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Baku Raphael Obudra v Attorney General (Constitutional Petition No. 13 of 2020)

Constitutional Court · [2025] UGCC 26 · 2025 Petition Partly Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional petition under Article 137(3) of the Constitution challenging the constitutionality of provisions of the Access to Information Act and the Judicial Service Act, and acts of the Judicial Service Commission and the Attorney General.
Decision
Petition allowed in part (section 1(2)(b) of the ATIA declared unconstitutional) and otherwise dismissed; each party bears its own costs.

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Holding

The Constitutional Court held that, save for section 1(2)(b) of the Access to Information Act, the impugned provisions of the ATIA and section 17 of the Judicial Service Act are consistent with Article 41, whose right of access to information is not absolute but subject to permissible exceptions. Section 1(2)(b), which exempted records of court proceedings before conclusion of a case, exceeded Parliament's Article 41(2) mandate and offended the open court principle, and was declared unconstitutional. The JSC did not contravene Article 147(1)(a) in declining to shortlist or interview the petitioner, since qualification under Article 143 is not exhaustive. The Attorney General, an independent ex-officio JSC member, rightly declined to advise the JSC.

Facts

The petitioner, a senior advocate, was nominated and applied for appointment as a Judge of the High Court and Justice of Appeal following Judicial Service Commission advertisements in 2017 and 2019. He received no feedback and was not invited for interviews. The JSC chairperson confirmed he had been shortlisted for Justice of Appeal in 2019 but that his name was dropped on account of an adverse report from the Uganda Law Society and Law Council relating to a pending, later-dismissed disciplinary matter. The petitioner applied under the Access to Information Act for the shortlisting records and correspondence; the JSC chairperson denied access, relying on section 28(b) of the ATIA and section 17 of the JSA. The petitioner asked the Attorney General to advise the JSC to review its decision; the Attorney General declined, citing the JSC's independence under Article 147(2). The petitioner then brought this petition challenging the constitutionality of the information provisions, the denial of access, the JSC's omission to shortlist him, and the Attorney General's refusal to intervene.

Issues

  1. Whether sections 1, 18, 22, 23, 24, 27, 30 and 32 of the Access to Information Act and section 17 of the Judicial Service Act are inconsistent with Article 41 of the Constitution.
  2. Whether the process of enacting those provisions was inconsistent with Articles 259 and 262 of the Constitution.
  3. Whether the JSC's act of not shortlisting and not inviting the petitioner for interviews in 2017 and 2019 without justifiable reason contravened Article 147(1)(a) of the Constitution.
  4. Whether the JSC's act of shortlisting but not inviting the petitioner for interviews in 2019 on unproven allegations of misconduct contravened Article 147(1)(a) of the Constitution.
  5. Whether the denial of access to information under section 28(b)(i) and (ii) of the ATIA and section 17 of the JSA contravened Article 41 of the Constitution.
  6. Whether the denial of access to information without assigning any reason contravened Article 41 of the Constitution.
  7. Whether the Attorney General's failure to intervene in the matter contravened Articles 119(3), 119(4)(a) and 146(3) of the Constitution.
  8. Whether the Attorney General's opinion that the JSC was not obliged to explain why the petitioner was not shortlisted contravened Articles 20(2) and 41 of the Constitution.

Orders

  • Section 1(2)(b) of the Access to Information Act, 2005 declared unconstitutional.
  • All other declarations sought rejected.
  • Petition allowed in part and dismissed in part.
  • Each party to bear its own costs.

