5 THE REPUBLIC OF UGANDA

IN THE CONSTITUTIONAL COURT OF UGANDA

AT KAMPALA

CONSTITUTIONAL PETITION NO. 43 OF 2012

10
1. Nampogo Robert j
2. Tumwesigye Moses - :::::::::::::::::::::::::::::: Petitioners
Versus

Attorney General ::::::::::::::::::::::::::::::::::::::::::::::Respondent

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Coram: Hon. Mr. Justice Kenneth Kakuru, JA

Hon. Lady Justice Hellen Obura, JA

Hon. Mr. Justice Stephen Musota, JA

Hon. Mr. Justice Christopher Izama Madrama, JA

20 Hon. Mr. Justice Remmy Kasule, Ag JA

Judgment of Remmy Kasule, Ag. JA

The two Petitioners brought this Petition seeking Orders of this
Constitutional Court to nullify specific Sections of specific Statutes
25 of the laws of Uganda by reason of being inconsistent with the
Constitution. They also assert that by the Government failing to
provide for payment of a Judgment debt for specific financial years,
is contrary to the Constitution.

The issues arising out of the Petition are:

30 1. Whether Section 2(1) of the Civil Procedure and

Limitation (Miscellaneous Provisions) Act, Cap 72_X£

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 inconsistent with Articles 28(1), 126(2)(b) and (c) and
139(1) of the Constitution.

2. Whether Rule 11 of the Government Proceedings (Civil

35 Procedure Rules, SI 77-1 is inconsistent with Article 21(1)
of the Constitution.
3. Whether Section 19(4) of the Government Proceedings
Act, Cap 77, is inconsistent with Articles 139(1), 128(1)(2)
and (3), 28(1) and 126(2)(b) and (c) of the Constitution.
40 4. Whether the omission by Government in providing for
payment of the Judgment debt for financial years 201/2012
and 2012/2013 is contrary to Articles 155(1) and 160 of the
Constitution.
5. What are the remedies available.

45 Background:

The Petitioners are former Police Officers of the Uganda Police

Force. In 2000 both of them, as Police Officers, were arrested,
detained and tortured on the orders of the then Government
Minister of State for Internal Affairs.

50 On regaining their freedom they jointly lodged with the Uganda

Human Rights Commission complaint No. 167 of 2000
against the Government for what had happened to them. The
same was determined in their favour in 2004. The Government
was ordered to pay damages of shs. 17,000,000= to the first
55 Petitioner and shs. 16,000,000= to the second Petitioner.

The Government did not pay the damages to the Petitioners.

Through High Court Miscellaneous Cause No. 48 of 2009, the
Petitioners moved the High Court to order on 13.10.2009

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 the Secretary to the Treasury and/or Attorney General
60 immediately pay the said damages to the Petitioners. The
Government paid the Petitioners some money at a slow pace
through the office of the Attorney General. By 18.09.2012 when
this Petition was lodged in this Court a balance of Ug. Shs.
11,000,000= remained unpaid by the Government. The
65 Government had no budget for Court awards during the
financial years of 2011/2012 and 2012/2013. The Petitioners,
in order to have a solution to their plight lodged this
Constitutional Petition.

Legal Representation:

70 Learned Counsel Kwemara Kafuzi assisted by Stella Nakamya

were for the Petitioners, while Karemera George, Commissioner
Civil Litigation, assisted by Moses Mugisha, State Attorney
appeared for the respondent.

Learned Counsel for the Petitioners and Respondent presented

75 their respective submissions and rejoinders by filing the same
in this Court.

Submissions for the Petitioners:

Issue 1:

The Petitioners’ contention is that Section 2(1) of the Civil

80 Procedure and Limitation (Miscellaneous Provisions) Act
that provides that no suit shall lie or be instituted against the
Government, Local Government or Scheduled Corporation until
the expiration of forty-five days after written notice has been
delivered is discriminatory in nature and thus in violation of

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 85 Articles 28(1), 126(2)(b) and (c) and 139(1) of the Constitution
in that it delays justice thus violating the right to a speedy trial
(Articles 28(1) and 2(b) since the Statutory Notice has to be
served and complied with and it limits the jurisdiction of the
High Court which is unlimited (Article 139 (1).

90 The Petitioners rely on the authority of Kampala City Authority

vs Kabandize and 20 Others: Supreme Court Civil Appeal
No. 013 of 2014 for their submission.

Issue 2:

It is the Petitioners’ contention that Rule 11 of the

95 Government Proceedings (Civil Procedure) Rules is

inconsistent with Article 21(1) of the Constitution because
the Rule gives the Attorney General the mandate to file a defence
to a Civil Suit within 30 days while other ordinary litigants have
to do so within 15 days pursuant to Order 8 Rule 1 of the Civil
100 Procedure Rules. Rule 11 is thus discriminatory contrary to
Article 21(1) that provides that all persons are equal before the
law.

The India Supreme Court authority of Nagendra Rao & Co. vs

State of A.P. Air 1994 SC 2663 RM and the Ireland Supreme

105 Court authority of Byren vs Ireland & AG: [1972] IR 241 as

well as the Uganda Constitutional Court Petition No. 15 of
2006: Caroline Turyatemba & Others vs Attorney General,
are relied upon by the Petitioners to support this contention^

Issue 3:

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no A declaration is sought by the Petitioners to the effect that
Section 19(4) of the Government Proceedings Act is
unconstitutional for being inconsistent with the Constitution
Articles 139(1), that vests unlimited jurisdiction in the High
Court, an Article 128(1), (2) and (c) whereby Courts of law while
us exercising judicial power have to be independent, with no
interference from anyone, and State organs and everyone else
must assist in ensuring the effectiveness of the Courts, on the
cause the said Section 19(4) purports to limit the unlimited
jurisdiction of the High Court by preventing the High Court from
120 enforcing its decrees by execution process against the
Government contrary. Further, the same Section fetters the
independence of the Judiciary by barring the High Court from
issuing execution process of its decrees and also causes delay
of civil trials as well as denying a successful party to a cause
125 from accessing an appropriate remedy contrary to Articles
28(1) and 126(2)(b) and (c) of the Constitution.

Issue 4:

It is the case of the petitioners that the Government’s failure in

providing in the budget for a financial year, in this case the
130 relevant financial years being 2011/2012 and 2012/2013, for
payment of Judgment debts arising out of Judicial Court
decisions, amounts to the Government acting contrary to
Articles 155(1) and 160 of the Constitution. Article 155(1)
requires the President to lay before Parliament 15 days before
135 commencement of the financial year, estimates of revenues and
expenditures of Government for that next financial year, wfcile

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 Article 160 provides that the public debt is to be charged on
the consolidated fund and other public funds. The Petitioners
rely on the persuasive decision of the Constitutional Court of
140 Peru in: The State in Fulfilment of Judgments File No. 015-
2001/A1/TC El Peruanol, February, 2004.

Submissions for the Respondent:

Issue 1:

The respondent opposes the Petitioners’ contention on the

145 ground that the Attorney General is not an ordinary litigant due
to the unique obligations vested in that office by Article 119 (3)
and (4) of the Constitution. The Attorney General is principal
adviser to the Government, gives advice and legal services to
Government on any subject, draws and peruses agreements,
150 contracts treaties and all documents to which the Government
is a party, represents Government in proceedings whereby
Government is a party and carries out other duties that the
President may assign. Therefore, the requirement to serve a
statutory notice and the statutory period set out in Section 2
155 of the Civil Procedure and Limitation (Miscellaneous
Provisions) Act are necessary to enable the Attorney General,
as principal legal adviser to Government, to be well informed
about the suit and to seek and obtain the necessary information
so as to be able to handle the case in a most appropriate
160 manner.

Further, it is the respondent’s contention that in no way is the

right to a fair hearing negatively affected to the prejudice of any
party to litigation by the operation of Section 2(1) of the Civil

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 Procedure Limitation (Miscellaneous Provisions) Act. There
165 is hearing from everyone before the Court of law comes out with
any decision in a cause before it.

The respondent, invited this Court to interpret the said Section

2(1) in accordance with the decision of Kampala Capital City
Authority vs Kabandize and 20 Others, Supreme Court Civil
170 Appeal No. 013 of 2014 and also Constitutional Court
Petition No. 15 of 2006: Caroline Turyatemba and Others
vs Attorney General as to the subject matter of “Fair hearing”.

The respondent thus prayed issue 1 to be disallowed.

Issue 2:

175 The respondent also opposed this issue. Basing on Section

41(5) of the Judicature Act, that vests in the Rules Committee
crated by Section 40 of the Judicature Act, power to make rules
regulating the practice in the Courts of law by issuance of a
Statutory Instrument, this Rules Committee made and issued.
180 The Government Proceedings (Civil Procedure) Rules, SI 77-
1 of which Rule 11 is a part. Rule 11 was enacted to enable
persons wronged by the Government to access justice in Courts
of law. Relying on the persuasive authority of HCT-00-CC-MA
437-2013 (Arising from Civil Suit No. 231 of 2013) Atukwase
185 Nickson (suing through his Attorney Arinaitwe Reuben) vs
Attorney General, the respondent invited this Court to hold
that Rule 11, does not bar a private litigant from suing
Government. It only allows the Attorney General to seek and
get necessary information from the organs, entities and officials
190
of Government it represents so as to be enabled to file a proper

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 defence in a suit or cause that is before a Court of law.
Accordingly Rule 11 was not inconsistent or in contravention
with Article 21(1) or any other provision of the Constitution.

Issue 3:

195 The respondent’s case is that Section 19(4) of the Government

Proceedings Act does not contravene any provision of the
Constitution. The Section is necessary given the manner
Government expends monies from the Consolidated Fund. The
Legislature, as part of Government, considers estimates as
200 proposed by the President, the head of the Executive, for any
financial year pursuant to Article 155 of the Constitution.
Monies can only be withdrawn from the consolidated fund only
to meet expenditures charged on the Fund by the Constitution
or by an Act of Parliament, by way of Appropriation Acts. This
205 mandatory constitutional requirement is embedded in Article
154 of the Constitution. It is based upon the principle of
separation of powers. It is the respondent’s contention that
Section 19(4) of the Government Proceedings Act gives effect
to Articles 154 and 155 of the Constitution by actualizing the
210 constitutional principle of separation of powers amongst the
three arms of State: the Executive, the Legislature and the
Judiciaiy. The Section cannot be inconsistent, or in
contravention of the Constitution once the Constitution is taken
as one integral whole with no particular provision destroying the
215 other but each part sustaining the other. The respondent relied
upon Supreme Court Constitutional Appeal No. 4 of 2016:
David Welsey Tusingwire vs Attorney General and\the

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 persuasive authorities of Uganda High Court Miscellaneous
Application No. 4 of 2017: Bank of Uganda vs Ajanta
220 Pharma Ltd (Madrama, J. as he then was) and the Kenya
High Court Miscellaneous Application No. 323 of 2016:
Saira Banu Gandrokhia and Another vs Principal Secretary,
Ministry of Interior and Co-ordination and Attorney General
in support of the submissions.

