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Legal Brains Trust (LBT) Limited and 2 Others v Attorney General (Constitutional Petition 23 of 2015)

Constitutional Court · [2023] UGCC 102 · 2023 Petition Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional petition under Article 137(3) challenging the constitutionality of a rule of parliamentary procedure
Decision
Petition dismissed; rule 165(2) of the Rules of Procedure of Parliament upheld as constitutional

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Holding

The Constitutional Court (Mulyagonja, JCC; panel unanimous) dismissed a petition challenging rule 165(2) of the Rules of Procedure of Parliament, which makes Appointments Committee proceedings closed. It held the court had jurisdiction because interpretation of the Constitution was required. On the merits, the rule did not contravene Articles 29(1)(a), 41, 79(3) or 38(1): citizens participate through elected representatives, and the records remain accessible under the Access to Information Act. Applying the Oakes test, the limitation protecting candidates' privacy was justifiable under Article 43(2)(c). The petition was also premature, the petitioners not having exhausted statutory access remedies.

Facts

The petitioners — a research and advocacy company and two veteran journalists — challenged rule 165(2) of the Rules of Procedure of Parliament, which provides that proceedings of Parliament's Committee on Appointments are closed. The Committee approves persons nominated by the President for appointment to high public office, including judicial officers and Cabinet Ministers, and inquires into questions of offices of profit or emolument. The petitioners contended that the closed sessions denied the public and press the opportunity to observe, scrutinise and participate in the vetting of the Executive's nominees, concealing how persons of doubtful credentials assume office. They sought a declaration of unconstitutionality and orders compelling Parliament to grant access to transcripts and recordings of the Committee's proceedings. The Attorney General defended the rule as protecting the privacy of candidates and argued the records remained accessible through the Access to Information Act and the Committee's report tabled in Parliament.

Issues

  1. Whether the petition raises a question as to the interpretation of the Constitution sufficient to clothe the Constitutional Court with jurisdiction under Article 137.
  2. Whether rule 165(2) of the Rules of Procedure of Parliament, making the proceedings of the Appointments Committee closed, contravenes the right of access to information (Article 41) and freedom of expression and the press (Article 29(1)(a)).
  3. Whether rule 165(2) contravenes Article 79(3) by impinging on democratic governance and public participation.
  4. Whether rule 165(2) falls within the limitations on rights permitted by Article 43(2)(c) of the Constitution.

Orders

  • Rule 165(2) of the Rules of Procedure of the 11th Parliament is not inconsistent with or in contravention of Articles 8A, 29(1)(a) and 38(1) of the Constitution.
  • The limitation to access to information, expression and of the press and media imposed by rule 165(2) is acceptable and demonstrably justifiable in a free and democratic society within the ambit of Article 43(2)(c) of the Constitution.
  • Petition dismissed.
  • Each party shall bear their own costs.

Key headnotes

Constitutional Law — Jurisdiction of the Constitutional Court — Article 137 — Requirement of a question of interpretation
The Constitutional Court is clothed with jurisdiction under Article 137 only where the petition shows on its face that the determination of the matter depends on the interpretation or construction of a provision of the Constitution; a petition challenging a statutory instrument made under the Constitution as inconsistent with constitutional articles raises such a question.
Constitutional Law — Closed parliamentary committee proceedings — Access to information (Article 41) and freedom of expression and the press (Article 29(1)(a))
A rule making the proceedings of Parliament's Committee on Appointments closed does not infringe the rights of access to information or freedom of expression and the press where the law affords alternative avenues of access to the record, such as the Access to Information Act and the Committee's report tabled before Parliament.
Constitutional Law — Democratic governance and public participation — Article 79(3)
Citizens participate in the approval of presidential appointees through their duly elected Members of Parliament, who act on their behalf; the closing of Appointments Committee proceedings does not amount to Parliament abdicating its duty to protect the Constitution and promote democratic governance under Article 79(3).
Human Rights — Limitation of fundamental rights — Article 43(2)(c) — The Oakes test
A limitation on a fundamental right is acceptable and demonstrably justifiable in a free and democratic society where the legislative objective is sufficiently important to override the right, the measures are rationally connected to that objective and not arbitrary, and the means impair the right no more than is necessary to accomplish it; protecting the privacy of candidates appearing before the Appointments Committee satisfies this test.
Human Rights — Conflict of rights — Privacy versus freedom of expression — Rule of harmony
Where the right to privacy of appointees conflicts with the right to freedom of expression and the press, the Constitution must be read as an integral whole so that no provision destroys another; the right to access information is qualified by the privacy of others, and the conflict is resolved by Article 41(2), which empowers Parliament to prescribe the classes of and procedure for accessing information.
Administrative Law — Exhaustion of statutory remedies — Premature constitutional petition
A petition seeking orders to compel disclosure of records is premature where the petitioners have not first pursued and exhausted the statutory access and challenge procedures available under the Access to Information Act before approaching the court.

