10 15 20 25 30 THE REPUBLIC OF UGANDA IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA. CONSTITUTIONAL PETITION NO. 43 OF 2012 NAMPOGO ROBERT TUMWESIGYE MOSES . PETITIONERS VERSUS ATTORNEY GENERAL ... . RESPONDENT CORAM: — Hon. Mr. Justice Kenneth Kakuru, JA/JCC Hon. Lady Justice Hellen Obura, JA/ JCC Hon. Mr. Justice Stephen Musota, JA/JCC Hon. Mr. Justice Christopher Madrama, JA/JCC Hon. Mr. Justice Remmy Kasule, Ag. JA/JCC ENT OF JUSTICE KENNETH ‘The background to this petition has been ably set out by my learned brother Musota, JA I have no reason to repeat it here He has also set out the representations, the issues, submissions of Counsel and the general principles of Constitutional Interpretation, I have found it unnecessary to repeat them. 1 will therefore proceed to determine the issues before me. Issue 1: 1. Whether Section 2 (1) of the Civil Procedure Act Limitation (Miscellaneous Provisions Act) CAP 72 is inconsistent with Article 28 (1), 126 (2) (b) & (c) and 139 (1) of the Constitution. The impugned Section of the law set out above stipulates as follows:- 2, Notice prior to suing. Ay, 1[Page10 45 20 25, 30 35 (1) After the coming into force of this Act, notwithstanding the provisions of any other written law, no suit shall lie or be instituted against— (a) the Government; (b) a local authority; or (¢) a scheduled corporation, until the expiration of forty-five days after written notice has been delivered to or left at the office of the person specified in the First Schedule to this Act, stating the name, description and place of residence of the intending plaintiff, the name of the court in which it is intended the suit be instituted, the facts constituting the cause of action and when it arose, the relief that will be claimed and, so far as the circumstances admit, the value of the subject matter of the intended suit. I must confess that I have not been able to discern from the background of this petition and from the pleadings as a whole, the relevancy of this issue to the facts upon which the petition is premised. It appears from the petition and the accompanying affidavit, that this issue is unrelated to facts before us. It appears to be a standalone challenge on the constitutionality of the impugned Section of the Civil Procedural Act Limitation (Miscellaneous Provisions) Act (CAP 72), by public spirited litigants frustrated by the entire process of seeking legal redress against government. Be that as it may, I am satisfied that it is within the right as citizen of this Country to raise the issue set out above. As far as | understand the law, Section 21(1) of the Civil Procedural Act Limitation (Miscellaneous Provisions) Act is not applicable to proceedings brought to enforce fundamental rights and freedoms under Chapter Four of the Constitution as alleged by the petitioners in paragraph 14 of the affidavit of Nampogo Robert the 1* petitioner, which states as follows:- 14. That my counsel Rwakafuuzi believes that this section was meant to be limited to only suits in tort and contract but the section has in practice been applied to all claims including redress for statutory LIN 2|Page10 as 20 25 30 35 and constitutional breaches including breaches of the bill of rights, with the resultant unconstitutional effect. This question was determined in Dr. JW Rwanyarare and 2 others vs Attorney General, High Court Miscellaneous Application No. 85 of 1993. This was before the coming into force of the 1995 Constitution. The principle set therein has been applied in all cases brought to enforce fundamental Rights and Freedoms enshrined under Chapter Four of the Constitution, The argument that a litigant proceeding under Article 50 of the Constitution for enforcement of rights and freedoms enshrined under Chapter Four thereof is required to comply with Section 2 of the Civil Procedural and Limitations (Miscellaneous Provisions) Act is misconceived. I have not found it necessary to reproduce excerpts of the Rwanyarare case (supra) suffice it to say, it sets out correctly the position of the law and I adopt it in its entirety. Although it related to the Article 22 of 1967 Constitution the principles of law set out herein are equally applicable to Article 50 of the 1995 Constitution, the two are in pari materia. Any person seeking to enforce fundamental human rights and freedoms enshrined in the bill of rights is at liberty to do so under Article 50 of the Constitution. The procedure for bringing such action was governed by the fundamental Human Rights and Freedoms (Enforcement Procedure) Rules S1 No.S5 of 2008. It has since been replaced with The Human Rights (Enforcement) Act 2019. Section 2 of the Civil Procedural Act Limitation (Miscellaneous Provisions Act is therefore inapplicable. This leg of ground one is misconceived and has no merit. 1 would answer it in the negative. I now proceed to consider the second leg of ground one. Whether or not Section 2(A) of the Civil Procedural Act Limitation (Miscellaneous Provisions) Act applies to ordinary suits? This question was considered by the Court of Appeal in Kabandize and 20 others Vs Kampala Capital City Authority, Court of Appeal Civil Appeal No. 28 of 2011. The Court of Appeal held as follows: ) 3|Page10 15 20 25 30 “While construing Section 2 of The Civil Procedure and Limitations (Miscellaneous Provisions Act) already set out above, Courts of law must therefore take into account the provisions of Articles 274 and Article 21(1) of the Constitution of Uganda. Article 21(1) of the Constitution provides as follows;- “All persons are equal before and under the law in all spheres of political, economic, social and culture life and in every other respect and shall enjoy equal protection of the law.” This article in our view requires that parties appearing before Courts of law must be treated equally and must enjoy equal protection of the law. The reading of Article 21(1) above and Article 274 of the Constitution together would require Section 2 in CAP 72 to be construed with such modifications, adaptations, qualifications and exceptions as is necessary to bring it into conformity with the Constitution. Section 2 above is a law that gives preferential treatment to one party to @ suit by requiring the other party to first serve it with a 45 days mandatory notice of intention to sue. The section is also discriminatory in that it requires one party to issue statutory notice to the other without a reciprocal requirement on the other. None compliance renders a suit subsequently filed by one party incompetent. Government and all scheduled corporations are under no obligation to serve statutory notice of intention to sue to intended defendants. On the other hand ordinary litigants are required to first issue and serve a Ay, 4|Page10 15, 20 25 30 45. days mandatory notice upon Government and scheduled corporations. We find that in view of Article 21(1) of the Constitution a law cannot impose a condition on one party to the suit and exempt the other from the same condition and still be in conformity with Article 21(1) of the Constitution.” On appeal to the Supreme Court in Supreme Court Civil Appeal No. 13 of 2014 Mwangusya JSC held as follows:- “The use of the word “shall” was interpreted by the High Court to mean that the requirement to issue statutory notice was mandatory. In the case of Sitenda Sebalu vs Sam K. Njuba and the Electoral Commission (Election Appeal No 26 of 2007) (unreported) the Supreme Court of Uganda discussed Section 62 of the Parliamentary Elections Act where the word “shall” is used and held as follows:- “It is common ground that although prima facie the use of the word “shall” in a statutory provision gives the provision a mandatory character, in some circumstances the word is used in a directory sense. Much as we agree with learned Counsel for the appellant to the extent that where a statutory requirement is augmented by a sanction for non compliance it is clearly mandatory that cannot be the litmus test because all too often, particularly in procedural legislation, mandatory provisions are enacted without stipulation of sanctions to be applied in case of non compliance. We also find that the proposal by Counsel for the 2'4 respondent to restrict the directory interpretation of the word “shall” to only where it is shown that interpreting it as a mandatory command would lead to absurdity or to inconsistence with the A 5|PageConstitution or statute or would cause injustice, to be an unreliable formula, which is supported by precedent or any other authority” The Supreme Court cited with approval the observation of Lord Steyner in Regina Vs Soveji and other [2005] UKHL 49 (HL Publications and internet where he stated as follows: “A recurrent theme in drafting of statutes is that Parliament casts its Commands in imperative form without expressly spelling out the consequences of failure to comply. It has been the source of a great deal of Litigation In the course of the last 130 years a distinction evolved between mandatory and directory requirements. The view was taken that where the requirement was mandatory, a failure to comply invalidates the act in question. Where it is merely directory a failure to comply does not invalidate the act in question. There were refinements. For example, a distinction was made between two types of directory requirements, namely (1) requirements of purely regulatory character where a failure to comply would never invalidate an act provided there was substantial compliance.” Lord Steyner after reviewing decisions from the English Court of ‘Appeal, the privy Council and Courts in New Zealand, Australia and Canada made the following conclusion:~ “Having reviewed the issue in some detail I am in respectful agreement with the Australian High Court that the rigid mandatory and directory distinction, and its many artificial refinements have out lived their usefulness. Instead, as held in Attorney General's Reference (No. 3 of Aww, 6|Page10 45 20 25 30 1999) the emphasis ought to be on the consequences of non- compliance, and posing the question whether parliament can be fairly taken to have intended total invalidity’. ‘As already stated in this judgment the rationale for the requirement to serve a statutory notice was to enable a statutory defendant investigate a case before deciding whether to defend it or even settle it out of court. There was a claim that no statutory notice was served but the appellant was able to file a written statement of defence and adduce evidence in support of his defence. There was also nothing that stopped the parties {from settling the case if ever a settlement was an option. This is a clear illustration that failure to serve the Statutory Notice does not vitiate the proceedings as the Court of Appeal rightly found. A party who decides to proceed without issuing the Statutory Notice only risks being denied costs or cause delay of the trial if the Statutory defendant was unable to file a defence because she required more time to investigate the matter. In my view the emphasis should not be on the failure to serve the Statutory Notice but on the consequences of the failure so long as both parties are able to proceed with the case and Court can resolve the issues which the High Court should have done after {going through the hearing. Parliament could not have intended that a plaintiff with a cause of action against a Statutory defendant would be totally denied his right to sue even where the defendant knew the facts and was able to file a defence as it was in this case simply because of the failure to file a statutory notice.” ‘The rest of the members of the Court agreed with him. Ay 7[Page10 15 20 25, 30 35 My understanding of the Supreme Court's decision is that, Section 2(1) of the Civil Procedural Act Limitation (Miscellaneous Provisions) Act is not unconstitutional because it is not mandatory, this is so because the ‘Shall’ in that section ought to be construed as directory or regulatory. The Court of Appeal on the other hand found that, the impugned section being an existing law under predating the 1995 of the Constitution ought to be read, construed and applied in conformity with the Constitution in accordance with Article 274. In so doing the Court found that the word ‘shall’ in the impugned section was no longer mandatory. Consequently the Court construed the mandatory