225 Counsel for respondent prayed this Court as regards issue 3 to

hold that the Section 19(4) of the Government Proceedings
Act is not inconsistent or contrary to the Constitution.

Issue 4:

Counsel for respondent submitted that since the petitioner had

230 adduced no evidence to illustrate that the respondent had not
provided for payments of Court Judgment debts for the financial
years stated in the issue, the same ought to be dismissed under
Rule 12 of the Constitutional Court (Petition and
References) Rules, SI 91 of 2005.

235 Petitioners Submissions in Rejoinder:

Counsel for Petitioners in rejoinder contended that the assertion

that the respondent has a unique position which calls for being
given more time to respond to an intended suit is proof that the
respondent is given special treatment, not availed to other
240 litigants. This is discriminatory and is contrary to Article 21(1)
of the Constitution whereby all persons are equal beforehand
under the law. x V

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 Counsel further reiterated the submission that treating the
respondent on an equal footing like any other litigant will not
245 deny the respondent of the fundamental right to be heard in any
cause where the respondent is a party to that cause. Counsel
prayed for the petition to be allowed.

Resolution of the Issues by Court:

Duty of Court:

250 The duty of this Constitutional Court is set out by Article 137
of the Constitution. It provides:

"137. Questions as to the interpretation of the Constitution

(1} Any question as to the interpretation of this

Constitution shall be determined by the Court of Appeal
255 sitting as the Constitutional Court.
(2) ...........................
(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

260 (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”.
265 A petition brought under Article 137(3) of the Constitution
discloses a cause of action, thus imposing a duty upon this Court
to interpret that provision of the Constitution the subject of the
petition if the petition in its body describes the Act of Parliament,

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 or any other law or anything done or omitted from being done
270 under the authority of any law, or any act or omission by any
person or authority; and points out the provision of the
Constitution with which the Act of Parliament or any law or the act
or omission by any person or authority, is alleged to be
inconsistent or to have contravened; and the petition prays for a
275 declaration to that effect. See: Supreme Court Constitutional
Appeal No. 2 of 1998: Ismail Serugo vs Kampala City Council.
See also: Supreme Court Constitutional Appeal No. 1 of 2003:
Raphael Baku Obudra vs Attorney General.
It is therefore the duty of this Court sitting as a Constitutional
280 Court to determine the correct original meaning that the framers
of the Constitution had in its original context, which context might
have been historical, socio-economic, political, literary or of other
aspect that the framers of the Constitution had in mind. From
that interpretation, this Court must then identify the underlying
285 principle of the particular part of the Constitution, the subject of
the Constitution, apply it to the constitution as a whole with no
particular part destroying the other, but rather with each part
supporting the other.
My appreciation of the duty of this Court as the Constitutional
290 Court to interpret the Constitution includes deciding and/or
explaining the meaning of the particular provision of the
Constitution being alleged to be contravened or being inconsistent
with the Constitution, show the facts constituting the
contravention and/or the inconsistency, and then make or decline
295 to make the necessary declaration(s) as the case mawhe.

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 In carrying out the above duty, this Court applies a number of
principles of Constitutional interpretation.
These include Supremacy of the Constitution. The Constitution is
the Supreme law with binding force over every authority and
300 persons. Any other law that is inconsistent or in contravention of
the Constitution is null and void to the extent of the inconsistency.
See: Article 2(2): See also: Supreme Court Presidential
Election Petition No. 2 of 2006: Rtd. Dr. Col. Kiiza Besigye vs
Y.K. Museveni.
305 Both purpose and effect of a legislation alleged to be in
contravention or inconsistent with the Constitution must be
considered in determining its constitutionality: See: Supreme
Court Constitutional Appeal No. 4 of 2016: David Welsey
Tusingwire v Attorney General. See also: Attorney General
310 (Tanzania) v Rev. Christopher Mtikila [2010] EA 13.
The language of the Constitution has to be given its primary,
natural and ordinary meaning and sense. The words of the
Constitution that are clear and unambiguous have to be given
their plain, ordinary and/or natural meaning and sense and be so
315 construed.
Where the language of the Constitution or any other statute being
interpreted vis-a-vis the Constitution is imprecise or ambiguous,
then a general and/or purposeful interpretation should be given to
it. See: Supreme Court Constitutional Appeal No. 1 of 1997:
320 Attorney General vs Major David Tinyefuza.
Where a fundamental human right is embedded in a
Constitutional provision, then that provision of the Constitution is
taken as being permanent catering for all times to come and has

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 to be given a dynamic, progressive, broad, liberal and flexible
325 interpretation, taking cognisance of the ideals of the people in their
social, economic, political and cultural values thus extending its
benefits to all the people. See: Okello John Livingstone and 60
others vs Attorney General and Another: Constitutional
Petition No. 1 of 2005. See also Attorney General vs Uganda
330 Law Society: Supreme Court Constitutional Appeal No. 1 of
2006.

The history of the country, including the legislative history of the

Constitution as well as the National Objective and Directive
principles of State Policy are all relevant and useful guides in
335 interpreting the Constitution.
The Constitution has to serve the past, the present and the yet
unborn generations. A Court interpreting the Constitution, as well
as other Courts of law, have to breathe life into the Constitution so
as to ensure there is growth of constitutionalism. It is the primary
340 duty of this Constitutional Court to interpret, and for other Courts
to apply the Constitution, so as to make it grow and develop in
order to meet the just demands and aspirations of the people of
Uganda and elsewhere in their governance based on concepts of
human dignity.
345 The Constitution must be interpreted and applied so as to serve
permanently, while at the same time accommodating, absolving
and solving new changes and challenges in the country and in the
whole world without derogating from the noble goals and intent of
the original framers of the Constitution. It has alwaycto be
350 appreciated that:

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 “A Constitution must be capable of growth and development over
time to meet the social, political and historical realities often
unimagined by its framers............ See: Hunter vs Southern Inc
[27]. See also: Unity Dow V Attorney General of Botswana
355 [1992] LRC (Const) 623.
I shall be conscious of the above principles as I resolve the issues
in this Constitutional Petition.

Issue 1:
360 This is whether Section 2(1) of the Civil Procedure and
Limitation (Miscellaneous Provisions) Act, Cap 72 is
inconsistent with Articles 28(1), 126(2)(b) and 139(1) of the
Constitution.

Section 2(1) of the Civil Procedure and Limitation

365 (Miscellaneous Provisions) Act provides that, notwithstanding
the provisions of any other written law, no suit shall lie or be
instituted against the Government, local authority or scheduled
corporation unless and until forty five days have expired from the
day the written Notice, of the format prescribed in the schedule of
370 the Act, had been delivered to the Attorney General in case of
Government- Chief Administration Officer in case of a Local
Government, Town Clerk in case of a Municipal Council and a
Corporation Secretary in case of a Scheduled Corporation.

375 The Supreme Court in Civil Appeal No. 013 of 2014: Kampala
Capital City Authority vs Kabandize and 20 Others (Judgment
of Mwangusya, JSC to which the other Justices concurred)
interpreted Section 2(1) of CAP 72 as being not contrarvTo the

14
 Constitution because the word “shall” in that Section was
380 according, Their Lordships, directory and/or regulatory and not
mandatory. Thus, according to this decision, failure to issue or
serve a Statutory Notice of forty-five days before lodging the suit
would not render illegal the suit instituted.

385 The Kampala Capital City Authority vs Kabandize and 20

Others (Supra), though a Supreme Court decision, was not an
appeal in a Constitutional matter whereby the constitutionality of
2(1) of Cap 72 was at issue. It was an ordinary Civil Appeal. The
Court authority therefore cannot be taken as one that
390 Constitutionally interpreted the subject matter at hand.

However in the Constitutional Petition, the subject matter of this

Judgment, this Court as the Constitutional Court is being called
upon to resolve as a matter of interpretation of the Constitution
395 whether or not Section 2(1) of the Act, Cap 72 is in compliance
with the 1995 Constitution. This Act, was enacted in 1969 and
therefore was in existence before the 1995 Constitution was
adopted. Accordingly, pursuant to Article 274 of the
Constitution, Section 2(1) of the Act, Cap 72, has to be construed
400 with such modifications, adaptations qualifications and exceptions
as may be necessary to bring it into conformity with the 1995
Constitution.

By providing that in case of failure to give the forty five days written
405 notice to Government, Local Government or scheduled
Corporation.

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 “Notwithstanding the provisions of any other written law,
no suit shall lie or be instituted ................”
Section 2(1) of Cap 72 abolishes, deprives, suffocates and stifles
410 the cause of action that one may legitimately have had against the
Government, Local Government or Scheduled Corporation. Yet
the same cause of action would remain unaffected if it is being
pursued against another entity that is not Government, Local
Government or Scheduled Corporation. This is grossly
415 discriminatory. The Supreme Court in Kampala Capital City
Authority vs Kabandize and 20 Others (Supra) does not explain
how this aspect of the section would be interpreted to be merely
directory and/or regulatory, when its effect is to destroy the whole
cause of action, a legitimate litigant may have had against a
420 Government, Local Government or Scheduled Corporation.
As a Constitutional Court, pursuant to Article 137(1), (3)(a) and
(b) of the Constitution, and being guided by the Preamble, the
National Objective and Directive Principles of State Policy of
the Constitution, particularly;

425 (i) the principle of equality to which Ugandans are committed

in the preamble, and
(ii) the national objective and Directive Principle of State Policy
III(IV) of establishing and nurturing institutions and
procedures for the resolution of conflicts fairly and
430 peacefully of the Constitution, finds that Section 2(1) of the
Civil Procedure and Limitation (Miscellaneous Provisions)
Act, Cap 72 is inconsistent and/or contrary to dhe
Constitution in a number of respects. '

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 Under Article 2, the Constitution is the Supreme law with binding
435 force on all authorities and persons in Uganda. Any other law that
is inconsistent with any provision of the Constitution shall be void
to the extent of the inconsistency. It follows therefore that the
words in Section 2(1) of the Act that: “notwithstanding the
provisions of any other written law............................. ” are null and void
440 in the said Section by reason of purporting to override Article 2(1)
and (2) of the Constitution.

Article 21 of the Constitution provides for equality of all people

before and under the law in all spheres, political, economic, social
and cultural or in any other aspects. All persons have to enjoy
445 equal protection of the law.

To discriminate is to give different treatment to different persons

on various grounds including social standing.