Legislation cited (32)

  • Constitution of Uganda 1995 art.8A
  • Constitution of Uganda 1995 art.29(1)(a)
  • Constitution of Uganda 1995 art.38(1)
  • Constitution of Uganda 1995 art.41
  • Constitution of Uganda 1995 art.43(2)(c)
  • Constitution of Uganda 1995 art.79(3)
  • Constitution of Uganda 1995 art.90
  • Constitution of Uganda 1995 art.94
  • Constitution of Uganda 1995 art.113
  • Constitution of Uganda 1995 art.114
  • Constitution of Uganda 1995 art.137
  • Constitution of Uganda 1995 art.143
  • Constitution of Uganda 1995 art.144
  • Constitution of Uganda 1995 art.146
  • Constitution of Uganda 1995 art.223
  • Constitution of Uganda 1995 art.257
  • Rules of Procedure of the Parliament of Uganda 2021 (SI 30 of 2021) r.165(2)
  • Rules of Procedure of the Parliament of Uganda 2021 (SI 30 of 2021) r.167
  • Rules of Procedure of the Parliament of Uganda 2021 (SI 30 of 2021) r.168
  • Rules of Procedure of the Parliament of Uganda 2021 (SI 30 of 2021) r.169
  • Rules of Procedure of the Parliament of Uganda 2021 (SI 30 of 2021) r.23
  • Rules of Procedure of the Parliament of Uganda 2021 (SI 30 of 2021) r.231
  • Access to Information Act 2005 s.5
  • Access to Information Act 2005 s.6
  • Access to Information Act 2005 s.20
  • Access to Information Act 2005 s.37
  • Access to Information Act 2005 s.38
  • Data Protection and Privacy Act 2019 s.2
  • Press and Journalists Act 1995
  • Judicial Service Commission Regulations SI 87 of 2005 reg.11
  • Leadership Code Act 2002
  • International Covenant on Civil and Political Rights art.17

Cases cited (20)

  • Ismail Serugo v Kampala City Council & Attorney General (Constitutional Appeal No. 2 of 1998)
  • Charles Kabagambe v Uganda Electricity Board (Constitutional Petition No. 2 of 1999)
  • Anarita Karimi Njeru v Attorney General (No. 1) [1979] KLR
  • Dr. Japheth Ododa Odiga v The Vice Chancellor University of Nairobi & 2 Others; C.P. 149 of 2016
  • Centre for Health and Human Rights & Others v Attorney General (Constitutional Appeal No. 1 of 2013)
  • Attorney General v Tinyefuza (Constitutional Appeal No. 1 of 1997)
  • Uganda Association of Women Lawyers & 5 Others v Attorney General (Constitutional Petition No. 2 of 2003)
  • Tororo Cement v Frokina (Civil Appeal No. 2 of 2001)
  • R v Big M Drug Mart Ltd [1986] LRC (Const) 322
  • Paul K. Ssemwogerere & Others v Attorney General (Constitutional Appeal No. 2 of 2002)
  • R v Oakes, 1986 CanLII 46 (SCC), [1986] 1 SCR 103
  • Charles Onyango Obbo & Andrew Mujuni Mwenda v Attorney General (Constitutional Appeal No. 3 of 2003)
  • United States Department of Justice v Reporters Committee for Freedom of the Press, 489 U.S. 749 (1989)
  • Zachary Olum & Others v Attorney General (Constitutional Petition No. 99 of 1999)
  • Doctors for Life International v The Speaker of the National Assembly and Others [2006] ZACC 11; 2006 (12) BCLR 1399 (CC)
  • Bernstein v Bester, Constitutional Court Case No 23/1995, [1996] ZACC 2; 1996 (4) BCLR 499
  • Gerald Kafureeka Karuhanga v Attorney General (Constitutional Petition No. 39 of 2013)
  • Kamba Saleh Moses Wilson v Attorney General (Constitutional Petition No. 38 of 2012)
  • Attorney General of Tanzania v Rev Christopher Mtikila (2010) EA 13
  • Mark Gova & Another v Minister of Home Affairs & Another, SC 36/2000; Civil Application No. 156/99
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