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Kwizera v Attorney General (Constitutional Petition No. 12 of 2019)

Constitutional Court · [2023] UGCC 7 · 2023 Petition Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional petition under Article 137 of the Constitution seeking declarations and consequential orders
Decision
Petition dismissed with no order as to costs

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Holding

The petitioner challenged the Salaries and Allowances (Specified Officers) Act, a presidential directive enhancing the remuneration of the Chief Justice and senior officials, and alleged omissions by the Service Commissions and the Chief Justice. The Constitutional Court dismissed the petition. It held that complaints about omissions to perform constitutional duties are matters for enforcement, not interpretation, and fall outside its Article 137 jurisdiction. Parliament's selective prescription of offices under Article 158(2) is constitutional; a presidential directive on salaries is not unconstitutional because Parliament retains the power of the purse and must approve the proposals; and the Chief Justice need not seek Judicial Service Commission recommendations before preparing budget estimates. No order as to costs.

Facts

The petitioner brought a constitutional petition under Article 137 challenging the arrangements for setting the salaries and allowances of public officers. He contended that the Judicial, Public, Education and Health Service Commissions had omitted to review and make recommendations on the terms and conditions of public servants; that the Salaries and Allowances (Specified Officers) Act, Cap 291, unconstitutionally omitted certain offices (Speaker, Deputy Speaker, Prime Minister and various judicial officers) while prescribing salaries for offices not charged on the Consolidated Fund; and that the President, by letters dated 6 and 18 January 2017, directed the Minister of Public Service to enhance the remuneration of the Chief Justice, Deputy Chief Justice, Head of Civil Service and Permanent Secretaries. He further alleged the Chief Justice prepared annual budget estimates without seeking Judicial Service Commission recommendations, and that the President negotiated directly with public-service sectors. The Attorney General denied the Commissions had abdicated their roles, maintained the President acted under executive authority subject to ultimate parliamentary approval, and pointed to subsequent reforms including the Administration of the Judiciary Act 2020.

Issues

  1. Whether the alleged omission of the Judicial, Public, Education and Health Service Commissions to review and make recommendations on the terms and conditions of service of public servants contravenes articles 147(1)(b), 166(1)(c), 168(1)(c) and 170(1)(c) of the Constitution.
  2. Whether the Salaries and Allowances (Specified Officers) Act contravenes articles 158(2), 79, 66 and 155 of the Constitution.
  3. Whether the President's directives to the Minister of Public Service and approval of enhancements of emoluments for the Chief Justice, Deputy Chief Justice, Head of Civil Service and Permanent Secretaries contravenes article 158(2) of the Constitution.
  4. Whether the omission of the Chief Justice to prepare the estimates of expenditure of the Judiciary without the recommendation of the Judicial Service Commission is inconsistent with articles 8A, 147(1)(b), 155, 166(1)(b), 168(1)(b) and 170(1)(b) of the Constitution.
  5. Whether the omission of the Government to develop a coherent and holistic policy and to enact a law on the terms and conditions of service of public servants is inconsistent with article 8A of the Constitution.
  6. Whether the act of the President in negotiating directly with sectors of the public service for better terms and conditions of service is inconsistent with articles 166(1)(c), 168(1)(c), 147(1)(c), 170(1)(c) and 8A of the Constitution.

Orders

  • The petition is dismissed for lack of merit.
  • No order as to costs.

Key headnotes

Constitutional Law — Jurisdiction of the Constitutional Court — Interpretation distinguished from enforcement
Allegations that organs of State have omitted to perform duties imposed by the Constitution are matters for enforcement of the Constitution before a competent court, not for constitutional interpretation, and therefore fall outside the Constitutional Court's jurisdiction under Article 137 where no question requiring interpretation arises.
Statutory Interpretation — Constitutionality of legislation — Purpose and effect test
In determining the constitutionality of legislation, both its purpose and its effect must be considered, and the legislative objective may be established from the title, text, preamble, headings, schedules and interpretation clauses of the impugned Act.
Constitutional Law — Public Finance — Article 158(2) — Power of Parliament to prescribe offices charged on the Consolidated Fund
Article 158(2) grants Parliament the authority and duty to prescribe the offices whose salaries and allowances are charged on the Consolidated Fund; Parliament's omission of some such offices does not render the prescribing Act unconstitutional, and Parliament may charge on the Consolidated Fund offices that the Constitution did not itself so designate.
Constitutional Law — Separation of powers — Executive directive on remuneration and Parliament's power of the purse
A presidential directive to the Minister of Public Service to enhance the salaries of specified officers does not contravene Article 158(2), because the directive cannot be implemented without the matter being laid before Parliament, which retains the power of the purse and must approve any legislative proposal before funds are withdrawn.
Constitutional Law — Judiciary — Annual estimates of expenditure under Article 155(2)
Reading Articles 155(2) and 147(1)(b) together, the Chief Justice is under no constitutional duty to seek the recommendations of the Judicial Service Commission before preparing the Judiciary's annual estimates of expenditure.
Administrative Law — Service Commissions — Advisory function and direct engagement with the Executive
Nothing in the Constitution bars sectors of the public service from engaging the President directly on their terms and conditions of service; the constitutional Service Commissions established for those sectors perform an advisory function only and do not preclude such direct engagement.

Legislation cited (26)

  • Constitution of Uganda art.137
  • Constitution of Uganda art.8A
  • Constitution of Uganda art.147(1)(b)
  • Constitution of Uganda art.154
  • Constitution of Uganda art.154(1)
  • Constitution of Uganda art.155
  • Constitution of Uganda art.155(1)
  • Constitution of Uganda art.155(2)
  • Constitution of Uganda art.155(3)
  • Constitution of Uganda art.156(1)
  • Constitution of Uganda art.158(2)
  • Constitution of Uganda art.159(2)
  • Constitution of Uganda art.166(1)
  • Constitution of Uganda art.168(1)
  • Constitution of Uganda art.170(1)
  • Constitution of Uganda art.99
  • Constitution of Uganda art.79
  • Constitution of Uganda art.66
  • Constitution of Uganda art.111(2)
  • Constitution of Uganda art.128(7)
  • Constitution of Uganda art.150(1)
  • Salaries and Allowances (Specified Officers) Act Cap 291
  • Public Service Act 2008 s.7(1)(b)
  • Public Service (Negotiating, Consultative and Dispute Settlement Machinery) Act 10 of 2008
  • Administration of Parliament Act Cap 257 s.20
  • Administration of the Judiciary Act 2020

Cases cited (6)

  • Gerald Karuhanga v Attorney General (Constitutional Petition No. 39 of 2013)
  • Parliamentary Commission v Mwesigye Wilson (Constitutional Petition No. 8 of 2016)
  • Krispus Ayena Odongo v Attorney General (Constitutional Petition No. 30 of 2017)
  • James Katabazi V Secretary General of East African Community & Attorney General
  • Attorney General v Salvatori Abuki (Constitutional Appeal No. 1 of 1998)
  • Justice Asaph ... Justice Linda M... V ... Petition No. 33 of 2016 (unreported)
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.