Section 2(1) of Act 27 discriminates between the categories of

ordinary litigants and those of Government, Local government and
450 Scheduled Corporations. In respect of the latter, a suit does not
exist against them if there is no forty five days notice first served
upon them. The claimant loses the cause of action. Even where
the forty five days notice is served, the suit has to be pursued
within a stated period different from that which applies to other
455 ordinary litigants. There is therefore discrimination of the
application and protection of the law brought about by Section
2(1) of Act 27 between the ordinary litigants and Government,
Local Governments and Scheduled Corporations. Accordingly
Section 2(1) and the whole Act 27 is contrary to Article 21(11(2)
460 and (4)(b) and (c) of the Constitution.

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 Article 28(1) of the Constitution entitles one to a fair, speedy and
public hearing before an independent and impartial Court or
tribunal established by law in the determination of one’s civil
rights and obligations.

465 The basis of a fair trial is the treating of the litigants equally
according to the law. Every litigant to a cause ought to be given
an opportunity to be heard before resolving the dispute that has
brought that litigant to Court.

Section 2(1) of Act 27 and, the whole Act, destroys the element
470 of fairness when it discriminates amongst litigants by having
Government, Local Governments and Scheduled Corporations not
to be sueable unless and until a forty-five days statutory notice
has been served upon them and to destroy the whole cause of
action in case of a suit filed against any one of them where such a
475 notice has not first been served. Yet these requirements are not
applicable to ordinary litigants. This is in contravention of Article
28(1) of the Constitution.

Article 44(c) of the Constitution that makes the right to a fair

hearing to be non derogable is also violated by Section 2(1) of Cap
480 27 by reason of the Section being contrary to Article 28(1) of the
Constitution.

By purporting that, notwithstanding any provision of any other

written law no suit shall lie or be instituted against the
Government, Local Authority or Scheduled Corporation, without
485 first serving the written statutory notice of forty-five days, Section
2(1) of Cap 27 violates Article 50 of the Constitution whereby
one claiming that a fundamental right or freedom guaranteed

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 under the Constitution has been infringed or threatened is entitled
to apply to a competent Court for redress, which may include
490 compensation.

It is a fact that litigation in Courts of law in Uganda involves, in

the main, determination of fundamental and other rights and
freedoms, much of them guaranteed under the Constitution.
Article 139 of the Constitution vests in the High Court with
495 unlimited original jurisdiction in all matters, subject only to the
Constitution.

Section 2(1) of Cap 27, therefore contravenes Articles 50 and

139(1) by purporting to bar litigants from taking their suits to the
Court, if they have not first served the statutory forty-five days
500 notice against, the Government, Local Authority or Scheduled
Corporation, out of all the other ordinary litigants. The Section
further violates both Articles 50 and 139(1) of the Constitution
by purporting to extinguish the cause of action selectively against
the Government, Local Authority or Scheduled Corporation sued
505 without first having been served with the forty-five days statutory
notice.

It has to be appreciated that under Article 126(1) of the

Constitution, Judicial power is derived from the people of Uganda
and is exercised by the Courts in the name of those people and in
510 conformity with law, their values, norms and aspirations.

The adjudication of cases by the Courts is based upon the

principles of justice being done to all, irrespective of social or
economic status, justice must not be delayed, victims of wrongs
have to be awarded adequate compensation, reconciliation is to be

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515 promoted between litigants and substantive justice, and justice is
to be administered without undue regard to technicalities
pursuant to Article 126(2) of the Constitution.

Having carefully considered the stated Articles of the Constitution

vis-a-vis Section 2(1) of Cap 72, as a Court interpreting the
520 Constitution, I come to the conclusion that the said Section 2(1)
is contrary to and is inconsistent with the Constitution in the
Articles herein stated above. Issue 1 of this Petition is accordingly
so resolved.

Issue 2:

525 Issue 2 is whether Rule 11 of the Government Proceedings

(Civil Procedure) Rules is inconsistent with Article 21(1) of the
Constitution.

The Government Proceedings (Civil Procedure) Rules SI 77-1

are enacted pursuant to Section 41 of the Judicature Act and
530 Section 26 of the Government Proceedings Act, Cap. 77. The
Government Proceedings (Civil Procedure) Rules are applied with
the Principal Rules, which are the Civil Procedure Rules made by
the Rules Committee to regulate the procedure of Court.

Rule 11 of the Government Proceedings (Civil Procedure Rules),

535 provides:

"11. Time for filing defence:

In the case of Civil Proceedings against the Government,

Rule 1 of Order VIII of the principal Rules shall have effect
as the words “thirty days” were substituted for the wards
540 “fifteen days” which occur in that Rule”. \j**

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 Order VIII Rule 1 of the Civil Procedure Rules states:

“Order VIII- Defence and Counter-claim.

1. Written Statement

(1) The defendant may, and if so required by the Court

545 at the time of issue of the summons or at any time
thereafter shall, at or before the first hearing or within
such time as the Court may prescribe, file his or her
defence.
(2) Where a defendant has been served with a summons
550 in the form provided by Rule 1 (1 )(a) of Order V of these
Rules, he or she shall, unless some other or further
order is made by the Court, file his or her defence
within fifteen days after service of the summons”.

The Petitioners assert that by Rule 11 of the Government

555 Proceedings (Civil Procedure) Rules giving the Government the
mandate to file a defence within thirty days, yet other litigants who
are defendants are given only fifteen days by Order 8 Rules 1(1)
and (2) of the Civil Procedure Rules, this is discrimination,
contrary to and inconsistent with Article 21(1) of the Constitution.

560 The respondent, opposing the assertion of the Petitioners,

contended that all the Rules in contention were made by the Rules
Committee of the Judiciary pursuant to Section 41(5) of the
Judicature Act, Section 26(2) of the Government Proceedings
Act and also under the Civil Procedure Act, Cap. 71. Rule 11 is to
565 enable those wronged by Government to access justice in Courts
of law pursuant, to Section 26(2) of the Government Proceedings
Act, Cap 77, and Article 250(1) of the Constitution.

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 That the Government is given thirty days within which to file a
defence, this is done in the public interest so as to ensure that the
570 Government and Government entities have an opportunity to
defend themselves against claims that have to be satisfied out of
public revenue from the Government Consolidated Fund.

In resolving this issue, it is taken as a fact that the state of the law
as of now is that Rule 11 of the Government Proceedings (Civil
575 Procedure) Rules, entitles the Attorney General representing
Government as defendant, to file a defence within thirty days,
while Order 8 Rule 1(1) and (2) only allow an ordinary defendant
to a suit to file a defence within fifteen days only. There is therefore
inequality in the treatment of the Attorney General as defendant
580 and any other ordinary litigant also as defendant to a cause.

Article 21(1) of the Constitution provides for equality of all

persons before and under the law. The law must treat everyone
the same way in terms of rights. Discrimination, which is the
giving of different treatment to different persons, on the basis of
585 sex, race, colour, ethnic origin, tribe, birth, religion, social and/or
economic standing, political opinion or disability is expressly
prohibited by Article 21(2) of the Constitution.

Unequal treatment before and under the law erodes the

fundamental non derogable right to a fair hearing under Articles
590 28(1) and 44 of the Constitution. Under Article 43(1) and (2)
of the Constitution, in the enjoyment of this right, amongst
others, one ought not prejudice the fundamental or other human
rights and freedoms of others or the public interest. Public interest
does not permit any limitation of the enjoyment of such right and

22
 595 freedom beyond what is acceptable and demonstrably justifiable in
a free and democratic society or what is provided for in the
Constitution.

There are principles that determine whether a limitation on a

fundamental right or freedom is justified in a free and democratic
600 society. The limitation must be for the respect of the inherent
dignity of the human person, commitment to social justice and
equality, accommodation of a wide variety of beliefs, respect for
cultural and group identity and faith in social and political
institutions that enhance the participation of individuals and
605 groups in society.

The onus to prove that a limit on a guaranteed right or freedom is

reasonable and demonstrably justified in a free and democratic
society is upon the party seeking to uphold the limitation. See:
The Queen V Oakes [1987] LRC 477.

610 It is therefore the Uganda Attorney General to justify that Rule 11

of the Government Proceedings (Civil Procedure) Rules is
reasonable and demonstrably justified in a free and democratic
society by reason of the principles herein already stated above.
See: Charles Onyango Obbo & Andrew Mujuni Mwenda vs
615 Attorney General: Constitutional Appeal No. 2 of 2002.

In HCT OO CC MA-437-2013 (Arising from HCCS NO. 231 of

2013) Atukwase Nickson (suing through his lawful Attorney
Arinaitwe Reuben) vs Attorney General, a High Court decision
that is not binding upon this Court, the High Court (Wangutusi,
620 J.) appreciated the said Rule 11 as giving equal opportunity to two
litigating parties to be heard on the same plane. The learned Jiqdge

23
 reasoned that the Attorney General when sued, has to trace
responsible persons across the whole country in the departments
and offices of Government so as to get the necessary information
625 to file a defence in the suit, which is not the case with an ordinary
litigant who has immediate knowledge of how the dispute arose.
Since the Attorney General is protecting properties and interests
of ordinary citizens, who are innocent of what has happened,
public good demands that the Attorney General be given ample
630 opportunity to file the defences so that everyone has equal
opportunity of being heard. According to the learned Judge The
Rules Committees found it necessary to have disparity in time
spans for the promotion of fairness so that the “equality of
outcome” is the same between the Attorney General and the
635 ordinary litigant. Accordingly His Lordship of the High Court held
Rule 11 not to be discriminatory.

With the greatest respect, I am unable to agree with the above High
Court decision of His Lordship. Ordinary litigants, both
individuals and companies, who are sued, may also have to
640 contact other people all over the country, who may be their
employees or otherwise, for necessary information and material to
make defences to the suits brought against them. Transporters,
banks and/or communication companies like MTN, Airtel are
under this category. It is also a fact that a suit against the
645 Government may involve officers and materials just in one
department or entity of the Government where the suit is instituted
and there is no need at all to carry out inquires and contacts all
over the country. For example, a suit against Government
involving Mulago National Referral Hospital, lodged in the iHigh

24
650 Court at Kampala, will most likely have all the personnel and
materials necessary for a defence to that suit all stationed and kept
at Mulago Hospital a few kilometres from the High Court at
Kampala. There is no logical explanation in that case why the
Attorney General is given thirty days within which to file a defence
655 to that suit, and any other litigant, is restricted to fifteen days.

At any rate, under Section 96 of the Civil Procedure Act and

Order 51 Rule 6 of the Civil Procedure Rules, and also under
the exercise of discretion by a Court of law, a party to a suit who
has a genuine reason for having failed to take a step in a suit, may
660 apply to Court for extension of time within which the necessary
action can be taken. There is therefore no justification why the
Attorney General should be treated differently from other litigants
when it comes to filing a defence in the suit.

