Wakilii

Centre for Arbitration and Dispute Resolution (CEDER) and Another v Attorney General (Constitutional Petition No. 11 of 2019)

Constitutional Court · [2023] UGCC 16 · 2023 Petition Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional petition under Articles 50 and 137 of the Constitution seeking declarations and orders
Decision
Petition dismissed; each party to bear its own costs

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Cited — treatment unverified cited in 2 (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 asserting that CADER (the Centre for Arbitration and Dispute Resolution) is a constitutionally established subordinate court whose decisions cannot be appealed or judicially reviewed. The Court held that CADER is an administrative body with legal personality created under section 67 of the Arbitration and Conciliation Act, not a court of judicature under Article 129(1)(d); its appointing-authority functions are quasi-judicial, depending on executive discretion. The Executive Director is not a judicial officer under Article 151 and enjoys no immunity under Article 128(4). The Judicature (Judicial Review) Rules (S.I. 11 of 2009 and S.I. 32 of 2019) were validly enacted under sections 41 and 42 of the Judicature Act and do not negate the right of appeal under Article 139(2).

Facts

The Centre for Arbitration and Dispute Resolution (CADER), a statutory body established under the Arbitration and Conciliation Act, and its Executive Director Jimmy Muyanja, petitioned the Constitutional Court contending that CADER is a subordinate court established under Article 129(1)(d) of the Constitution. They argued that in performing functions under section 68(a) of the Act — including appointing arbitrators under section 11 — CADER exercises judicial power, its decisions are not subject to appeal, and it cannot be subjected to judicial review by the High Court. They further contended that the Rules Committee and Chief Justice acted ultra vires in enacting the Judicature (Judicial Review) Rules, S.I. 11 of 2009 and S.I. 32 of 2019, which treated CADER as an administrative body amenable to judicial review, and in failing to lay those Rules before Parliament. The Attorney General opposed the Petition, contending CADER is an administrative body performing quasi-judicial functions and that the Rules were validly enacted under the Judicature Act.

Issues

  1. Whether the Petition raises any questions for constitutional interpretation.
  2. Whether the Petitioners have locus standi to lodge the Petition.
  3. Whether CADER, while performing section 68(a) Arbitration and Conciliation Act functions, is a subordinate court established under the Constitution or an administrative body under Article 42.
  4. Whether the Second Petitioner, while performing section 68(a) functions, is a judicial officer not liable to suit under Article 128(4) of the Constitution.
  5. Whether the Chief Justice or the Rules Committee, in enacting S.I. No. 11 of 2009 and S.I. No. 32 of 2019 subjecting CADER to judicial review, violated the Constitution.
  6. Whether the Petitioners are entitled to the orders and declarations sought.

Orders

  • The preliminary objection on the First Petitioner's locus standi is overruled.
  • The Petition is dismissed.
  • Each party to bear its own costs.

Key headnotes

Civil Procedure — Pleadings — Issues confined to matters pleaded
A court cannot entertain an issue premised on a case that was never set up in the pleadings; parties are bound by their pleadings and no relief may be granted on an un-pleaded issue.
Constitutional Law — Interpretative jurisdiction — When a petition raises a question for constitutional interpretation
A petition raises a question for constitutional interpretation where it requires the court to determine the meaning of constitutional provisions; it does not lose that character merely because the respondent regards the question as mundane or lacking in merit.
Constitutional Law — Locus standi under Article 137(3)(b) — Legal personality of juridical entities
A non-human or juridical entity has locus standi to petition the Constitutional Court under Article 137(3)(b) only where it has been conferred legal personality by statute; the relevant test is legal personality, not proof of corporate authority.
Arbitration & ADR — Status of CADER — Appointing authority distinguished from a subordinate court
CADER is the designated appointing authority for arbitrators under section 68(a) of the Arbitration and Conciliation Act, not a subordinate court under Article 129(1)(d) of the Constitution; the legislature's deference to an appointing authority rather than a court is clear indication that CADER is not a court.
Constitutional Law — Judicial power distinguished from quasi-judicial functions
A body whose adjudicative functions depend ultimately on the exercise of executive discretion rather than the strict application of law performs quasi-judicial functions and is not a court of judicature exercising judicial power within the meaning of Article 257(1)(p) of the Constitution.
Constitutional Law — Definition of a judicial officer under Article 151 — Mode of appointment
A person qualifies as a judicial officer under Article 151 only if appointed to judicial office in the manner prescribed by Articles 142, 145 or 148 of the Constitution; an Executive Director appointed otherwise is not a judicial officer and does not enjoy the immunity from suit conferred by Article 128(4).
Judicial Review — Validity of subsidiary legislation — Judicature (Judicial Review) Rules and the right of appeal
The Rules Committee and Chief Justice acted within the mandate conferred by sections 41 and 42 of the Judicature Act in enacting the Judicature (Judicial Review) Rules; judicial review supplies an additional remedy for breaches of the right to just and fair administrative treatment under Article 42 and does not negate the right of appeal under Article 139(2) of the Constitution.

