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Ismailia Building Company Limited & 3 Others v Attorney General & 4 Others (Constitutional Petition 37 of 2019)

Constitutional Court · [2024] UGCC 27 · 2024 Petition Partly Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional petition under Article 137 of the Constitution challenging the constitutionality of Section 9(1)(d) of the Expropriated Properties Act and certain conduct of the respondents
Decision
Petition partly succeeds: Section 9(1)(d) of the Expropriated Properties Act declared unconstitutional and void; the remaining declarations rejected as enforcement matters for a competent court under Article 50.

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Holding

The Constitutional Court held that Section 9(1)(d) of the Expropriated Properties Act — empowering the Minister to dispose of repossessed property where a former owner fails to physically return and reside in Uganda within 120 days of authorisation — is inconsistent with Articles 2(2), 20, 21 and 26 of the Constitution and void to the extent of the inconsistency, because it permits deprivation of property on a ground not sanctioned by Article 26(2), provides for compensation only after acquisition, and discriminates against former owners contrary to Article 21. The court declined the remaining declarations, holding they raised enforcement issues for a competent court under Article 50, not constitutional interpretation. The petition partly succeeds, with 50% of costs to the petitioners.

Facts

The four petitioners were involved in repossessing properties expropriated from Asians during the Military Regime, the second petitioner holding numerous Powers of Attorney from former owners. The Expropriated Properties Act 1982 vested expropriated property in Government and allowed former owners to apply for repossession, with the Minister for Finance issuing certificates of repossession. Section 9(1)(d) empowered the Minister to order that property be retained or disposed of where an authorised former owner failed to physically return and reside in Uganda within 120 days of authorisation. The petitioners alleged the respondents, including the Departed Asians Property Custodian Board, fabricated allegations of fraud against their repossession certificates, incited tenants to stop paying rent, disregarded court decisions, and threatened prosecution. They petitioned the Constitutional Court challenging the constitutionality of Section 9(1)(d) and the respondents' conduct. The respondents denied the allegations, contended the petition raised no question of constitutional interpretation, and noted that related High Court matters had been filed and dismissed on the same facts.

Issues

  1. Whether the petition raises questions requiring interpretation of the Constitution so as to fall within the jurisdiction of the Constitutional Court under Article 137.
  2. Whether Section 9(1)(d) of the Expropriated Properties Act, which empowers the Minister to dispose of property where a former Asian owner fails to physically return and reside in Uganda within 120 days of authorisation, is inconsistent with Articles 2(2), 20, 21 and 26 of the Constitution.
  3. Whether the conduct alleged in issues 3 to 10 (usurping the courts' mandate, overruling court decisions, altering records, alleging fraud against repossession certificates, inciting tenants and dealing in disputed properties) raised matters of constitutional interpretation or mere enforcement.

Orders

  • The preliminary objection that the 1st, 4th and 5th respondents did not answer or serve the petition is overruled.
  • Section 9(1)(d) of the Expropriated Properties Act (Cap 87) is declared inconsistent with and in contravention of Article 26(1) of the Constitution and is null and void to the extent of the inconsistency.
  • The other declarations sought (paragraphs c to k of the petition) are rejected as they raise enforcement issues that may be brought under Article 50 before a competent court, not matters of constitutional interpretation.
  • The petitioners are entitled to 50% of the costs of the petition.
  • The petition partially succeeds.

Key headnotes

Constitutional Law — Jurisdiction of the Constitutional Court — Article 137 — Interpretation requirement
The jurisdiction of the Constitutional Court under Article 137 is confined to questions requiring interpretation of the Constitution; a petition must show on its face that interpretation of a constitutional provision is required, and it is not enough merely to allege that a constitutional provision has been violated.
Constitutional Law — Interpretation versus enforcement — Article 50
Not all constitutional contraventions fall to the Constitutional Court; where a complaint alleges infringement of rights that can be determined without interpreting the Constitution, it is an enforcement matter to be brought under Article 50 before a competent court rather than a question of constitutional interpretation.
Land & Property — Right to own property — Article 26 — Compulsory deprivation and prior compensation
Depriving a former owner of property or an interest in property for failure to physically return and reside in Uganda within 120 days of authorised repossession contravenes Article 26, because residence is not among the permitted grounds for compulsory deprivation, property ownership is not tied to residence, and the Constitution requires prompt fair and adequate compensation prior to acquisition rather than after it.
Human Rights — Equality and non-discrimination — Article 21 — Differential treatment of former owners
Treating former owners of expropriated property differently from ordinary property owners by conditioning recognition of their interest on residence in Uganda is discriminatory and contrary to Article 21, since a distinction is compatible with equality only where it has an objective and reasonable justification pursuing a legitimate aim with proportionality between means and aim.
Statutory Interpretation — Existing law — Article 274 — Conformity with the Constitution
Laws enacted before the promulgation of the 1995 Constitution are saved by Article 274 but must be construed with such modifications, adaptations, qualifications and exceptions as are necessary to bring them into conformity with the Constitution, and to the extent they cannot be so construed they are null and void.
Constitutional Law — Burden of proof in constitutional petitions — Shifting onus
In a constitutional petition the petitioner bears the burden of raising a prima facie case that a fundamental right or freedom has been contravened; once established, the burden shifts to the State or respondent to rebut or justify the limitation.

