Wakilii

Mabirizi Kiwanuka v Attorney General (Miscellaneous Cause No. 193 of 2021)

High Court · [2021] UGHCCD 96 · 2021 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for enforcement of fundamental and other human rights under Article 50 of the Constitution challenging Presidential directives and Chief Justice's Circular relating to Covid-19 measures
Decision
Application dismissed with costs to the Respondent

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court dismissed the application challenging Presidential directives and the Chief Justice's Circular on Covid-19 measures. The court held that the President lawfully issued Statutory Instrument No. 38 of 2021 under Article 99(5) of the Constitution and the Public Health Act, which was authenticated by the Minister of Health and gazetted on 1st July 2021 with retrospective effect from 18th June 2021. The Chief Justice's Circular was issued within his constitutional powers under Article 133 to administer and supervise courts. The restrictions imposed were reasonable, proportionate, and demonstrably justifiable in a free and democratic society under Article 43 of the Constitution, based on expert advice to combat the Covid-19 pandemic.

Outcome

Application dismissed with costs to the Respondent

Facts

On 18th June 2021, the President of Uganda issued directives relating to Covid-19 lockdown measures in a televised address, to take effect at 2200 hours for 42 days. On 21st June 2021, the Chief Justice issued a Circular suspending court hearings except urgent matters, citing the President's directives. The Applicant, a lawyer, challenged both the President's directives and the Chief Justice's Circular as infringements on fundamental rights, arguing they were made without legal authority as they were not contained in a Statutory Instrument at the time of announcement. The Respondent countered that the President issued Statutory Instrument No. 38 of 2021 on 18th June 2021, which was authenticated by the Minister of Health on 1st July 2021 and gazetted the same day with retrospective commencement from 18th June 2021. The measures were based on expert advice from the National Covid-19 Task Force established to combat the pandemic.

Issues

  1. Whether the application is properly before the High Court?
  2. Whether the President's Directives communicated on 18th June 2021 relating to Covid-19 are infringements on the Applicant's and other Ugandans' fundamental, inherent and other rights as enshrined in Chapter Four of the Constitution?
  3. Whether the Chief Justice's Circular dated 21st June 2021 infringes on the Applicant's and other Ugandans' fundamental, inherent and other rights enshrined in Chapter Four of the Constitution?
  4. What remedies are available to the parties?

Orders

  • Application dismissed.
  • Costs of the application awarded to the Respondent.

Rules and key headnotes

Executive Powers — Presidential Authority to Issue Statutory Instruments — Authentication and Retrospective Operation
The President has constitutional power under Article 99(5) to issue a Statutory Instrument which may be authenticated by the signature of a Minister, and under Section 17(2) of the Interpretation Act, a statutory instrument may be made to operate retrospectively to any date which is not earlier than the commencement of the Act under which the instrument is made.
Statutory Instruments — Commencement and Publication — Timing Requirements
The law does not demand that a Statutory Instrument be signed and published on the same day it is made. The Constitution and Interpretation Act contemplate scenarios where measures need immediate implementation and the legal process follows in accordance with law, allowing for retrospective operation where the instrument is authenticated and gazetted after the stated commencement date.
Chief Justice's Administrative Powers — Authority to Issue Circulars and Guidelines
Under Article 133(1) of the Constitution, the Chief Justice as head of the Judiciary is responsible for the administration and supervision of all courts and may issue orders and directions to the courts necessary for the proper and efficient administration of justice. This power is not subjected to the Rules Committee under Section 41(1) of the Judicature Act, which deals with rules of practice and procedure by statutory instrument, not administrative circulars and guidelines.
Limitation of Rights — Proportionality and Justification in Public Health Emergencies
Article 43 of the Constitution permits limitation on the enjoyment of rights and freedoms in Chapter Four provided such limitation is acceptable and demonstrably justifiable in a free and democratic society. In a public health emergency, restrictions that are necessary, reasonable, and proportionate to avert a crisis, and based on expert advice applying the precautionary principle, constitute permissible limitations that do not amount to infringement of fundamental rights.
Retrospective Penal Provisions — Limitation on Retrospective Application
Although Article 28(7) of the Constitution and Section 17(3) of the Interpretation Act prohibit making persons liable to a penalty in respect of acts committed before publication of a statutory instrument, this prohibition does not invalidate the instrument itself where it is essentially regulatory rather than penal. The effect is that criminal charges for acts done before publication would constitute a defence, but the substance of the instrument remains valid.
Pleadings — Matters Raised in Affidavits in Reply and Rejoinder
When the law refers to matters raised in pleadings, this includes not only the applicant's pleadings but also the respondent's affidavit in reply and the applicant's affidavit in rejoinder. A matter raised in an affidavit in reply and responded to in an affidavit in rejoinder is part of the pleadings and the issues before the court for determination.
Jurisdiction — High Court Jurisdiction under Human Rights Enforcement Act 2019
Under Section 4(1) of the Human Rights Enforcement Act 2019, where an application contains matters within the ambit of both the High Court and Magistrates Court, the proper forum is the High Court. Where an application includes alleged infringement of the right to a fair hearing or other rights under Article 45 of the Constitution, the High Court has jurisdiction regardless of other matters that might fall within magistrate court competence.

Legislation cited (70)

Cases cited (12)

  • Charles Onyango Obbo and Another v Attorney General (Constitutional Appeal No. 2 of 2002)
  • Nakasero Market Sitting Tenants (NAMASITE) Ltd v Nakasero Market Sitting Vendors & Traders Ltd (Civil Appeal No. 90 of 2016)
  • Simon Dolan & Others v. Secretary of State for Health & Another [2020] EWCA Civ 1605
  • Law Society of Kenya v. Hillary Mutyambai Inspector General National Police Service & Others [2020] eKLR
  • Muhammed Bin Hassim Mohamed & 2 Others Versus The President of the Republic of South Africa & 2 Others, Case No. 21402/20
  • Lukwago Erias v Electoral Commission (Miscellaneous Cause No. 393 of 2018)
  • Fangmin v Belex Tours & Travel (Civil Appeals No. 06 of 2013 and 01 of 2014)
  • Bitamisi Namuddu v Rwabuganda Godfrey (Supreme Court Civil Appeal No. 16 of 2014)
  • Julius Rwabinumi v Hope Bahimbisibwe (Supreme Court Civil Appeal No. 10 of 2009)
  • Male H. Mabirizi Kiwanuka v Attorney General (Miscellaneous Cause No. 194 of 2021)
  • R v Secretary of State for Health, ex parte Eastside Cheese Co [1999] 3 CMLR 123
  • Republic v Ministry of Health & 3 Others, Ex-parte Kennedy Amdany Langat & 27 Others [2018] eKLR

Full judgment

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Mabirizi Kiwanuka v Attorney General (Miscellaneous Cause No. 193 of 2021) [2021] UGHCCD 96 (29 July 2021)
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.