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Male H. Mabirizi K.Kiwanuka v Attorney General of Uganda (Miscellaneous Cause No. 194 of 2021)

High Court · [2021] UGHCCD 58 · 2021 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Judicial review application challenging the legality of Presidential COVID-19 directives and Chief Justice's circular regulating court operations during the pandemic
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 applicant's judicial review challenge to Presidential COVID-19 directives and the Chief Justice's circular regulating court operations. The Court held that the President acted within his constitutional powers under Article 99(5) when issuing Statutory Instrument No. 38 of 2021, which was properly authenticated by the Minister of Health and retrospectively effective from 18th June 2021. The Court found that the Chief Justice's circular was a lawful exercise of administrative authority under Article 133(1) of the Constitution, which empowers the Chief Justice to issue orders and directions necessary for the proper and efficient administration of justice. The applicant was found to have locus standi but failed to establish grounds for judicial review on illegality, procedural impropriety, or unreasonableness.

Outcome

Application dismissed with costs to the Respondent

Facts

On 18th June 2021, the President of Uganda delivered a televised address announcing revised COVID-19 control measures to take effect at 2200 hours that day for a period of 42 days. On 21st June 2021, the Chief Justice issued Circular CJ/C.7 titled 'Revised Contingency Measures by the Judiciary to Prevent and Mitigate the Spread of Covid-19', suspending most court hearings and limiting physical court operations to 10% staff capacity, with only urgent matters to be heard. The applicant, a lawyer and civically active citizen, filed this judicial review application challenging both the Presidential directives and the Chief Justice's circular on grounds that they were ultra vires, illegal, procedurally improper, and unreasonable. The respondent countered that the President had issued Statutory Instrument No. 38 of 2021 on 18th June 2021 pursuant to Article 99(5) of the Constitution and the Public Health Act, which was authenticated by the Minister of Health on 1st July 2021 and published in the Gazette on that date. The respondent argued that the Chief Justice acted within his constitutional powers under Article 133(1) and that both measures were lawful, procedurally proper, and reasonable responses to the COVID-19 pandemic.

Issues

  1. Whether the Applicant has locus standi to institute this suit?
  2. Whether the President's Directives communicated on 18th June 2021 relating to Covid-19 are ultra vires the powers of the President of the Republic of Uganda and issued in a procedurally improper manner?
  3. Whether the Chief Justice's Circular dated 21st June 2021 is ultra vires the administrative powers of the Chief Justice and issued in a procedurally improper manner?
  4. What remedies are available to the parties?

Orders

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

Rules and key headnotes

Judicial Review — Locus Standi — Direct or Sufficient Interest
An applicant for judicial review has locus standi where the matter before the court has such real public significance that it involves a public right and a possible injury to the public interest, even if the applicant brings the action as a civically active citizen concerned with constitutional and rule of law issues rather than on the basis of a personal right directly affected.
Statutory Instruments — Retrospective Commencement — Authentication by Minister
A statutory instrument made by the President may lawfully commence on the date it is issued even if authenticated by a Minister and published in the Gazette at a later date, provided the retrospective commencement date is not earlier than the commencement of the enabling Act, in accordance with Section 17(2) of the Interpretation Act.
Executive Authority — Presidential Powers to Issue Statutory Instruments
The President has constitutional authority under Article 99(5) of the Constitution to issue a statutory instrument, which may be authenticated by the signature of a Minister, and the validity of such instrument shall not be called in question on the ground that it is not made, issued or executed by the President personally.
Separation of Powers — Chief Justice's Administrative Authority
The Chief Justice, as head of the Judiciary under Article 133(1) of the Constitution, has independent constitutional authority to issue orders and directions to courts necessary for the proper and efficient administration of justice, which authority is not subject to or dependent upon the Rules Committee under Section 41(1) of the Judicature Act, whose mandate is limited to making rules of procedure and practice by statutory instrument.
Judicial Review — Grounds — Illegality, Procedural Impropriety, Unreasonableness
A public authority acts unlawfully amenable to judicial review if it makes a decision or does something without legal power to do so, in a manner so unreasonable that no reasonable decision-maker could have come to the same decision, or without observing the rules of natural justice. The burden lies on the applicant to establish on a balance of probabilities that the decision-making body did not follow due process and that there was resulting unfair and unjust treatment.
Non-Derogable Rights — Regulation Distinguished from Derogation
Regulation of the exercise of non-derogable rights such as the right to a fair hearing and habeas corpus under Article 44(c) and (d) of the Constitution does not amount to derogation of those rights. Guidelines that scale down court operations while maintaining access to urgent matters and essential staff do not close courts or violate non-derogable rights.

Legislation cited (40)

Cases cited (12)

  • Ben Muhumuza v Attorney General and Others (Miscellaneous Cause No. 212 of 2020)
  • National Drug Authority and Another v Nakacwa Florence (Court of Appeal Civil Appeal No. 281 & 286 of 2017)
  • Kyagaba and 2 Others v Namuganga Trading Co. Ltd (Court of Appeal Civil Appeal No. 88 of 2012)
  • Attorney General v Yustus Tinasimiire and Others (Court of Appeal Civil Appeal No. 208 of 2013)
  • Kuluo Joseph Andrew and Others v Attorney General and Others (Miscellaneous Cause No. 106 of 2010)
  • Arua Kubala Park Operators and Market Vendors' Cooperative Society Ltd v Arua Municipal Council (Miscellaneous Cause No. 003 of 2016)
  • ACP Bakaleke Siraji v Attorney General (Miscellaneous Cause No. 212 of 2018)
  • Justus Barugahare v Board of Directors of Uganda Printing and Publishing Corporation and Another (Miscellaneous Cause No. 065 of 2016)
  • Nakasero Market Sitting Tenants (NAMASITE) Ltd v Nakasero Market Sitting Vendors & Traders Ltd (Court of Appeal Civil Appeal No. 90 of 2016)
  • Fangmin v Belex Tours & Travel (Supreme Court 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)

Full judgment

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Male H. Mabirizi K.Kiwanuka v Attorney General of Uganda (Miscellaneous Cause No. 194 of 2021) [2021] UGHCCD 58 (23 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.