution, but terms of an agreement pleaded as inconsistent with constitutional provisions may disclose a cause of action which remains distinct from the question of jurisdiction.
Constitutional Law — Equality and freedom from discrimination — Article 21 requires a challenged law
Article 21 is concerned with equality before and under the law; where no law is challenged as discriminatory in its purpose or effect, no question as to interpretation arises and an allegation that executive action treated persons unequally is enforceable by judicial review rather than a constitutional petition.
Constitutional Law — Economic rights — Article 40(2) and promotion of an economic sector
The right under Article 40(2) to practise a profession or carry on any lawful occupation, trade or business does not prevent the government from promoting one sector of the economy above others; the prospect of unfair competition arising from investment incentives does not, without more, establish a violation of that right.
Civil Procedure — Dismissal for non-appearance — Bar on re-filing under Order 9 rules 22 and 23
Where a suit is dismissed for non-appearance of the plaintiff, Order 9 rules 22 and 23 of the Civil Procedure Rules preclude the bringing of a fresh suit on the same cause of action and require an application to set aside the dismissal; Article 126(2)(e) cannot be invoked to excuse non-compliance with this statutory bar.
Constitutional Law — Fair hearing — Non-joinder of an affected party (Articles 28(1) and 44(c))
Where a petition seeks a declaration that an agreement is unconstitutional, a principal party to that agreement whose rights will be affected must be joined; determining the matter without joining that party violates the non-derogable right to a fair hearing.
Tax Law — Tax exemptions and waivers — Legislative authority under Article 152(2)
A waiver or variation of tax must be made under the authority of the law imposing the tax; whether an executive tax exemption was granted ultra vires the parent Act is a matter for a court of competent jurisdiction and raises no question as to interpretation of the Constitution.

Legislation cited (28)

  • Constitution of Uganda 1995 Article 2
  • Constitution of Uganda 1995 Article 21
  • Constitution of Uganda 1995 Article 28(1)
  • Constitution of Uganda 1995 Article 40(2)
  • Constitution of Uganda 1995 Article 43
  • Constitution of Uganda 1995 Article 44(c)
  • Constitution of Uganda 1995 Article 50
  • Constitution of Uganda 1995 Article 119(5)
  • Constitution of Uganda 1995 Article 126(2)(e)
  • Constitution of Uganda 1995 Article 137
  • Constitution of Uganda 1995 Article 152(2)
  • Constitution of Uganda 1995 Article 153
  • Constitution of Uganda 1995 Article 154
  • Constitution of Uganda 1995 Article 159
  • Constitution of Uganda 1995 Article 163
  • Constitution of Uganda 1995 Article 274
  • Civil Procedure Rules Order 6 r.28
  • Civil Procedure Rules Order 6 r.29
  • Civil Procedure Rules Order 7 r.11
  • Civil Procedure Rules Order 9 r.22
  • Civil Procedure Rules Order 9 r.23
  • Civil Procedure Rules Order 15 r.1
  • Constitutional Court (Petitions and References) Rules 2005 r.14
  • Constitutional Court (Petitions and References) Rules 2005 r.23
  • Public Finance Act (cap 193) s.9
  • Income Tax Act s.4
  • Equal Opportunities Act 2007 s.1
  • Value Added Tax Act

Cases cited (21)

  • Ismail Serugo v Kampala City Council & Attorney General (Constitutional Appeal No. 2 of 1998)
  • Spedag Interfreight Uganda Ltd & Others v Attorney General and Great Lakes Port Ltd (Constitutional Petition No. 85 of 2011)
  • Nsimbe Holdings Ltd v Attorney General & Inspector General of Government (Constitutional Petition No. 2 of 2006)
  • Arnold Brooklyn & Company v Kampala Capital City Authority and Attorney General (Constitutional Petition No. 23 of 2013)
  • Male Mabirizi & Others v Attorney General (Constitutional Petition No. 49 of 2017)
  • Carolyn Turyatemba & 4 Others v Attorney General & Another (Constitutional Petition No. 15 of 2006)
  • Crane Bank v Uganda Revenue Authority (Civil Appeal No. 96 of 2012)
  • Ssekikubo Theodore & 10 Others v National Resistance Movement (Constitutional Petition No. 9 of 2019)
  • Kiggundu v Attorney General (Civil Appeal No. 27 of 1993)
  • Nurdin Ali Dewji & Others v G.M.M Meghji & Co & Others (1953) 20 EACA 132
  • N.A.S Airport Services Ltd v Attorney General of Kenya [1959] E.A. 53
  • Raphael Baku Obidra v Attorney General (Constitutional Appeal No. 1 of 2003)
  • Attorney General vs Salvatori Abuki
  • Attorney General v Uganda Law Society (Constitutional Appeal No. 1 of 2006)
  • Attorney General v Tinyefuuza (Constitutional Appeal No. 1 of 1997)
  • Patrick Musisi & Others v Attorney General (Constitutional Petition No. 7 of 2004)
  • Andrews v Law Society of British Columbia [1989] 1 S.C.R. 143
  • Law v Canada (Minister of Employment and Immigration) [1999] 1 S.C.R. 497
  • Gosselin v Quebec (Attorney General) [2002] 4 S.C.R. 429
  • R v Big M Drug Mart Ltd [1985] 1 S.C.R. 295
  • Dennis v United States, 339 U.S. 162 (1950)
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