requirement for statutory notice as unconstitutional. The Court of Appeal held that, the impugned law imposed a condition on one party to an intended suit that was not applicable to the other in contravention of Article 21(1) which guarantees all persons equality before the law. In the result the Court held that, failure to issue and serve a statutory notice under the impugned law did not vitiate a suit. On appeal, the Supreme Court did not directly determine the constitutional question raised in the Court of Appeal Judgment. Applying a liberal approach or purposeful interpretation, it found that the word ‘shall’ in the impugned law was not mandatory but rather directory. This reasoning is in pari-passu with the decision of the Court of Appeal, in Edward Byaruhanga Katumba vs Daniel Kyewalabye Musoke, Court of Appeal Civil Appeal No.2 of 1998 and Kayondo vs The Co-operative Bank Ltd in Supreme Court Civil Appeal No. 10 of 1991. ‘The Supreme Court appears clearly to have agreed with the position by the Court of Appeal, to the extent that, the word ‘shall’ in the impugned Section ought to be construed as not being mandatory. Both Courts therefore, came to the same conclusion that Section (2) of CAP 72 is not mandatory. In other words failure to issue and or serve a statutory notice under the impugned section does not vitiate a suit. The impugned Section would be unconstitutional when ‘shall’ therein is construed as being mandatory. It is constitutional when construed as directory or regulatory, ‘The above decisions of the Supreme Court sitting on appeal from the decision of the Court of Appeal is not binding on this Court, This Court is now required to make its own finding and come to its own conclusion on this issue. I shall proceed to do so. Although it appears clearly to me that the original intention of the legislature sitting in 1969 was to provide for a mandatory notice of intention to sue to the Ah al Page10 15 20 25 30 35 Attorney General, before any suit could be instituted against Government by any person, the law has since evolved and moved away from that position. The framers of the 1995 Constitution were quite alive to the existence of such laws. The main justification for the promulgation of a new Constitution was to establish a new constitutional order by departing from our colonial and post- colonial repressive past. The impugned law squarely stands a symbol of the past authoritarian governments and has no relevancy in the present or future of this Country. At this point I am constrained to revert to the history of this legislation as it has been dealt with rather at lengthy by my able and learned brother Musota JCC in his Judgment in this petition. He traces the nature, functions, powers position of the office of the Attorney General in Anglo-Norman system of Government through the times, to the present. I must admit, the research was quite an impressive. 1 am indebted to him in that regard. ‘As far as I understand the history of English law and jurisprudence, the Anglo- Norman legal system was established by William 1 of Normandy who reigned from 1066 to 1087. He defeated the Anglo Saxons and largely replaced their legal system with his own. ‘The Anglo-Norman system government is summarised here below. See: hittps://www-bbe.co.uk/bitesize/guides. “Invading and conquering England had been expensive for William, Loyal supporters were rewarded with and rather than cash but by 1085 the Norman land owners were beginning to argue over who held what piece of land. William had spent nearly twenty years imposing Norman control over all of England and he did not want his work to be undone by disunity amongst his own followers. In December 1085, William met his Great Council in Gloucester to discuss how to solve these problems. At this meeting William decided to order a survey. It would list all the landowners and their tenants and the lands they held. It would describe any other people who lived on the land, from villagers to slaves. It would describe how the land was used, sy g|Page10 15, 20 25 30 35 for example if it was used for woodland, meadow or animals All buildings such as castles, churches or mills were to be recorded. The Domesday Book was designed to perform three key functions. © To record the transfer and possession of land. After the conquest huge amounts of land in England changed hands and a record of these changes was needed to keep track. = To record the value of each estate (land owned by an individual). * To introduce a new system of taxation on each estate that allowed the king to raise more money from all landholders quickly.” Under this legal system it is apparent that the Attorney General was an extremely busy man entrusted with the duty to institute or defend all actions for or against the King. ‘This legal and constitutional system still largely exists in form and practice in United Kingdom. It is a feudal system in which at the apex is The King or Queen (Rex or Regina). The Lord The Sovereign upon whom all the power of government is vested, the Constitutional devolution of power over centuries notwithstanding. ‘The government is referred to as Her Majesty's Government. The Courts are Her Majesty's Courts, The King’s/Queen’s Bench! The armed force belong to the sovereign so does Parliament. In that context, Justice Musota correctly reminded us that the office of the ‘Attorney General was in essence “The King’s Attorney”. In a feudal system, the King, the Lord, the Sovereign could not and does not enjoy the same rights and privileges as those as his or her subjects. He is the King. They are his subjects. They are subjected to his Rule and the laws that he proclaims This feudal legal system was extended to Uganda when it was occupied by force and ruled as a british protectorate between 1897 and 1962. We continued also 60 years to apply the English feudal laws complete with precedents and Rules of procedure, after independence. Judges in this country still don the medieval entire of English feudal Lords compete with their titles, woolen wigs, red gowns, faps and collars! Without doubt they do so with pride! It is time we relinquished these relics together with the jurisprudence they carry with. We cannot in my view continue \ 10|Page10 15. 20 25, 30 35 applying principle of a feudal legal system established in the 11% Century England! This principle of total independence is set out clearly in Article 1 of the Constitution which provides as referred to by Justice Musota “All power belongs to the people who shall exercise their sovereignty 1n accordance with the Constitution The world has moved on since 1243 when Laurence De Brok was Attorney General of England. Everyone throughout the world was flat! Last year the world marked the 50 anniversary of the landing of a man on the moon. On 5 September 1977, NASA launched the Voyager space ship into space. It is still travelling at 38,000 miles per hour and is 11.7 billion miles away from the Earth taking pictures and sending them back along the way! [At that time of De Brok there were no trains, no electricity, no motor vehicles. Letters were delivered by men on horse backs. The world has moved leaps and bounds in all spheres of life. There is however, no sphere of human life that has been as revolutionilsed as that of communication technology. From wire telegrams to telephones. From analog to digital technology. We can now hold vsoom’ conferences in the comfort of our offices. The whole world in our palms in form of smart phones’, We can at a click of a button access information and rely it back almost instantly. In the meantime this Court and generally the whole judicial system in this Country is still stuck in the distant past. We still apply the 1909 Evidence Act a vintage statute bequeathed to us by our colonial masters today the reading of which makes no sense fo law students and legal practitioners of today. The Indian Penal Code Actis still largely in use in this country having been adopted in 1950. It still contains medieval offences such as ‘Defamation of foreign princest. (See: ~ Section 53). ‘the purpose of Article 274 of the Constitution in my view was to empower Courts to move away from obsolete to progressive jurisprudence. Let me now consider the more recent history of the impugned law. Between 1968-1970 the UPC Government initiated an ideological program of creating a socialist state, which was referred to by President Milton Obote as “the nove to the left” It begun with the “Common man’s charter’ and by 1970 had culminated into the ‘Nakivubo pronouncements’ ‘ertit Aaslad. On the move to the left 1969-1970.10 15 20 25 30 35 The Nakivubo pronouncements of 1970, nationalised foreign owned companies. ‘Thereafter these became Government owned or controlled enterprises. They did form the bulk of the “scheduled corporations” set out in the 3" scheduled of the impugned Act. They were accorded the same status and privileges as the Government under this Act. If indeed it was the case and I hasten to add that it was not, that Attorney General by necessity of office required more time to investigate a claim, the same could not and does not apply to the “schedule corporations’, Overtime the 3° schedule has dramatically changed from Government Corporation to Government companies and now to statutory authorities. This change in form has not altered the substance. They have all remain commercial enterprises in practice and form. There is no reason why such enterprises in an open market economy such as that prevailing in this Country ought to enjoy privileges which individual citizens and private companies are denied by the law. ‘This in my view clearly contravenes Article 21(1) of the Constitution, is therefore null and void pursuant to Article 274(supra). Article 21(1) was deliberate as a positive step towards addressing the inequities of the past legal regimes. Had the frames of our Constitution intended that government and state owned enterprises to be placed under a different footing from the citizens of this country in regard access to justice, they could have provided so in the Constitution. They did not. We cannot read it into it. In any event the impugned law that allows the Attorney General to file written statement of defence within 45 days whereas the citizens are limited to 15 days cannot be justified on the arguments set out in support of the statutory notices in this petition. Having been availed 45 days (formerly 60 days) statutory notice to prepare his defence there is no justification for granting the Attorney General another 30 days to file the same defence. This is because in the first instance this 45 days notice was to enable him file a good defence within the time given to all other litigants by the law. This disparity is unjustifiable in view of Article 21(1) supra. Section 3 of the impugned Act, also fall in same category as Section 2 of the impugned Act. The section relates to limitations of time within which a suit may be instituted against government or scheduled corporations clearly reveals that ~My BI pere10 15 20 25, 30 35 the intention of the impugned Act was not as it has been argued to facilitate the smooth functioning of government but rather to limit the rights of citizens by making it extremely difficult for them to succeed in any claim against government, ‘This cannot be a proper and legitimate purpose of legislation. Under the Section 3(1) the impugned Act the limitation period for actions in Tort against government by citizens is limited to only two years. In practice the statutory notice of 45 days period set out in the impugned Section 2(1) notice period is also inclusive. The limitation period for actions in contract against Governments limited to only three years. Hon, Francis M, Ssekandi retired Justice of the Court of Appeal now Supreme Court of Uganda in his treatise, Autochthony: “The Development of Law in Uganda” NYLS Journal International and Comparative Law (1983) discussed this subject as follows:- “One other means devised to entrench the imported law, in addition to the repugnancy clause, was to forego providing a remedy through the courts on the ground that the cause of action is time barred. In the majority of civil customary law cases the litigants do not articulate their claims in the pigeon- holes known to the common law (ie. property or marriage law). If a party is aggrieved he will go to court for a remedy and time is of no consequence. Litigation is often a last resort after the traditional means of reconciliation have failed. As a result, courts have always been faced with what, under the imported law, are stale claims, The statute of limitation was specifically excluded from application to customary law, which was administered almost entirely by native courts. With integration, however, native courts were abolished. The magistrates’ courts that replaced them did not enjoy the same exclusive jurisdiction. In Olowo v. Akenya Judge Nyamuchoncho stated: The Limitation Act did not apply to customary claims instituted in so called African courts, It would be unfair to apply the law of limitation to stale [customary] claims simply because of integration of courts .... This would result in grave injustice to the respondent and his sons who had occupied the land for such a long time. Aw. 13|Page10 15 20 25, 30 35, We think that this is the proper view. The Limitation Act has no application to customary civil suits. Although the above excerpt does not relate to statutory notices nevertheless it highlights dichotomy between reality and legal fiction. Whereas a government that has all the national resources at its disposal requires 45 days notice before a suit can be filed against it and a further 30 days before it can present its defence an ordinary citizen is expected to do the same act in for less time. The argument that such a notice is required to enable sufficient time for government to investigate the nature of the claim does not appeal to me at all. It has no basis and I reject it. In any event no such justification was proved in this petition. The facts show otherwise. I would uphold the second leg of the 1st ground of the petition. 