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Uganda Law Society & 12 Others v Attorney General (Constitutional Petition 32 of 2020)

Constitutional Court · [2024] UGCC 2 · 2024 Petition Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional petition under Article 137(3) challenging the constitutionality of section 2(h) of the Stamp Duty (Amendment) Act, 2020
Decision
Petition allowed; section 2(h) of the Stamp Duty (Amendment) Act, 2020 declared unconstitutional and void; each party to bear own costs.

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Holding

The Constitutional Court held that section 2(h) of the Stamp Duty (Amendment) Act 2020, imposing UGX 100,000 stamp duty on professional practising licences, was unconstitutional. The levy discriminated against private practitioners on the basis of economic standing without falling within the Article 21(4) exemptions, which the respondent failed to justify. Practising licences, signed by registrars rather than the professionals, are not chargeable instruments and are exempt under the parent Act. The charge was a disproportionate and unjustified clog on the right to practise under Article 40, and, being in pari materia with charges previously nullified by the courts, contravened Article 92's bar on legislation altering judicial decisions. Petition allowed.

Facts

Parliament enacted the Stamp Duty (Amendment) Act 2020, inserting item 63A in the Schedule to the Stamp Duty Act 2014 and levying UGX 100,000 annually on every professional licence or certificate. The stated justification, drawn from a Parliamentary Finance Committee report, was to enable the Uganda Revenue Authority to obtain information about professional service providers and enforce compliance with section 135(3) of the Income Tax Act. The petitioners — thirteen statutory professional bodies — represent professionals who must annually renew practising licences and pay related fees. They contended the levy discriminated against private practitioners, who, unlike publicly-employed professionals, must renew licences yearly, and that it revived charges already struck down by the High Court under the Trade (Licensing) Act. The court noted that practising licences and certificates are issued and signed by registrars and regulatory bodies, not by the professionals themselves.

Issues

  1. Whether section 2(h) of the Stamp Duty (Amendment) Act, 2020 is inconsistent with and/or in contravention of Article 21(1) and (3) of the Constitution.
  2. Whether section 2(h) of the Stamp Duty (Amendment) Act, 2020 is inconsistent with and/or in contravention of Article 40(2) of the Constitution.
  3. Whether section 2(h) of the Stamp Duty (Amendment) Act, 2020 is inconsistent with and/or in contravention of Article 92 of the Constitution, and if so whether it was enacted in bad faith.
  4. What remedies are available to the parties.

Orders

  • Petition allowed.
  • Declaration that, to the extent it does not fall within the exceptions in Article 21(4)(a) and (b), section 2(h) of the Stamp Duty (Amendment) Act, 2020 is discriminatory against professionals in private practice and inconsistent with and/or in contravention of Articles 21(1) and (3) and 152(1) of the Constitution, and void to that extent.
  • Declaration that, to the extent it places a disproportionate burden on professionals in private practice, section 2(h) is in contravention of and/or inconsistent with Article 40(1) of the Constitution, and void to that extent.
  • Declaration that the inclusion of section 2(h) to facilitate collection of stamp duty from the petitioners on obtaining a licence or certificate to practice is inconsistent with and/or in contravention of Article 92 of the Constitution, and void.
  • Each party to bear their own costs.

Key headnotes

Constitutional Law — Equality and Freedom from Discrimination — Article 21(3) Grounds Not Exhaustive
The grounds of discrimination enumerated in Article 21(3) of the Constitution are not exhaustive; by virtue of Article 45, the right to freedom from discrimination continues to evolve on a case-by-case basis and may extend to differential treatment based on social or economic standing not expressly listed.
Constitutional Law — Discrimination — Article 21(4) Exemptions — Burden of Justification
A discriminatory law is saved only where it falls within an exemption in Article 21(4); the burden lies on the State to show the law is necessary for redressing social or economic imbalance, is required under the Constitution, or is demonstrably justifiable in a free and democratic society.
Tax Law — Stamp Duty — Chargeable Instruments — Requirement of Execution
Stamp duty is chargeable on an instrument executed by the person liable to pay; a practising licence or certificate that is issued and signed by a registrar or regulatory authority, and not by the professional, is not an instrument executed by that professional and is exempt from stamp duty under section 3(3) of the Stamp Duty Act 2014.
Constitutional Law — Right to Practise a Profession — Article 40(2) — Limitation Under Article 43
A limitation on the right to practise one's profession guaranteed by Article 40(2) is valid only if it satisfies Article 43: the restriction must be proportionate, rationally connected to a sufficiently important objective, no more than necessary, and acceptable and demonstrably justifiable in a free and democratic society.
Constitutional Law — Retrospective Legislation — Article 92 — Statutes In Pari Materia
Parliament may not enact legislation in pari materia with statutory provisions already nullified by the courts so as to reintroduce a charge struck down by judicial decision; doing so alters a court decision as between the parties and contravenes Article 92's restriction on retrospective legislation.
Civil Procedure — Pleading Bad Faith — Particulars Required
An allegation that legislation was enacted in bad faith must be specifically pleaded with particulars under Order 6 rule 3 of the Civil Procedure Rules; a mere lapse or error by the legislature does not, without more, establish that a statute was enacted in bad faith.
Constitutional Law — Constitutionality of Legislation — Purpose and Effect Test
In determining the constitutionality of legislation, both its purpose and its effect must be considered; a statute may be invalidated for an unconstitutional purpose or an unconstitutional effect, and intended and actual effects guide the assessment of the legislation's object and validity.

