Wakilii

Kimpi v Attorney General & Anor (MISCELLANEOUS CAUSE NO.23 OF 2017)

High Court · [2018] UGHCCD 92 · 2018 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for enforcement of rights and judicial review challenging ministerial appointment
Decision
Application struck out and dismissed with costs to the respondents

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Holding

The court struck out the application on the ground that it was incompetently filed under Article 50 of the Constitution, as no fundamental right or freedom guaranteed under the Constitution was shown to have been infringed or threatened. The applicant failed to cite any constitutional provision that was violated by the Minister's appointment of the 2nd respondent as Chairperson of the National Drug Authority. The proper remedy was judicial review, not enforcement of fundamental rights. The court held that the appointment was lawfully made in the exercise of ministerial discretion and involved no conflict of interest.

Outcome

Application struck out and dismissed with costs to the respondents

Facts

The applicant challenged the appointment of the 2nd respondent as Chairperson of the National Drug Authority on 27 January 2017, alleging that at the time of appointment the 2nd respondent was operating an illegal and substandard pharmacy inside Mbarara Medical Specialist Clinic without proper licences. The applicant claimed the 2nd respondent's position created a conflict of interest. The 1st respondent stated that the appointment followed an elaborate vetting process approved by Cabinet and that the National Drug Policy and Authority Act sets no eligibility criteria. The Ministry of Health confirmed the 2nd respondent did not operate an illegal pharmacy and that he held valid practising certificates and operational licences. The Uganda Medical and Dental Practitioners Council confirmed that a three-month grace period is routinely given for licence renewal between January and March. The Pharmaceutical Society of Uganda retracted an earlier letter alleging illegal operations.

Issues

  1. Whether the application properly discloses 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 him as Chairperson of the National Drug Authority on 27th January 2017.
  3. Whether the 2nd respondent is a fit and proper person to be Chairman of the National Drug Authority due to conflict of interest.
  4. What remedies are available to the applicant.

Orders

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

Rules and key headnotes

Constitutional Law — Fundamental Rights — Article 50 Standing Requirements
An applicant seeking relief under Article 50 of the Constitution must demonstrate that a fundamental right or freedom guaranteed under the Constitution has been infringed or threatened. It is not enough to assert the existence of a right; the facts pleaded must bear out the existence of such a right and its breach.
Administrative Law — Ministerial Discretion — Exercise of Discretion
Where Parliament confers discretionary power upon a Minister or other authority, the discretion must be exercised according to the rules of reason and justice, not according to private opinion. Discretion must be exercised reasonably, in good faith, taking into account only relevant considerations, and not arbitrarily or capriciously. A Minister cannot refuse to exercise discretion by relying on unsubstantiated allegations.
Administrative Law — Public Appointments — Eligibility Criteria
Where the empowering legislation sets no eligibility criteria for a public appointment, a court cannot supply such criteria by judicial fiat. The absence of statutory qualifications means the appointing authority may appoint any person it deems suitable in the exercise of its discretion.
Judicial Review — Choice of Remedy — Article 50 vs Judicial Review
A challenge to a decision of a Minister or public authority should be brought by way of judicial review under the Judicature (Judicial Review) Rules, not by way of enforcement of fundamental rights under Article 50, where no constitutional right is alleged to have been violated. An application for enforcement of rights under Article 50 will be struck out if it does not disclose infringement of a constitutional right.

Legislation cited (12)

Cases cited (8)

  • Ismail Serugo v Kampala City Council & Anor (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 & Anor v Uganda Communications Commission (Miscellaneous Cause No. 219 of 2013)
  • R v Bedfordshire 24 L.J.G.B 84
  • 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 v Attorney General & Anor (MISCELLANEOUS CAUSE NO.23 OF 2017) [2018] UGHCCD 92 (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.