Wakilii

Nampongo and Anor v Attorney General (Constitutional Petition No. 43 of 2012)

Constitutional Court · [2021] UGCC 37 · 2021 Petition Partly Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional petition under Article 137(3) of the Constitution challenging the constitutionality of statutory provisions and an alleged government omission.
Decision
Petition succeeded in part: Rule 11 of the Government Proceedings (Civil Procedure) Rules declared inconsistent with Article 21(1); challenges to section 2(1) of the Civil Procedure and Limitation (Miscellaneous Provisions) Act and section 19(4) of the Government Proceedings Act, and the budgetary-omission ground, dismissed. Petitioners awarded two-thirds of costs.

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Holding

By majority, the Constitutional Court held that Rule 11 of the Government Proceedings (Civil Procedure) Rules — granting the Attorney General 30 days to file a defence while ordinary litigants get 15 — is discriminatory and inconsistent with Article 21(1), the Attorney General having failed to justify the disparity as demonstrably justifiable in a free and democratic society. By majority, section 2(1) of the Civil Procedure and Limitation (Miscellaneous Provisions) Act was held not inconsistent with the Constitution because the word "shall" is directory, not mandatory. Section 19(4) of the Government Proceedings Act was unanimously held constitutional when read with Articles 153-155, and the alleged budgetary omission was unproved. The petition succeeded in part.

Facts

The petitioners, former police officers, were arrested, detained and tortured in 2000 on the orders of a Minister of State for Internal Affairs. They complained to the Uganda Human Rights Commission, which in 2004 found in their favour and ordered Government to pay damages of UGX 17,000,000 to the first petitioner and UGX 16,000,000 to the second. Government did not pay. Through High Court Miscellaneous Cause No. 48 of 2009 the petitioners obtained a writ of mandamus directing the Secretary to the Treasury and the Attorney General to pay; payments were then made slowly, leaving a balance of about UGX 11,000,000 unpaid when the petition was lodged in September 2012. Government had no budget for court awards in the financial years 2011/2012 and 2012/2013, and an attempt to attach Government funds was rejected by reason of section 19(4) of the Government Proceedings Act. The petitioners brought this constitutional petition challenging section 2(1) of the Civil Procedure and Limitation (Miscellaneous Provisions) Act, Rule 11 of the Government Proceedings (Civil Procedure) Rules, section 19(4) of the Government Proceedings Act, and the alleged budgetary omission.

Issues

  1. Whether Section 2(1) of the Civil Procedure and Limitation (Miscellaneous Provisions) Act, Cap 72 is inconsistent with Articles 28(1), 126(2)(b) and (c) and 139(1) of the Constitution.
  2. Whether Rule 11 of the Government Proceedings (Civil Procedure) Rules, SI 77-1 is inconsistent with Article 21(1) of the Constitution.
  3. Whether Section 19(4) of the Government Proceedings Act, Cap 77 is inconsistent with Articles 139(1), 128(1), (2) and (3), 28(1) and 126(2)(b) and (c) of the Constitution.
  4. Whether the omission by Government to provide for payment of the judgment debt for the financial years 2011/2012 and 2012/2013 is contrary to Articles 155(1) and 160 of the Constitution.
  5. What remedies are available to the petitioners.

Orders

  • Rule 11 of the Government Proceedings (Civil Procedure) Rules is declared inconsistent with Article 21(1) of the Constitution (by majority of Kakuru, Obura, Madrama JJA and Kasule Ag. JA; Musota JA dissenting).
  • Section 2(1) of the Civil Procedure and Limitation (Miscellaneous Provisions) Act, Cap 72 is declared not inconsistent with the Constitution, being directory and not mandatory (by majority of Obura, Musota and Madrama JJA; Kakuru JA and Kasule Ag. JA dissenting).
  • Grounds 3 and 4 (Section 19(4) of the Government Proceedings Act and the alleged budgetary omission) are dismissed by unanimous decision.
  • The petition succeeds only in part.
  • The petitioners are awarded two-thirds of the costs of the petition.

Key headnotes

Constitutional Law — Equality before the law (Article 21(1)) — Procedural disparity favouring the Attorney General
A rule of procedure that grants the Attorney General more time (30 days) to file a defence than ordinary litigants (15 days) discriminates between litigants and is inconsistent with Article 21(1) where the disparity is not shown to be demonstrably justifiable in a free and democratic society.
Human Rights — Limitation of guaranteed rights — Onus of justification
The onus of proving that a limitation on a right or freedom guaranteed by the Constitution is reasonable and demonstrably justified in a free and democratic society rests on the party seeking to uphold the limitation.
Statutory Interpretation — Existing law — Article 274 — Conformity with the 1995 Constitution
An existing law enacted before the 1995 Constitution must be construed with such modifications, adaptations, qualifications and exceptions as are necessary to bring it into conformity with the Constitution.
Statutory Interpretation — Meaning of "shall" — Directory versus mandatory
The word "shall" in section 2(1) of the Civil Procedure and Limitation (Miscellaneous Provisions) Act is directory rather than mandatory; failure to serve the prescribed statutory notice does not vitiate a suit, so the provision is not inconsistent with the Constitution.
Constitutional Law — Separation of powers — Execution against the Government for payment of money
Section 19(4) of the Government Proceedings Act, which bars execution or attachment against the Government for enforcing payment of money, is not unconstitutional because, read together with Articles 153, 154 and 155, payment of court awards must be made through the Consolidated Fund pursuant to appropriations by Parliament.
Civil Procedure — Constitutional petitions — Proof of facts by affidavit
Under Rule 12 of the Constitutional Court (Petitions and References) Rules, allegations of fact in a petition must be established by affidavit evidence; an unproved allegation, such as a budgetary omission, cannot found a constitutional declaration.
Constitutional Law — Cause of action under Article 137(3)
A petition under Article 137(3) discloses a cause of action where it describes the impugned law or the act or omission complained of, identifies the constitutional provision allegedly contravened, and prays for a declaration to that effect.