1 would also uphold ground 2 of the petition in respect of Rules 11 of the Government Proceedings (Civil Procedure) Rules. | find that it is unconstitutional as it contravenes Article 21(2) of the Constitution. In respect of Section 19(4) of the Government Proceeding Act, which prohibits executions against government by way of attachment of money held in the consolidated fund, | agree with Madrama JA that, the restriction imposed is not unconstitutional. The right to attach, property to recover a decretal sum is very limited. I can be limited by statute and such limitations is justifiable under Article 43(2)(c). In view of the decision in Attorney General vs Osotraco Ltd (Civil Appeal No 32 of 2002) that decree holder against government may apply to attach movable or other property. This is not a limitation that is unjustified. This ground ‘must fail. In conclusion | would allow this petition in part and make the following orders and declarations:- 1. Section 2(1) of the Civil Procedure & Limitations (Misc Prov.) Act (CAP 72) is unconstitutional only when it is construed as being mandatory. | find that, it is not mandatory but directory. 2, Section 2(1) of the Civil Procedure & Limitations (Misc Prov.) Act (CAP 72) is not applicable in respect of suits brought under the provisions of Article Any 1a| Page10 20 25 50 of the Constitution for the enforcement of Fundamental Rights and Freedoms. 3, Rule 11 of the Government Proceedings (Civil Procure) Rules which provides for the Attorney General as a defendant to file a defence within 30 days while Order VII Rule 1 of the CPR requires every other defendant to file a defence within 15 days is inconsistent with Article 21(1) of the Constitution. The said rules must be construed in accordance with Article 274 of the Constitution to read 15 days. 4, Section 19(4) of the Government Proceedings Act that provides that no execution may issue against government for payment of judgment debt is not inconsistent with Articles 139(1), 128(1),(2) & (3), 28(1) and 126(2)(b) & (c) of the 1995 Constitution of the Republic of Uganda. 5, The omission by government in providing for payment of judgment debt for the financial years 2011/2012, 2012/2013 is not contrary or inconsistent with Articles 155(1) & 160 of the 1995 Constitution of the Republic of Uganda. 6. would allow this petition only in part and award the petitioners */s of the costs of this petition. In the result, this petition succeeds only in part as follows:- (1) Ground 2 succeeds by majority decision of Kakuru, Obura, Madrama JJA and Kasule Ag, JA with Musota JA dissenting, Itis hereby declared that, Rule 11 of the Government Proceedings (Civil Procedure) Rules is inconsistent with the Constitution. (2) Ground one substantially fails by majority decision of Obura, Musota and Madrama JJA with Kakuru JA and Kasule Ag. JA dissenting, In respect of this ground, this Court by majority decision declares that, Section 2(1) of the Civil Procedure and Limitations (Miscellaneous Provisions) Act CAP 72 is not inconsistent with the Constitution, as it is not mandatory. It is directory. An 15|Page5 (3) By unanimous decision grounds 3 and 4 fail and are dismissed. (4) The petitioners are awarded ¥4 of the costs. We so order. Dated at Kampala this ....00.0000-Arnanday of ele cnn 2021 10 Kenneth Kakuru JUSTICE OF APPEAL/CONSTITUTIONAL COURT 16 | PageTHE REPUBLIC OF UGANDA IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA (Coram: Kakuru, Obura, Musota, Madrama & Kasule, JJCC) CONSTITUTIONAL PETITION NO. 43 OF 2012 1. NAMPOGO ROBERT} 2, TUMWESIGYE MOSES: VERSUS ATTORNEY GENERAL: JUDGMENT OF HELLEN OBURA, JA/JJCC | have had the opportunity to read in draft the judgment of my learned brother, Hon. Justice Stephen Musota in the above Constitutional Petition. | agree with his findings and conclusions on issues 1, 3 and 4 with nothing useful to add. However, | have another view as regards issue 2 for the reasons stated below. The background of this petition has been well set out by my learned brother and there is No need for me to repeat them here. | will therefore straight away proceed to deal with issue 2 which is framed thus; Whether Rule 11 of the Government Proceedings (Civil Procedures) Rules is inconsistent with Article 21 (1) of the Constitution. The petitioners averred in paragraph 1 (b) of the petition that; “Rule 11 Government Proceedings (Civil Procedures) Rules for providing that where the Attomey General is the defendant, he or she is entitled to file @ defence within 30 days, when O. Vill .1 CPR requires every defendant to file a defence within 15 days, is inconsistent with the Constitution in Art 21 (1) which provides thet all persons are equal before and under the law.” In paragraphs 17 and 18 of the affidavit in support of the petition deposed by the 1s petitioner, it was averred as follows;47. “That 111 Government Proceedings (Civil Procedures) Rules provides that the Attomey General is entitled fo 30 days to file a defence whereas other Itigants are entitled to only 15 days.” 18. “That 1.11 aforesaid is discriminatory contrary to Art. 21 (1) of the Constitution which outlaws discrimination.” In their written submissions on this issue, counsel for the petitioners argued that section 24 (1) of the Constitution provides that all persons are equal before the law but rule 11 of the Government Proceedings (Civil Procedures) Rules (hereinafter referred to as rule 11) gives the Attorney General 30 days within which to file a defence yet other defendants are given 15 days under Order VIII of the (Civil Procedure Rules (CPR). They contended that this amounts to discrimination among litigants. Counsel supported their submission with the decision in the Indian case of Nagendra Rao & Co. vs State of AP AIR 1994 SC 2663 RM, where Sahai J in paragraph 24 of his judgment stated that; “No legal or politica system today can place the state above the law as itis unjust and unfair for citizen to be deprived of his property illegally by the negligent acts of officers of the state without any remedy. The modem social thinking of progressive societies and the judicial approach is fo do away with archaic state protection and place the state or the goverment at par with any other juristic legal entity.” Counsel also cited the decision of the Supreme of Ireland as per Walsh J in Byrne vs Ireland & AG [1972] IR 241 at 281 and the decision in Caroline Turyatemba & Ors vs ‘AG: Constitutional Petition No. 15 of 2006, where this Court held that; ‘the prohibition against discriminatory conduct is based upon the universal principle of equality before the law.” They then submitted that the Constitution provides for equality of all persons before the law in all spheres of political, economic, social and cultural life and in every other respect and shall enjoy equal protection of the law. Counsel added that Article 126 (2) (b) & (c) of the Constitution enjoins courts to administer justice to all irrespective of their social or economic status and not to delay justice. They concluded that tule 11 gives Attorney general special treatment thus being discriminatory which is inconsistent with Article 21 (4) of the Constitution.The respondent's answer to the petition and the affidavit in support did not address the averments in the petition and the affidavit in support as relate to rule 11. Be that as it may, counsel for the respondent in their written submissions addressed this issue. They supported their submissions with Articles 21 (4) (a) & (b) and 250 (1) & (3) of the Constitution, section 26 (2) (a) of the Government Proceedings Act, sections 40 and 41 of the Judicature Act Cap 33, Constitutional Appeal No. 3 of 2011: Bukenya Church Ambrose vs Attorney General and High Court MA No. 437 of 2013 (Arising from Civil Suit No. 231 of 2013) Atukwase Nickson (Suing through his lawful Attorney Arinaitwe Reuben) vs Attorney General. Counsel submitted that rule 11 does not bar a private litigant from bringing a civil suit against government but only allows Attorney General to seek instructions from government ministries, departments and agencies it represents to enable it file a defence. They argued that unlike ordinary litigants, when a suit is filed against Attorney General, the responsible entity/officer wherever they are found across the country must be traced and the circumstances that gave rise to the claim inquired into together with a search for potential witnesses must be carried out. Therefore, counsel concluded that the thirty-day notice period is in the public interest to ensure that the government entities are given opportunity to defend themselves given the unique position especially considering that the stakes involve financial implications on the consolidated funds of Uganda. Counsel prayed that this Court finds that rule 11 is not inconsistent with or in contravention of Article 21 (1) of the Constitution. As | proceed to address this issue, | do appreciate the history of Attorney General's chambers and its enormous responsibility as elaborately set out in the judgment of my learned brother. It is an established principle that a petitioner who alleges that his right has been affected must demonstrate a prima facie case that his rights is affected and the ‘onus would shift to the person raising limitation to show that such limitation is justifiable in a free and democratic society. In Regina vs Oakes, 26 DLR (4th) 201 the Supreme Court of Canada at page 225 held;"The onus of proving that a limit on a right or freedom guaranteed by the charter is reasonable and demonstrably justified in a free and democratic society rests upon the party seeking to Uphold the limitation. Itis clear from the text of S.1 (Equivalent to our article 43 ofthe Constitution) thatthe limit onthe rights and freedoms enumerated in the charter are exceptions to their general ‘guarantee. The presumption is that the rights and freedoms are guaranteed unless the party invoking S.