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Kizito v Attorney General (Constitutional Petition 17 of 2021)

Constitutional Court · [2024] UGCC 7 · 2024 Petition Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional petition under Article 137(3) challenging the constitutionality of a statutory provision
Decision
Petition dismissed for lack of merit; no declaration of unconstitutionality granted

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Holding

The Constitutional Court held that the petition raised a genuine question for constitutional interpretation under Article 137(3), but that it failed on the merits. The petitioner did not discharge the burden of establishing a prima facie case of discrimination: the alleged 'illegitimate purpose' of Section 4(7) of the Income Tax Act was never disclosed, and no evidence was adduced (including by any affected taxpayer) to show that excluding professional, public entertainment, public utility and construction service providers from the presumptive tax regime amounted to discrimination contrary to Articles 21 or 20, or inconsistency under Article 2(2). The petition was dismissed for lack of merit, each party bearing its own costs.

Facts

The petitioner, an individual acting in person, challenged Section 4(7) of the Income Tax Act Cap 340. Section 4(5) allows resident taxpayers whose annual gross turnover is below the statutory threshold to be taxed under the presumptive tax regime in the Second Schedule. Section 4(7) excludes from that regime resident taxpayers in the business of providing medical, dental, architectural, engineering, accounting, legal or other professional services, public entertainment services, public utility services or construction services. The petitioner contended that this exclusion forced those taxpayers to pay more business tax on the same quantum of income than other taxpayers, and was enacted for an illegitimate purpose, thereby discriminating against them contrary to Articles 21, 20 and 2(2) of the Constitution. The petition was supported only by the petitioner's own affidavit; no affidavit was sworn by any affected taxpayer, and no evidence of the discriminatory effect or of the alleged illegitimate purpose was adduced.

Issues

  1. Whether the petition raises questions for constitutional interpretation.
  2. Whether Section 4(7) of the Income Tax Act Cap 340 contravenes Articles 20(1) & (2), 21(1) & (2) and 2(2) of the Constitution by discriminating against resident taxpayers providing professional, public entertainment, public utility or construction services whose gross turnover does not exceed UGX 150 million per year of income.
  3. What remedies are available to the parties.

Orders

  • The petition is dismissed for lack of merit.
  • Each party shall bear its own costs.

Key headnotes

Constitutional Law — Jurisdiction — Questions for Constitutional Interpretation under Article 137(3)
Any person who alleges that a provision of a law is inconsistent with the Constitution falls squarely within Article 137(3) and is entitled to petition the Constitutional Court for interpretation; such an allegation raises a question for constitutional interpretation.
Constitutional Law — Constitutional Interpretation — Purpose and Effect Test
In determining the constitutionality of legislation the court must consider both its purpose and its effect; a provision may be impugned on either ground, and the Constitution must be read as an integral, harmonious whole.
Constitutional Law — Burden of Proof — Alleged Contravention of Fundamental Rights
The burden of proof rests on the petitioner to establish a prima facie case that a fundamental right or freedom has been contravened; only once that burden is discharged does it shift to the State to justify or rebut the limitation.
Human Rights — Equality and Freedom from Discrimination — Proof Required in Taxation
A bare allegation that a tax provision is discriminatory, unsupported by evidence from any affected person and resting only on general assertions, does not establish a contravention of Articles 21(1) and (2) of the Constitution; differential tax treatment based on the nature of business or earnings is not, without proof, unconstitutional discrimination.
Constitutional Law — Pleading — Allegation of Illegitimate Purpose
An assertion that a statutory provision was enacted for an illegitimate purpose must be disclosed and substantiated in the petition and supporting affidavit; an unparticularised allegation of illegitimate purpose does not meet the threshold for a finding of unconstitutionality.

Legislation cited (12)

  • Income Tax Act Cap 340 s.4(7)
  • Income Tax Act Cap 340 s.4(5)
  • Income Tax Act Cap 340 s.4(b)
  • Income Tax Act Cap 340 s.15
  • Constitution of Uganda Article 2(2)
  • Constitution of Uganda Article 17(1)(g)
  • Constitution of Uganda Article 20(1) & (2)
  • Constitution of Uganda Article 21(1), (2), (3) & (4)
  • Constitution of Uganda Article 43
  • Constitution of Uganda Article 137(1), (2) & (3)
  • Constitution of Uganda Article 152
  • Tax Appeals Tribunal Act s.14

Cases cited (18)

  • National Council for Higher Education v Anifa Kawooya [2015] UGSC 9
  • Baku Raphael Obudra & Anor v Attorney General [2006] UGSC 56
  • Salvatori Abuki v Attorney General [1997] UGCC 10
  • K. Ssemwogerere and Another v Attorney General (Constitutional Appeal No. 1 of 2002)
  • Mbabali Jude v Edward Kiwanuka Sekandi [2014] UGCC 15
  • URA v Rabbo Enterprises & Anor [2017] UGSC 20
  • Uganda Projects Implementation & Management Centre v URA [2009] UGCC 2
  • Attorney General v Bugisu Coffee Marketing Association Limited (1963) EA 38
  • Christopher Martin Madrama Izama v Attorney General [2019] UGSC 1
  • David Tusinswire v Attomey General, t201ZIIJGSC1L
  • Charles Onyango Obbo and Anor v Attorney General [2004] UGSC 81
  • Seruso Ismail v Kampala City Council & Another [1999] UGSC 23
  • Rtd Dr. Col. Kiiza Besigye v Y. K. Museveni (Presidential Election Petition No. 2 of 2006)
  • Attorney General of Tanzania v Rev Christopher Mtikila (2010) EA 13
  • Okello John Livingstone and 6 others v Attorney General and Another (Constitutional Petition No. 1 of 2005)
  • Attorney General v Major David Tinyefunza (Constitutional Appeal No. 1 of 1997)
  • Mark Gova & Another vs. Minister of Home Affairs & Another, [S.C. 3612000: Civil Application No. 156/99]
  • South Dokata v. South Carolina 192, USA 268. r940
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.