I, accordingly find that the High Court decision in HCT-OO-CC-

665 MA-437-2013: Atukwase Nickson vs Attonery General (Supra)
that Rule 11 of the Government Proceedings (Civil Procedure)
Rules is not discriminatory, to have been arrived at without a
proper appreciation of the facts and the law. I reject the decision
as being persuasive to this Court on that issue.

670 I am enforced in this by the decision of this Court in Rwanyarare

and Others V Attorney General [2003] 2 EA 664 at 669 para d-
e that;

“That argument [whether an injunction can issue against

the government] cannot hold under the present
675 Constitution when judicial power is derived from the
people and is exercised by Courts in the name ofpeople.
 There is no sound reason under the Constitution why
government should be given preferential treatment at the
expense of an ordinary citizen”.

680 I find that there is no justification for the discrimination and

inequality in the law whereby the Attorney General is given 30 days
within which to file a written statement of defence in a suit, while
the other ordinary litigants are given only 15 days. This is not
demonstrably justifiable in a free and democratic society. I answer
685 issue 2 in the affirmative.

Issue 3:

Whether Section 19(4) of the Government Proceedings Act is

inconsistent with Articles 139(1), 128(1), (2) and (3), 28(1) and
126(2)(b) and (c) of the Constitution.

690 Section 19 of the Government Proceedings Act provides for

satisfaction of Court Orders against the Government. It is to the
effect that where in any civil proceedings by or against the
Government, any order is made by Court in favour of any person
against the Government, or its department or officer of
695 Government, the proper officer of the Court, on an application by
the person or on behalf of that person in whose favour the order
has been made by Court, at any time after the expiration of 21
days from the date of the order or, in case costs are awarded, any
time after the taxation of such costs, whichever is the later, issue
700 to that person a certificate containing the particulars of the Court
Order, with a copy thereof, to the Attorney General.

If the order provides for payment of any money, the amount shall
be stated in the certificate, and on the same being presented tothe
26
 Treasury Officer of Accounts or other Government Accounting
705 Officer, shall pay the money so stated in the certificate to the
person to whom the certificate has been issued.

Subsection 4 to Section 19, the subject of this Constitutional

Petition, provides:

“19.

710 (4) Except as is provided in the Section, no execution or

attachment or process in the nature of an execution or
attachment shall be issued out of any Court for
enforcing payment by the Government of any such money
or costs as are referred to in this Section, and no person
715 shall be individually liable under any order for payment
by the Government, or any Government department or
any officer of the Government as such, of such money or
cost^.

The exact meaning, import and extent of Section 19(4) of the

720 Government Proceedings Act can best be appreciated when
Section 33 of the Civil Procedure Act Cap 71 is also considered.

It provides:

“38. Powers of Court to Enforce Execution:

Subject to such conditions and limitations as may be

725 prescribed, the Court may, on the application of the

decree holder, order the execution of the
decree...............

(a)
by delivery of any property specifically decreed;
fib) by attachment and sale, of any property;
27
730 (c) by attachment of debts;

(d) by arrest and detention in prison of any person;

(e) by appointing a receiver; or
ff) in such other manner as the nature of the relief
granted require”.

735 It is to be appreciated that Section 19(4) of the Government

Proceedings Act restricts itself to:

“Except as is provided m this Section, no execution or attachment or

process in the nature of an execution or attachment shall be issued
out of any Court for enforcing payment by the Government of any
740 such money or costs as are referred to in this Section........ ”,
It follows therefore that execution against Government, a
Department of Government or officer of Government, that does not
involve “enforcing payment by the Government of any such money
or costs" can be carried out by the Court of law under the powers
745 vested in the Courts by Section 38 of the Civil Procedure Act.
It would thus be unconstitutional to regard and apply Section
19(4) of the Government Proceedings Act as the only law
providing for the enforcement of Court orders against the
Government including those that are not for “enforcingpayment by
750 the Government of any such money or costs..............
The framers of the 1995 Constitution never intended to make
Courts of law act or. even appear to act in vain. This Court must
therefore interpret the Constitution and the laws under the
Constitution in such a way that the Government or any
755 Department of Government or any officer of Government or any
other Government authority or person does not make the Counts
act or appear to be act in vain.

28
 That is why National Objective and Directive Principle of State
Policy No. 11 l(iv) on National Unity and Stability provides that:
760 “There shall be established and nurtured institutions and
procedures for the resolution of conflicts fairly and peacefully”.
Article 126 of the Constitution provides for the: Exercise of
Judicial Power by Courts of law:
Judicial power is derived from the people and Courts of law
765 exercise that power in the name of the people and in conformity
with law, the values, norms and aspirations of the people, applying
the principles of doing justice to all, irrespective of social or
economic status, justice not being delayed, victims of wrongs being
adequately compensated, reconciliation promoted and substantive
770 justice, not based on technicalities, being administered.
The Courts of law carry-out the duty of adjudication of causes by
being constitutionally protected to be independent and not being
subjected to any control or direction of any one. As to the
enforcement of decisions adjudicated upon by the Courts of law,
775 Article 128(3) of the Constitution makes it a Constitution
obligation that:
“All organs and agencies of the State shall accord to the Courts such
assistance as may be required to ensure the effectiveness of the
Courts”.
780 Compliance by the Government to decisions of Courts of law is
fundamental to democratic governance based on the Rule of Law.
A central tenet of the rule of law is that no person is above the law.
Respect for the authority of the Court and their effectiveness to
grant remedies are the basic components of the rule of law and
785 democratic governance. Everyone regardless of any status, social,

29
 economic, political, sexual or otherwise is subject to the law.
Respect for the rule of law would be grossly eroded were Courts to
permit any Government official to tell the litigant, who has
successfully sued the State in a Court action, that the State does
790 not value Court Orders. Such a Government official must be
severely subjected by the Court to an order for contempt. See:
Mangwiro V Minister of Justice and Legal Affairs (N.O) and
Others HH-172-17 and CCZ: a decision of South Africa. In
Nigeria, it has been pronounced by the Court that the execution or
795 enforcement of a Judgment of the Court must be taken seriously
as it is an essential aspect of the administration of justice where
the rule of law thrives: See: Yaro vs Arewa Construction Ltd
[1989] 7 NWLR 558.
Article 119(3)(4) and (5) of the Constitution provides that the
800 Attorney General shall be the principal legal adviser of the
Government giving legal advice and legal services on any subject,
draw and peruse contracts, agreements, treaties, conventions and
other documents to which the Government is a party, and
represents the Government in Courts of law. Under Article 250
805 of the Constitution one with a claim against the Government may
enforce it as a right by proceedings against the Government
instituted again st the Attorney General upon whom all documents
and Court processes of the claim shall be served.
The Attorney General therefore has the Constitutional duty to
810 ensure that decisions of Courts of law calling for compliance by the
Government are promptly and strictly complied with by the
Government \

30
 It follows therefore that when it comes to enforcing any Judgment
815 against the Government under Section 19 of the Government
Proceedings Act, the Attorney General and the responsible
accounting officer of Government on being served with a certificate
issued by the Court containing the particulars of the
order/Judgment of Court to be enforced, ought to comply with that
820 order, unless the Attorney General, as the legal Counsel and
representative of the Government, obtains an order from the Court
determining the cause, stopping compliance. It is up to those
managing the affairs of Government to ensure that at any time,
there are, within the budgetary provisions of Government, funds
825 to satisfy Courts decisions so that at no time, the Government is
not made to appear as disobeying such orders when Courts of law
make them.

Subject to the above, 1 find that Section 19(4) of the Government

830 Proceedings Act, is not contrary to the Constitution. This is
because Article 153 of the Constitution provides that all Revenues
of Government are to be paid to the Consolidated Fund, except
where the Legislature dictates otherwise. Any funds to be
withdrawn from the Consolidated Fund must be authorized by the
835 Legislature through Appropriation Acts of Parliament pursuant to
Article 154 of the Constitution.

Payments in satisfaction of Court decisions must therefore be in

compliance with Articles 153 and 154 of the Constitution. They
have to be covered under the Government budget, that is the
840 Government plan of revenue and expenditure for a financial year.

31
 The requirement of Section 19 of the Government Proceedings
Act to have such payments being demanded of the Treasury officer
of Accounts or such other Government accounting officers is for
them to ensure that under the Dinancial Management of and by
845 the Government, provision of such funds is catered for in any
particular financial year. The system of management of funds of
Government is constitutional based on the stated Articles 153
and 154 of the Constitution and other enabling laws such as the
Public Finance Management Act, 2015. See also: the persuasive
850 decision of Bank of Uganda vs Ajanta Pharma Limited and
Attorney General: High Court at Kampala Miscellaneous
Application No. 601 of 2017 arising from Arbitration Cause No.
3 of 2016 (Original CAD 22 of 2011).
I accordingly find that Section 19(4), of the Government
855 Proceedings Act. Cap 77, is to facilitate the management process
of the funds of Government in compliance with the Constitution.
The same is accordingly not inconsistent with Articles 139(1),
128(1)(2) and (c) of the Constitution. Issue 3 is so resolved.

850 Issue 4:

Under this issue the Petitioners contend that the Government

omitted to make provision for payment of the Judgment debt for
the Financial years 2011/2012, 2012/2013 and that this is
contrary to Articles 155(1) and 160 of the Constitution.
865

The basis of the contention of the Petitioners is the fact that there
are many Judgment creditors in possession of Court decisions
requiring the Government to pay them money by way of damages

32
 or contractual claims or otherwise, who have waited for years
870 without the Government satisfying their Judgments. Some of the
awards that are unsatisfied include those made by the Uganda
Human Rights Commission.

The Petitioners however availed to this Court no credible evidence

875 that no budgetary provisions were made to satisfy Court awards
for the financial years 2011/2012 and 2012/2013, or even before
or after those years. It is very possible that provision was made
for satisfaction of these awards under the overall budgetary
provisions of the various Government Ministries, departments and
880 other entities, and the funds were so managed or mismanaged that
those entitled to be paid in satisfaction of the Court awards were
not paid.
In the absence of more plausible evidence, this Court had no basis
to make the Constitutional declaration prayed for. Issue 4 is so
885 resolved.
In conclusion I make the following declarations:

1. Section 2(1) of the Civil Procedure and Limitation

(Miscellaneous Provisions) Act is inconsistent with Articles
28(1), 126(2)(b) and (c) and 139(1) of the Constitution.
890 2. Rule 11 of the Government Proceedings (Civil Procedure)
Rules is inconsistent with Article 2191) of the
Constitution.
3. Section 19(4) of the Government Proceedings Act is
consistent with the Constitution.
895 4. The Petitioners have not proved that Government omitted to
provide for payment of the Judgment debt for the ^financial
 years 2011/2012 and 2012/2013 and as such it is not
proved that Government contravened Articles 155(1) and
160 of the Constitution.