Legislation cited (39)

  • Constitution of the Republic of Uganda 1995 art.137(3)
  • Constitution of the Republic of Uganda 1995 art.21(1)
  • Constitution of the Republic of Uganda 1995 art.21(3)
  • Constitution of the Republic of Uganda 1995 art.21(4)
  • Constitution of the Republic of Uganda 1995 art.40(2)
  • Constitution of the Republic of Uganda 1995 art.43
  • Constitution of the Republic of Uganda 1995 art.45
  • Constitution of the Republic of Uganda 1995 art.92
  • Constitution of the Republic of Uganda 1995 art.152(1)
  • Constitution of the Republic of Uganda 1995 art.79(1)
  • Constitution of the Republic of Uganda 1995 art.128
  • Constitution of the Republic of Uganda 1995 art.126
  • Constitution of the Republic of Uganda 1995 art.2(2)
  • Stamp Duty (Amendment) Act 2020 s.2(h)
  • Stamp Duty Act 2014 s.3
  • Stamp Duty Act 2014 s.2
  • Stamp Duty Act 2014 s.32
  • Stamp Duty Act 2014 s.52
  • Stamp Duty Act 2014 s.54
  • Income Tax Act s.135(3)
  • Income Tax Act s.131
  • Income Tax Act s.18
  • Income Tax Act s.19
  • Income Tax (Amendment) Act 2015 s.24
  • Advocates Act s.11
  • Medical and Dental Practitioners Act Cap 272 s.28
  • Engineers Registration Act Cap 271 s.16
  • Surveyors Registration Act s.19
  • Veterinary Surgeons Act s.11
  • Architects Registration Act Cap 269 s.14(2)
  • Nurses and Midwives Act Cap 274 s.30
  • Insurance Act 2017 s.44
  • Trade (Licensing) Act Cap 101 s.8
  • Trade (Licensing) Act Cap 101 s.30
  • Trade (Licensing) Act Cap 101 s.33
  • Trade (Licensing) (Amendment) Act 2015
  • Local Governments Act Cap 234 s.80
  • Civil Procedure Rules Order 6 rule 3
  • Constitutional Court (Petitions and References) Rules 2005 rule 6(5)

Cases cited (25)

  • Muwanga Kivumbi v Attorney General (Constitutional Petition No. 9 of 2005)
  • Caroline Turyatemba & 4 Others v Attorney General & Another (Constitutional Petition No. 15 of 2006)
  • Cha'are Shalom Ve Tsedek v. France, Application No. 27417/95
  • Christopher Madrama Izama v Attorney General (Constitutional Appeal No. 1 of 2016)
  • Fuelex (U) Ltd v URA (Constitutional Petition No. 25 of 2007)
  • Rtd Dr Col Kiiza Besigye v Y. K. Museveni (Presidential Election Petition No. 2 of 2006)
  • Attorney General v Salvatori Abuki (Constitutional Appeal No. 1 of 1999)
  • R v. Big M Drug Mart Ltd, [1985] 1 S.C.R. 295
  • Human Rights Network Uganda & 4 Others v Attorney General (Constitutional Petition No. 56 of 2013)
  • Charles Onyango Obbo & Andrew Mujuni Mwenda v Attorney General (Constitutional Appeal No. 2 of 2002)
  • R v. Oakes, [1986] 1 SCR 103
  • Mark Gova & Another v. Minister of Home Affairs & Another, [S.C. 36/2000: Civil Application No. 156/99]
  • Robert Mwesigwa, Abel Nayebaza & 134 Others v Bank of Uganda (Civil Suit No. 588 of 2003)
  • Stanbic Bank (U) Ltd & 3 Others v Attorney General (Miscellaneous Cause No. 645 of 2011)
  • Pharmaceutical Society of Uganda v Attorney General (Miscellaneous Cause No. 260 of 2019)
  • NC Bank & 24 Others v KCCA & Attorney General (Miscellaneous Cause No. 2 of 2018)
  • Uganda Law Society v KCCA & Attorney General (Miscellaneous Cause No. 243 of 2017)
  • Uganda Clearing & Forwarding Association v KCCA & Attorney General (Miscellaneous Cause No. 439 of 2017)
  • Independent Institute of Education (Pty) Limited v. Kwazulu Natal Law Society & 27 Others [2019] ZACC 47
  • Commander v. Collector of Customs, 1920 AD 510 at 513
  • the King v Loxdale (1788)
  • Hodgson v Bell
  • Misrilal Jain & Others v State of Orissa & Another, 1977 AIR 1686; 1977 SCR (3) 714
  • Prithvi Cotton Mills v. Broach Borough Municipality [1964] 5 S.C.R. 975
  • Eaton Towers Uganda Ltd v Attorney General & Jinja Municipal Council (Miscellaneous Cause No. 84 of 2019)
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