Stephen Turyatunga Ikamukuba v Attorney General and Uganda Wildlife Authority (Constitutional Petition No. 33 of 2022)

Constitutional Court · [2025] UGCC 25 · 2025 Petition Dismissed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

First-instance constitutional petition under Article 137 challenging the constitutionality of a statutory instrument.

Decision

Petition dismissed with no order as to costs; Statutory Instrument No. 43 of 2003 remains in force.

The full judgment

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Holding

The Constitutional Court dismissed the petition. It had jurisdiction over the gazettement claim, which raised a genuine interpretation question, but not the Petitioner's personal claim about his advocacy practice under Article 40(2), an enforcement matter for the High Court under Article 50. The instrument's recital of consultation with the local government councils of Kabale, Kanungu and Kisoro was prima facie evidence that the statutory consultation requirement was met; consultation through elected representative councils sufficed, and the Petitioner failed to rebut the presumption of constitutionality or discharge his burden of proof. Whether compulsory acquisition without prior compensation is unconstitutional was already conclusively settled (res judicata); affected persons retain the right to seek compensation under Article 50.

Facts

On 27 May 2002 the 7th Parliament of Uganda passed a resolution altering and expanding the boundaries of Bwindi Impenetrable National Park to include six villages in Mpungu and Buremba Parishes, Mpungu Sub-county, Kanungu District. Pursuant to that resolution, the Minister of Tourism made Statutory Instrument No. 43 of 2003, declaring the area a wildlife conservation area within the National Park. The Petitioner, an advocate and resident of the district, contended that approximately 770 acres belonging to residents of the affected villages were gazetted without prior consultation of or compensation to the affected landowners, leaving them unable to obtain certificates of title and preventing the Petitioner from earning income processing titles for a client. Bwindi had earlier been gazetted as a forest reserve in 1932. The impugned instrument recited that it was made after consultation with the local government councils of Kabale, Kanungu and Kisoro Districts and with the approval of Parliament. The Petitioner relied on affidavits of individual landowners who deposed they were not personally consulted.

Issues

Whether the Petitioner's supplementary affidavit, filed after close of pleadings, was competent and admissible.
Whether the petition raises any question for constitutional interpretation under Article 137.
Whether Statutory Instrument No. 43 of 2003 is inconsistent with Articles 20(1) & (2), 21(1)(2)(3), 26(1)(2)(a) & (b), 40(2) and 137(3) of the Constitution.
What remedies are available to the parties.

Orders

Preliminary objection upheld; the Petitioner's supplementary affidavit struck off the record for offending O.8 r.18 CPR.
The making and passing of S.I. No. 43 of 2003 did not contravene Articles 20(1) & (2), 21(1)(2)(3), 26(1)(2)(a) & (b), 40(2) and 137(3) of the Constitution and the instrument shall remain in force.
The compensation issue under Article 26 has already been conclusively determined by prior binding decisions.
Petition dismissed with no order as to costs.

Key headnotes

Constitutional Law — Jurisdiction of the Constitutional Court — Interpretation versus enforcement of rights

The Constitutional Court's jurisdiction under Article 137 is invoked only where a petition discloses a bona fide question of constitutional interpretation; where the facts are undisputed and the complaint merely concerns the enforcement of rights, the proper forum is the High Court under Article 50.

Land & Property — Compulsory acquisition — Prior payment of fair and adequate compensation

Article 26(2) requires prior payment of fair and adequate compensation to persons whose undisputed interest in land is taken; any compulsory acquisition without such prior compensation is unconstitutional.

Constitutional Law — Res judicata in constitutional adjudication

An interpretation by the Constitutional Court of a constitutional provision is a binding pronouncement of law not confined to the parties before it, and the Court will not hear and determine the same substantial legal issue more than once.

Administrative Law — Statutory consultation requirement — Consultation through representative local government councils

Where a statute requires the Minister to consult local government councils before declaring a wildlife conservation area, consultation conducted in good faith through the elected representative councils satisfies the requirement; the Minister is not obliged to consult each affected landowner individually.

Statutory Interpretation — Presumption of constitutionality — Burden of proof

Every piece of legislation enjoys a rebuttable presumption of constitutionality, and the petitioner challenging it bears the burden of establishing a prima facie case that a constitutional provision has been contravened.

Civil Procedure — Affidavits — Supplementary affidavit filed after close of pleadings

A supplementary affidavit filed after the affidavit in rejoinder and after the opposing party has closed its pleadings, which introduces new matter requiring a response the opponent has no opportunity to give, is incompetent and offends O.8 r.18 of the Civil Procedure Rules.

Legislation cited (18)

Constitution of Uganda 1995 art.8A
Constitution of Uganda 1995 art.20
Constitution of Uganda 1995 art.21
Constitution of Uganda 1995 art.26
Constitution of Uganda 1995 art.40(2)
Constitution of Uganda 1995 art.50
Constitution of Uganda 1995 art.137
Constitution of Uganda 1995 art.237(2)(b)
Uganda Wildlife Statute 1996 s.17(1)
Uganda Wildlife Statute 1996 s.18(1)
Uganda Wildlife Statute 1996 s.18(4)
Uganda Wildlife Statute 1996 s.19
Uganda Wildlife Statute 1996 s.94
Land Act s.44
Evidence Act Cap 6 s.101
Evidence Act Cap 6 s.103
Civil Procedure Rules O.8 r.18
Constitutional Court (Petitions and References) Rules 2005 r.23(1)

Cases cited (19)

Mutembuli Yusuf v Nagwomu Moses & Anor (Election Petition Appeal No. 43 of 2016)
Crane Bank (In Receivership) v Sudhir Ruparelia & Anor (Civil Application No. 3 of 2020)
Ismail Serugo v Kampala City Council & Anor (Constitutional Appeal No. 2 of 1998)
Kabagambe v Uganda Electricity Board (Constitutional Petition No. 2 of 1999)
Attorney General v Major General David Tinyefuza (Constitutional Appeal No. 1 of 1997)
Abdu Katuntu & Anor v Attorney General (Constitutional Petition No. 14 of 2006)
Paul Kawanga Ssemogerere & Ors v Attorney General (Constitutional Appeal No. 1 of 2002)
Abid Alam & Anor v Attorney General (Constitutional Petition No. 43 of 2017)
Attorney General v Uganda Law Society (Civil Appeal No. 1 of 2002)
Thomas Kwoyelo v Uganda (Constitutional Reference No. 36 of 2011)
Hon. Sam Kuteesa & Others v Attorney General (Constitutional Petition No. 46 of 2011)
Kamo Enterprises Ltd v Krystalline Salt Ltd (Civil Appeal No. 8 of 2018)
Akankwasa Damian v Uganda (Constitutional Petition No. 5 of 2011)
Tumwesigye Francis v Attorney General (Constitutional Petition No. 36 of 2018)
Law Society of Uganda v Attorney General (Constitutional Petition No. 3 of 2016)
Irumba Asumani & Anor v UNRA (Constitutional Petition No. 40 of 2012)
UNRA v Irumba Asumani & Anor (Civil Appeal No. 2 of 2014)
Uganda v Onegi Obel (Constitutional Reference No. 24 of 2010)
Stephen Turyatunga v Attorney General & Anor (Constitutional Petition No. 35 of 2022)

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