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Initiative for Social Economic Rights v Attorney General (Constitutional Petition 7 of 2019)

Constitutional Court · [2024] UGCC 13 · 2024 Petition Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Constitutional petition under Article 137 challenging government agreements and a parliamentary resolution as inconsistent with the Constitution
Decision
Petition dismissed with no order as to costs

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Holding

The court held the petition raised genuine questions of constitutional interpretation, so it had jurisdiction under Article 137, but dismissed it on the merits. Entering into the Project Services, Works Investment and Direct Agreements for the Lubowa specialised hospital did not contravene Article 38, since Government acted under a Cabinet-approved public-private-partnership policy and existing legislation, not a constitutional amendment requiring public consultation. The financing through promissory notes did not breach Article 159(2),(5),(6): it was authorised by sections 23 and 36 of the Public Finance Management Act, and Parliament approved the arrangement by resolution on 12 March 2019 before the Direct Agreement came into operation. Petition dismissed with no order as to costs.

Outcome

Petition dismissed with no order as to costs

Facts

In February 2013 FINASI SRL proposed building and managing specialised healthcare facilities, and the President directed the Ministries of Health and Finance to negotiate the project and its financing. Government, through those ministries, entered into a Project Works Investment Agreement and a Project Services Agreement with Finasi/Roko Construction SPV Limited, and a Direct Agreement with lenders including the African Export-Import Bank, to finance, construct, equip and operate the International Specialised Hospital of Uganda at Lubowa. The agreements provided for Government to issue promissory notes not exceeding USD 379.71 million to finance the project. In February 2019 the Minister of State for Finance tabled a proposal in Parliament, and on 12 March 2019 Parliament resolved to approve issuance of the promissory notes. The petitioner, a human rights organisation, alleged the agreements and resolution contravened the Constitution by committing Government to borrowing and guarantees without prior parliamentary approval and by excluding the public from the decision-making process.

Issues

  1. Whether the petition raised any question as to the interpretation of the Constitution so as to vest the Constitutional Court with jurisdiction under Article 137.
  2. Whether the acts of the Ministers and Permanent Secretaries of the Ministries of Health and Finance in entering into the Project Works Investment Agreement, Project Services Agreement and Direct Agreement contravened the right to public participation under Article 38 of the Constitution.
  3. Whether entering into the agreements with financing arrangements involving the issue of promissory notes, without first obtaining a resolution of Parliament, contravened Article 159(2),(5) and (6) of the Constitution.
  4. Whether the resolution passed by Parliament on 12 March 2019 approving issuance of the promissory notes contravened or was inconsistent with Articles 159(2),(5),(6), 8A and 79 of the Constitution.
  5. Whether the petitioner was entitled to any of the remedies claimed.

Orders

  • Petition dismissed.
  • No order as to costs.

Rules and key headnotes

Constitutional Law — Jurisdiction of the Constitutional Court — Article 137 — Interpretation distinguished from Application
The Constitutional Court is vested with jurisdiction under Article 137 only where determination of the matter depends on the interpretation or construction of a provision of the Constitution; a petition that merely seeks the application of clear and unambiguous provisions to a set of facts, and which could be redressed in another competent court, does not invoke that jurisdiction.
Constitutional Law — Civic Rights — Public Participation — Article 38 — Executive Contracting
The right under Article 38 to participate in the affairs of government does not require direct consultation of the public before Government enters into commercial agreements through its ministries; such contracting is governed by ordinary legislation rather than any direct provision of the Constitution, and the broad consultation required for amending the Constitution does not extend to executive contracting undertaken under a Cabinet-approved policy.
Constitutional Law — Government Borrowing and Guarantees — Article 159 — Promissory Notes — Public Finance Management Act ss.23 and 36
Government borrowing, guarantees and loans under Article 159(2),(5) and (6) are operationalised by sections 23 and 36 of the Public Finance Management Act; a promissory note may be a method by which the Minister raises a loan, and section 36(5) requires its terms to be laid before and approved by Parliament by resolution before the loan is enforced, not necessarily before the instrument creating it is executed.
Constitutional Law — Multi-year Financial Commitments — Section 23 Public Finance Management Act — Parliamentary Resolution
A vote may not enter into a contract binding Government to a financial commitment for more than one financial year except where the commitment is authorised by Parliament; where Parliament approves the financing arrangement by resolution before the agreement comes into operation, the requirements of Article 159(2),(5) and (6) are satisfied.

Legislation cited (17)

Cases cited (5)

  • Ismail Serugo v Kampala City Council and Attorney General (Constitutional Appeal No. 2 of 1998)
  • Jude Mbabaali v Edward Ssekandi (Constitutional Petition No. 28 of 2012)
  • Attorney General v Tinyefuza (Constitutional Appeal No. 1 of 1997)
  • Male H. Mabirizi K. Kiwanuka v Attorney General (Civil Appeal No. 2 of 2018)
  • Roko Construction Ltd v Finasi/Roko Construction SPV Ltd & Finasi International FZC (Company Cause No. 10 of 2019)

Full judgment

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

Initiative for Social Economic Rights v Attorney General (Constitutional Petition 7 of 2019) [2024] UGCC 13 (13 May 2024)
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.