| can bring itself within the exception criteria, which justify their being limited. This is further substantiated by the use of the word "demonstrably" which indicate that the onus of justification is on the party seeking to limit." Counsel for the respondent justified the special treatment given to Attorney General under rule 11 by their above arguments especially that the government ministries, departments and agencies that Attomey General serve are spread across the country and so, unlike ordinary litigants, when a suit is filed against Attorney General, the responsible entity/officer wherever they are found across the country must be traced and the circumstances that gave rise to the claim inquired into together with a search for potential witnesses must be carried out. It is a very convincing argument. However, | wish to point out that unlike in the past when the office of Attorney General was centralised and it had to reach all the far ends of the country from the centre, there are now fully fledged regional offices set up to take services nearer to each of the other four regions of the country. It is my view that it is now easier for the regional offices to seek instructions from government ministries, departments and agencies in their respective regions to enable them file a defence within the 15 days prescribed under Order VIII of the CPR. In any event, the forty five-day statutory notice required to be given to Attorney General under section 2 (1) of the Civil Procedure & Limitation (Miscellaneous Provisions) Rules prior to filing a suit, in my view, gives the chambers of Attorney General ample time to investigate a claim and prepare a possible defence in the event that the matter is not settled upon receipt of the notice.For that reason, | do not find the special treatment given to Attorney General by rule 11 over other litigants justifiable in a free and democratic society. The circumstances that justified the inclusion of rule 11 in the Government Proceedings (Civil Procedures) Rules have since changed by the establishment of regional Attorney General's offices as explained above. | must observe that many of the average defendants who live in remote parts of this country also face enormous challenges of accessing counsel to assist them file a defence within the 15 days given under Order VIII of the CPR. But they still have to comply with that provision in those difficult circumstances. | believe Attorney General will also manage if the ground is levelled. | would therefore, with due respect, depart from the decision of my learned brother on issue 2 and instead find that rule 11 of the Civil Procedure & Limitation (Miscellaneous Provisions) Rules is discriminatory and as such declare that it is inconsistent with and contravenes Article 21 (1) which provides for equality for all under the law. | would allow the petition on this ground with an order that the respondent pays a quarter of the taxed costs to the petitioner. Otherwise, | agree with the orders proposed by my learned brother on the rest of the issues. Dated at Kampala this........40.....day Of... Cbdssesseeseeeseeessesseseneesen 2028 Hellen Obura JUSTICE OF APPEALICONSTITUTIONAL COURT5 15 THE REPUBLIC OF UGANDA IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA CONSTITUTIONAL PETITION NO. 43 OF 2012 1. NAMPOGO ROBERT 2. TUMWESIGYE MOSES: ETITIONER VERSUS ATTORNEY GENERAL: RESPONDENT CORAM: HON. JUSTICE. KENNETH KAKURU, JA/JCC HON. JUSTICE. HELLEN OBURA, JA/JJCC HON. JUSTICE. STEPHEN MUSOTA, JA/JCC HON. JUSTICE. CHRISTOPHER MADRAMA, JA/JCC HON. JUSTICE. REMMY KASULE, Ag. JA/ICC JUDGMENT OF STEPHEN MUSOTA, JA/JCC Background The back ground of this petition as can be gathered from the petition and the affidavit in support of the Petition by the 1° Petitioner is that in the year 2000 the petitioners were Police Officers. They were arrested and detained on the orders of a Minister of State for Internal Affairs. They lodged a complaint No.167 of 2000 in the Uganda Human Rights Commission (UHRC) claiming 110 45 20 25 that they had been tortured while in detention. In the year 2004 the UHRC Tribunal found in the Petitioners favour and ordered the Attorney General to pay damages of Uganda Shillings 17,000,000 to the 1* Petitioner and Uganda Shillings 16,000,000 to the 2" Petitioner. For several years, they moved up and down the corridors of the Attorney General's Chambers seeking to be paid but to no avail. It is then that they instructed Mr. Rwakafuzi to represent them in filing for a writ of mandamus directed to the Secretary to the Treasury/Attorney General compelling him to pay them. The High Court in Miscellaneous Cause No.48 of 2009 allowed and granted a writ of mandamus to the Secretary to the Treasury ordering him on the 13" day of October, 2009 to pay the Petitioners. They allege to have served onto the Secretary to the Treasury the order who ignored it and no money was paid. Thereafter, the Attorney General paid some installments but a portion of it remained unpaid or outstanding. It is then that the petitioners allegedly discovered that there was no budget for court awards in the year 2012 and yet they had expected to be paid. The Petitioners then instructed their lawyers to file Execution Cause No.1258 of 2011 seeking for a Garnishee order to attach Government funds in any bank in satisfaction of the orders of the decree but the Registrar in charge of execution citing Section 19(4) of the Government Proceedings Act that bars execution against government, dismissed the application. The petitioners felt that their right to speedy trial had been infringed upon and found that the court was powerless to execute its decrees. They consulted their lawyers further and they were informed of other provisions in the law which they thought to be unfair and unconstitutional. It is for these reasons that they instructed their lawyer, to file this petition. 210 15 20 The Petition This petition was brought under Articles 1(3), 24(1), 28(1), 126(2)(b)&(c), 128(1)(2)&(3), 137(3)(a), 139(1), 155 & 160(1) of the Constitution of Uganda; Section 33 Judicature Act; Sections 19(4) & 27 of the Government Proceedings Act; and R.11 of the Government Proceedings (Civil Procedure) Rules and section 2 of the Civil Procedure & Limitation (Miscellaneous) Act seeking several declarations and orders nullifying S.2(1) of the Civil Procedure & Limitation (Miscellaneous Provisions) Act, Rule 11 of the Government Proceedings (Civil Procedure) Rules, Section 19(4) of the Government Proceedings Act for being inconsistent with Articles 28(1), 139(1), 21(1), 128(1)(2)&(3), 126(2)(b)&(c) of the Constitution. They also seek declaration that the omission by government to provide for payment of judgment debts for financial years 2011/2012, 2012/2013 is contrary to the Articles 155(1) and 160 of the Constitution. The petitioners also pray for costs in their petition. Representations At the hearing of the petition on the 27" July, 2020, Mr. Kwemara Kafuzi and Stella Nakamya appeared for the petitioner and Mr. Karemera George (Commissioner Civil Litigation) and Moses Mugisha (State Attorney) of Attorney General's Chambers appeared for the respondent. Issues The conferencing in this case was done in absence of the respondents or their representatives. The petitioners had filed conferencing notes. The Assistant registrar deemed the matter conferenced and adopted the 310 petitioner's conferencing notes. Therefore there were no agreed issues. However, the petitioner in their conferencing notes raised issues for this court's determination which are; Issues 1: Whether section 2(1) of the Civil Procedure & Limitation (Miscellaneous Provisions) Act is inconsistent with Articles 28(1), 126(2) (b) & (c) and 139(1) of the Constitution Issue 2: Whether Rule 11 of the Government Proceedings (Civil Procedure) Rules is inconsistent with Article 21(1) of the Constitution? Issue 3: Whether Section 19(4) of the Government Proceedings Act is inconsistent with Articles 139(1), 128(1), (2) & (3), 28(1) and 126(2)(b) & (c) of the Constitution? Issue 4: Whether the omission by government in providing for payment of judgment debt for financial years 2011/2012, 2012/2013 is contrary to Articles 155(1) & 160 of the Constitution? Issue 5: What are the remedies available? In their written submissions the petitioners still maintained the same issues for determination by this court. | shall adopt those issues raised in the submissions and deal with them in the same order as they have been raised. However, before | do so it is important to look at the origins of the office of Attorney General.10 15 20 History of Attorney General’s Chambers The concept of an Attorney General dates back to the Anglo-Norman system of Government. During that time, French legal terms were introduced into the English system of Government. The first mention of the term attornus Regis, or “king's attorney," was made in 1253. In 1472, the first formal appointment was made. The office of the Attorney General has always been of great importance as the Attorney General was both legal representative of the King and Royal Government as well as the, parens patriae, or "guardian of public interests." As such, the Attorney General was charged with protecting the rights of both the crown and the public. | find the writing of The Rt Hon. Sir Elwyn Jones A.G, Q.C, MP in an Article entitled “The Office of Attorney General” as giving some good history of the office, himself having been Attorney General of the United Kingdom at one point. Particularly | am interested in how he describes the role of the Attorney General and how he demonstrates the complexity of the work involved in the office and the workload that bedevils the daily life of the Attorney General's office. He shares in that Article Published in The Cambridge Law Journal Vol.27 No.1 (Apr.1969), pp 43-53 (11 pages) the comments of Francis Bacon who once said that the office of Attorney General was “the painfullest task in the realm”. He also shares the comment of Patrick Hastings a few centuries later who said “to be a law officer (government lawyer) was to be in hell”. As if to demonstrate that the work of the Attorney General's office is not only complex but also enormous as it covers the entire country.10 15 20 25 Although the office of Attorney General has become a great office of State, its whole origin and early history is wrapped in obscurity and that is why | find The Rt Hon. Sir Elwyn Jones’s article very important. The basis of the office as | gather, appears to have been that as the sovereign could not appear in person in his own courts to plead in any case in which he had an interest, an attorney appeared on his behalf. As early as 1243 one Lawrence Del Brok, a professional attorney, was prosecuting pleas of particular concern to the sovereign. However, as the functions of sovereignty became more complex and more extensive and acquired a more public character, so did the role and the duties of the Attorney General which became wider and wider and wider and continue to do so. Already by the end of the 13" Century the duties attaching to the King’s Attorneys Office (Office of the Attorney General) had become burdensome. When Richard de Brettiville performed the duties, a medieval clerk added the postscript at the foot of a list of cases in which the King’s Attorney was to appear-“oh Lord, have pity upon Brettville”. Yet in medieval times the political duties which now fall upon the same Attorney General were completely absent at that time. The only function of the King’s Attorney at the time was to maintain the crown’s interests before the courts. The year 1461 marked the turning point in this history when the modern rule of the Crown's Principal Law Officer (Attorney General) was first used and he was called upon to parliament to the House of Lords to advise upon legal matters. This was the beginning of the Political Role of the Attorney General in parliament. In the early days the Attorney General was largely concemed with litigation which was the very first and primary role of the Office of Attorney General. 