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Dr. J.W. Rwanyarare and Others v Attorney General (Miscellaneous Application 85 of 1993)

High Court · [1993] UGHC 98 · 1993 Preliminary Objection Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application under Article 22(1) of the Constitution seeking declaratory orders for infringement of fundamental rights; preliminary objection raised to competency of the application
Decision
Preliminary objection dismissed; application to proceed to full hearing on the merits

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that Section 1 of the Civil Procedure and Limitation (Miscellaneous Provisions) Act 1969 does not apply to applications brought under Article 22(1) of the Constitution for enforcement of fundamental rights. The jurisdiction granted under Article 22(1) is subject only to Article 22(5), which authorises procedural rules specifically for fundamental rights enforcement. Such rules have been made under the Fundamental Rights and Freedoms (Enforcement Procedure) Rules 1992. The Constitution's intention is to provide unhindered access to the High Court for persons alleging violations of fundamental rights, and requiring a 60-day notice under the 1969 Act would hinder that access. Preliminary objection dismissed.

Outcome

Preliminary objection dismissed; application to proceed to full hearing on the merits

Facts

The applicants brought an application under Article 22(1) of the Constitution seeking declaratory orders that the Constituent Assembly Election Rules 11(1), 11(2), 12(1) and 12(10) infringed their fundamental rights under Articles 8(2)(b), 18(1) and 20(1). On 25 November 1992, before the Constituent Assembly Bill was enacted, they served a statutory notice on the Attorney General stating that implementation of the corresponding provisions of the Bill would contravene their constitutional rights. The Bill was passed into law and assented to on 14 May 1993. When the matter came for hearing, the Attorney General raised a preliminary objection that the application was incompetent for failure to serve a 60-day statutory notice as required by Section 1 of the Civil Procedure and Limitation (Miscellaneous Provisions) Act 1969. The Attorney General argued that the earlier notice related only to the Bill and not to the enacted Statute and Rules, and that the cause of action had changed.

Issues

  1. Whether the Civil Procedure and Limitation (Miscellaneous Provisions) Act 1969 s.1 requires an applicant to serve a 60-day statutory notice before bringing an application under Article 22(1) of the Constitution for enforcement of fundamental rights.
  2. Whether the statutory notice dated 25 November 1992 was valid and sufficient to cover the present application challenging the Constituent Assembly Election Rules.
  3. Whether the notice given in respect of the Constituent Assembly Bill remained valid after the Bill was enacted into a Statute with accompanying Election Rules.

Orders

  • Preliminary objection dismissed.
  • Costs awarded to the applicants.

Rules and key headnotes

Constitutional Law — Fundamental Rights Enforcement — Jurisdiction of the High Court — Exclusivity of Article 22 Procedures
The jurisdiction of the High Court to hear applications for enforcement of fundamental rights under Article 22(1) of the Constitution is subject only to Article 22(5), which provides for the enactment of practice and procedure rules for fundamental rights cases. Where such rules have been made under Article 22(5), they constitute an exclusive code for fundamental rights enforcement and no other procedural legislation applies.
Civil Procedure — Notice to Government — Constitutional Applications — Inapplicability of Section 1 of Act 20 of 1969
Section 1 of the Civil Procedure and Limitation (Miscellaneous Provisions) Act 1969, which requires a 60-day statutory notice before instituting a suit against government, does not apply to applications under Article 22(1) of the Constitution for enforcement of fundamental rights. The Act was not made pursuant to Article 22(5) and does not purport to regulate procedure for enforcement of fundamental rights.
Constitutional Law — Fundamental Rights — Access to Court — Unhindered Access
The clear intention of Article 22(1) of the Constitution is that a person who alleges that his fundamental rights are threatened should have unhindered access to the High Court. That access is not to be defeated by the imposition of procedural requirements not specifically authorised by Article 22(5).
Civil Procedure — Statutory Notice — Sufficiency of Notice — Cause of Action
A statutory notice under Section 1 of the Civil Procedure and Limitation (Miscellaneous Provisions) Act 1969 need not contain all facts and details of the intended claim. The notice is sufficient if it informs the defendant generally of the nature of the suit intended to be filed and the relief sought. The cause of action stated in the notice is the bundle of facts which go to make up the right in respect of which the plaintiff proposes to sue, and the notice is not invalidated merely because consequential claims arise or the factual matrix develops after the notice is given.
Constitutional Law — Fundamental Rights — Prospective Violations — Preventive Jurisdiction
Article 22(1) of the Constitution permits a person to apply to the High Court for redress where any fundamental right or freedom 'has been, is being or is likely to be' contravened. This confers a preventive jurisdiction allowing applications even before an actual violation occurs, where a person can demonstrate that a violation is likely.

Legislation cited (13)

Cases cited (12)

  • Alexander Okello v Attorney General (Miscellaneous Cause No. 137 of 1992)
  • Cecilia Ogwal and 2 Others vs D.A. of Mbale and 3 Others
  • Rajabi versus State AIR 1973 Bombay 59
  • Dutt versus East Punjab Province AIR 1958 (Punjab) 551
  • Das vs Union of India & Another AIR [year unclear] S.C. 67
  • Singh vs Union of India AIR [year unclear] S.C.R. 781
  • Rwakosoro vs Attorney General [1979] HCB 24
  • Rwakosoro and 5 Others versus The Attorney General [1982] HCB 40
  • Chandulal vs Government of the Province of Bombay AIR 1943 Bombay 138
  • National Insurance Corporation versus Kafero E.A. 477
  • Jaundoo vs Attorney General of Guyana [1971] A.C. 972
  • Attorney General versus All & Others [1989] LRC (Const.) 474

Full judgment

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Dr. J.W. Rwanyarare and Others v Attorney General (Miscellaneous Application 85 of 1993) [1993] UGHC 98 (2 December 1993)
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.