Walusimbi Nelson and Andrew Wambi v Uganda Law Society and Others (Constitutional Reference No. 1 of 2023)

Constitutional Court · [2025] UGCC 12 · 2025 Reference Dismissed (Preliminary Objection Upheld) ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Constitutional reference from the High Court (Civil Division) under Article 137 on questions of constitutional interpretation arising in a civil suit

Decision

Constitutional Reference dismissed as res judicata; High Court Civil Suit No. 207 of 2019 to proceed before the trial court

The full judgment

Read the complete, verbatim text of this judgment.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions — always read the source judgment before relying on it.

Holding

The Constitutional Court upheld a preliminary objection and dismissed a reference asking whether arbitration is an exercise of judicial power and whether arbitration tribunals — formed under the Arbitration and Conciliation Act or created privately — are courts of judicature. The Court held the questions were already conclusively answered in the CADER case (Constitutional Petition No. 11 of 2019), where it found arbitration bodies administrative, performing quasi-judicial functions within Article 42, with arbitrators not being judicial officers. Because a constitutional interpretation under Article 137 operates in rem and binds beyond the parties, re-litigating the same question was res judicata and barred by stare decisis. The reference was dismissed with no order as to costs.

Facts

The applicants filed High Court Civil Suit No. 207 of 2019 seeking declarations that the Uganda Law Society acted outside its statutory mandate by subscribing as a member to the International Center for Arbitration and Mediation in Kampala (ICAMK), and that a private entity is prohibited from setting up an alternative dispute-resolution system parallel to that established by the State. During the trial, four questions of constitutional interpretation arose and, at the applicants' instance, were referred to the Constitutional Court: whether arbitration under the Arbitration and Conciliation Act, and arbitration designed by private entities outside that Act, amounts to an exercise of judicial power, and whether such tribunals constitute courts of judicature under Articles 126(1) and 129(1). At the hearing the first respondent raised a preliminary objection that the Court had already pronounced on these issues in the CADER case. The applicants' counsel conceded that the objectives of ICAMK and CADER were substantially the same and did not respond to the objection.

Issues

Whether the questions raised in this Constitutional Reference have already been answered by the Constitutional Court, such that the reference is res judicata.
Whether arbitration, as a judicial power and process under the Arbitration and Conciliation Act, amounts to an exercise of judicial power under Articles 129(1) and 126(1) of the Constitution.
Whether arbitration tribunals formed under the Arbitration and Conciliation Act constitute courts of judicature under Articles 129(1) and 126(1) of the Constitution.
Whether arbitration and arbitration tribunals designed and created by a private entity outside the Arbitration and Conciliation Act satisfy Article 126(1) and qualify as courts of law under Article 129(1) of the Constitution.

Orders

Preliminary objection upheld.
Constitutional Reference dismissed.
No order as to costs.
High Court Civil Suit No. 207 of 2019 to proceed to hearing before the trial court.

Key headnotes

Civil Procedure — Res Judicata — Constitutional Interpretation Already Determined

Where the Constitutional Court has exercised its jurisdiction under Article 137 and interpreted a provision of the Constitution, and that interpretation has not been successfully appealed, a subsequent reference raising the same or a similar question of constitutional interpretation is res judicata and there are no questions to answer.

Constitutional Law — Effect of Constitutional Interpretation — Judgment in Rem

An interpretation by the Constitutional Court of a legal provision against the Constitution constitutes a binding pronouncement of the law that is not limited to the parties in the case; it operates as a judgment in rem affecting all persons, subject only to appeal to the Supreme Court.

Civil Procedure — Stare Decisis — Constitutional Court Bound by Own Decisions

The Constitutional Court is normally bound by its own decisions and there is no reason to interpret the same constitutional provision more than once on the same or similar issue, save where a prior decision was given per incuriam or there are urgent and exceptional reasons to overrule it.

Arbitration & ADR — Arbitration Tribunals — Not Courts of Judicature and Not an Exercise of Judicial Power

Arbitration tribunals, whether formed under the Arbitration and Conciliation Act or created by a private entity outside it, are not courts of judicature, and the arbitration process they exercise does not constitute the exercise of judicial power; decisions made thereunder are not judicial decisions.

Constitutional Law — Judicial Officer — Arbitral Bodies as Administrative Bodies Under Article 42

A body performing arbitration-promotion functions under section 68(a) of the Arbitration and Conciliation Act is an administrative body within Article 42 of the Constitution, not a subordinate court, and persons exercising such functions are not judicial officers within the meaning of Articles 142(1), 145(2), 148 and 151 of the Constitution.

Civil Procedure — Preliminary Objections — Determination at the Outset

A preliminary objection that has the capacity to dispose of the whole matter should, in the interest of judicial economy, be determined at the outset before the substantive issues are considered.

Legislation cited (23)

Constitution of Uganda art.42
Constitution of Uganda art.79
Constitution of Uganda art.126(1)
Constitution of Uganda art.128(4)
Constitution of Uganda art.129(1)
Constitution of Uganda art.129(1)(d)
Constitution of Uganda art.137
Constitution of Uganda art.139(2)
Constitution of Uganda art.142(1)
Constitution of Uganda art.145(2)
Constitution of Uganda art.148
Constitution of Uganda art.150(1)
Constitution of Uganda art.151
Constitution of Uganda art.257(1)(d)
Constitution of Uganda art.257(1)(p)
Arbitration and Conciliation Act Cap. 4 s.2(1)(f)
Arbitration and Conciliation Act Cap. 4 s.11
Arbitration and Conciliation Act Cap. 4 s.34
Arbitration and Conciliation Act Cap. 4 s.35
Arbitration and Conciliation Act Cap. 4 s.36
Arbitration and Conciliation Act Cap. 4 ss.67-72
Arbitration and Conciliation Act Cap. 4 s.68(a)
Judicature Act Cap. 13 s.42

Cases cited (10)

Center for Arbitration and Dispute Resolution (CADER) and Another v Attorney General (Constitutional Petition No. 11 of 2019)
Steel Workers Versus Warrior & Gulf Co. 363 U.S. 574 (1960)
Attorney General v Major General David Tinyefuza [1998] UGSC 34
MCDT SACCO v Semanda Edward and Others (Constitutional Petition No. 4 of 2022)
Foundation for Human Rights Initiative v Attorney General (Constitutional Petition No. 53 of 2011)
Kizza Besigye v Attorney General (Constitutional Petition No. 53 of 2011)
Fr. Narsensio Begumisa and 3 Others v Eric Tibebaga (Civil Appeal No. 17 of 2002)
Paul Kawanga Semogerere and Others v Attorney General (Civil Appeal No. 1 of 2002)
Uganda v Onegi Obel (Constitutional Reference No. 24 of 2010)
Uganda Law Society v Attorney General (Constitutional Petition No. 52 of 2017)

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