610 20 The Attorney General was and still is responsible for all crown (Government) litigation. Given this unique history of the office of the Attorney General it demonstrates the necessity of special provisions of the law to assist the Attorney General's office perform its functions better. The special provisions of the law enacted especially on the conduct of litigation were intended to bridge the gap and bring the office of Attorney General at per with any other litigant and also ensure that both Government interest and public interest are not unfairly defeated in the courts of law. This history of the office of the Attorney General in the United Kingdom is relevant to Uganda because it is on the basis of this History that the office of the Attorney General was provided for in the laws of Uganda both during colonialism and after. Constitutional Court Jurisdiction The Jurisdiction of the Constitutional Court of Uganda is derived from the provisions of Article 137 of the 1995 Constitution. Article 137 provides that: “(1) Any question as to the interpretation of this Constitution shall be determined by the Court of Appeal sitting as the constitutional court. (3) A person who alleges that__ a) an Act of Parliament or any other law or anything in or done under the authority of any law; or20 b) any act or omission by any person or authority, is inconsistent with or in contravention of a provision of this constitution, may petition the constitutional court for a declaration to that effect, and for redress where appropriate. (4) Where upon determination of the petition under clause (3) of this article the constitutional court considers that there is need for redress in addition to the declaration sought, the constitutional court may__ a) grant an order of redress; or b) refer the matter to the High Court to investigate and determine the appropriate redress. The Supreme Court has interpreted this Article in several cases. The first case is Ismail Serugo v Kampala City Council Constitutional Appeal No. 2 of 1998 (SC). This case was referred to by Odoki CJ, (as he then was) in the case of Raphael Baku Obudra v Attorney General Constitutional Appeal No. 1 of 2003 (SC). While addressing the issue of what amounts to a cause of action in constitutional matters. He observed: “According to the principles in Serugo (supra) the petitioner had to show that the provisions of the section he is complaining about violated a right guaranteed by the Constitution. The instant petition does not allege those facts, which are alleged to contravene the provisions of the Constitution or those that are inconsistent with its provisions. For those reasons we think the petition does not15 20 disclose a cause of action. There would be nothing to interpret. The petition would be dismissed with costs. In Serugo vs Kampala City Council, Constitutional Appeal No.2 of 1998, this Court pronounced itself on the meaning of a cause of action as regards Constitutional petitions. Generally, the main elements required to establish a cause of action in a plaint apply to a Constitutional petition. But specifically, | agree with the opinion of Mulenga, JSC in that case that a petition brought under Article 137 (3) of the Constitution "sufficiently disclose a cause of action if it describes the act or omission complained of and shows the provision of the Constitution with which the act or omission is alleged to be inconsistent or which is alleged to have been contravened by the act or omission and pray for a declaration to that effect." In my opinion, where a petition challenges the constitutionality of an Act of Parliament, it sufficiently discloses a cause of action if it specifies the Act or its provision complained of and identifies the provision of the Constitution with which the Act or its provision is inconsistent or in contravention, and seeks a declaration to that effect. A liberal and broader interpretation should in my view be given to a Constitutional petition than a plaint when determining whether a cause of action has been established.” (sic)45 20 25 Principles for Constitutional Interpretation Let me restate here below some of the time tested principles of constitutional interpretation which | consider pertinent in the determination of the Constitutional Petition before me. These have been laid down in several decided cases by the Supreme Court, this Court and Courts of other jurisdictions. They have also been expounded upon in a number of legal literature of persuasive authority. 1. The Constitution is the Supreme law of the land and forms the standard upon which all other laws are judged. Any law that is inconsistent with or in contravention of the Constitution is null and void to the extent of the inconsistency. See: - Article 2(2) of the Constitution. 2. In determining the constitutionality of a legislation, its purpose and effect must be taken into consideration. Both purpose and effect are relevant in determining constitutionality, of either an unconstitutional purpose or an unconstitutional effect animated by the object the legislation intends to achieve. See:- Attorney General vs. Salvatori Abuki Constitution Appeal No. 1 of 1998.(SCU) 3. The Constitution must be interpreted as a whole. This principle was settled in the case of South Dakota V North Carolina 192 US 268 (1940) 448 by the Supreme Court of the US that “no single provision of the constitution is to be segregated from others and be considered alone but that all provisions bearing upon a particular subject are to be brought into view and to be so interpreted as to effectuate the purpose of the instrument”. Therefore in law, the Constitution is a wholesome legal document and all provisions must be 1010 15 20 25 regarded as constituting it. The normal logic in this canon is that in order to ascertain the true meaning and intention of the legislators, all relevant provisions must be considered. It is thus dangerous to consider any one particular human right provision in isolation of all others, and any Court which tries to do this is bound to get an inconsistent conclusion. . Where words are clear and unambiguous, they must be given their primary, plain, ordinary and natural meaning. Such language must be given in its common and natural sense and, natural sense means that natural sense which they bore before the Constitution came into force. The cardinal rule for the construction of Acts in parliament is that they should be construed according to the situation expressed in the Acts themselves. The tribunal that has to construe an Act of a legislature or indeed any other document has to determine the intention as expressed by the words used. If the words of the statute are themselves precise and unambiguous, then no more can be necessary than to expound those words in their ordinary and natural sense. The words themselves alone do in such a case best declare the intention of the law giver. . Narrow construction to be preferred in case of derogation from a guaranteed right. It is not in doubt that save for the rights mentioned in article 44 which are stated to be non-derogable, the rest can be limited. But the power to do so is not at large and is not to be arbitrarily exercised by Courts. Indeed under article 43, it is stated that in the enjoyment of the rights and freedom prescribed in this chapter, no person shall prejudice the fundamental or other human rights and uw10 20 freedom of others or the public interest. Public interest is in turn stated not to permit among others any limitation of the enjoyment of those rights beyond what is acceptable and demonstrably justifiable in a free and democratic society or what is provided in this constitution. . A constitutional provision containing a fundamental right is a permanent provision intended to cater for all times to come and must be given an interpretation that realizes the full benefit of the guaranteed right (Attorney General V Uganda Law Society Constitutional Appeal No. 1 of 2006 (SC)). . The Constitutional Court has no jurisdiction in any matter which does not involve the interpretation of a provision of the Constitution. Also for the Constitutional Court to have jurisdiction, the petition must show on the face of it that the interpretation of a provision of the Constitution is required. An application for redress can be made to the Constitutional Court only in the context of a petition under Article 137 Constitution, brought principally for interpretation of the Constitution (Attorney General v Tinyefuza Constitutional Appeal No. 1 of 1997). Determination of Issues Issues 1: Whether section 2(1) of the Civil Procedure & Limitation (Miscellaneous Provisions) Act is inconsistent with Articles 28(1), 126(2)(b)&(c) and 139(1) of the Constitution? The petitioners’ submissions on this issue The petitioners submit that section 2(1) of the Civil Procedure & Limitation (Miscellaneous Provisions) Act is inconsistent with the 215 20 25 constitution because it delays Justice and violates the right to a speedy trial since the statutory notice has to be served and complied with yet it also limits the unlimited jurisdiction of the High Court since the High Court cannot entertain a matter until the party aggrieved has proof of service of this notice. That it is true that the Supreme Court said in the case of Kampala Capital City Authority vs Kabandize & 20 Ors SCCA No.13 of 2014 that a suit should not be defeated for failure to serve the notice but there should be no tisk of a litigant being denied costs either for want of service. The petitioners submitted that they are seeking a clear and final decision on this point. They then prayed that we find the section inconsistent with the Constitution Articles 28(1), 126(2) (b) &(c) and 139(1) of the Constitution. The respondent’s submission The respondent submitted on this issue that the Supreme Court in the case of Kampala Capital City Authority vs Kabandize & 20 Ors SCCA No.13 of 2014 found the use of the word “shall” in Section 2 of the Civil Procedure (Miscellaneous Provisions) Act as directory and not mandatory. They quoted the Supreme Court in that same case where it stated that; “the rationale for the requirement to serve a statutory notice was to enable a statutory defendant investigate a case before deciding whether to defend it or even settle it out....This is a clear illustration that failure to serve the Statutory Notice does not vitiate the proceedings as the Court of Appeal rightly found. A party who decides to proceed without issuing the Statutory Notice only risks being denied costs or cause a delay of the trial if the 1310 15, 20 25 Statutory defendant was unable to file a defence because she required more time to investigate the matter’[Emphasis Added] Therefore the High Court is not precluded from hearing a matter for failure to serve a Statutory Notice. The Attorney General cannot be treated like an ordinary litigant due to the unique nature of his constitutional obligation under Article 119 of the Constitution. This position mandates the office to receive notices of intention to sue for and on behalf of the different Government entities and represent them in Courts of Law. This unique position of the Attorney General's Chambers gets served with the notices of intention to sue prior to serving the client and needs all the necessary information in order to appreciate the allegations and make a decision on how best to handle the case on behalf of the Government Ministries, Departments and Agencies. Therefore, the service of the Statutory Notice and the Statutory period thereto enables the Attorney General as principal legal advisor to be informed of the suit and then to begin seeking the necessary information in order to handle the case in the most appropriate manner. The pleadings are served on the Attorney General's chambers before the Attorney General is made aware of the facts surrounding the case. The concept, appreciation, and application of fair hearing should apply to both parties. The Attorney General needs to be given more time since he is in a unique position to file an appropriate response to the intended suit so that they are not condemned unheard. The respondents further submitted that the fact that the Attorney General has 45 days in which to respond to an intended suit filed against them does 1410 20 not in any way prejudice the Petitioners’ right to a fair hearing since they shall still be heard before an impartial tribunal or court and a judgment shall be arrived at which is not based on the Statutory notice time frame given to the respondent. The respondent then prayed that we find that section 2(1) of the Civil Procedure & Li jitation (Miscellaneous Provisions) Act is not in any way inconsistent with Articles 28(1), 126(2)(b)&(c) and 139(1) of the Constitution Determination of issue 1 | have considered the submissions of both parties on this issue and extensively studied the petition before us and the laws referred to by the parties. The impugned provision of the Act states as follows; 2. Notice prior to suing. (1) After the coming into force of this Act, notwithstanding the provisions of any other written law, no suit shall lie or be instituted against— (a) the Government; (b) a local authority; or (c) a scheduled corporation, until the expiration of forty-five days after written notice has been delivered to or left at the office of the person specified in the First Schedule to this Act, stating the name,20 description and place of residence of the intending plaintiff, the name of the court in which it is intended the suit be instituted, the facts constituting the cause of action and when it arose, the relief that will be claimed and, so far as the circumstances admit, the value of the subject matter of the intended suit. (2) The written notice required by this section shall be in the form set out in the Second Schedule to this Act, and every plaint subsequently filed shall contain a statement that such notice has been delivered or left in accordance with the provisions of this section. The provisions which the petitioners claim the above section to be inconsistent with are as follows; Article 28(1) states; 28. Right to a fair hearing. (1) In the determination of civil rights and obligations or any criminal charge, a person shall be entitled to a fair, speedy and public hearing before an independent and impartial court or tribunal established by law. Article 126(2) (b) & (c) states; 126. Exercise of judicial power. 