Wakilii

Male Mabirizi v Attorney General (Miscellaneous Application No. 915 of 2021)

High Court · [2022] UGHCCD 51 · 2022 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to refer constitutional question to Constitutional Court arising from miscellaneous application for contempt
Decision
Application for constitutional reference dismissed with costs to the respondent

Observed later treatment

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Holding

Held that the application for constitutional reference was dismissed. The proposed question did not require interpretation of the Constitution but only application of constitutional provisions or enforcement of rights. For a constitutional reference to be made under Art. 137(5), there must be a question requiring interpretation of the Constitution and it must involve a substantial point of law. A party cannot compel a reference where no genuine interpretive question exists. The court found the application to be an abuse of process aimed at frustrating pending contempt proceedings.

Outcome

Application for constitutional reference dismissed with costs to the respondent

Facts

The applicant filed a miscellaneous application seeking to refer a constitutional question to the Constitutional Court. The applicant had previously complained to the Judicial Service Commission about the presiding judge, alleging misconduct and incompetence. The applicant believed that the ensuing investigation and the judge's alleged directive to court registry staff not to receive his new cases created animosity between them, compromising the judge's impartiality. The applicant sought to refer the question of whether a judge under investigation by the Judicial Service Commission could sit in a case brought by his complainant without seeking the complainant's opinion. The respondent opposed the application, arguing that the proposed question did not require constitutional interpretation but merely application of constitutional provisions. The application arose out of pending contempt proceedings against the applicant.

Issues

  1. Whether there is a constitutional question requiring interpretation of the Constitution under Art. 137(1).
  2. Whether the question proposed by the applicant depends for its determination on the interpretation or construction of Articles 28(1), 44(c), 144(2) and 147(1)(d) of the Constitution.

Orders

  • Application dismissed.
  • Costs awarded to the respondent.

Rules and key headnotes

Constitutional References — Article 137(5) — Requirements for Reference to Constitutional Court
For a court to refer a question to the Constitutional Court under Article 137(5) of the Constitution, two requirements must be satisfied: first, there must be a constitutional question requiring interpretation of the Constitution under Article 137(1); and second, the question must involve a substantial point of law. If either requirement is not met, no reference can be made regardless of a party's request.
Constitutional Court Jurisdiction — Interpretation versus Application
The jurisdiction of the Constitutional Court is limited to interpretation of the Constitution. A question that merely requires application of constitutional provisions or enforcement of rights, rather than interpretation of unclear or controversial constitutional provisions, does not fall within the Constitutional Court's jurisdiction and cannot be referred.
Constitutional References — Party's Request Does Not Oust Court's Discretion
While Article 137(5)(b) requires a court to refer a constitutional question if a party requests it, this duty is subject to there being an actual question requiring interpretation of the Constitution. A party cannot compel a reference of a matter that does not involve constitutional interpretation, nor can a party give the court jurisdiction which it does not have by law.
Constitutional Interpretation — Not Every Breach Requires Interpretation
Not every alleged breach of the Constitution requires interpretation of constitutional provisions. All courts are empowered and mandated to apply the provisions of the Constitution. A constitutional reference is appropriate only where there is genuine uncertainty or controversy about the meaning of constitutional provisions, not where a party merely anticipates a constitutional breach.
Abuse of Process — Frivolous Applications to Frustrate Proceedings
Filing endless applications aimed at frustrating the trial of pending matters constitutes an abuse of court process. Such procedural tactics will not deter a court from exercising its jurisdiction or executing its constitutional mandate.

Legislation cited (11)

Cases cited (6)

  • Emmanuel Nagoli v Attorney General (Constitutional Reference No. 7 of 2006)
  • Kasibante Moses v Katongole Singh Marwaha (Kampala Election Petition No. 23 of 2011)
  • Attorney General v Major General David Tinyenfuza (Supreme Court Constitutional Appeal No. 1 of 1997)
  • Alenyo v Chief Registrar Courts of Judicature (Constitutional Petition No. 32 of 2014)
  • Re Sheik Abdul Karim Sentamu (Constitutional Reference No. 7 of 1998)
  • Ismail Serugo v Kampala City Council (Constitutional Appeal No. 2 of 1998)

Full judgment

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

Male Mabirizi v Attorney General (Miscellaneous Application No. 915 of 2021) [2022] UGHCCD 51 (27 January 2022)
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.