Wakilii

Kizza Mark v Attorney General (Constitutional Petition No. 43 of 2022)

Constitutional Court · [2026] UGCC 5 · 2026 Petition Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Constitutional petition under Article 137 challenging the constitutionality of provisions of the Employment Act
Decision
Petition dismissed unanimously for lack of merit; impugned sections of the Employment Act held constitutional

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Constitutional Court unanimously dismissed a petition contending that sections 67(1) and 71(3) of the Employment Act, which exclude the hearing requirement and bar complaints on dismissal under probationary contracts, are unconstitutional. It held that the right to a fair hearing protected from derogation by Article 44(c) must be read with Article 28 and does not extend to all employment terminations. The right to be heard derives from natural justice rather than constitutional text and is required where termination rests on misconduct, but not where a probationary or fixed-term contract simply expires. The provisions were therefore not unconstitutional, and foreign authorities were disregarded for not being placed before the Court under section 36 of the Evidence Act.

Outcome

Petition dismissed unanimously for lack of merit; impugned sections of the Employment Act held constitutional

Facts

The petitioner, an advocate, brought a constitutional petition after acting for one Ben Rhaiem, a Tunisian recruited and employed by Granada Hotel (U) Limited as a cost controller on a one-year contract from 10 May 2021 subject to a six-month probation period. On 28 October 2021, during probation, the employment was terminated for poor performance without a hearing. When the petitioner filed a complaint at the Wakiso Labour Office, the employer relied on section 71(3) of the Employment Act, which bars complaints by employees dismissed under a probationary contract, and section 67(1), which excludes the section 66 hearing requirement on dismissal ending a probationary contract; the complaint was dismissed. The petitioner sought declarations that sections 67(1) and 71(3) are unconstitutional and an order directing the Attorney General to present a bill repealing them. The Attorney General opposed the petition, contending the provisions are consistent with the Constitution because a probationary contract is a temporary test engagement during which the employee is continuously appraised.

Issues

  1. Whether the petition discloses a cause of action.
  2. Whether Section 67(1) of the Employment Act, 2006 is unconstitutional in so far as it contravenes Articles 20, 28(1) and 44(c) of the Constitution.
  3. Whether Section 71(3) of the Employment Act is unconstitutional in so far as it contravenes Articles 20, 28(1), 42 and 44(c) of the Constitution.
  4. Whether the petitioner is entitled to the remedies prayed for.

Orders

  • Section 67(1) of the Employment Act, 2006 is not unconstitutional, in so far as it does not contravene Articles 20, 28(1) and 44(c) of the Constitution.
  • Section 71(3) of the Employment Act, 2006 is not unconstitutional, in so far as it does not contravene Articles 20, 28(1), 42 and 44(c) of the Constitution.
  • The petition is dismissed for lack of merit.
  • Each party shall bear its own costs.

Rules and key headnotes

Constitutional Law — Constitutional Interpretation — Purpose and Effect; Reading the Constitution as a Whole
In determining the constitutionality of legislation, both its purpose and effect must be considered, and the Constitution must be read together as an integral whole with no provision destroying another but each sustaining the other, in accordance with the rules of harmony, completeness and exhaustiveness.
Constitutional Law — Right to a Fair Hearing — Relationship between Article 28 and Article 44(c)
Article 44(c) does not create a separate or additional right to a fair hearing but reinforces the existing guarantee under Article 28, protecting it from suspension, repeal or limitation; the two Articles must be construed together, and the right to a fair hearing applies to the determination of civil rights and obligations before courts or tribunals.
Constitutional Law — Right to be Heard — Distinction from Right to a Fair Hearing; Natural Justice
The right to be heard is a principle of natural justice (audi alteram partem) focused on participation and voice, while the right to a fair hearing is a broader constitutional guarantee encompassing an impartial tribunal, notice, time to prepare, equality of arms and a reasoned decision; neither right is absolute and they do not apply to every situation involving sanctions or termination.
Employment & Labour — Probationary Contracts — Hearing before Termination
Where the termination of a probationary or fixed-term contract is grounded in misconduct or poor performance, the employee must be afforded a hearing, but where the contract simply expires without renewal no hearing is required; accordingly no relevant distinction arises between probationary and fixed-term contracts, and excluding a hearing on expiry does not offend the Constitution.
Evidence — Proof of Foreign Law — Section 36 of the Evidence Act
Under section 36 of the Evidence Act, a party seeking to rely on the law of another country must place the text of that law before the court, typically by attaching it to the supporting affidavit; foreign legislation and decisions not so attached will not be considered.

Legislation cited (29)

Cases cited (22)

  • David Tusingwire v Attorney General [2017] UGCC 11
  • Rtd Dr. Col. Kiiza Besigye v Y. K. Museveni (Presidential Election Petition No. 2 of 2006)
  • Attorney General v Salvatore Abuki (Constitutional Appeal No. 1 of 1998)
  • P. K. Ssemwogerere and Another v Attorney General (Constitutional Appeal No. 1 of 2002)
  • Attorney General of Tanzania v Rev Christopher Mtikila, (2010) EA 13
  • Okello John Livingstone and 6 Others v Attorney General and Another (Constitutional Petition No. 1 of 2005)
  • South Dakota v. South Carolina 192, USA 268, 1940
  • Attorney General v Major David Tinyefuza (Constitutional Appeal No. 1 of 1997)
  • Salvatore Abuki and Another v Attorney General (Constitutional Petition No. 2 of 1997)
  • Bakoluba Peter Mukasa v Namboze Betty (Election Appeal No. 4 of 2009)
  • Maudah Atuzainte v Uganda Registration Services Bureau and Others (Miscellaneous Cause No. 249 of 2013)
  • Donald Wangi v People's Performance Group Limited (Labour Dispute Claim No. 5 of 2018)
  • Monica Munira Kibuchi v Mount Kenya University (Petition No. 94 of 2016)
  • Bank of Uganda v Joseph Kibuuka and Others (Civil Appeal No. 281 of 2016)
  • Engineer John Eric Mugyenzi v Uganda Electricity Generation Company Limited (Civil Appeal No. 167 of 2018)
  • DFCU Bank Limited v Donna Kimuli (Civil Application No. 29 of 2019)
  • Ozuru Brothers Enterprises v Ayikoru (Civil Revision No. 6 of 2016)
  • Anisminic v Foreign Compensation Commission [1969] 1 All ER 208
  • Danish Jalango & Another v Amicabre Travel Services [2014] eKLR
  • Carol Turyatembo and Others v Attorney General (Constitutional Petition No. 15 of 2016)
  • Attorney General v Major General David Tinyefuza (Constitutional Petition No. 1 of 1997)
  • SEATINI Uganda and Another v Attorney General (Constitutional Petition No. 17 of 2019)

Full judgment

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Kizza Mark v Attorney General (Constitutional Petition No. 43 of 2022) [2026] UGCC 5 (13 April 2026)
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.