900 The result of resolution of this Petition is that the Petitioners have
been successful on issues 1 and 2 and have been unsuccessful on
issues 3 and

As to costs, the Petitioners have been successful on the

substantive issues 1 and 2 and had also to resort to this litigation
905 by reason of the apparent contempt that the Government officers
exhibited to them when they sought satisfaction by the
Government of the decision of the Uganda Human Rights
Commission that, awarded them damages and the Government
officers appeared to resist such satisfaction by refusing to pay the
910 damages awarded to the Petitioners. It is only fair that the
Petitioners are awarded substantial costs of this Petition. I
accordingly award 2/3 of the costs of this Petition to the Petitioners

Dated this

915

920

34
 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. TUMWESIGYEMOSES:::::::::::::::::::::::::::::::::::;:::::::::::::::;:::PETITIONERS
VERSUS
ATTORNEY GENERAL::::::::::::::::::::::::::::::::::::::::::::::::::r::RESPONDENT

JUDGMENT OF HELLEN OBURA, JA/JCC

I have had the opportunity to read in draft the judgment of my learned brother, Hon. Justice
Stephen Musota In the above Constitutional Petition. I agree with his findings and
conclusions on issues 1,3 and 4 with nothing useful to add. However, I 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. I 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 Attorney
General is the defendant, he or she is entitled to file a defence within 30 days, when 0. VIII r. 1
CPR requires every defendant to file a defence within 15 days, is inconsistent with the
Constitution in Art 21 (1) which provides that 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 1st
petitioner, it was averred as follows;

i
 17. “That r.11 Government Proceedings (Civil Procedures) Rules provides that the Attorney General is
entitled to 30 days to file a defence whereas other litigants are entitled to only 15 days.9

18. “That r.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
21 (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 A.P AIR 1994 SC
2663 RM, where Sahai J in paragraph 24 of his judgment 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 the negligent acts of officers of the state without
any remedy. The modem social thinking of progressive societies and the judicial approach is to
do away with archaic state protection and place the state or the government at par with any other
juristic legal entity.9

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

/aw.” 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 rule 11 gives Attorney
general special treatment thus being discriminatory which is inconsistent with Article 21
(1) of the Constitution.

2
 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 I proceed to address this issue, I 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;
3
 "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. It is clear from the text ofS.I (Equivalent to our article 43 of the Constitution)
that the limit on the 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.l 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 Attorney 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, I 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.

4
For that reason, I 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.

I 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. I believe Attorney General will also manage
if the ground is levelled.

I 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.

I would allow the petition on this ground with an order that the respondent pays a quarter
of the taxed costs to the petitioner.

Otherwise, I agree with the orders proposed by my learned brother on the rest of the
issues.

Dated at Kampala this day of. 202i

Hellen Obura

JUSTICE OF APPEAL/CONSTITUTIONAL COURT

5
 5 THE REPUBLIC OF UGANDA
IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA
CONSTITUTIONAL PETITION NO. 43 OF 2012

NAMPOGO ROBERT
10 TUMWESIGYE MOSES.................................................................................PETITIONERS
VERSUS
ATTORNEY GENERAL........... ......................................... RESPONDENT

CORAM: Hon. Mr. Justice Kenneth Kakuru, JA/JCC

15 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

20 JUDGMENT OF JUSTICE KENNETH KAKURU, IA/ ICC

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
25 repeat them.

I 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)
30 and 139 (1) of the Constitution.

The impugned Section of the law set out above stipulates as follows:-

2. Notice prior to suing.

1 | Pa ge
 5 (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

10 (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, description and place of residence of the
intending plaintiff, the name of the court in which it is intended
15 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
20 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
25 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 I understand the law, Section 21(1) of the Civil Procedural Act Limitation
30 (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 1st petitioner, which states as follows:-

14. That my counsel Rwakafuuzi believes that this section was meant to
35 be limited to only suits in tort and contract but the section has in
practice been applied to all claims including redress for statutory

2 | Pa ge
 5 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
10 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
15 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
20 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
25 fundamental Human Rights and Freedoms (Enforcement Procedure) Rules SI
No.55 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. I would answer it In the
30 negative.

I now proceed to consider the second leg of ground one. Whether or not Section
2(1) 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
35 Es Kampala Capital City Authority, Court ofAppeal Civil Appeal No. 28 of 2011. The
Court of Appeal held as follows:-

3 | P age
 5 "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;-

10 "AI1 persons are equal before and under the law in all
spheres ofpolitical, economic, social and culture life and
in every other respect and shall enjoy equal protection of
the law. ”

15 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
20 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

25 to a 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.
30
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

4 | P age
 5 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
10 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:-

15 "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
20 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
25 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
30 stipulation of sanctions to be applied in case of non compliance.
We also find that the proposal by Counsel for the 2nd 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

5 | Page
 5 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
10 Publications and internet where he stated asfollows:-
"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.
15 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
20 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
25 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 1 am in respectful

30 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

6 | P a g e
 5 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

10 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
15 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
20 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
25 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
30 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.

7 | P a ge
 5 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
10 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
15 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
20 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
25 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
30 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
35 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

8 | Page
 5 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
10 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
15 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. I am indebted to him
in that regard.

20 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:

25 https://www.bbc.co.uk/bitesize/guides.

"Invading and conquering England had been expensive for William.

Loyal supporters were rewarded with land 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
30 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
35 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,

9 | P a ge
 5 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
10 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
15 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
20 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.

25 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
30 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
35 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, flaps 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 | P a g e
 5 applying principle of a feudal legal system established in the 11th 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 in accordance with the
Constitution.

10 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 50th anniversary of the landing of a man on the moon. On 5th
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
15 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
20 telegrams to telephones. From analog to digital technology. We can now hold
'zoom' 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.

25 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 to law students and
legal practitioners of today. The Indian Penal Code Act is still largely in use in this
country having been adopted in 1950. It still contains medieval offences such as
'Defamation offoreign princes!. (See: - Section 53). The purpose of Article 274 of
30 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
35 move to the left" It begun with the "Common man's charter' and by 1970 had
culminated into the 'Nakivubo pronouncements'.

See:-Tertit Aaslad. On the move to the left 1969-1970.

11 | P a g e
 5 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 3rd 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
10 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 3rd schedule has dramatically changed from Government

Corporation to Government companies and now to statutory authorities. This
15 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
20 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
25 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
30 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)
35 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

12 | P a g e
 5 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
10 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
Government is limited to only three years.

Hon. Francis M. Ssekandi retired Justice of the Court of Appeal now Supreme
15 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
20 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 [i.e., 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
25 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
30 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
35 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.

13 | P a g e
 5 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
10 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
15 facts show otherwise.

I would uphold the second leg of the 1st ground of the petition.

I would also uphold ground 2 of the petition in respect of Rules 11 of the

Government Proceedings (Civil Procedure) Rules. I find that it is unconstitutional
as it contravenes Article 21(2) of the Constitution.

20 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, I 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
25 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 I would allow this petition in part and make the following orders
30 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. I find
that, it is not mandatory but directory.

35 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

14 | P a g e
 5 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
10 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.

15 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.

20 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.

25 6. I would allow this petition only in part and award the petitioners V3 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

30 and Kasule Ag. JA with Musota JA dissenting. It is 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
35 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.

15 | P a g e
 5 (3) By unanimous decision grounds 3 and 4 fail and are dismissed.

(4) The petitioners are awarded % of the costs.

We so order.

Dated at Kampala this ..................... ?.............. day of............................... 2021.

10

Kenneth Kakuru
JUSTICE OF APPEAL/CONSTITUTIONAL COURT

16 | P a g e
 THE REPUBLIC OF UGANDA

IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA

CONSTITUTIONAL PETITION NO. 43 OF 2012

1. NAMPOGO ROBERT

5 2. TUMWESIGYE MOSES:::::::::::::::::::::::::::::::::::::::::PETITIONER

VERSUS

ATTORNEY GENERAL:::::::::::::::::::::::::::::::::::::::::::RESPONDENT

CORAM: HON. JUSTICE. KENNETH KAKURU, JA/JCC

HON. JUSTICE. HELLEN OBURA, JA/J^C

10 HON. JUSTICE. STEPHEN MUSOTA, JA/JCC

HON. JUSTICE. CHRISTOPHER MADRAMA, JA/JCC

HON. JUSTICE. REMMY KASULE, Ag. JA/JCC

JUDGMENT OF STEPHEN MUSOTA, JA/JCC

Background

15 The back ground of this petition as can be gathered from the petition and the
affidavit in support of the Petition by the 1st 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

i
 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 1st Petitioner and
Uganda Shillings 16,000,000 to the 2nd Petitioner.

5 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
10 and granted a writ of mandamus to the Secretary to the Treasury ordering
him on the 13th 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
15 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
20 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
25 which they thought to be unfair and unconstitutional. It is for these reasons
that they instructed their lawyer, to file this petition.
2
 The Petition

This petition was brought under Articles 1(3), 21(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
5 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
10 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
15 in their petition.

Representations

At the hearing of the petition on the 27th 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
20 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
 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 &

5 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
10 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

15 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
20 for determination by this court.

I shall adopt those issues raised in the submissions and deal with them in
the same order as they have been raised. However, before I do so it is
important to look at the origins of the office of Attorney General.

4
 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,
5 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
10 rights of both the crown and the public.

I find the writing of The Rt Hon. Sir Elwyn Jones A.G, Q.C, MP in an
Article entitled “The Office of Attorney Generar as giving some good

history of the office, himself having been Attorney General of the United
Kingdom at one point. Particularly I am interested in how he describes the
15 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

20 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.

5
 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 I find
The RtHon. SirElwyn Jones’s article very important. The basis of the office

as I gather, appears to have been that as the sovereign could not appear in
5 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
10 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 13th 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
15 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
20 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.

25 In the early days the Attorney General was largely concerned with litigation
which was the very first and primary role of the Office of Attorney General.
6
 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
5 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
10 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

15 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.

20 (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

7
 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.

5 (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

10 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
15 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

20 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

8
 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

5
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, I agree with the opinion of Mulenga, JSC in that

case that a petition brought under Article 137 (3) of the

10 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

15 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

20 Constitution with which the Act or its provision is

inconsistent or in contravention, and seeks a declaration to

that effect. 4 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

25 established.” (sic)

9
 Principles for Constitutional Interpretation

Let me restate here below some of the time tested principles of constitutional
interpretation which I consider pertinent in the determination of the
Constitutional Petition before me. These have been laid down in several
5 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
10 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
15 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
20 268(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
25 Constitution is a wholesome legal document and all provisions must be
io
 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
5 others, and any Court which tries to do this is bound to get an
inconsistent conclusion.

