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Bukenya v Attorney General [2017] UGSC 18

Supreme Court · 2017 Appeal Partly Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Appeal to the Supreme Court from a ruling of the Constitutional Court on a constitutional reference
Decision
Appeal allowed in part; decision of the Constitutional Court set aside; Misc. Cause No. 13 of 2010 remitted to the High Court to be heard on its merits

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Holding

The Supreme Court allowed the appeal in part. It held that the Constitutional Court erred in declaring the Judicature (Fundamental Rights and Freedoms) (Enforcement Procedure) Rules, SI 55 of 2008 unconstitutional. The Rules Committee derives its power from section 41 of the Judicature Act, not Article 150(1), and was competent to make procedural rules for enforcing fundamental rights under Article 50(1). Failure to lay the instrument before Parliament under s.41(5) did not render it unconstitutional. The Court agreed that no specific law had been enacted under Article 50(4) (ground 1 failed) but held that rights are not in abeyance, and that the Constitutional Court erred by failing to give the referring High Court clear directions.

Facts

The appellant filed High Court Miscellaneous Cause No. 13 of 2010 under Article 50(1) of the Constitution and the Judicature (Fundamental Rights and Freedoms) (Enforcement Procedure) Rules, SI 55 of 2008, challenging the Government's ban on open-air ex-studio radio broadcasts ('bimeeza') as a breach of freedom of speech, expression and the media under Article 29(1)(a). At the hearing the Attorney General raised a preliminary objection that the Rules were unconstitutional because they were made by the Rules Committee rather than by Parliament, contrary to Article 50(4). The High Court referred the constitutional question to the Constitutional Court under Article 137(5). The Constitutional Court held that the Rules Committee acted contrary to Article 50(4) and that the Rules were unconstitutional, while also finding that no specific law existed under Article 50(4) and that rights were not in abeyance. It gave no directions to the referring court. The appellant appealed to the Supreme Court.

Issues

  1. Whether the Constitutional Court erred in holding that the Rules Committee was not empowered to make Rules for the enforcement of fundamental rights and freedoms.
  2. Whether the Constitutional Court erred in holding that Parliament had not made any law for the enforcement of fundamental rights and freedoms.
  3. Whether the Constitutional Court erred in failing to give clear directions to the referring High Court on how to dispose of the application from which the reference arose.

Orders

  • The Judicature (Fundamental Rights and Freedoms) (Enforcement Procedure) Rules are constitutional.
  • The Rules Committee acted within its powers when it made Rules providing for the procedure to seek redress for violations of fundamental rights and freedoms under Article 50(1) of the Constitution.
  • The High Court should proceed to hear Misc. Cause No. 13 of 2010: Bukenya Church Ambrose v. Attorney General and dispose of it on its merits.
  • The appellant be paid the costs incurred for preparation and pursuing the Reference in the Constitutional Court and in this Court.
  • The decision of the Constitutional Court is set aside.

Key headnotes

Administrative Law — Delegated Legislation — Source of the Rules Committee's rule-making power
The Rules Committee, established under section 40 of the Judicature Act, derives its power to make rules of court practice and procedure from section 41 of the Judicature Act and not from Article 150(1) of the Constitution.
Constitutional Law — Article 50(4) — Distinction between Parliament's substantive enforcement law and rules of court procedure
Article 50(4)'s requirement that Parliament make laws for the enforcement of fundamental rights does not preclude the Rules Committee from making rules of court procedure under section 41 of the Judicature Act prescribing how applications under Article 50(1) are brought; such procedural rules are validly made and constitutional.
Statutory Interpretation — Statutory Instruments — Effect of failure to lay before Parliament under section 41(5) Judicature Act
Failure to lay a statutory instrument before Parliament as required by section 41(5) of the Judicature Act does not render the instrument unconstitutional or invalid; the rules remain in force until annulled by Parliament, the responsibility to table them resting on the Executive.
Human Rights — Enforcement under Article 50(1) — Rights not in abeyance pending Article 50(4) legislation
The fundamental rights and freedoms guaranteed under Chapter Four of the Constitution are enforceable under Article 50(1) and are not held in abeyance pending Parliament's enactment of a law under Article 50(4); courts must not turn away litigants seeking redress for violations.
Constitutional Law — Constitutional References — Duty of the Constitutional Court under Article 137(6) to give clear directions
On a constitutional reference under Article 137(5), the Constitutional Court must not only interpret the Constitution but also give a clear decision and directions enabling the referring court to dispose of the case; failure to give the referring court specific guidance is an error of law.
Constitutional Law — Constitutional directives to Parliament — Duty of the Attorney General and Executive under Article 50(4)
Article 50(4) is a mandatory constitutional directive to Parliament, not optional; the prolonged failure of Parliament and the Executive to enact a law under it is contrary to the letter and spirit of the Constitution, and the Attorney General as principal legal advisor should advise that such a law be enacted without further delay.

Legislation cited (20)

  • Constitution of Uganda 1995 Article 20(1)
  • Constitution of Uganda 1995 Article 29(1)(a)
  • Constitution of Uganda 1995 Article 50(1)
  • Constitution of Uganda 1995 Article 50(4)
  • Constitution of Uganda 1995 Article 79
  • Constitution of Uganda 1995 Article 119(3)
  • Constitution of Uganda 1995 Article 132(3)
  • Constitution of Uganda 1995 Article 137(5)
  • Constitution of Uganda 1995 Article 137(6)
  • Constitution of Uganda 1995 Article 150(1)
  • Constitution of Uganda 1995 Article 274
  • Judicature Act Cap 13 s.40
  • Judicature Act Cap 13 s.41(1)
  • Judicature Act Cap 13 s.41(2)(e)
  • Judicature Act Cap 13 s.41(5)
  • Interpretation Act Cap 3 s.17(1)(a)
  • Interpretation Act Cap 3 s.34(2)
  • Constitutional Court (Petition & References) Rules SI 91 of 2005 Rule 21(3)
  • Constitutional Court (Petition & References) Rules SI 91 of 2005 Rule 22
  • Judicature (Fundamental Rights and Freedoms) (Enforcement Procedure) Rules SI 55 of 2008 Rule 3(1)

Cases cited (6)

  • Dr. James Rwanyarare and Others v Attorney General (Constitutional Petition No. 7 of 2002)
  • Uganda v Atugonza Francis (Constitutional Reference No. 31 of 2010)
  • Uganda v Oneg Obel (Constitutional Petition No. 0024 of 2011)
  • Justice Julia Sebutinde v Attorney General (Constitutional Reference No. 05 of 2005)
  • Nestor Gasasira v Uganda (Constitutional Reference No. 17 of 2011)
  • Thomas Kwoyelo alias Latoni v Uganda (Constitutional Reference No. 036 of 2011)
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.