Legislation cited (20)

  • Constitution of Uganda 1995 art.137
  • Constitution of Uganda 1995 art.26
  • Constitution of Uganda 1995 art.21
  • Constitution of Uganda 1995 art.2(2)
  • Constitution of Uganda 1995 art.20
  • Constitution of Uganda 1995 art.274
  • Constitution of Uganda 1995 art.50
  • Constitution of Uganda 1995 art.8A
  • Expropriated Properties Act 1982 (Cap 87) s.9(1)(d)
  • Expropriated Properties Act 1982 (Cap 87) s.2
  • Expropriated Properties Act 1982 (Cap 87) s.3
  • Expropriated Properties Act 1982 (Cap 87) s.4
  • Expropriated Properties Act 1982 (Cap 87) s.6
  • Expropriated Properties Act 1982 (Cap 87) s.12
  • Expropriated Properties Act 1982 (Cap 87) s.15(1)
  • Evidence Act s.101
  • Constitutional Court (Petitions and References) Rules 2005 (SI No. 91 of 2005) r.6(3)
  • Constitutional Court (Petitions and References) Rules 2005 (SI No. 91 of 2005) r.6(6)
  • Expropriated Properties (Repossession and Disposal) (No.1) Regulations reg.14
  • Penal Code Act

Cases cited (22)

  • Ismail Serugo v Kampala City Council (Constitutional Appeal No. 2 of 1998)
  • Attorney General v Major General David Tinyefuza (Constitutional Appeal No. 1 of 1997)
  • David Tusingwire v Attorney General [2017] UGSC 11
  • Charles Onyango Obbo v Attorney General [2004] UGSC 81
  • Carolyne Turyatemba v Attorney General (Constitutional Petition No. 15 of 2006)
  • Marckx v Belgium, Application No. 6833/74 (ECHR, 1979)
  • Bukenya v Attorney General (Constitutional Appeal No. 3 of 2011) [2017] UGSC 18
  • Foundation for Human Rights Initiatives v Attorney General (Constitutional Petition No. 20 of 2006) [2008] UGCC 1
  • Mbabali Jude v Edward Kiwanuka Sekandi (Constitutional Petition No. 28 of 2012)
  • Christopher Martin Madrama Izama v Attorney General (Constitutional Appeal No. 1 of 2016)
  • Mohan Kiwanuka v Asha Chand (Civil Appeal No. 14 of 2002)
  • Uganda National Roads Authority v Irumba Asuman (Constitutional Appeal No. 2 of 2014)
  • Baku Raphael v Attorney General (Constitutional Appeal No. 2 of 2003)
  • Tumushabe v Attorney General (Constitutional Petition No. 6 of 2004)
  • Zachary Olum v Attorney General (Constitutional Petition No. 6 of 1999)
  • Centre for Domestic Violence Prevention v Attorney General (Constitutional Petition No. 13 of 2014)
  • Onyango Obbo v Attorney General (Constitutional Appeal No. 2 of 2002)
  • Ssekikubo v Attorney General (Constitutional Appeal No. 1 of 2015)
  • Jaffer Brothers Ltd v Mohamed Bagalaliwo (Civil Appeal No. 43 of 1997)
  • Issa Kikungwe v Attorney General (Constitutional Petition No. 30 of 2006)
  • Paul K. Ssemogerere v Attorney General (Constitutional Appeal No. 1 of 2002)
  • Male Mabirizi v Attorney General [2018] UGCC 4
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