Legislation cited (14)

  • Civil Procedure and Limitation (Miscellaneous Provisions) Act Cap 72 s.2(1)
  • Civil Procedure and Limitation (Miscellaneous Provisions) Act Cap 72 s.3
  • Government Proceedings (Civil Procedure) Rules SI 77-1 r.11
  • Government Proceedings Act Cap 77 s.19(4)
  • Government Proceedings Act Cap 77 s.26(2)
  • Civil Procedure Rules Order VIII r.1
  • Civil Procedure Act Cap 71 s.38
  • Civil Procedure Act Cap 71 s.96
  • Judicature Act s.40
  • Judicature Act s.41(5)
  • Constitutional Court (Petitions and References) Rules SI 91 of 2005 r.12
  • Public Finance Management Act 2015
  • Human Rights (Enforcement) Act 2019
  • Constitution of Uganda 1995 arts 1, 2, 21, 28(1), 43, 44, 50, 119, 126(2), 128, 137, 139(1), 153, 154, 155(1), 160, 250, 274

Cases cited (35)

  • Kampala Capital City Authority v Kabandize and 20 Others (Civil Appeal No. 13 of 2014)
  • Kabandize and 20 Others v Kampala Capital City Authority (Civil Appeal No. 28 of 2011)
  • Caroline Turyatemba and Others v Attorney General (Constitutional Petition No. 15 of 2006)
  • Atukwase Nickson v Attorney General (Miscellaneous Application No. 437 of 2013)
  • David Wesley Tusingwire v Attorney General (Constitutional Appeal No. 4 of 2016)
  • Bank of Uganda v Ajanta Pharma Ltd (Miscellaneous Application No. 601 of 2017)
  • Ismail Serugo v Kampala City Council (Constitutional Appeal No. 2 of 1998)
  • Raphael Baku Obudra v Attorney General (Constitutional Appeal No. 1 of 2003)
  • Kiiza Besigye v Yoweri Kaguta Museveni (Presidential Election Petition No. 2 of 2006)
  • Attorney General v Tinyefuza (Constitutional Appeal No. 1 of 1997)
  • Okello John Livingstone and 60 Others v Attorney General and Another (Constitutional Petition No. 1 of 2005)
  • Attorney General v Uganda Law Society (Constitutional Appeal No. 1 of 2006)
  • Charles Onyango Obbo and Andrew Mujuni Mwenda v Attorney General (Constitutional Appeal No. 2 of 2002)
  • Attorney General v Salvatori Abuki (Constitutional Appeal No. 1 of 1998)
  • Bukenya Church Ambrose v Attorney General (Constitutional Appeal No. 3 of 2011)
  • Attorney General v Osotraco Ltd (Civil Appeal No. 32 of 2002)
  • Dr. James Rwanyarare and Another v Attorney General (Constitutional Petition No. 5 of 1999)
  • Tinyefuza v Attorney General (Constitutional Petition No. 1 of 1996)
  • Rwanyarare and Others V Attorney General [2003] 2 EA 664
  • Dr. JW Rwanyarare and 2 Others v Attorney General (Miscellaneous Application No. 85 of 1993)
  • Edward Byaruhanga Katumba v Daniel Kyewalabye Musoke (Civil Appeal No. 2 of 1998)
  • Kayondo v The Co-operative Bank Ltd (Civil Appeal No. 10 of 1991)
  • Sitenda Sebalu v Sam K. Njuba and the Electoral Commission (Election Appeal No. 26 of 2007)
  • Nagendra Rao & Co. vs State of A.P. AIR 1994 SC 2663
  • Byrne vs Ireland & AG [1972] IR 241
  • The Queen V Oakes [1987] LRC 477; Regina vs Oakes 26 DLR (4th) 201
  • Unity Dow V Attorney General of Botswana [1992] LRC (Const) 623
  • Attorney General (Tanzania) v Rev. Christopher Mtikila [2010] EA 13
  • South Dakota V North Carolina 192 US 268 (1940)
  • Regina Vs Soveji and other [2005] UKHL 49 (HL)
  • NTN Pty Ltd and N.B.N. Ltd vs The State 1988 (Const) LRC 333
  • Yaro vs Arewa Construction Ltd [1989] 7 NWLR 558
  • Mangwiro V Minister of Justice and Legal Affairs (N.O) and Others HH-172-17
  • The State in Fulfilment of Judgments File No. 015-2001/A1/TC El Peruano, February 2004
  • Saira Banu Gandrokhia and Another vs Principal Secretary, Ministry of Interior and Co-ordination and Attorney General, Kenya High Court Miscellaneous Application No. 323 of 2016
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