16(2) In adjudicating cases of both a civil and criminal nature, the courts shall, subject to the law, apply the following principles— 5 (b) justice shall not be delayed; (c) adequate compensation shall be awarded to victims of wrongs; (€) veeeeee 10 Article 139(1) states; 139, Jurisdiction of the High Court. (1) The High Court shall, subject to the provisions of this Constitution, have unlimited original jurisdiction in all matters and such appellate and other jurisdiction as may be 15 conferred on it by this Constitution or other law. According to the Limitation Act in the Laws of Uganda, a litigant has a minimum of three years to prepare his case before he files the same against the Attorney General. When he does so he expects the Attorney General to 20 investigate, gather information, work out all the legal modalities required of a competent attorney to decide on the contents of the Written Statement of Defence and file the same within 14 days! This to me seems the most unfair 710 45 20 line of interpretation of the Constitution that this honorable court could ever make against the Attorney General. | am not persuaded by the argument put forward by counsel for the petitioners. A fair hearing cannot be said to be denied just because steps to be followed have been put in place before the formal claim is filed. Should we also interpret as an infringement of the right to a fair hearing, the legal requirement to first file a civil suit before an application for an injunction can be lawfully filed and heard? My view is that the petitioner's feeling that the requirement, that, Statutory Notice of Intention to sue must be served on the Attorney General or a local government and on all scheduled corporations, before a civil suit is filed is an infringement of the right to a fair hearing and unconstitutional, is misconceived. | agree with the respondents’ submission that the fact that the Attorney General Local Government or a scheduled corporation has 45 days in which to respond to an intended suit to be filed against them does not in any way prejudice the Petitioners’ right to a fair hearing since they shall still be heard before an impartial tribunal or court and a judgment shall be arrived at which is not exclusively based on the Statutory notice time frame given to the respondent. Further | am bound by the reasoning of the Supreme Court in the case of Kampala Capital City Authority vs Kabandize & 20 Ors SCCA No.13 of 2014 where it was held and found that the use of the word “shall” in Section 2 of the Civil Procedure (Miscellaneous Provisions) Act is directory and not mandatory and as such the section cannot be said to be inconsistent with45 20 the Constitution. In that case, it was stated if | may quote the authority as cited by the Petitioners in their submissions and attached thereto, that; “As already stated in this judgment the rationale for the requirement to serve a statutory notice was to enable a statutory defendant investigate a case before deciding whether to defend it or even settle it out of court, There was a claim that no statutory notice was served but the appellant was able to file a written statement of defence and adduce evidence in support of his defence. There was also nothing that stopped the parties from settling the case if ever a settlement was an option. This is a clear illustration that failure to serve the Statutory Notice does not vitiate the proceedings as the Court of Appeal rightly found. A party who decides to proceed without issuing the Statutory Notice only risks being denied costs or cause delay of the trial if the Statutory defendant was unable to file a defence because she required time to investigate the matter. In my view the emphasis should not be on the failure to serve the Statutory Notice but on the consequences of the failure so long as both parties are able to proceed with the case and Court can resolve the issues which the High Court should have done after going through the hearing. Parliament could not have intended that a plaintiff with a cause of action against a Statutory defendant would be totally denied his right to sue even where the defendant 1910 15 20 knew the facts and was able to file a defence as it was in this case simply because of the failure to file a statutory notice.” For the reasons | have given | am inclined to agree with the respondent's submissions and find that section 2(1) of the Civil Procedure & Limitation (Miscellaneous Provisions) Act is not in any way inconsistent with Articles 28(1), 126(2) (b) & (c) and 139(1) of the Constitution Issue 2: Whether Rule 11 of the Government Proceedings (Civil Procedure) Rules is inconsistent with Article 21(1) of the Constitution? Submission of the petitioners The petitioners submit that Rule 11 of the Government Proceedings (Civil Procedure) Rules is inconsistent with Article 21(1) of the Constitution because it gives the Attorney General the mandate to file a defence within 30 days yet other persons who are defendants are supposed to file their defence within 15 days as per Order VIII Rule 4 of the Civil Procedure Rules (CPR). That this is discrimination among litigants. The Petitioner relied on the case of Nagendra Rao & Co. vs State of A.P AIR 1994 SC 2663 RM Sahai J. In paragraph 24 of his judgment he stated that: “No legal or political system today can place the state above the law as it is unjust and unfair for a citizen to be deprived of his property illegally by negligent acts of officers of the state without remedy. The modern social thinking of progressive societies and judicial approach is to do away 2010 15 20 with archaic state protection and place the state or the government at par with any other juristic legal entity.” The petitioners also relied on Bryne vs Ireland & AG [1972]IR 241 at 281 where it was held that it is as much a duty of the state to render justice against itself in favour of citizens as it is to administer the same between private individuals. There is nothing in the Constitution envisaging the writing into it of the theory of immunity from suit of the scale stemming from or based upon the immunity of a personal sovereign. Further that the prohibition against discriminatory conduct is based upon the universal principle of equality before the law. That statutory defendants such as the Attorney General are persons and under the law all persons are equal before the law. Therefore Rule 11 of the Government Proceedings (Civil Procedure) Rules gives the Attorney General special treatment thus being discriminatory which is inconsistent with Article 21(1) of the Constitution. Respondent’s submission Learned counsel for the respondent submitted in summary that the Rules were made under Section 41(5) of the Judicature Act by the rules committee to enable persons wronged by the Government access justice in the courts of law in accordance with Article 250(1) of the Constitution and Section 26(2) (a) of the Government Proceedings Act Cap 77. The respondents also rely on the decision of the High Court in Atukwase v Attorney General (HCT - 00 - CC - MA - 437 - 2013) for the submission that Rule 11 of the Government Proceedings (Civil Procedure) Rules is not10 45 discriminatory and does not create inequality before and under the law. That it therefore cannot be found to be unconstitutional. The thirty day notice period is in the public interest and is intended to ensure that the Government entities are given an opportunity to defend themselves given their unique position especially considering that the stakes involve financial implications on the consolidated fund of Uganda. Determination of issue 2 | have already stated in this ruling the brief history of the office of Attorney General and the unique position that the office holds. It is clear right from history what informed the legislation of the provisions of the Government Proceedings Act and the rules there under. Although it is a High Court decision, Wangutusi J. of the High Court expounded on this position well and | agree with him entirely on this issue. He stated in his ruling in Atukwase v Attorney General (HCT - 00 - CC - MA - 437 - 2013) that; In my opinion the inequality referred to in the constitution would not as much affect things like affirmative action or as in this case procedures that are aimed at giving equal opportunity to two litigating parties to be heard on the same plane. The Attorney General represents all government bodies far and near its Headquarters. When the Attorney General is sued, he has the duty to trace the responsible person across the country, inquire into the circumstances in which it is 210 20 alleged that the liability of Government has arisen and as to the departments and officers of the Government concerned. The foregoing is not necessarily the bother individual litigants go through. This is so because the ordinary litigant is normally himself the Defendant and has immediate knowledge of how the dispute arose. The Attorney General is sued on matters that have or allegedly been committed by employees of various ministries whose cooperation is at times not easily obtained. Imagine an accident caused by an officer in the forces. These are mobile and deployed at very short notice. The Attorney General gets to know about the accident after some time when the alleged offender may be at a front line. He then has to contact the relevant ministry, trace the offender, obtain statements before he files a defence. Such is not necessarily the case of an ordinary Defendant. These are not things that can be done in 15 days, moreover with weekends in between when offices that form addresses of alleged offenders or which are sources of their whereabouts are closed. In view of the above to limit the Attorney General to 15 days would be to deny it access to justice in as much as the Written Statement of Defence would not in most cases be on court record at the close of the time span. 2315 20 25 The other reason is that of public interest because the property that the Attorney General protects belongs to the ordinary citizen who most times is innocent of what has happened. It is therefore for the public good that ample opportunity be given to Attorney General to file his defences. The disparity in the time spans is to try as much as possible to have pleadings of both parties on the court file before hearing. It is when every one of the parties has an “equal opportunity” of being heard that the equality that Counsel for the Applicant pressed for can be achieved. I would add that justice does not only lie in the law and that the law is not necessarily justice. Justice also lies in the context in which the parties operate. Even the constitution that speaks of equality and is intended to promote justice, is based on context which | may call the story behind the story. So the equality before the law that the constitution talks of includes the opportunity for both parties to have access not only to the courts but having reached there to justice. Fair opportunity in legal practice includes measures taken by the committees responsible for procedural rules like the rules committee does and or Parliament