4. 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
10 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
15 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.

20 5. 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
25 enjoyment of the rights and freedom prescribed in this chapter, no
person shall prejudice the fundamental or other human rights and
ii
 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.

5 6. 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)).

10 7. 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
15 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

20 (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
12
 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.
5 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
risk 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
10 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
15 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

20 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

25 being denied costs or cause a delay of the trial if the

13
 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
5 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
10 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
15 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,
20 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
25 has 45 days in which to respond to an intended suit filed against them does

14
 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.

5 The respondent then prayed that we 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

Determination of issue 1

10 I 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

15 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,

20 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,

15
 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

5 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

10 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;

15 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.

20 Article 126(2) (b) & (c) states;

126. Exercise ofjudicial power.

d)......

16
 (2) In adjudicating cases of both a civil and criminal nature,

the courts shall, subject to the law, apply the following

principles—

(a) .......

5 (b) justice shall not be delayed;

(c) adequate compensation shall be awarded to victims of

wrongs;

(d) .........

(e) .........

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 otherjurisdiction as may be

15 conferred on it by this Constitution or other law.

(2) .........

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
17
 line of interpretation of the Constitution that this honorable court could ever
make against the Attorney General. I 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
5 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
10 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.

1 agree with the respondents’ submission that the fact that the Attorney
General Local Government or a scheduled corporation has 45 days in which
15 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.

20 Further I 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

18
 the Constitution. In that case, it was stated if I 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

5 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

10 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

15 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

20 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

25 totally denied his right to sue even where the defendant

19
 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 I have given I am inclined to agree with the respondent’s
submissions and find that section 2(1) of the Civil Procedure & Limitation
5 (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

10 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 1 of the Civil Procedure Rules
15 (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

20 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
 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
5 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
10 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.

15 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
20 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

21
 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
5 given their unique position especially considering that the stakes involve
financial implications on the consolidated fund of Uganda.

Determination of issue 2

I 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
10 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
I agree with him entirely on this issue. He stated in his ruling in Atukwase v
Attorney General (HCT -00 -CC- MA - 437 - 2013) that;

15 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.

20 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

22
 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

5 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

10 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

15 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

20 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
 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

5 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

10 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

15 that speaks of equality and is intended to promote justice,

is based on context which I 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

20 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
25 in things like time spans such as the one under

24
 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.

5 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

10 be able to put in his Written Statement of Defence? - If the

answer is in the negative, and it is in my view in 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.

15 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

20 under Order IX rule 8.

For the reasons I have given herein above, I 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 ofjustice.

25 They do not offend the constitution in its protection of

25
 equality. I 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, I agree with the views of the Judge of the High Court and
5 would for the same reasons find and I 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

10 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
15 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
20 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
 I 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.

I find that Rule 11 of the Government Proceedings (Civil Procedure)

5 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?

10 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
15 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.
20 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.

27
 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 ofA.P AIR 1994 SC 2663 RM Sahai J and

Bryne vs Ireland & AG [1972]IR 241 at 281 it is the duty of the Government

5 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.

10 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 19(4) of the
Act we must critically analyze the manner in which Government expends
monies from the consolidated fund.

15 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
20 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
 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
5 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
10 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

15 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

20 other. This is the rule of harmony, rule of

completeness and exhaustiveness and the rule

of paramountcy of the written Constitution."

29
 Oder JSC, while also talking about principles of

constitutional interpretation remarked on appeal in the

same case that:

"Another important principle governing

5 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

10 (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

15 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."

20 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, I 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
 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
5 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 I find that because of the existence of Articles 154 and 155 of
the Constitution, Section 19(4) of The Government Proceedings Act is
10 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.

15 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.

20 In the Constitutional Court of Peru in STATE IN FULFILLMENT OF

JUDGMENTS FILE N0.015-2001/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

25 compliance with judgment. Consequently, priority should be accorded

31
 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
5 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
10 omitted to provide for payment of judgment debt for financial year 2011/2012
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
15 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 S.l 91/2005.

20 Determination of issue 4

I 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 1st 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.l 91/2005 that;

12. Evidence at trial

5 (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

10 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

15 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

20 investigate and determine the appropriate redress.

Therefore on this ground alone I would dismiss the petition on this issue.

However, for purposes of completeness, I 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;

755. 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
 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
5 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 I
would dismiss this petition with each party bearing its own costs of the
10 Petition.

This Petition fails and is accordingly dismissed with each party to bear their
own costs of the Petition.

I so order

Dated at Kampala this day of _________________ 202b

15

STEPHEN MUSOTA

20 JUSTICE OF APPEAL/CONSTITUTIONAL COURT

35
 5 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}
10 2. TUMWESIGYE MOSES}............................................................... PETITIONER

VERSUS

ATTORNEY GENERAL}................................................................... RESPONDENT

JUDGMENT OF MADRAMA CHRISTOPHER, JCC

I have had the benefit of reading in draft thejudgment of my learned brother

15 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
20 (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
25 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.

i
 5 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
10 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 -

15 (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
20 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
25 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 inter alia that government includes in its annual budgeting process
30 monies by which it must defray the public debt from the Consolidated Fund.

2
 5 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
10 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.

I 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
15 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
20 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
25 Republic of Uganda provides that:

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
30 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

3
 5 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
10 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
15 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)
20 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
25 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
30 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
 5 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
10 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
15 challenges the disparity between an ordinary litigant 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

20 Musota, JA\JCC 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
25 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
30 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
 5 "to represent the government in courts or any other legal proceedings to which
the government is a party;"

The Attorney General is entitled to 45 days' statutory notice prior to being

sued in any matter and that is sufficient time to either settle the matter or
prepare to defend it. It was sufficient for the Petitioner to raise the issue of
10 inequality in violation of Article 21 of the Constitution by virtue of rule 11 of
the Government Proceedings (Civil Procedure) Rules giving a right to the
Attorney General to file a defence within 30 days when other ordinary
litigants are given 15 days under Order 8 rule 1 of the Civil Procedure Rules
within which to file their defence upon being served with summons to do so.

15 The answer to the petition of the Respondent in paragraphs 5 and 6 do not

contain any answer to the allegation that rule 11 of the Government
Proceedings (Civil Procedure) Rules is discriminatory and does not create
inequality before and under the law. This is a procedural point. Further the
affidavit in support of the answer to the petition of Elisha Bafirawala only has
20 the following assertions namely:

3. That the requirement of notice under Section 2 (1) of the Civil Procedure &
Limitation (Miscellaneous Provisions) Act do not in any way contravene the
Constitution and this matter has been adjudicated on and settled by Courts of law.

4. That once the party has brought its claim properly before a court of law using
25 the correct legal procedure under the law there is no bar to administration of
justice.

5. that I know that the provisions under section 19 (4) of the Government
Proceedings Act provides for the procedure by which orders against Government
can be enforced and further that this process is pursuant to justifiable public policy
30 considerations.

6. That the Parliament of Uganda appropriates funds in accordance with the law
and according to competing constitutional obligations and it will in effect be
unconstitutional to allow execution of public funds to satisfy private judgment
debts and would undoubtedly paralyze operation of Government institutions.

6
 5 name a few, respect for the inherent dignity of the human person, commitment to
social justice and equality, accommodation of a wide variety of beliefs, respect for
cultural and group identity, and faith in social and political institutions, which
enhance the participation of individuals and groups in society. The underlying
values and principles of a free and democratic society are the genesis of the rights
10 and freedoms guaranteed by the Charter and the ultimate standard against which
a limit on a right or freedom must be shown, despite its effect, to be reasonable
and demonstrably justified.

The rights and freedoms guaranteed by the Charter are not however absolute. It
may become necessary to limit rights and freedoms in circumstances where their
15 exercise would be inimical to the realisation of collective goals of fundamental
importance. For this reason, section 1 provides criteria for their justification for the
limit on rights and freedoms guaranteed by the Charter. These criteria impose a
stringent standard of justification, especially when understood in terms of the two
contextual considerations discussed above, namely, the violation of a
20 constitutionally guaranteed right or freedom and the fundamental principle of a
free and democratic society.

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. It is clear from the text of section
25 1 that limits on the rights and freedoms enumerated in the charter are exceptions
to the general guarantee. The presumption is that the rights and freedoms are
guaranteed unless the party invoking section 1 can bring itself within the
exceptional criteria which justify their being limited. This is further substantiated by
the use of the word 'demonstrably', which clearly indicates that the onus of
30 justification is on the party seeking to limit.

The procedural point is that once such a prima facie case has been
established by the Petitioner the onus shifts to the Respondent to
demonstrate that what is being challenged as inconsistent with a provision
of the Constitution is demonstrably justifiable in a free and democratic
35 society and the standard of proof is higher than that on the balance of
probabilities.

9
 5 The Petitioner having shown that ordinary defendants have 15 days within
which to file a written statement of defence upon being served with
summons to do so and the Attorney General has 30 days within which to file
a defence in similar circumstances, prima facie demonstrated that there is
inequality in legislation in terms of Article 21 of the Constitution of the
10 Republic of Uganda and the only question that remains is whether such
inequality is demonstrably justifiable in a Free and Democratic Society. The
onus shifted on the Attorney General to demonstrate that the rule 11 of the
Government Proceedings (Civil Procedure) Rules is demonstrably justifiable
in a Free and Democratic Society. The Respondent's answer to the petition
15 does not provide any evidence or answer to demonstrate that the disparity
between ordinary defendants in civil suits and the Attorney General as
defendants in civil suits is justifiable as stated above. In the absence of such
explanation or evidence, the Attorney General has abandoned his or her
responsibility and has not met the onus and standard required for the court
20 to determine the issue of whether having 30 days within which to file a
written statement of defence compared to the 15 days for ordinary litigants
is demonstrably justifiable in a Free and Democratic Society.

In the premises, and on that ground alone, I would find that the rule 11 of
the Government Proceedings (Civil Procedure) Rules is inconsistent with
25 Article 21 (1) of the Constitution of the Republic of Uganda in that all persons
are not treated equally before the law and the Attorney General has
discriminatorily been given more days within which to file a defence than
other ordinary defendants. Moreover, the Attorney General has 45 days
within which to consider the matter after being given statutory notice. The
30 period of 45 days enables the Attorney General to liaise with the Government
Department in investigating the claim and in considering whether to settle
the suit or settle it or defend it at the end of the statutory notice period. For
the same reason, I cannot conclude that the period of 30 days given to the
Attorney General was in the public interest. There is simply no evidence or

io
 5 7. That the grant of remedies in courts of law cannot operate oblivious of the
practicalities of the resource envelope available to satisfy national goals and
objectives hence the provisions in the Constitution, Statute Books and common
law that make the Attorney General a unique litigant.