Key headnotes

Access to Information — Article 41 — Right Not Absolute — Permissible Exceptions
The Article 41 right of access to information held by the State is not absolute; a law may validly introduce exceptions provided they fall within the permissible grounds of prejudice to State security or sovereignty, or interference with the privacy of another person.
Access to Information — Parliament's Article 41(2) Mandate — Prescribing Exempt Classes and Procedure
Article 41(2) imposes a constitutional duty on Parliament to enact legislation defining precisely the classes of exempt information and the procedure for accessing accessible information, so as to prevent the broad grounds in Article 41(1) being used as a blanket excuse for denial.
Access to Information — Cabinet Records Exemption — Within Article 41(2) Mandate
Cabinet records and records of its committees, regardless of content, fall within the Article 41(1) exceptions because the policy-determination functions of Cabinet are intrinsically linked to the exercise of sovereign authority; their statutory exemption under sections 1(2)(a) and 24 of the ATIA is constitutional.
Access to Information — Court Records Before Conclusion — Open Court Principle — Unconstitutional Exemption
Parliament acted outside its Article 41(2) mandate when, by section 1(2)(b) of the ATIA, it exempted records of court proceedings before the conclusion of a case from access, since the discretion to exclude the public rests with the courts under Article 28(2), not with Parliament; the provision is unconstitutional.
Constitutional Amendment — Amendment by Infection — Articles 259 and 262
Where an ordinary Act of Parliament has the effect of adding to, varying or repealing a provision of the Constitution, whether expressly, by implication or by infection, it amends the Constitution and is invalid unless enacted in accordance with the special amendment procedure under Articles 259 and 262.
Judicial Service Commission — Article 147 — Qualifications Under Article 143 Not Exhaustive
The Article 143 qualifications are not exhaustive of suitability for judicial appointment; the JSC is mandated to probe candidates on the core values in Regulation 11(1) of the JSC Regulations, and a candidate is not entitled to automatic shortlisting merely by meeting the Article 143 qualifications.
Attorney General — Dual Roles — Institutional Independence of the JSC Under Article 147(2)
Because Article 147(2) renders the Judicial Service Commission independent and not subject to direction or control, the Attorney General, as an ex-officio member, must divest himself of his executive role and cannot, in his capacity as principal legal adviser to Government, render advice or directives to the JSC on its appointment decisions.

Legislation cited (43)

  • Constitution of Uganda art.137(3)
  • Constitution of Uganda art.41(1)
  • Constitution of Uganda art.41(2)
  • Constitution of Uganda art.43
  • Constitution of Uganda art.28(1)
  • Constitution of Uganda art.28(2)
  • Constitution of Uganda art.28(3)
  • Constitution of Uganda art.142(1)
  • Constitution of Uganda art.143
  • Constitution of Uganda art.146(3)
  • Constitution of Uganda art.147(1)(a)
  • Constitution of Uganda art.147(2)
  • Constitution of Uganda art.148
  • Constitution of Uganda art.150
  • Constitution of Uganda art.119(3)
  • Constitution of Uganda art.119(4)(a)
  • Constitution of Uganda art.111(2)
  • Constitution of Uganda art.259
  • Constitution of Uganda art.262
  • Constitution of Uganda art.20(2)
  • Constitution of Uganda art.27
  • Constitution of Uganda art.44(c)
  • Access to Information Act 2005 s.1(1)
  • Access to Information Act 2005 s.1(2)
  • Access to Information Act 2005 s.18
  • Access to Information Act 2005 s.22
  • Access to Information Act 2005 s.23
  • Access to Information Act 2005 s.24
  • Access to Information Act 2005 s.27
  • Access to Information Act 2005 s.28(b)
  • Access to Information Act 2005 s.30
  • Access to Information Act 2005 s.32
  • Access to Information Act 2005 s.37
  • Access to Information Act 2005 s.46
  • Judicial Service Act s.17
  • Judicial Service Act s.28
  • Judicial Service Commission Regulations reg.11
  • Judicial Service Commission Regulations reg.12
  • Judicial Service Commission Regulations reg.28
  • Civil Procedure Act s.7
  • Leadership Code Act s.11(4)
  • Evidence Act s.121
  • Constitution (Amendment) Act 13 of 2000 s.5

Cases cited (14)

  • Gladys Nakibule Kisekka v Attorney General (Constitutional Application No. 90 of 2013)
  • Paul K. Ssemwogerere & 2 Others v Attorney General (Constitutional Appeal No. 1 of 2002)
  • Tinyefuza v Attorney General (Constitutional Appeal No. 1 of 1997)
  • Attorney General v Salvatori Abuki (Constitutional Appeal No. 1 of 1998)
  • AG of Tanzania vs. Rev. Christopher Mitikila [2010] E.A 13
  • Ssemwogerere & others vs. Attorney General EALR [2004] 2 EA 276 at p.319
  • David Wesley Tusingwire v Attorney General (Constitutional Appeal No. 4 of 2016)
  • Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner), 2024 SCC 4
  • Hub for Investigative Media & Anor v Attorney General (Constitutional Petition No. 3 of 2020)
  • Center for Public Interest Law v Attorney General (Constitutional Petition No. 40 of 2015)
  • Gerald Kafureeka Karuhanga v Attorney General (Constitutional Petition No. 39 of 2013)
  • Theodore Ssekikubo & 4 Others v Attorney General & 4 Others (Constitutional Appeal No. 1 of 2015)
  • Kabagambe Asol and 2 others Vs. the Electoral Commission (Kizza Besigye), Constitutional Petition No. 1 of ...
  • Baku Raphael Obudra v Attorney General (Misc. Cause No. 264 of 2020)
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.