Wakilii

Bukenya v Attorney General (Constitutional Appeal 3 of 2011)

Supreme Court · [2017] UGSC 86 · 2017 Appeal Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Constitutional appeal to the Supreme Court from a Ruling of the Constitutional Court on a constitutional reference
Decision
Appeal allowed in part; the impugned Rules declared constitutional and the matter remitted to the High Court to hear and dispose of the underlying application on its merits

Observed later treatment

Cited — treatment unverified cited in 3 (treatment unverified) Sequitur — Uganda’s citator · Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

No adverse treatment recorded Cited 3 times with no adverse treatment recorded; not yet tested on the merits. Citations rising — 3 citing cases on record, 3 in the most recent three data years. Derived from citing cases in the Wakilii corpus — a deterministic signal, not legal advice.

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 Supreme Court allowed the appeal in part. It held that the Rules Committee, established under the Judicature Act, derives its rule-making power from section 41 of that Act, not Article 150(1) of the Constitution, and was empowered to make the Judicature (Fundamental Rights and Freedoms) (Enforcement Procedure) Rules 2008; those Rules are therefore constitutional and were not invalidated by any failure to lay them before Parliament under section 41(5). The Constitutional Court did not err in finding no specific law had been enacted under Article 50(4), but the Court erred by failing to give the High Court clear directions on how to dispose of the underlying application following its reference decision.

Outcome

Appeal allowed in part; the impugned Rules declared constitutional and the matter remitted to the High Court to hear and dispose of the underlying application on its merits

Facts

The appellant filed a High Court application under Article 50(1) of the Constitution and the Judicature (Fundamental Rights and Freedoms) (Enforcement Procedure) Rules, SI No. 55 of 2008, challenging the Government's ban on open-air ex-studio radio broadcasts ('bimeeza') as a breach of his freedoms of speech, expression and the media under Article 29(1)(a). The Attorney General raised a preliminary objection that the Rules were unconstitutional because they were made by the Rules Committee rather than by Parliament as required by Article 50(4), and sought a reference to the Constitutional Court. The High Court referred the question. The Constitutional Court held the Rules unconstitutional, finding the Rules Committee lacked the mandate to make them and that no law had been enacted under Article 50(4). On appeal, the Attorney General conceded that the Rules Committee had power under section 41 of the Judicature Act to make procedural rules and that the Rules were not unconstitutional. The appellant appealed against the Constitutional Court's Ruling.

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 specific directions to the High Court on a constitutional reference under Article 137 of the Constitution.

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 preparing and pursuing the Reference in the Constitutional Court and in this Court.

Rules and key headnotes

Constitutional Law — Enforcement of Rights — Delegated Rule-Making by the Rules Committee
The Rules Committee derives its power to make rules of court from section 41 of the Judicature Act, not from Article 150(1) of the Constitution, and is empowered to make rules regulating the procedure for the enforcement of fundamental rights and freedoms under Article 50(1); such rules are not unconstitutional merely because they were made by the Rules Committee rather than by Parliament.
Statutory Interpretation — Statutory Instruments — Effect of Failure to Lay Before Parliament
Failure to lay a statutory instrument made under section 41 of the Judicature Act before Parliament as required by section 41(5) does not render the instrument unconstitutional, there being no rule providing that such failure invalidates the instrument.
Human Rights — Enforcement under Article 50(1) — Absence of a Law under Article 50(4)
The absence of a specific law enacted by Parliament under Article 50(4) of the Constitution does not place Article 50(1) in abeyance; fundamental rights and freedoms came into force with the whole Constitution and remain enforceable, and courts must not turn away litigants seeking redress for their violation.
Constitutional Law — Constitutional References — Duty of the Constitutional Court under Article 137
On a constitutional reference under Article 137(5), the Constitutional Court must not only interpret the Constitution but also give clear guidance and directions enabling the referring court to dispose of the matter; failure to give such directions is an error of law.

Legislation cited (18)

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 2014)
  • Uganda v Oneg Obel (Constitutional Petition No. 24 of 2011)
  • Justice Julia Sebutinde v Attorney General (Constitutional Reference No. 5 of 2005)
  • Nestor Gasasira v Uganda (Constitutional Reference No. 17 of 2011)
  • Thomas Kwoyelo alias Latoni v Uganda (Constitutional Reference No. 36 of 2011)

Cases citing this judgment (3)

How later Ugandan judgments in the Wakilii corpus have cited this case. Treatment labels come from Sequitur — Uganda’s citator — each backed by a verbatim span from the citing judgment, and are not an assertion that this case is, or is not, good law.

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Bukenya v Attorney General (Constitutional Appeal 3 of 2011) [2017] UGSC 86 (22 May 2017)
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.