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Center for Public Interest Law Limited v Attorney General (MISCELLANEOUS CAUSE NO 91 OF 2020)

High Court · [2020] UGHCCD 202 · 2020 Judicial Review Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for judicial review by way of Notice of Motion seeking orders of certiorari and prohibition
Decision
Statutory Instrument S.I. No. 62 of 2020 quashed; application granted

Observed later treatment

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Holding

The High Court held that the Electricity (Establishment and Management of the Rural Electrification Fund) Instrument, S.I. No. 62 of 2020 was invalid for procedural impropriety and illegality. The Minister of Energy failed to consult key stakeholders as required by the Electricity Act s.62, breached legitimate expectations of consultation established through the Rural Electrification Strategy and Plan 2013-2022, and failed to obtain Cabinet approval as required by the Uganda Public Service Standing Orders 2010. The court issued orders of certiorari quashing the impugned statutory instrument.

Outcome

Statutory Instrument S.I. No. 62 of 2020 quashed; application granted

Facts

The Minister of Energy and Mineral Development enacted the Electricity (Establishment and Management of the Rural Electrification Fund) Instrument, S.I. No. 62 of 2020 on 28 April 2020, published in the Uganda Gazette on 30 April 2020, revoking the earlier S.I. No. 75 of 2001. The new instrument reconstituted the Rural Electrification Board by excluding the Permanent Secretaries of Finance and Local Government, representatives of donors, the financial sector, and Non-Governmental Organisations who had been members under the previous instrument. The Centre for Public Interest Law Limited, a public interest organisation, challenged the instrument by way of judicial review, alleging that the Minister failed to consult stakeholders as required by law, did not obtain Cabinet approval, and acted contrary to the Rural Electrification Strategy and Plan 2013-2022 which had been approved by Cabinet under the Electricity Act.

Issues

  1. Whether the application raises issues for judicial review.
  2. Whether the procedure of making and passing the Electricity (Establishment and Management of the Rural Electrification Fund) Instrument, S.I. No. 62 of 2020 was illegal, irrational or procedurally improper.
  3. What remedies, if any, are available to the parties.

Orders

  • Declaration that the Electricity (Establishment and Management of the Rural Electrification Fund) Instrument, S.I. No. 62 of 2020 is invalid.
  • Order of certiorari issued quashing the Electricity (Establishment and Management of the Rural Electrification Fund) Instrument, S.I. No. 62 of 2020.
  • No order as to costs since the matter was brought in public interest.

Rules and key headnotes

Judicial Review — Delegated Legislation — Grounds for Challenge — Illegality, Irrationality, Procedural Impropriety
Delegated legislation can be challenged by way of judicial review on grounds of lack of legislative competence, violation of fundamental rights, failure to conform to the parent statute, repugnancy to the laws of the land, or manifest arbitrariness, unreasonableness, vagueness or uncertainty.
Delegated Legislation — Doctrine of Ultra Vires — Requirement to Act Within Scope of Parent Act
A delegate must exercise its jurisdiction within the four corners of its delegation. If the delegate has acted beyond the scope of the enabling Act or made rules inconsistent with or repugnant to the parent Act or other existing legislation, the delegated legislation is ultra vires and challengeable by judicial review.
Delegated Legislation — Consultation — Mandatory Procedural Requirement
Where a statute provides for public and private sector participation or consultation, or where the Constitution requires the State to involve people in the formulation and implementation of development plans and programmes, consultation is a mandatory procedural requirement. Breach of this requirement may result in the invalidation of the delegated legislation.
Legitimate Expectation — Consultation — Established Practice
A duty to consult may arise out of legitimate expectation based on a promise by the rule-maker to consult affected persons or by an established practice of consultation. Where stakeholders have been consulted in the past in making similar regulations or strategies, they have a legitimate expectation to be consulted in future over similar issues. Failure to consult in such circumstances amounts to procedural impropriety.
Delegated Legislation — Cabinet Approval — Uganda Public Service Standing Orders
Under the Uganda Public Service Standing Orders 2010, before instructions are given for the drafting of statutory instruments, the instructing Ministry must seek Cabinet approval authorising the subject legislation, or request authority from the Attorney General or Solicitor General to draft without Cabinet approval in special circumstances. Where the statutory instrument represents new government policy, changes existing Cabinet-approved policy, or relates to appointments to boards of statutory bodies, Cabinet approval is required.
Delegated Legislation — Compliance with Cabinet-Approved Strategy — Electricity Act
Where a Rural Electrification Strategy and Plan has been made and approved by Cabinet under the Electricity Act, the sector is obliged to implement it. Undertaking any policy or legislative change contrary to the Cabinet-approved strategy without first amending it and having the amendment approved by Cabinet is illegal, as the Minister would be acting beyond the scope provided for in the parent legislation.
Remedies — Certiorari — Quashing Ultra Vires Delegated Legislation
An order of certiorari is a discretionary remedy that establishes that a decision is ultra vires and sets the decision aside. Where a statutory instrument is made in breach of mandatory procedural requirements, fails to consult stakeholders as required by law, and violates existing Cabinet-approved strategies, the court will grant certiorari to quash the instrument.

Legislation cited (15)

Cases cited (5)

  • Uganda Diary Traders Association v Diary Development Authority and Attorney General (Miscellaneous Cause No. 113 of 2015)
  • Regina v Secretary of State for Social Services Exp Association of Metropolitan Authorities [1986] 1 WLR 1
  • Bhatt Murphy (a firm) and Ors v The Secretary of State [2008] EWCA Civ 755
  • Regina v Secretary of State for Health, Ex parte United States Tobacco International Inc. [1992] Q B 353
  • Uganda Law Society v Kampala Capital City Authority and Another (Miscellaneous Cause No. 243 of 2017)

Full judgment

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

Center for Public Interest Law Limited v Attorney General (MISCELLANEOUS CAUSE NO 91 OF 2020) 2020 UGHCCD 202 (25 September 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.