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Game Concepts Limited & Another v National Lotteries & Gaming Regulatory Board & Another (Constitutional Petition 51 of 2017)

Constitutional Court · [2021] UGCC 46 · 2021 Petition Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional petition under Article 137(3) challenging the constitutionality of provisions of the Lotteries and Gaming Act 2016 and subsidiary regulations
Decision
Petition dismissed; impugned provisions of the Lotteries and Gaming Act 2016 and Licensing Regulations 2017 held not inconsistent with the Constitution

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Holding

The court considered whether provisions of the Lotteries and Gaming Act 2016 and licensing regulations imposing minimum capital, security bonds, fees, location restrictions, a minimum age of 25, and offences for unlicensed operation were inconsistent with the right to carry on a lawful business (Article 40(2)) and equality (Article 21(1)). It held the petition was properly filed but dismissed it. The right to trade is not unqualified and may be regulated and limited under Article 43 where demonstrably justifiable in a free and democratic society. Gaming and betting is a privileged enterprise requiring special regulation in the public interest, and the reasonableness of particular fees or locations is a matter for judicial review, not constitutional interpretation.

Facts

The petitioners operated in the gaming and betting industry. They challenged provisions of the Lotteries and Gaming Act 2016 and its subsidiary regulations, which imposed minimum capital adequacy requirements of UGX 250,000,000 per licence category, security bonds and bank guarantees of UGX 500,000,000, annual branch licence fees, per-machine application fees, interest of two percent per week on unpaid taxes, geographical and size restrictions on premises, an offence for providing gaming and betting facilities without a licence, and a definition of a minor as a person under 25 years. They contended these onerous financial and regulatory conditions restricted entry to only the richest operators, created artificial monopolistic conditions, and discriminated against the gaming industry relative to other lawful businesses. The respondents replied that Government had a legitimate interest in regulating a high-liquidity, high-risk industry to protect participants, the public and the national economy and to guard against money laundering and other malpractices.

Issues

  1. Whether the petition was properly filed before the Constitutional Court and disclosed a cause of action for constitutional interpretation.
  2. Whether sections 1, 39, 40, 49 and 67 of the Lotteries and Gaming Act 2016 and regulations 2, 18 and 30 of the Lotteries and Gaming (Licensing) Regulations 2017 are inconsistent with Article 40(2) and Article 21(1) of the Constitution.
  3. What remedies, if any, the court should grant.

Orders

  • Petition dismissed.
  • Each party to bear its own costs.

Key headnotes

Constitutional Law — Jurisdiction — Disclosure of cause of action for constitutional interpretation
A petition discloses a cause of action for constitutional interpretation where it describes the act or omission complained of, identifies the constitutional provision alleged to be contravened, and prays for a declaration to that effect, a constitutional petition being given a more liberal and broader interpretation than a plaint in an ordinary civil suit.
Statutory Interpretation — Constitutionality of legislation — Purpose and effect test
In determining the constitutionality of legislation the court examines both the purpose and the effect of the law; where either the purpose or the effect of a provision is inconsistent with the Constitution the provision must be declared unconstitutional.
Human Rights — Right to carry on lawful trade or business — Whether unqualified
The right under Article 40(2) to practise a profession and carry on any lawful occupation, trade or business is not unqualified; it is subject to the law and may legitimately be regulated and restricted by authority of law under Article 43 of the Constitution.
Constitutional Law — Limitation of rights — Burden of justifying limitation
The onus of proving that a limitation on a fundamental right is reasonable and demonstrably justifiable in a free and democratic society lies upon the state or the party seeking to uphold the limitation, not upon the petitioner.
Constitutional Law — Limitation of rights — Demonstrable justification and proportionality
A limitation on a protected right is valid only where it is acceptable and demonstrably justifiable in a free and democratic society; the legislative objective must be sufficiently important, the means rationally connected to it and impairing the right as little as possible, and the more severe the effect of a measure the more important the objective must be.
Commercial Law — Gaming and betting — Regulation in the public interest
Gaming and betting is a privileged enterprise that, by reason of its significant negative social and economic effects, requires special regulation in the public interest; such regulation, including licensing and taxation, is constitutional and not of itself inconsistent with the right to carry on a lawful business.
Administrative Law — Appropriate forum — Reasonableness of regulatory fees and locations
The reasonableness of the level of particular regulatory fees, taxes or permitted business locations is not a question of constitutional interpretation; it is properly challenged by way of judicial review before a trial court able to take detailed evidence, not by petition to the Constitutional Court.

Legislation cited (24)

  • Constitution of Uganda 1995 art.137(3)
  • Constitution of Uganda 1995 art.137(4)
  • Constitution of Uganda 1995 art.40(2)
  • Constitution of Uganda 1995 art.21(1)
  • Constitution of Uganda 1995 art.43
  • Constitution of Uganda 1995 art.2
  • Constitution of Uganda 1995 art.16
  • Lotteries and Gaming Act 2016 s.1
  • Lotteries and Gaming Act 2016 s.39
  • Lotteries and Gaming Act 2016 s.40
  • Lotteries and Gaming Act 2016 s.48
  • Lotteries and Gaming Act 2016 s.49
  • Lotteries and Gaming Act 2016 s.67
  • Lotteries and Gaming Act 2016 s.27
  • Lotteries and Gaming Act 2016 s.35
  • Lotteries and Gaming Act 2016 s.43
  • Lotteries and Gaming Act 2016 s.70
  • Lotteries and Gaming (Licensing) Regulations 2017 reg.2
  • Lotteries and Gaming (Licensing) Regulations 2017 reg.18
  • Lotteries and Gaming (Licensing) Regulations 2017 reg.30
  • Lotteries and Gaming (Minimum Capital Requirements) Regulations 2017 reg.2
  • Lotteries and Gaming (Fees) Regulations 2017 reg.2
  • Income Tax Act
  • International Covenant on Economic, Social and Cultural Rights art.4

Cases cited (16)

  • Baku Raphael Obudra and Obiga Kania v Attorney General (Constitutional Appeal No. 1 of 2003)
  • Ismail Serugo v Kampala City Council and Attorney General (Constitutional Appeal No. 2 of 1998)
  • Wycliffe Kiggundu v Attorney General (Civil Appeal No. 27 of 1993)
  • Davis Wesley Tusingwire v Attorney General (Constitutional Petition No. 2 of 2013)
  • Paul Semogerere v Attorney General (Constitutional Appeal No. 1 of 2002)
  • Attorney General v Susan Kigula and Others (Constitutional Appeal No. 3 of 2006)
  • Murisho Shafi and 5 Others v Attorney General and Inspectorate of Government (Constitutional Application No. 2 of 2017)
  • Attorney General vs Major General David Tinyefuza
  • Attorney General v Salvatori Abuki (Constitutional Appeal No. 1 of 1998)
  • Spedag Interfreight Uganda Limited and Others v Attorney General and Another (Constitutional Petition No. 85 of 2011)
  • Charles Onyango Obbo and Andrew Mujuni Mwenda v Attorney General (Constitutional Appeal No. 2 of 2002)
  • Jaga v Donges and Another; Bhana v Donges and Another 1950 (4) SA 653 (A)
  • Stopforth v Minister of Justice and Others [1999] ZASCA 72; 2000 (1) SA 113 (SCA)
  • State v Rosenthal 559 P.2d 830 (1977)
  • R v Oakes [1986] 1 SCR 103
  • Mark Gova and Another v Minister of Home Affairs and Another (S.C. 36/2000)
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