Wakilii

HUB for Investigative Media & Another v Attorney General (Constitutional Petition 3 of 2020)

Constitutional Court · [2024] UGCC 25 · 2024 Petition Allowed in Part ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional petition under Article 137(3) challenging the constitutionality of provisions of the Leadership Code (Amendment) Act 2017
Decision
Petition allowed in part: Sections 11(2) and 11(4) of the Leadership Code Act Cap 33 declared inconsistent with the Constitution and the Inspectorate of Government ordered to grant access to declarations subject to Article 41(1); preliminary objection on the repealed Section 4A(5) upheld.

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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 Court upheld a preliminary objection that it could not interpret Section 4A(5) of the 2017 amendment because it had been repealed and not preserved. On the fee provisions (ss 7(2) and (9)), it held that a reasonable, universally applicable fee to access declarations is not discriminatory and does not negate the right of access to information. On the discretion provision (now s.11(4) of Cap 33), it held that public officials cannot use privacy under Article 27 as a shield, that there is overwhelming public interest in disclosure of asset declarations, and that withholding them offends Article 233(2)(e). It declared the provisions inconsistent with the Constitution and ordered access subject to Article 41(1).

Facts

The 1st petitioner is a registered NGO promoting access to information for good governance and accountability; the 2nd petitioner is an investigative journalist and its Executive Director. They challenged provisions of the Leadership Code (Amendment) Act 2017. Section 4A(5) required accounting officers to keep declarations of public officers' incomes, assets and liabilities confidential. Sections 7(2) and 7(9) required a person seeking access to a leader's declaration to apply to the Inspectorate and pay a prescribed fee not exceeding 25 currency points (set by the Minister at UGX 200,000). Section 7(4) permitted the Inspectorate to grant access only where satisfied that access would aid enforcement of the Code and that the applicant would not disclose the contents. The petitioners contended these provisions commoditised public information, conferred unconstitutional discretion on the Inspectorate, and undermined accountability and the fight against corruption, contrary to the citizen's right of access to information under Article 41(1).

Issues

  1. Whether the petition raises matters for constitutional interpretation under Article 137(3) of the Constitution.
  2. Whether Sections 7(2) and 7(9) of the Leadership Code (Amendment) Act 2017 (imposing a fee to access leaders' declarations) contravene Articles 41(1), 21(1), 29(1)(a) and 43(c) of the Constitution.
  3. Whether Section 7(4) of the Leadership Code (Amendment) Act 2017 (giving the Inspectorate discretion over access to declarations) is consistent with Articles 41(1), 21(1), 29(1)(a), 43(c) and Objectives XXVIII(i)(b) and XXVI of the Constitution.
  4. What remedies are available to the parties.

Orders

  • The Inspectorate of Government is ordered to grant access to declarations submitted under the Leadership Code Act subject to the requirements under Article 41(1) of the Constitution.
  • The petition partially succeeds.
  • There shall be no order as to costs, the petition having been brought in the public interest.

Key headnotes

Constitutional Law — Jurisdiction under Article 137(3) — Repealed statutory provisions
The Constitutional Court cannot interpret a statutory provision that has been repealed and not replaced, preserved, saved or re-enacted; Article 137(3) envisages the interpretation of valid and existing Acts of Parliament.
Constitutional Law — Constitutional petitions — Cause of action
A petition under Article 137(3) sufficiently discloses a cause of action where it specifies the Act or provision complained of, identifies the provision of the Constitution with which it is alleged to be inconsistent or in contravention, and prays for a declaration to that effect.
Statutory Interpretation — Constitutionality of legislation — Purpose and effect test
In determining the constitutionality of legislation, both its purpose and its effect must be taken into consideration, whether the unconstitutionality lies in the purpose or in the effect animated by the object the legislation intends to achieve.
Human Rights — Right to equality and non-discrimination — Universal access fee
A fee of general application imposed on every person wishing to access leaders' declarations does not discriminate within the meaning of Article 21, as it makes no distinction based on sex, race, colour, tribe, social or economic standing or any other prohibited ground, and a reasonable fee does not negate the right of access to information.
Human Rights — Right to privacy — Public officials — Public interest limitation
Once a person assumes a position of leadership a higher level of scrutiny is demanded of their affairs, and a public official cannot use the right to privacy under Article 27 as a shield against disclosure of asset declarations, given the overwhelming public interest recognised by Article 43(1) and Objective XXVI.
Constitutional Law — Access to information — Leadership Code — Discretion to withhold declarations
A statutory provision empowering the Inspectorate to withhold disclosure of leaders' declarations from the public is inconsistent with the right of access to information under Article 41(1) and offends the spirit and intention of Article 233(2)(e); such declarations ought to be made available to the public, subject to necessary safeguards against abuse.

Legislation cited (19)

  • Constitution of Uganda 1995 Article 137
  • Constitution of Uganda 1995 Article 2(2)
  • Constitution of Uganda 1995 Article 21(1)
  • Constitution of Uganda 1995 Article 27
  • Constitution of Uganda 1995 Article 29(1)(a)
  • Constitution of Uganda 1995 Article 41(1)
  • Constitution of Uganda 1995 Article 43
  • Constitution of Uganda 1995 Article 44
  • Constitution of Uganda 1995 Article 233(2)
  • Leadership Code (Amendment) Act 2017 s.4A(5)
  • Leadership Code (Amendment) Act 2017 s.7(2)
  • Leadership Code (Amendment) Act 2017 s.7(4)
  • Leadership Code (Amendment) Act 2017 s.7(9)
  • Leadership Code Act Cap 33 s.4
  • Leadership Code Act Cap 33 s.11(2)
  • Leadership Code Act Cap 33 s.11(4)
  • Leadership Code Act Cap 33 s.11(7)
  • Leadership Code (Amendment) Act 2021
  • Constitutional Court (Petitions and References) Rules 2005 r.3

Cases cited (9)

  • Ismail Serugo v Kampala City Council (Constitutional Appeal No. 2 of 1998)
  • Raphael Baku Obudra v Attorney General (Constitutional Appeal No. 1 of 2003)
  • Attorney General v Salvatori Abuki (Constitutional Appeal No. 1 of 1998)
  • South Dakota v North Carolina 192 US 268
  • Attorney General v Uganda Law Society (Constitutional Appeal No. 1 of 2006)
  • Attorney General v Tinyefuza (Constitutional Appeal No. 1 of 1997)
  • NM & Others v Smith & Others 2007 (5) SA 250 (CC)
  • David Tusingwire v Attorney General [2014] UGSC 77
  • Wypych v Poland (Application No. 2428/05) ECtHR
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.