Legislation cited (42)

  • Constitution of Uganda 1995 art.42
  • Constitution of Uganda 1995 art.50
  • Constitution of Uganda 1995 art.79(2)
  • Constitution of Uganda 1995 art.126(1)
  • Constitution of Uganda 1995 art.128(1)
  • Constitution of Uganda 1995 art.128(2)
  • Constitution of Uganda 1995 art.128(4)
  • Constitution of Uganda 1995 art.129(1)(d)
  • Constitution of Uganda 1995 art.129(3)
  • Constitution of Uganda 1995 art.133(1)
  • Constitution of Uganda 1995 art.137
  • Constitution of Uganda 1995 art.139(1)
  • Constitution of Uganda 1995 art.139(2)
  • Constitution of Uganda 1995 art.142(1)
  • Constitution of Uganda 1995 art.145(2)
  • Constitution of Uganda 1995 art.148
  • Constitution of Uganda 1995 art.150
  • Constitution of Uganda 1995 art.151
  • Constitution of Uganda 1995 art.257(1)(p)
  • Constitution of Uganda 1995 art.257(1)(cc)
  • Arbitration and Conciliation Act Cap. 4 s.2(1)(f)
  • Arbitration and Conciliation Act Cap. 4 s.9
  • Arbitration and Conciliation Act Cap. 4 s.11
  • Arbitration and Conciliation Act Cap. 4 s.51
  • Arbitration and Conciliation Act Cap. 4 s.67
  • Arbitration and Conciliation Act Cap. 4 s.68(a)
  • Arbitration and Conciliation Act Cap. 4 s.69
  • Arbitration and Conciliation Act Cap. 4 s.70
  • Judicature Act Cap. 13 s.17
  • Judicature Act Cap. 13 s.36
  • Judicature Act Cap. 13 s.40
  • Judicature Act Cap. 13 s.41
  • Judicature Act Cap. 13 s.42
  • UNCITRAL Model Law on International Commercial Arbitration art.6
  • UNCITRAL Model Law on International Commercial Arbitration art.11
  • Magistrates Courts Act Cap. 16 s.3
  • Labour Disputes (Arbitration and Settlement) Act 2006 s.22
  • Judicature (Judicial Review) Rules S.I. No. 11 of 2009 r.2(1)
  • Judicature (Judicial Review) (Amendment) Rules S.I. No. 32 of 2019
  • Constitutional Court (Petitions and References) Rules S.I. No. 91 of 2005 r.3
  • Nairobi Centre for International Arbitration Act 2013 (Kenya) s.4
  • Nairobi Centre for International Arbitration Act 2013 (Kenya) s.5

Cases cited (15)

  • Interfreight Forwarders (U) Ltd v EADB (Civil Appeal No. 33 of 1992)
  • Fang Min v Belex Tours & Travel (Civil Appeal No. 6 of 2013)
  • Hon. Dr. Margaret Zziwa v Secretary General of the East African Community (Appeal No. 2 of 2017)
  • International Development Consultants Ltd v Jimmy Muyanja, CADER & Another (Miscellaneous Cause No. 133 of 2018)
  • Ismail Serugo v Kampala City Council & Another (Constitutional Appeal No. 2 of 1998)
  • Attorney General v Maj. Gen. David Tinyefuza (Constitutional Appeal No. 1 of 1997)
  • Centre for Health, Human Rights and Development & 3 Others v Attorney General & Another (Constitutional Petition No. 22 of 2015)
  • Francis Tumwesige Ateenyi v Attorney General (Constitutional Petition No. 36 of 2018)
  • George William Alenyo v The Chief Registrar, Courts of Judicature & 2 Others (Constitutional Petition No. 32 of 2014)
  • Asaph Ntegye Ruhindi & Another v Attorney General (Constitutional Petition No. 33 of 2016)
  • Attorney General v Gladys Nabuule Kisekka (Constitutional Appeal No. 2 of 2016)
  • Babcon Uganda Ltd v Mbale Resort Hotel Ltd [2017] UGSC 10
  • Uganda Law Society v Attorney General, Constitutional Petition No. 52 of
  • Attorney General v Ali & Others (1989) LRC 474
  • Juandoo v Attorney General of Guyana (1971) AC 972
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