in its legislative function. Those measures are responsible for the disparity in things like time spans such as the one under 2410 15 20 25 consideration. The disparity in time spans is however for the promotion of fairness by enabling the Attorney General to file his defence like the ordinary litigant can in the time afforded. Equality in this case can be measured by the criteria of equality of outcome. Going by the above criteria, one should be able to answer in the positive the question — if the Attorney General was also restricted to 15 days, would he be able like other Defendants be able to put in his Written Statement of Defence? - If the answer is in the negative, and itis inmy viewin the negative, then, the need to enlarge the time span to enable such filing so as to level the procedural path of litigation cannot be referred to as preferential treatment. It is in my view with that in mind that the Applicant in this case decided to file for leave to be granted a judgment in default under Section 26(2)(b) of the Government Proceedings Act yet he would not have gone through all that trouble if he was proceeding against an ordinary litigant under Order IX rule 8. For the reasons | have given herein above, | find that the disparity in time span that the Applicant sought to be declared unconstitutional, necessary to enable both parties equal opportunity to be heard and administration of justice. They do not offend the constitution in its protection of 2515 equality. | find Rule 11 of the Government Proceedings (Civil Procedure) Rules, not discriminatory and so the defence that was filed within 30 days, was well in time. As already stated, | agree with the views of the Judge of the High Court and would for the same reasons find and | hereby do so that Rule 11 of the Government Proceedings (Civil Procedure) Rules is not discriminatory, does not create inequality before and under the law and is not inconsistent with any provision of the constitution. Rule 11 of the Government Proceedings (Civil Procedure) Rules is in the category of provisions of the law that promote affirmative action for persons that may otherwise not fully enjoy their rights. It is also important to note that the 30 days which the petitioners are challenging are not exactly 30 days. They are just an additional 15 days on top of the regular 15 days provided for generally. Government bureaucracies dictate that the Attorney General gets extra time to be able to effectively represent the government interests in court. Some of the procedures which must be followed by government agencies before they take a particular position as their defence to a case are actually provided for by law and the public service laws which the Attorney General may not be at liberty to waive or by-pass unlike a private company or private citizen who know the facts of the case already and do not have to navigate any bureaucracies. The additional days given to the Attorney General also include weekends where government offices are closed. In reality the 15 additional days are actually 11 if we take into consideration the 4 weekend days. 2610 20 | do not see any real practical injustice caused by these additional days other than being merely idealistic without any due regard to the realities of government functioning and administration in Uganda. | find that Rule 11 of the Government Proceedings (Civil Procedure) Rules is not discriminatory, does not create inequality before and under the law and is not inconsistent with any provision of the constitution. Issue 3: Whether Section 19(4) of the Government Proceedings Act is inconsistent with Articles 139(1), 128(1), (2) & (3), 28(1) and 126(2) (b) & (c) of the Constitution? Submissions of the Petitioners The petitioners submitted that contrary to the Articles 128(1) (2) & (3), Article 28(1) and 126(2) (b) & (c) of the Constitution the fact that court cannot issue process for execution of its decrees and the time within the Attorney General will comply with the court's decree is left to the whim of the judgment debtor and at times no decree is ever satisfied in time or in full. The failure or refusal by the Government to pay its judgment debt and the disempowerment of the court by Section 19(4) of the Government Proceedings Act to issue execution against government undermines the jurisdiction of the court and the rule of law and constitutional governance. The disempowerment of the court from issuing process to execute its own decrees breaches the law including abuse of human rights because no obligation is placed on government to redress the wrongs caused by such breaches of the law in a timeous manner. 710 15, Further that section 19(4) of the Government Proceedings Act denies a successful party a remedy that is appropriate. Relying on the case of Nagendra Rao & Co. vs State of A.P AIR 1994 SC 2663 RM Sahai J and Bryne vs Ireland & AG [1972]IR 241 at 287 itis the duty of the Government to render justice against itself in favour of its citizens and since the process for execution of decrees against Government cannot be issued, then Section 19(4) of the Government Proceedings Act is inconsistent with The Constitution Articles 139(1), 128(1),(2)&(3), 28(1) and 126(2)(b)&(c). Respondent submissions. The respondent submitted on this issue that section 19(4) of the Government Proceedings Act does not contravene the Constitution. In their view in order to appreciate the rationale behind the enactment of the Section 49(4) of the Act we must critically analyze the manner in which Government expends monies from the consolidated fund. The legislature has a primary role whereby it considers estimates for the financial year under Article 155 of the Constitution as proposed by the Head ‘of the Executive (The President). That Article 154 of the Constitution illustrates the manner in which withdrawals can be made from the consolidated fund. Therefore it is their submission that Section 19(4) of the Government Proceedings Act gives effect to Articles 154 and 155 of the 1995 Constitution and actualizes the cardinal constitutional principle of separation of powers. That in this regard the alleged breach of Articles 139(1), 128(1),(2)&(3), 28(1) and 126(2)(b)&(c) cannot be looked at in isolation of the provisions of Articles 154 and 155 of the Constitution. 2810 15 20 Further that this submission is fortified by the Supreme Court in SCCA No.4 of 2016 Davis Wasely Tusingwire vs Attorney General where it was held that the entire Constitution has to be read together as an integrated whole with no particular provision destroying the other but each sustaining the other, The respondents then prayed that we find Section 19(4) of the Government Proceedings Act is not in any way inconsistent with the Constitution. Determination of issue 3 As rightly observed by this court in the case of Dr. James Rwanyarare and Another v Attorney General, Constitutional Petition No. 5 of 1999 the entire constitution has to be read as an integrated whole with no one particular provision destroying the other but each sustaining the other. In that case it was observed as follows; Manyindo, DCJ 9(as he then was) stated in Major General Tinyefunza Vs The Attorney General Constitutional Petition No. 1 of 1996, Constitutional Court of Uganda (unreported). "_.the entire constitution has to be read as an integrated whole and no one particular provision destroying the other but each sustaining the other. This is the rule of harmony, rule of completeness and exhaustiveness and the rule of paramountcy of the written Constitution. " 2910 20 Oder JSC, while also talking about principles of constitutional interpretation remarked on appeal in the same case that: "Another important principle governing interpretation of the Constitution is that all provisions of the Constitution concerning an issue should be considered all together. The Constitution must be looked at as a whole. Likewise, in South Dakota Vs North Carolina 192. US 268 (1940) L.ED 448, the US Supreme Court said at page 465: ‘Elementary rule of constitutional construction is that no one provision of the Constitution is to be segregated from all others and considered alone. All provisions bearing upon a particular subject are to be brought into view and to be so interpreted as to effectuate the instrument’. In my judgment the principles of interpretation of the constitution to which I have referred above should be applied to the interpretation of our Constitution.” Therefore, different Articles of The Constitution on the same subject must be looked at and construed together without destroying each other so as to create harmony among them. In the instant case, | agree with the submission of the respondents that Articles 139(1), 128(1),(2)&(3), 28(1) and 126(2)(b)&(c) cannot be looked 3010 15 25 at in isolation of the provisions of Articles 154 and 155 of the Constitution. A reading of all these Articles drives to the inevitable conclusion that indeed if execution issued without the particular court debt being provided for as required under Articles 154 and 155 of the Constitution it would create a contradiction and an absurdity which is undesirable. Therefore to create harmony this court cannot find the provisions of Section 19(4) of the Government Proceedings Act to be inconsistent with the constitution. For those reason | find that because of the existence of Articles 154 and 155 of the Constitution, Section 19(4) of The Government Proceedings Actis consistent with the provisions of Constitution when construed as a whole. Issue 4: Whether the omission by government in providing for payment of judgment debt for financial years 2011/2012, 2012/2013 is contrary to Articles 155(1) & 160 of the Constitution? Submissions of the Petitioners. On this issue the Petitioners submitted that they relied on paragraph 11 of the affidavit in support of the Petition which states that there are many judgment creditors who have waited for more than 7 years without being paid by the Government, including several awards made by the Uganda Human Rights Tribunal which have not been satisfied. In the Constitutional Court of Peru in STATE IN FULFILLMENT OF JUDGMENTS FILE NO.015-2001/A1/TC El Peruanol February 2004 it was stated that “the principle of budgetary legality should be made consistent with the effective enforcement of a court judgment, upholding of the first does not justify ignoring or irrationally delaying compliance with judgment. Consequently, priority should be accorded 3110 20 to the payment of the oldest debts and of interest that has accrued due to the unjustified delays in payment” The petitioners further submitted that much as any payment made by the Government must be drawn from the budget, it should not be used to prolong fulfillment of Judgment debts and endless refusal to enforce judgments against the Government. The Government should therefore consider the pending judgment debts in the Budget by including them in financial years for easy budgeting and planning to cater for Judgment debtors or set up a reserve fund catering for future judgment debts. However, the Government omitted to provide for payment of judgment debt for financial year 201 4/2012 and 2012/2013 is contrary to Articles 155(1) & 160 of the Constitution of the Republic of Uganda. Respondent's Submissions. On this issue, the respondent submitted that the Petitioners did not produce any evidence in court to prove that the respondent has not provided for payments of judgment debts for the financial years alleged. It is upon this premise that they pray that this issue is dismissed for lack of supporting evidence as required under Rule 12 of the Constitutional Court (Petitions and References) Rules $.1. 