8. That the petition discloses no question for constitutional interpretation as

10 against the Respondent and the same should be dismissed with costs.

Apart from the general assertion that the Attorney General is a unique
litigant, there is no effort on the part of the Attorney General to demonstrate
that the limitation to the rights of other defendants before the courts by
giving them less days (i.e. 15 days) and conversely that giving the Attorney
15 General more days being 30 days to file a defence is demonstrably justifiable
in a free and Democratic Society.

As noted above, the onus is on the Attorney General to demonstrate the

justification for the disparity. Article 43 (1) of the Constitution provides that:

In the enjoyment of the fundamental rights and freedoms prescribed in this

20 Chapter, no person shall prejudice the fundamental or other human rights or
freedoms of others or the public interest.

Public interest is defined by limitation under Article 43 (2) (c) which provides
that it does not permit:

(c) any limitation of the enjoyment of the rights and freedoms prescribed by this
25 Chapter beyond what is acceptable and demonstrably justifiable in a free and
democratic society, or what is provided in this constitution.

The onus is on the person raising limitation to demonstrate that such

limitation is justifiable in a free and democratic society. In NTN Pty Ltd and
N.B.N. Ltd vs The State 1988 (Const) LRC 333, it was held that in
30 considering legislation that derogated from a right, the party impugning the
legislation had to show a prima facie case that his right is affected. Kapi DCJ
of Papua New Guinea held that the party impugning the legislation must
show a prima facie case that his right has been affected.

7
 5 The Petitioner must demonstrate a prima facie case that his rights has [have] been
affected ••• The nature of the evidence depends on the manner in which the
fundamental rights is said to be affected by legislation...

Further in Charles Onyango Obbo and Andrew Mujuni Mwenda v the

Attorney General Constitutional Appeal No. 2 of 2002, Kanyeihamba
10 J.S.C. held that:

•••under Article 43 (1) and (2) mean that the freedom of speech and expression
which included the freedom of the press and other media is not absolute, but if
the Executive or Parliament are to act or legislate in favour of these exceptions,
they must do so strictly in accordance with the provisions of the Constitution and
15 if called upon, justify what they have done or legislated for before the Courts of
law which have the duty to protect the Constitution and the laws of Uganda and
harmonize- the same.

On the same point Karokora J.S.C held that:

Moreover, I think that the Respondent in the instant case could not justify
20 prosecution of the Appellant under Section 50 of the Penal Code Act by claiming
that they did so in public interest, because the onus was on the Respondent to
adduce evidence, which they never did, to prove that the existence of Section 50
of the Penal Code Act is acceptable and demonstrably justifiable in a free and
democratic Uganda today within the meaning of Article 43(2) (c) of the
25 Constitution.

The general principles to inquire into whether limitations on fundamental

rights are justifiable was extensively considered in The Queen v Oakes
[1987] LRC page 477 where the Supreme Court of Canada held at page 498
- 499 that:

30 A second contextual element of interpretation of section 1 is provided by the words

'free and democratic society'. Inclusion of these words as the final standard of
justification for limits on rights and freedoms refers the court to the very purpose
for which the Charter was originally entrenched in the Constitution: Canadian
society is to be free and democratic. The court must be guided by the values and
35 principles essential to a free and democratic society which I believe embody, to

8
 5 name a few, respect for the inherent dignity of the human person, commitment to
social justice and equality, accommodation of a wide variety of beliefs, respect for
cultural and group identity, and faith in social and political institutions, which
enhance the participation of individuals and groups in society. The underlying
values and principles of a free and democratic society are the genesis of the rights
10 and freedoms guaranteed by the Charter and the ultimate standard against which
a limit on a right or freedom must be shown, despite its effect, to be reasonable
and demonstrably justified.

The rights and freedoms guaranteed by the Charter are not however absolute. It
may become necessary to limit rights and freedoms in circumstances where their
15 exercise would be inimical to the realisation of collective goals of fundamental
importance. For this reason, section 1 provides criteria for their justification for the
limit on rights and freedoms guaranteed by the Charter. These criteria impose a
stringent standard of justification, especially when understood in terms of the two
contextual considerations discussed above, namely, the violation of a
20 constitutionally guaranteed right or freedom and the fundamental principle of a
free and democratic society.

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. It is clear from the- text of section
25 1 that limits on the rights and freedoms enumerated in the charter are exceptions
to the general guarantee. The presumption is that the rights and freedoms are
guaranteed unless the party invoking section 1 can bring itself within the
exceptional criteria which justify their being limited. This is further substantiated by
the use of the word 'demonstrably', which clearly indicates that the onus of
30 justification is on the party seeking to limit.

The procedural point is that once such a prima facie case has been
established by the Petitioner the onus shifts to the Respondent to
demonstrate that what is being challenged as inconsistent with a provision
of the Constitution is demonstrably justifiable in a free and democratic
35 society and the standard of proof is higher than that on the balance of
probabilities.

9
 5 The Petitioner having shown that ordinary defendants have 15 days within
which to file a written statement of defence upon being served with
summons to do so and the Attorney General has 30 days within which to file
a defence in similar circumstances, prima facie demonstrated that there is
inequality in legislation in terms of Article 21 of the Constitution of the
10 Republic of Uganda and the only question that remains is whether such
inequality is demonstrably justifiable in a Free and Democratic Society. The
onus shifted on the Attorney General to demonstrate that the rule 11 of the
Government Proceedings (Civil Procedure) Rules is demonstrably justifiable
in a Free and Democratic Society. The Respondent's answer to the petition
15 does not provide any evidence or answer to demonstrate that the disparity
between ordinary defendants in civil suits and the Attorney General as
defendants in civil suits is justifiable as stated above. In the absence of such
explanation or evidence, the Attorney General has abandoned his or her
responsibility and has not met the onus and standard required for the court
20 to determine the issue of whether having 30 days within which to file a
written statement of defence compared to the 15 days for ordinary litigants
is demonstrably justifiable in a Free and Democratic Society.

In the premises, and on that ground alone, I would find that the rule 11 of
the Government Proceedings (Civil Procedure) Rules is inconsistent with
25 Article 21 (1) of the Constitution of the Republic of Uganda in that all persons
are not treated equally before the law and the Attorney General has
discriminatorily been given more days within which to file a defence than
other ordinary defendants. Moreover, the Attorney General has 45 days
within which to consider the matter after being given statutory notice. The
30 period of 45 days enables the Attorney General to liaise with the Government
Department in investigating the claim and in considering whether to settle
the suit or settle it or defend it at the end of the statutory notice period. For
the same reason, I cannot conclude that the period of 30 days given to the
Attorney General was in the public interest. There is simply no evidence or

io
 5 grounds to reach that conclusion in the absence of a demonstration by the
Attorney General that the 30 days' period within which to file a defence is
demonstrablyjustifiable in the free and Democratic society. I would allow this
ground of the petition and hold that rule 11 of the Government Proceedings
(Civil Procedure) Rules is inconsistent with Article 21 (1) of the Constitution.

10 The third matter for consideration is 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.

On this third issue, I agree with my learned brother Hon Mr. Justice Stephen
Musota, JCC that Articles 154 and 155 of the Constitution, as well as section
15 19 (4) of the Government Proceedings Act is not inconsistent with the cited
provisions of the Constitution. The issue of failure to pay has nothing to do
with the law but is a problem of failure to operationalize the law according
to the Constitution and the Financial Management Act 2015 and previous
enactments on management of Public Funds. I would like to add that a similar
20 matter was considered by the High Court; Executions and Bailiffs Division, in
Bank of Uganda v Ajanta Pharma Ltd and Attorney General;
Miscellaneous Appeal No 04 Of 2017 (Arising from Miscellaneous
Application No 601 of 2017) (Arising out of Arbitration Cause No 03 of
2016) ((Original CAD - 02 OF 2011)) where the issue before court was
25 whether the Petroleum Fund could be attached to satisfy a judgment debt.
This is what I held:

The issue here is whether the Petroleum Fund can be attached. The system of
management of funds by Government is constitutional. Its foundation is Article 154
of the Constitution. Starting with the Consolidated Fund, it is created in a similar
30 way like the Petroleum Fund by an Act of Parliament. Article 153 of the Constitution
provides as follows:

"153. Consolidated Fund.

11
 5 (1) There shall be a Consolidated Fund into which shall be paid all revenues
or other monies raised or received for the purpose of, or on behalf of, or in
trust for the Government

(2) The revenues or other monies referred to in clause (1) of this Article shall
not include revenues or other monies—

10 (a) that are payable by or under an Act of Parliament, into some other fund
established for a specific purpose; or

(b) that may, under an Act of Parliament, be retained by the department of

Government that received them for the purposes of defraying the expenses
of that department."

15 Article 153 (1) provides that money in the Consolidated Fund shall be where all
revenues or other monies raised and received for the purposes of or on behalf of
or in trust for the Government shall be paid. Secondly, Article 154 provides that
there shall be no withdrawal from the Consolidated Fund except as authorized by
law. It provides as follows:

20 "154. Withdrawal from the Consolidated Fund.

(1) No monies shall be withdrawn from the Consolidated Fund except—

(a) to meet expenditure charged on the fund by this Constitution or by an

Act of Parliament; or

(b) where the issue of those monies has been authorised by an

25 Appropriation Act, a Supplementary Appropriation Act or as provided under
clause (4) of this Article.

(2) No monies shall be withdrawn from any public fund of Uganda other
than the Consolidated Fund, unless the issue of those monies has been
authorised by law.

30 (3) No monies shall be withdrawn from the Consolidated Fund unless the
withdrawal has been approved by the Auditor General and in the manner
prescribed by Parliament.

12
 5 (4) If the President is satisfied that the Appropriation Act in respect of any
financial year will not or has not come into operation by the beginning of
that financial year, the President may, subject to the provisions of this
Article, authorise the issue of monies from the Consolidated Fund Account
for the purposes of meeting expenditure necessary to carry on the services
10 of the Government until the expiration of four months from the beginning
of that financial year or the coming into operation of the Appropriation Act,
whichever is the earlier.

(5) Any sum issued in any financial year from the Consolidated Fund Account
under clause (4) of this Article in respect of any service of the Government—

15 (a) shall not exceed the amount shown as required on account in respect of
that service in the vote on account approved by Parliament by resolution
for that financial year; and

(b) shall be set off against the amount provided in respect of that service in
the Appropriation Act for that financial year when that law comes into
20 operation.

