Wakilii

Kimpi Isabirye v Attorney General and Another (Miscellaneous Cause No. 23 of 2017)

High Court · [2018] UGHCCD 248 · 2018 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for enforcement of constitutional rights and judicial review challenging the appointment of the Chairman of the National Drug Authority
Decision
Application struck out as incompetent for failure to disclose a constitutional right violation and dismissed on the merits

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Holding

The High Court held that the application was incompetent because it did not disclose any infringement of a constitutional right or freedom under Article 50 of the Constitution. The applicant challenged the appointment of the Chairman of the National Drug Authority but failed to identify any specific constitutional right that had been violated. The proper remedy was judicial review, not an application for enforcement of rights. On the merits, the court found that the Minister's discretion to appoint was not fettered, that the 2nd respondent held valid licences, and that no conflict of interest existed. Application struck out and dismissed with costs to the respondents.

Outcome

Application struck out as incompetent for failure to disclose a constitutional right violation and dismissed on the merits

Facts

The applicant challenged the Minister of Health's appointment of the 2nd respondent as Chairman of the National Drug Authority on 27th January 2017, alleging that at the time of appointment the 2nd respondent was operating an illegal and unlicensed pharmacy inside his Mbarara Medical Specialist Clinic. The applicant contended this created a conflict of interest. The respondents countered that the appointment followed proper vetting and Cabinet approval, that the 2nd respondent held valid practising licences (the grace period for renewal extended to March), that he did not own any pharmacy, and that storing limited medicines in a medical clinic for emergency treatment did not constitute operating a pharmacy. The Uganda Medical and Dental Practitioners Council confirmed the clinic held operational licences continuously since 2005. The National Drug Policy and Authority Act sets no specific eligibility criteria for the Chairman's appointment.

Issues

  1. Whether the application disclosed a cause of action under Article 50 of the Constitution.
  2. Whether the failure by the 2nd respondent to renew his annual operating licence and practising certificate by 1st January 2017 fettered the Minister's discretion to lawfully appoint the 2nd respondent as Chairperson of the National Drug Authority on 27th January 2017 while the 2nd respondent was allegedly operating an illegal and substandard pharmacy and clinic.
  3. Whether the 2nd respondent is a fit and proper person to be the Chairman of the National Drug Authority due to conflict of interest.
  4. What remedies are available to the applicant.

Orders

  • Application struck out as incompetent.
  • Application dismissed with costs to the respondents.

Rules and key headnotes

Constitutional Law — Article 50 — Enforcement of Rights — Cause of Action
An application under Article 50 of the Constitution must relate directly to fundamental rights and freedoms guaranteed under the Constitution. It is not sufficient to invoke Article 50 without identifying a specific constitutional right or freedom that has been infringed or threatened. The facts pleaded must bear out the existence of such a right and its breach.
Administrative Law — Judicial Review versus Enforcement of Constitutional Rights — Appropriate Remedy
Where an applicant seeks to challenge an administrative decision (such as a ministerial appointment) but does not allege violation of a specific constitutional right, the proper remedy is judicial review under the Judicature (Judicial Review) Rules, not an application for enforcement of rights under Article 50 of the Constitution.
Administrative Law — Exercise of Ministerial Discretion — Legal Limitations
Discretionary power conferred upon legal authorities is not absolute but is subject to general legal limitations. Discretion must be exercised reasonably, in good faith, according to the rules of reason and justice, taking into account only relevant considerations, and must not be arbitrary, capricious, or involve malversation. The courts will intervene only where the statutory authority acts outside the scope of the power Parliament intended to confer.
Administrative Law — Ministerial Appointments — Absence of Statutory Eligibility Criteria
Where the empowering statute sets no specific eligibility criteria for an appointment, the Minister's discretion to appoint cannot be fettered by unsubstantiated allegations of impropriety. The court will not impose eligibility criteria that Parliament has not prescribed.

Legislation cited (18)

Cases cited (8)

  • R v Bedfordshire 24 L.J.G.B 84
  • Ismail Serugo v Kampala City Council and Another (Constitutional Appeal No. 2 of 1998)
  • Pastor Martin Sempa v Attorney General (Miscellaneous Application No. 71 of 2002)
  • Ogago Brian Abangi v Uganda Communications Commission (Miscellaneous Application No. 267 of 2013)
  • Human Rights Network for Journalists and Another v Uganda Communications Commission (Miscellaneous Cause No. 219 of 2013)
  • R v Commission for Racial Equality ex p Hillingdon LBC [1982] QB 276
  • Sharp v Wakefield [1891] AC 173
  • Uganda v Patricia Ojangole (Criminal Case No. 1 of 2014)

Full judgment

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

Kimpi Isabirye v Attorney General and Another (Miscellaneous Cause No. 23 of 2017) [2018] UGHCCD 248 (17 August 2018)
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.