91/2005. Determination of issue 4 | do agree with the respondents that the Petitioners did not produce any evidence to prove the allegations of fact made by them on this issue. They have an affidavit in support of the Petition deposed by the 1° Petitioner but it does not provide any evidence on the provisions of the budget of the 32impugned financial years and also completely omits to say anything on the issue. The Rules of this court state in Rule 12 of the Constitutional Court (Petitions and References) Rules S.1 91/2005 that, 12. Evidence at trial (1) All evidence at the trial in favour of or against a petition shall be by way of affidavit filed in Court. (2) With the leave of the Court, any person swearing an affidavit which is before the Court, may be cross examined or recalled as a witness if the Court is of the opinion that the evidence of the witness is likely to assist the Court to arrive at a just decision. (3) The Court may, of its own motion, examine any witness or call and examine or recall any witness if the Court is of the opinion that the evidence of the witness is likely to assist the Court to arrive at a just decision. (4) A person summoned as a witness by the Court under subrule (3) may, with the leave of the Court, be cross examined by the parties to the petition. (5) The Court may refer the matter to the High Court to investigate and determine the appropriate redress. Therefore on this ground alone I would dismiss the petition on this issue. However, for purposes of completeness, | shall give my view on whether if indeed the respondent did not provide for court awards for two consecutive 33financial years it would be unconstitutional. My view is that it would be unconstitutional. Article 155(1) of the Constitution provides; 155. Financial year estimates. 5 (1) The President shall cause to be prepared and laid before Parliament in each financial year, but in any case not later than the fifteenth day before the commencement of the financial year, estimates of revenues and expenditure of Government for the next financial year. 10 Article 160 of the Constitution provides; 160. Public debt. (1) The public debt of Uganda shall be charged on the Consolidated Fund and other public funds of Uganda. (2) For the purposes of this article, the public debt includes 15 the interest on that debt, sinking fund payments in respect of that debt and the costs, charges and expenses incidental to the management of that debt. If the only way Government can satisfy judgment debt is through the processes which the respondents explained in issue 3 above, then it means 20 that the only way the government can comply with the orders of court to pay is if judgment debt is provided for in the budget. If the Government omits to make provision for judgment debt even for one financial year, then it will be in contempt of court as long as there are judgment debts outstanding in that 3410 15 20 financial year. This is the only way that judgment creditors can realize the fruits of their judgment and in the process the Rule of law will be promoted. Otherwise all court orders for payment can easily be rendered mere paper writings if they are not taken as priority debts. Indeed it is an injustice and contrary to the obligations of Government under Articles 155(1) and 160 of the Constitution to omit making provision for such an important budget line. Issue 5: What are the remedies available? Having found in favour of the respondents on all the issues in this Petition | would dismiss this petition with each party bearing its own costs of the Petition. This Petition fails and is accordingly dismissed with each party to bear their own costs of the Petition | so order Dated at Kampala this “"_day of _icl, 202 Quito? STEPHEN MUSOTA JUSTICE OF APPEAL/CONSTITUTIONAL COURT 3510 15 20 25 THE REPUBLIC OF UGANDA, IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA CONSTITUTIONAL PETITION NO 43 OF 2012 (CORAM: KAKURU, OBURA, MUSOTA, MADRAMA, KASULE, JJA) 1. NAMPOGO ROBERT} 2. TUMWESIGYE MOSES} PETITIONER VERSUS. ATTORNEY GENERAL} +++RESPONDENT JUDGMENT OF MADRAMA CHRISTOPHER, JCC Ihave had the benefit of reading in draft the judgment of my learned brother Hon. Mr. Justice Stephen Musota, JCC and I agree with his analysis of the facts and resolution of the issues save for issue 2 as set out below. I would nonetheless add a few words of my own and the reasons therefore as hereunder. The Petitioner alleges that section 2 (1) of the Civil Procedure & Limitation (Miscellaneous Provisions) Act by providing for notice before suing where a party's claim is based on a statutory or constitutional breach including the breach of a bill of rights, is firstly inconsistent with the Constitution in Article 28 (1) and Article 126 (2) (b) & (c) of the Constitution that entitle a party to a speedy trial and outlaws delayed justice. In the second leg, the Petitioner alleges that it is inconsistent with Article 139 (1) of the Constitution that empowers the High Court with unlimited original jurisdiction because the notice before suing limits the unlimited original jurisdiction of the High Court since a party cannot claim a remedy from the High Court and the High Court cannot grant a remedy to a wronged party without prior notice. 1 Ean.10 20 25 30 The second issue is that rule 11 of the Government Proceedings (Civil Procedure) Rules by providing that where the Attorney General is the defendant, his or her office is entitled to file a defence within 30 days when Order 8 rule 1 Civil Procedure Rules requires every defendant to file a defence within 15 days, is inconsistent with Article 21 (1) of the Constitution which provides that all persons are equal before and under the law. Thirdly, the Petitioner alleges that section 19 (4) of the Government Proceedings Act by providing that no execution may issue against government for the payment of a judgment debt is inconsistent with the Constitution — (i) With Article 139 (1) which confers on the High Court original unlimited jurisdiction because if the court cannot enforce its decrees by its execution process then the court's unlimited jurisdiction is limited. (ii) With Article 128 (1), (2) & (3) which guarantees the independence of the judiciary because where court cannot issue process for the execution of its decrees, its independence is fettered. (iii) With Article 28 (1) and 126 (2) (b) & (c) of the Constitution which guarantees a speedy trial and causes delayed justice because where court cannot issue process for the execution of its decrees, the time within which the Attorney General will comply with the courts decree is left to the whim of the judgment debtor. Fourthly, the Petitioner alleges that the omission by government in satisfying the judgment debt for the financial years 2011/2012, 2012/2013 is inconsistent and contrary to Articles 155 (1) & 160 of the Constitution which requires /nter alia that government includes in its annual budgeting process monies by which it must defray the public debt from the Consolidated Fund. CAs10 15 20 25 30 The Petitioner prays for orders of this court to nullify the impugned sections of the law as being inconsistent with the Constitution and for costs of the petition. In terms of paragraph 1 (a) of the petition, the issue is whether section 2 (1) of the Civil Procedure & Limitation (Miscellaneous Provisions) Act by providing for prior notice of 45 days before suing the Attorney General is inconsistent with Article 28 (1), 126 (2) (b) & (c) of the Constitution because it delays speedy trial and causes delayed justice. T agree with the holding of my learned brother Hon. Mr. Justice Stephen Musota, JA in handling issue number 1 that section 2 (1) of the Civil Procedure & Limitation (Miscellaneous Provisions) Act is not inconsistent with Article 28 (1), Article 126 (2) (b) & (c) of the Constitution. I also agree with the reasons he has given and the precedents he cited. I further note that the action only challenges statutory notice period to the Attorney General prior to suing. I would like to add that Article 28 (1) of the Constitution does not deal with Prior procedure to the filing of a suit or Proceeding before an independent and impartial court or tribunal established by law. It deals with speedy trials and therefore it deals with matters and causes which have been lodged in a court or tribunal established by law for adjudication. For emphasis Article 28 (1) of the Constitution of the Republic of Uganda provides that: 28. Right to a fair hearing. (2) In the determination of civil rights and obligations or any criminal charge, a Person shall be entitled to a fair, speedy and public hearing before an independent and impartial court or tribunal established by law. It is clear from the above Article that in terms of criminal proceedings, there has to be a criminal charge whereupon in the determination of the case, the10 20 25 30 accused person as well as the prosecution is entitled to a fair and speedy trial. Article 28 (1) of the Constitution does not deal with the duration of investigations and preparations prior to charging in court. The trial commences with the charging of a suspect in a court of law. Article 28 (1) of the Constitution does not deal with investigations conducted prior to the laying of the charge against the suspect in a court of law. Investigations can be delayed provided the suspect is not detained or charged. Investigations can take several years. Secondly, it is also clear that in the determination of civil rights and obligations, the matter must be before a competent court or tribunal before Article 28 (1) of the Constitution can be invoked for purposes of discussing or dealing with the fair, speedy and public hearing of the matter before the said independent and impartial court or tribunal established by law. It follows that Article 28 (1) cannot be invoked to test the constitutionality of a matter that exists or occurs before it is lodged in a court of law. Article 28 (1) deals with trials and not with statutory notice or any notice or negotiations between the parties before the matter is forwarded or lodged in a court or tribunal for adjudication. Section 2 of the Civil Procedure and Limitation (Miscellaneous Provisions) Act cannot be tested on the basis of Article 28 (1) of the Constitution. A speedy trial provision deals with civil or criminal proceedings that have been commenced in court. To illustrate further, a person may sit on his or her rights for several years so long as he or she is not caught up by the law of limitation and may finally commence proceedings in court. It is only after the matter has been commenced in court that the duty is on the court and the parties to actualise the provisions for, inter alia, a fair and speedy trial under Article 28 (1) of the Constitution. Similarly, Article 126 (2) (b) of the Constitution deals with matters which are before the courts. It deals with the principles, subject to law, which are 4 CBA 120 25 30 applied by courts in adjudicating cases of both a criminal and civil nature. It does not apply to prior matters before filing the matter in court by way of commencement of a civil suit or a criminal charge. Similarly, section 2 (1) of the Civil Procedure and Limitation (Miscellaneous Provisions) Act cannot be tested against Article 126 of the Constitution which deals with matters that are already before the courts. For that matter the submissions of the Petitioner and the petition itself in challenging the provisions for notice prior to suing is misguided on that particular point. The second issue deals with the period prescribed for the filing of a defence after summons to do so within the time specified therein and challenges the disparity between an ordinary itigant and the Attorney General in that the Attorney General is entitled to file a defence within 30 days whereas an ordinary defendant is only given 15 days within which to file a defence after being served with summons to do so. I dissent from the finding of my learned brother Hon. Justice Stephen Musota, JA\VICC on the second issue on the ground that equality before and under the law has only to be established on a prima facie basis whereupon the onus shifts on the Attorney General as Respondent to demonstrate that the limitation to the rights of other litigants in terms of giving the Attorney General preference by having more time to file a defence is demonstrably justifiable in a Free and Democratic Society, or as is provided in the Constitution in terms of Article 43 (2) (c) of the Constitution. There is a rule that does not treat litigants equally. The Attorney General has not demonstrated to Court that the Rule in question is justifiable in a Free and Democratic Society. Further the Constitution has not given preference to the Office of the Attorney General. The office of the Attorney General is created by Article 119 of the Constitution and particularly Article 119 (3) (c) of the Constitution gives one of the functions of the Attorney General as being: 5 Bar.