Expenditure out of the Consolidated Fund has to be charged by the Constitution

or by an Act of Parliament, otherwise money shall not be withdrawn from the fund.
It follows that the court cannot order a withdrawal from the Consolidated Fund
since it is the preserve of Parliament to authorise the Executive Arm of Government
25 to do so. Similar provisions have been enacted to apply to the Petroleum Fund.
Under section 3 of the Public Finance Management Act 2015 the term Petroleum
Fund is defined. "Petroleum Fund" means the fund established under section 56.
The term "petroleum revenue" also means tax paid under the Income Tax Act on
income derived from petroleum operations, Government share of production,
30 signature bonus, surface rentals, royalties, proceeds from the sale of Government
share of production, any dividends due to Government, proceeds from the sale of
Government's commercial interests and any other duties or fees payable to the
Government from contract revenues under a petroleum agreement. Finally, the
"Petroleum Revenue Investment Reserve" means the investment reserve referred
35 to in section 62 of the Public Finance Management Act.

13
 5 The subsequent section 58 of the Public Finance Management Act, 2015
prescribes how monies shall be withdrawn from the Petroleum Fund. Section 58 is
couched in mandatory terms. Withdrawals shall only be made under an authority
of an Appropriation Act of Parliament. Appropriation Acts are passed after
Government presents a budget for approval of Parliament. Section 58 of the Public
10 Finance Management Act, 2015 provides as follows:

"58. Withdrawals from the Petroleum Fund.

Withdrawals from the Petroleum Fund shall only be made under authority
granted by an Appropriation Act and a warrant of the Auditor General—

(a) to the Consolidated Fund, to support the annual budget; and

15 (b) to the Petroleum Revenue Investment Reserve, for investments to be

undertaken in accordance with section 63."

The only way to withdraw funds from the Petroleum Fund is through an Act of
Parliament. To make an order or cause through court order to withdraw funds
from the Consolidated Fund or from the Petroleum Fund without an appropriation
20 of the funds by Parliament after considering a budget to justify and have approved
proposed expenditure to be charged on the fund offends the cardinal doctrine of
separation of powers and is unconstitutional. The term "appropriation" is defined
by section 3 of the Public Finance Management Act to mean "an authorization
made under an Appropriation Act permitting payment out of the Consolidated
25 Fund or the Petroleum Fund under specified conditions or for a specified purpose".
Secondly, the term "Appropriation Act" means "the Act passed in accordance with
Article 156 of the Constitution, which authorizes expenditure of public money for
a financial year." Finally, the expenditures of Government are presented to
Parliament in a budget and may be approved. The term "budget" is also defined
30 and means the Government plan of revenue and expenditure for a financial year"

A garnishee order nisi or absolute attaching and transferring revenues in the

Petroleum Fund usurps powers of the Executive to present a budget for approval
of Parliament and also usurps powers of Parliament to authorize any expenditure
out of the Petroleum Fund. It is unconstitutional because it offends the doctrine of
35 separation of powers as stated in the Zimbabwean case of Smith v Mutasa and
Another [19901 LRC 87. In that case the Supreme Court of Zimbabwe held that

14
 5 the Constitution is the supreme law of the land and Parliament though supreme in
the legislative field assigned by the Constitution cannot go beyond its
constitutional limits. The Supreme Court of Zimbabwe cited with approval the
decision of Gajendragadkar CJ. of the Supreme Court of India in Special
Reference No. 1 of 1964 (1965) 1 SCR 413 at 446 that:

10 "••■just as the legislature are conferred legislative authority and their

functions are normally confined to legislative functions, and functions and
authority of the executive lie in the domain of executive authority, so
jurisdiction and authority of judicature in this country lie within the domain
of adjudication •••" (reported in All India Reporter (1965) (Volume 52) page
15 745 SC pages 1 - 1200).

In Smith vs. Mutasa (Supra) the Court held at page 95 that:

"the Constitution of Zimbabwe divides powers between the executive, the

legislature and the judiciary as I have mentioned above, and •••leaves to
courts of law the question of whether there has been any excess of power,
20 and require them to pronounce as void any act which is ultra vires."

Let the Executive present a budget to get funds out of the Petroleum Fund and it
is up to Parliament to exercise its mandate to see whether the withdrawal from the
fund as proposed by the Executive Arm of Government should be made or not.
The court cannot interfere with that process by imposing another route for
25 withdrawals out of the Petroleum Fund in the name of satisfying judgment debts
in execution. In the premises the garnishee proceedings as attach and purport to
transfer any money from the Petroleum Fund is an illegality and is null and void.
Whether the procedure followed in moving the court is right or wrong the law is
that an illegality once brought to the attention of court overrides all questions of
30 pleadings including any admissions made therein as held in the Ugandan case of
Makula International v His Eminence Cardinal Nsubuga and another reported
in [1982] HCB 11

Similar to the question of the Petroleum Fund, section 19 of the Government

Proceedings Act provides for the procedure for execution against
35 Government for payment of a judgment debt. This would avoid the
attachment of any fund that has been appropriated by Parliament for a

15
 5 specified purpose that has been budgeted for. Appropriations are based
on budgets submitted by ministries and expenditure outside the budget
by ministries is forbidden. Monies are appropriated for particular purposes
specified in the submission of ministries in their budgetary documents. For
instance, money meant for drugs or procurement of fuel for vehicles
10 should not be attached to satisfy a judgment debt otherwise the supplier
who is entitled to prompt payment under a contract may also sue the
Government for payment of dues together with damages and a vicious
circle begins again.

Section 19 of the Government Proceedings Act, requires that a certificate of

15 order against the government containing the particulars of the payment as
stipulated in the decree or order of Court should first be issued by the
Registrar. Secondly, it has to be served upon the Attorney General and the
Treasury officer of accounts or such other government accounting officer as
may be appropriate. This allows for verification of the judgment debt. The
20 accounting officer shall subject to other provisions pay to the person entitled
or his or her advocate the amount appearing by the certificate that is due to
him or her together with the interest if any due on the amount.

The only way that payment may be delayed is if there is a stay of execution
ordered issued by a competent court obtained by the Attorney General. This
25 is expressly provided for by section 19 (3) of the Government Proceedings
Act, which, inter alia provides that:

• • • Government accounting officer as may be appropriate shall, subject as hereafter

provided, pay to the person entitled or to his or her advocate the amount
appearing by the certificate to be due to him or her together with the interest, if
30 any, lawfully due on that amount; but the court by which any such order as is
mentioned in this section is made or any court to which an appeal against the
order lies may direct that, pending an appeal or otherwise, payment of the
whole of any amount so payable, or any part of it, shall be suspended, and if

16
 5 the certificate has not been issued may order any such directions to be
inserted in the certificate. (Emphasis added)

The question of the budget and appropriation by Parliament does not arise
except as a matter of practice for any factors which are not before court.
There should be in place, sufficient funds to meet judgment debts. If there
10 are no sufficient funds, it is a problem of management. There are
extraordinary circumstances in which money that is budgeted for is not paid
out in cases of contracts or tenders resulting in suits for breach of contract.
Hypothetically, the money for supply of services to Government ought to
have been returned to the Treasury if not paid and if the matter ends up as
15 a civil suit, resulting in a judgment debt payable by the government, the
money should be available because the activity was budgeted for and money
appropriated for it by Parliament except for the award of damages and
interest. This should apply to all contracts executed for which money is
supposed to be budgeted for to fulfil the contract. It is only the unexpected
20 matters like Torts or other breaches of contract or duties which may be of
surprise to the Executive. Even then, there must be a budget to satisfy
judgment debts estimated from various demands that have been served
upon the Attorney General as the legal representative of Government. If there
is to be a delay in payment, such delays have to be explained to the
25 satisfaction of court. Based on documents served on the Attorney General, a
budget can be generated for the next financial year. Generally, the line
Ministry responsible for the provision of the service, the subject matter of the
suit or the servant of the Ministry responsible for the commission of the tort
or breach of the litigants right should have a budget to satisfy debts
30 ordinarily incurred by the Ministry.

In the premises, section 19 of the Government Proceedings Act, Cap 77 is not

inconsistent with any provision of the Constitution. The only hard question is
whether an order of mandamus compelling the Treasury officer of accounts
or the accounting officer for the Ministry responsible who is required to pay

17
 5 the judgment debt in mandatory terms under section 19 (3) of the
Government Proceedings Act, can be compelled to pay immediately. Section
19 of the Government Proceedings Act envisages payment within a
reasonable time because the requirement to pay by the Treasury officer of
accounts or such other government accounting officer is couched in
10 mandatory language. Payment ought to be processed soon after service of
the court documents signifying the amount to be paid to the judgment
creditor. Failure to do so is breach of the law and the remedy is to file an
action directing the Treasury officer of accounts or the accounting officer to
pay or risk being imprisoned or be made to pay at the time and in the manner
15 directed by the court. In the very least it should be demonstrated to the
satisfaction of the court executing the decree or order that payment has been
initiated and delays are based on the system of payment which system when
commenced guaranties the payment with a specified time.

In the premises, failure to pay for a long period of time even after service of
20 the material documents signifying the decree of the court directing payment,
or an order of mandamus directing payment, is a constitutional crisis. Court
orders are enforceable with the assistance of the Executive. Article 128 of the
Constitution clearly provides in Article 128 (3) thereof that the state shall
accord to the courts such assistance as may be required to ensure the
25 effectiveness of the courts. Article 128 (3) provides that:

(3) All persons and agencies of the State shall accord to the courts such assistance
as may be required to ensure the effectiveness of the courts.

Failure to assist the courts in the matter of satisfaction of a judgment debt is

a clear violation of Article 128 (3) of the Constitution though no question
30 arises for interpretation of the Constitution and it is an issue for enforcement
of the Constitution only. Even arresting the Treasury officer of accounts or
the accounting officer responsible to make the payment can be done by an

18
 5 appropriate officer of the Executive. In the circumstances, failure to assist the
court is a failure of the constitutional order.

In the premises, I agree that section 19 of the Government Proceedings Act

is not inconsistent with any provision of the Constitution and it is only the
enforcement of that provision that is wanting.

10 The last issue of whether any omission by The government in providing

for payment of the judgment debt for the financial years 2011/2012,
2012/2013, is contrary to Article 155 (1) & 160 of the Constitution which
requires inter a/ia that the government includes in its annual budgeting
process monies by which it must defray the public debt from the
15 Consolidated Fund.

1 agree with the decision of my learned brother Hon Mr. Justice Stephen
Musota, JCC on this issue and I have nothing useful to add.

In the premises, I would allow the petition partially by allowing issue number
2 with costs and would dismiss the rest of the petition as proposed in the
20 judgment of my learned brother Hon Mr. Justice Stephen Musota, JCC with
an order that each party bears its own costs of the dismissed portion of the
petition.
Dated at Kampala the 4^ day of JtL________ 2020

25

Justice of Constitutional Court

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