Wakilii

Hon . Rtd Justice Okello Omoro and 4 Others v Attorney General of Uganda and 8 Others (Consitutional Petition 28 of 2019)

Constitutional Court · [2023] UGCC 107 · 2023 ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional petition under Article 137(1) and (3) challenging the constitutionality of provisions of the Land Act and the conduct of District Land Boards
Decision
—

The full judgment

Read the complete, verbatim text of this judgment.

Sign in to read the full judgment

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions — always read the source judgment before relying on it.

Holding

Five petitioners challenged sections 3(1), 4(3), 5 and 7 of the Land Act and the administration and leasing of de-gazetted and former 'public' land by District Land Boards in the Acholi sub-region as inconsistent with Article 237, which vests all land in the citizens of Uganda under the recognised tenure systems including customary tenure. On the threshold issue the Court held that it had jurisdiction under Article 137, finding that the petition raised genuine questions of constitutional interpretation concerning customary tenure, radical title and the reversion of former public land to the people. The provided judgment text was truncated before the Court resolved the remaining issues, so the final determination on the constitutionality of the impugned provisions and the orders made could not be extracted.

Facts

The 1995 Constitution, by Article 237(1), vested all land in Uganda in the citizens to be held under the tenure systems it recognises, including customary tenure. The petitioners contended that in the Acholi sub-region land is held almost exclusively under customary tenure managed by clans, that ownership turns on use rather than occupation, and that de-gazetted and former public land reverted to the communities from which colonial and post-colonial governments had taken it. They challenged sections 3(1), 4(3), 5 and 7 of the Land Act as creating a discriminatory regime that treats customary tenure as inferior, fails to provide a central registry or a meaningful role for clan leaders and customary institutions, and vests authority in Area Land Committees and District Land Boards. They also challenged the District Land Boards' administration and leasing of land in the sub-region as treating clan-owned land as vacant or public. The Attorney General and the Land Boards opposed the petition, contending the impugned provisions and the Boards' operations conform to Articles 237 and 241 and do not discriminate against customary tenure. Section 9 of the Land Act and the Aswa Ranch presidential-directive ground were abandoned by the petitioners.

Issues

  1. Whether the petition is within the jurisdiction of the court under Article 137(1) and (3) of the Constitution.
  2. Whether sections 3(1), 4(3), 5 and 7 of the Land Act read together are in contravention of or inconsistent with Articles 2(1) & (2) and 237(1) & (3)(a) of the Constitution.
  3. Whether the actions of the 2nd to 9th respondents in administering and leasing de-gazetted lands and former 'public lands' are in contravention of or inconsistent with Articles 2(1) & (2), 26(1) & (2) and 237(1) & (3)(a) of the Constitution.
  4. Whether the failure of the first respondent to provide adequate processes and procedures for the registration of customary land tenure and to provide guidelines for community-wide displacement and resettlement is in contravention of Articles 2(1) & (2) and 20(2) of the Constitution.
  5. What remedies are available to the parties.

Key headnotes

Constitutional Law — Jurisdiction of the Constitutional Court — Article 137
For the Constitutional Court to assume jurisdiction the petition must show, on its face, that interpretation of a provision of the Constitution is required; a mere allegation that a constitutional provision has been violated is insufficient, since the enforcement of violated rights lies under Article 50 before another competent court.
Statutory Interpretation — Constitutional Interpretation — Principles
A Constitution is sui generis and must be read as an integral whole in harmony, each provision sustaining rather than destroying another; provisions guaranteeing fundamental rights are given a dynamic, progressive, liberal and flexible interpretation, and the country's history and the legislative history of the Constitution are relevant guides to its meaning.
Land & Property — Customary Tenure — Vesting of land under Article 237(1)
Article 237(1) vests all land in Uganda in the citizens, to be held under the tenure systems provided in the Constitution; this effected a reversion of land formerly held as Crown or public land back to the people from whom it had been taken, requiring the concept of radical title inherited from the colonial state to be re-examined against the constitutional vesting.
Land & Property — Customary Tenure — Role of customary institutions
The reversion of land to the people under customary tenure by necessary implication carries with it the customary institutions that traditionally handled land matters, so that such institutions should be meaningfully engaged and allowed a say in matters relating to customary tenure.

Legislation cited (21)

  • Constitution of Uganda 1995 art.137
  • Constitution of Uganda 1995 art.237
  • Constitution of Uganda 1995 art.2
  • Constitution of Uganda 1995 art.26
  • Constitution of Uganda 1995 art.21
  • Constitution of Uganda 1995 art.20
  • Constitution of Uganda 1995 art.241
  • Land Act Cap 227 s.3(1)
  • Land Act Cap 227 s.4(3)
  • Land Act Cap 227 s.5
  • Land Act Cap 227 s.7
  • Land Act Cap 227 s.9
  • Land Act Cap 227 s.59
  • Land Act Cap 227 s.60
  • Land Act Cap 227 s.68
  • Public Lands Act 1969 s.54
  • Land Reform Decree 1975 s.3
  • Evidence Act s.101
  • Evidence Act s.102
  • Evidence Act s.103
  • Registration of Titles Act Cap 230

Cases cited (16)

  • Ismail Serugo v Kampala City Council and Attorney General (Constitutional Appeal No. 2 of 1998)
  • David Wesley Tusingwire v Attorney General (Constitutional Appeal No. 4 of 2016)
  • Law Advocacy for Women in Uganda v Attorney General (Constitutional Petitions Nos. 13 of 2005 and 05 of 2006) [2007] UGCC 1
  • Muwanga Kivumbi v Attorney General (Constitutional Appeal No. 06 of 2011) [2017] UGSC 4
  • Caroline Turyatemba and 4 Others v Attorney General and Another (Constitutional Petition No. 15 of 2006)
  • Atunya Vali Ryano v Okeny Delphino (Civil Appeal No. 0051 of 2017)
  • Magbwi Erikulano v MTN (U) Ltd and Another (Civil Appeal No. 0027 of 2012)
  • Alexkor Ltd v Richtersveld Community (CCT 19/03) [2003] ZACC 18; 2004 (5) SA 460 (CC)
  • Amodu Tijani Vs the Secretary, Southern Nigeria
  • Osu Vs Igiri (1988) 1 NWLR (Pt 69) 221
  • R v Van der Peet [1996] 2 SCR 507
  • Minister of Home Affairs v Fisher [1979] 2 All ER 21
  • Attorney General v Dow [1992] LRC (Const) 623
  • Dimanche Sharon and Others v Makerere University (Constitutional Petition No. 02 of 2004)
  • National Council for Higher Education v Anifa Kawooya Bangirana (Constitutional Appeal No. 4 of 2011)
  • United Organisation for Batwa Development Uganda and Others v Attorney General and Others (Constitutional Petition No. 003 of 2013)
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.