Wakilii

Muwema v Attorney General (Constitutional Petition 13 of 2015)

Constitutional Court · [2021] UGCC 47 · 2021 Petition Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional petition under Article 137 of the Constitution challenging the constitutionality of provisions of the Advocates Act and the Advocates (Professional Conduct) Regulations
Decision
Petition dismissed for lack of merit with no order as to costs

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Cited — treatment unverified cited in 1 (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 Advocates Act provisions and Regulation 26 that prohibit Contingent Fee Agreements and impose special requirements on remuneration agreements. The Court held the impugned provisions do not contravene the Constitution: prohibiting contingent fees does not bar an advocate from practising the profession (Article 40), engage collective-bargaining rights, or breach equality (Article 21), since Parliament may regulate the legal profession under Article 79. The 1995 Constitution does not enshrine a right to freedom of contract. Complaints that the legislation is unfair, unjust or outdated go to the wisdom of legislation, a matter for Parliament, not constitutional invalidity.

Facts

The petitioner, an advocate in private practice, challenged provisions of the Advocates Act, Cap. 267 (Sections 51 and 55(1)(b)) and Regulation 26 of the Advocates (Professional Conduct) Regulations, which prohibit Contingent Fee Agreements (CFAs) — agreements under which an advocate is paid only if contentious business succeeds, from a portion of the property or money recovered — and impose special requirements (writing, signature, notarised certificate) on remuneration agreements. The Supreme Court, in Shell (U) Ltd v Muwema & Mugerwa Advocates (Civil Appeal No. 02 of 2013), had held CFAs illegal under the Act; in that matter the petitioner had been unable to enforce a remuneration agreement against represented parties who had not signed it. The petitioner contended the prohibitions were unconstitutional relics of the doctrines of maintenance and champerty that infringed his rights to practise his profession, freedom of contract, equality and a fair hearing.

Issues

  1. Whether the petition raises questions for constitutional interpretation.
  2. Whether this petition can arise from the final judgment of the Supreme Court in Civil Appeal No. 02 of 2013, Shell (U) Ltd and 9 Others v Muwema & Mugerwa Advocates & Anor.
  3. Whether Section 55(1)(b) of the Advocates Act and Regulation 26 of the Advocates (Professional Conduct) Regulations, which prohibit Contingent Fee Agreements, are inconsistent with Articles 2, 20, 21, 26, 28, 40 and 44 of the Constitution.
  4. Whether Section 51(1)(b), (c) read together with Section 51(2) of the Advocates Act are inconsistent with Articles 2, 20, 21, 26, 40, 126 and 129 of the Constitution.
  5. Whether the petitioner is entitled to the remedies sought.

Orders

  • The petition is dismissed for lack of merit.
  • No order as to costs, the petition having been brought in the public interest.

Key headnotes

Constitutional Law — Jurisdiction of the Constitutional Court — Questions requiring interpretation of the Constitution
The Constitutional Court has jurisdiction under Article 137 only over petitions that set out questions requiring interpretation of the Constitution; a petition challenging legislation must identify both the impugned legislative provisions and the constitutional provisions said to be contravened.
Constitutional Law — Pleadings — Issues confined to matters pleaded in the petition
An issue arises only where a material proposition of law or fact is affirmed by one party and denied by the other in the pleadings; a petitioner cannot raise a constitutional challenge for the first time in written submissions where it was not pleaded in the petition.
Constitutional Law — Right to practise a profession (Article 40) — Regulation of legal profession
Prohibiting Contingent Fee Agreements does not deny an advocate the right to practise the profession under Article 40; it merely requires the profession to be practised in compliance with the law enacted by Parliament.
Constitutional Law — Freedom of contract — Whether enshrined in the 1995 Constitution
The 1995 Constitution does not enshrine a right to freedom of contract, let alone an absolute one; freedom of contract is a common law principle that is not absolute and yields to legislation enacted within Parliament's constitutional mandate.
Constitutional Law — Equality (Article 21) — Legislation authorised by another constitutional provision
By virtue of Article 21(5), legislation that is allowed under another provision of the Constitution — such as Parliament's power under Article 79 to make laws for the good governance of Uganda — cannot be taken to be inconsistent with the equality guarantee in Article 21.
Constitutional Law — Separation of powers — Wisdom of legislation reserved to Parliament
Where legislation does not contravene any provision of the Constitution, the Constitutional Court cannot nullify it merely because a litigant considers it unfair, unjust or outdated; the wisdom and reform of legislation is the preserve of Parliament under Article 79, not the courts.
Constitutional Law — Fair hearing (Article 28) — Illegality cannot found a right to be heard
Since Contingent Fee Agreements are rendered illegal by the Advocates Act, an advocate cannot invoke the right to a fair hearing under Article 28 to claim a hearing before such an illegal agreement is invalidated, as an illegality cannot be entertained in any court of law.

Legislation cited (14)

  • Advocates Act Cap. 267 s.50
  • Advocates Act Cap. 267 s.51(1)(b)
  • Advocates Act Cap. 267 s.51(1)(c)
  • Advocates Act Cap. 267 s.51(2)
  • Advocates Act Cap. 267 s.55(1)(b)
  • Advocates (Professional Conduct) Regulations S.I 267-2 reg.26
  • Constitution of Uganda 1995 art.2
  • Constitution of Uganda 1995 art.21
  • Constitution of Uganda 1995 art.28
  • Constitution of Uganda 1995 art.40
  • Constitution of Uganda 1995 art.79
  • Constitution of Uganda 1995 art.137
  • Civil Procedure Rules S.I 71-1 Order 1 Rule 8
  • Civil Procedure Rules S.I 71-1 Order 25

Cases cited (7)

  • Shell (U) Ltd and 9 Others v Muwema & Mugerwa Advocates & Solicitors and Another (Civil Appeal No. 02 of 2013)
  • David Wesley Tusingwire v Attorney General (Constitutional Appeal No. 4 of 2016)
  • Susan Kigula v Attorney General (Civil Appeal No. 03 of 2006)
  • Printing and Numerical Registering Co. v Sampson (1875) LR 19 Eq 462
  • West Coast Hotel Co. v Parrish, 300 U.S. 379 (1937)
  • Bacon v Saskatchewan Crop Insurance Corp., 1997 CanLII 10902 (SK QB)
  • Amax Potash Ltd v The Government of Saskatchewan [1977] 2 S.C.R. 576
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.