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Centre for Public Interest Law v Attorney General (Constitutional Petition No. 20 of 2016)

Constitutional Court · [2023] UGCC 99 · 2023 Petition Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional petition under article 137(1) and (3) seeking declarations of unconstitutionality
Decision
Petition dismissed; the impugned amendment exempting MPs' allowances from income tax declared constitutional

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Holding

The Constitutional Court held that the petition raised genuine questions of constitutional interpretation, but found no contravention. The amendment exempting MPs' allowances from income tax did not breach Article 92: it was not retrospective and did not alter rights accrued from the High Court judgment in Civil Suit No. 745 of 2013, which merely interpreted the law as it then stood. Article 93(a)(i) was inapplicable because it governs only the imposition or increase of tax, not a reduction. The Attorney General's revision of an earlier legal opinion did not contravene Article 119; the correctness of his advice is a matter for judicial review, not constitutional interpretation. The petition was dismissed with each party bearing its own costs.

Facts

The petitioner, a public interest organisation, challenged the constitutionality of the Income Tax (Amendment) Act 2016, which inserted paragraph (qa) into section 21(1) of the Income Tax Act to exempt the employment income of Members of Parliament from income tax. A prior High Court decision, Francis Byamugisha v Attorney General (Civil Suit No. 745 of 2013), delivered 29 January 2016, had declared MPs' emoluments liable to tax and directed collection of outstanding tax for 2004 to 2015. The Parliamentary Commission obtained a stay of execution, and Parliament passed the amendment in April 2016, gazetting it in December 2016. The petitioner also challenged the Attorney General's issuing of four legal opinions between 2005 and 2008 that reached divergent conclusions on the taxability of MPs' allowances, the fourth opinion departing from the third. The respondent contended the petition raised no question of constitutional interpretation and was speculative and premature.

Issues

  1. Whether there are any questions for constitutional interpretation raised by the petition.
  2. Whether the act of Members of Parliament introducing, through the Income Tax (Amendment) Bill 2016, an amendment to section 21(1)(q) of the Income Tax Act exempting MPs' allowances from income tax contravenes Articles 92, 93(a)(i) and (b), and 79(1) of the Constitution.
  3. Whether the Respondent's issuing of contradictory legal opinions to the Parliamentary Commission contravenes Articles 119(3) and (4)(a) of the Constitution.
  4. What remedies are available to the parties.

Orders

  • The actions of Parliament amending section 21(1) of the Income Tax Act by inserting paragraph (qa), and the proceedings thereof, were constitutional.
  • Petition dismissed.
  • Each party to bear its own costs.

Key headnotes

Constitutional Law — Jurisdiction of the Constitutional Court — Necessity of interpretation under Article 137(3)
For the Constitutional Court to assume jurisdiction, the petition must show on its face that interpretation of a provision of the Constitution is required; it is not enough merely to allege that a constitutional provision has been violated.
Constitutional Law — Restriction on retrospective legislation — Article 92 — Alteration of a court judgment between the parties
Parliament does not contravene Article 92 where legislation is neither retrospective nor alters rights accrued between the parties to a prior judgment; a judgment that merely interprets the law as it then stood imposes no obligation barring Parliament from later changing that law.
Tax Law — Restriction on financial matters — Article 93(a)(i) — Reduction versus imposition of taxation
Article 93(a)(i), which requires a government-sponsored bill for the imposition or increment of taxation, does not apply where Parliament reduces or wholly removes an existing tax.
Administrative Law — Attorney General — Article 119(3) and (4)(a) — Revision of legal opinions
The Attorney General does not contravene the Constitution by revising or departing from an earlier legal opinion; the correctness of the Attorney General's advice is a matter for judicial review and not for constitutional interpretation.
Statutory Interpretation — Constitutional interpretation — Purpose and effect; reading the Constitution as an integral whole
In determining the constitutionality of legislation the court must consider both its purpose and effect, and the Constitution must be read together as an integral whole so that each provision sustains rather than destroys the others.

Legislation cited (14)

  • Constitution of Uganda 1995 art.137(1) and (3)
  • Constitution of Uganda 1995 art.79(1)
  • Constitution of Uganda 1995 art.92
  • Constitution of Uganda 1995 art.93(a)(i) and (b)
  • Constitution of Uganda 1995 art.119(3) and (4)(a)
  • Constitution of Uganda 1995 art.2
  • Constitution of Uganda 1995 art.8A
  • Constitution of Uganda 1995 art.126(1)
  • Constitution of Uganda 1995 art.128(1)
  • Constitution of Uganda 1995 art.134(2)
  • Income Tax Act Cap 340 s.21(1)(q)
  • Income Tax (Amendment) Act 2016 s.2
  • Judicature Act s.10
  • Constitutional Court (Petitions and References) Rules, S.I. No.59 of 2005, Rule 3

Cases cited (16)

  • David Tusingwire v Attorney General [2017] UGSC 11
  • Presidential Election Petition No. of the 2006 (SC) Rtd Dr. Col. Kiiza Besigye v. Y.K. Museveni
  • Attorney General v Salvatori Abuki (Constitutional Appeal No. 1 of 1998)
  • P.K. Ssemwogerere and Another v Attorney General (Constitutional Appeal No. 1 of 2002)
  • Attorney General of Tanzania v Rev. Christopher Mtikila (2010) EA 13
  • Okello Okello John Livingstone and 6 others v Attorney General and another (Constitutional Petition No. 1 of 2005)
  • South Dakota v. South Carolina 192, USA 268. 1940
  • Attorney General v Major General David Tinyefuza (Constitutional Appeal No. 1 of 1997)
  • Charles Onyango Obbo and Another v Attorney General [2004] UGSC 81
  • Mbabali Jude v Edward Kiwanuka Sekandi (Constitutional Petition No. 28 of 2012)
  • Baku Raphael Obudra and Another v Attorney General (Constitutional Appeal No. 1 of 2003)
  • Ismail Serugo v Kampala City Council and Attorney General (Constitutional Appeal No. 2 of 1998)
  • Edward Fredrick Ssempebwa v Attorney General (Constitutional Case No. 1 of 1986)
  • Theodore Ssekikubo and 4 others v Attorney General and others (Constitutional Appeal No. 1 of 2015)
  • Yew Bon Tew v Kenderaan Bas Mara [1983] 1 AC 553
  • Francis Byamugisha v Attorney General, Parliamentary Commission and Uganda Revenue Authority (Civil Suit No. 745 of 2013)
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