[2022] UGCC 14

#### IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA

#### **CONSTITUTIONAL PETITION NO. 22 OF 2015**

- 1. CENTRE FOR HEALTH, HUMAN RIGHTS AND DEVELOPMENT - 2. ACTION AID UGANDA - 3. FOOD RIGHTS ALLIANCE UGANDA - 4. SOUTHERN AND EASTERN AFRICA TRADE INFORMATION AND **NEGOTIATIONS INSTITUTE – UGANDA ========= PETITIONERS**

#### **VERSUS**

1. ATTORNEY GENERAL 2. AGRO TECHNOLOGIES LTD $\Rightarrow$ ================ RESPONDENTS

HON. MR. JUSTICE RICHARD BUTEERA, DCJ CORAM: HON. MR. JUSTICE GEOFFREY KIRYABWIRE, JA/JCC HON. LADY JUSTICE ELIZABETH MUSOKE, JA/JCC HON. LADY JUSTICE HELLEN OBURA, JA/JCC HON. LADY JUSTICE MONICA MUGENYI, JA/JCC

#### JUDGMENT OF HON. MR. JUSTICE RICHARD BUTEERA, DEPUTY **CHIEF JUSTICE**

I have had the advantage of reading in draft the Judgment of Justice Monica Mugenyi JA/JCC.

I agree with her Judgment and I agree with her that the Petition be dismissed with no order as to costs for the reasons stated in the Judgment.

As all the members of the Court agree with the proposed order, it is so ordered.

Richard Buteera DEPUTY CHIEF JUSTICE 13/00/2012

# IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPAIIT

# CONSTITUTIONAL PETITION NO. 22 OF 2OI5

# 1. CENTRE FOR HEALTH, HUMAN RIGHTS AND DEVELOPMENT

- 2. ACTION AID UGANDA - 3. FOOD RIGHTS ALLIANCE . UGANDA - 4. SOUTHERN AND EASTERN AFRICA TRADE INFORMATION AND NEGOTIATIONS INSTITUTE - UGANDA============ PETITIONERS

#### VERSUS

].. ATTORNEY GENERAL

2. AGRO TECHNOLOGIES LTD========= = RESPONDENTS

CORAM:

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HON. MR. JUSTICE RICHARD BUTEERA, DCI HON. MR. JUSTICE GEOFFREY KIRYABWIRE,IAIJCC HON. LADY JUSTICE ELIZABETH MUSOKE,lAlJCC HON. LADY JUSTICE HELLEN OBURA, lA/lCC HON. LADY JUSTICE MONICA MUGENYI,IryICC

# LUDGMENT OF HON. MR. IUSTICE GEOFFREY KIRYABWIRE. IAIICC

^thave had the opportunity of reading the draft Judgment of the Hon. Lady Justice Monica K. Mugenyi, JA/JCC.

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^Iagree with her Judgment and I have nothing more useful to add.

**Dated** at **Kampala** this....................................

$\mathcal{L}$ **.....................................**

HON. MR. JUSTICE GEOFFREY KIRYABWIRE, JA/JCC

# THE REPUBLIC OF UGANDA IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA **CONSTITUTIONAL PETITION NO. 0022 OF 2015**

- 1. CENTRE FOR HEALTH HUMAN RIGHTS AND DEVELOPMENT (CEHURD) - 2. ACTION AID UGANDA (AAU) - **3. FOOD RIGHTS ALLIANCE UGANDA (FRA)** - 4. SOUTHERN AND EASTERN TRADE INFORMATION AND NEGOTIONS INSTITUTE-UGANDA (SEATINI) **\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\***

### **VERSUS**

ATTORNEY GENERAL::::::::::::::::::::::::::::::::::::

CORAM: HON. MR. JUSTICE RICHARD BUTEERA, DCJ HON. MR. JUSTICE GEOFFREY KIRYABWIRE, JCC HON. LADY JUSTICE ELIZABETH MUSOKE, JCC HON. LADY JUSTICE HELLEN OBURA, JCC HON. LADY JUSTICE MONICA K. MUGENYI, JCC

# **JUDGMENT OF ELIZABETH MUSOKE, JCC**

I have had the advantage of reading in draft the judgment of my learned sister Mugenyi, JCC. I agree with it and for the reasons given by learned sister, I too would dismiss the Petition but make no order as to costs.

Dated at Kampala this ....................................

$\overbrace{\mathcal{Q}}$

**Elizabeth Musoke** Justice of the Constitutional Court

#### IN THE CONSTITUTIONAL COURT OF UGANDA

#### AT KAMPALA

(CORAM: BUTEERA, DCJ; KIRYABWIRE, MUSOKE, OBURA & MUGENYI, JJCC)

#### CONSTITUTIONAL PETITION NO.22 OF 2015

- 1. CENTRE FOR HEALTH, HUMAN RIGHTS AND DEVELOPMENT - 2. ACTION AID UGANDA - 3. FOOD RIGHTS ALLIANCE UGANDA - 4. SOUTHERN AND EASTERN AFRICA TRADE INFORMATION AND NEGOTIATIONS INSTITUTE - UGANDA PETITIONERS

#### VERSUS

#### 1. ATTORNEY GENERAL

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2. AGRO TECHNOLOGIES LTD RESPONDENTS

#### JUDGMENT OF HELLEN OBURA, JA/JCC

¹. I have had the opportunity to read in draft the judgment of my learned sister, Hon. Lady Justice Monica K. Mugenyi, JA/JCC in the above Petition, I agree with her analysis and findings on allthe agreed issues with nothing usefulto add, I therefore concur with her conclusion that the Petition be dismissed with no order as to costs.

),-- Dated at Kampala this... ... .1,%,..,, day of 2022

Hellen Obura

#### JUSTICE OF APPEAL/GONSTITUTIONAL COURT


## THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA

CORAM: BUTEERA, DCJ; KIRYABWIRE, MUSOKE, OBURA & MUGENYI, JJCC

#### **CONSTITUTIONAL PETITION NO. 22 OF 2015**

- 1. CENTRE FOR HEALTH, HUMAN RIGHTS AND DEVELOPMENT - 2. ACTION AID UGANDA - 3. FOOD RIGHTS ALLIANCE UGANDA - 4. SOUTHERN AND EASTERN AFRICA TRADE INFORMATION AND NEGOTIATIONS INSTITUTE – UGANDA ...................................

#### **VERSUS**

#### 1. ATTORNEY GENERAL

2. AGRO TECHNOLOGIES LTD ...................................

$\mathbf{1}$

#### JUDGMENT OF MONICA K. MUGENYI. JCC

#### A. Introduction

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- 1. Centre for Health, Human Rights and Development (CEHURD), Action Aid Uganda (AAU), Food Rights Alliance - Uganda (FRA) and the Southern and Eastern Africa Trade lnformation and Negotiations lnstitute (SEATINI) ('the Petitioners') lodged this Constitutional Petition in this Court challenging the procedure leading to the enactment of the Plant Variety Protection Act of 2014 for flouting Rule 23 of the Parliamentary Rules of Procedure. They do also challenge sections of the Act for being inconsistent with Principles ll and XlV, and Objective XXll of the National Objectives and Directive Principles of State Policy, as well as Articles 2(1) and (2\, 8A, 26, 38, 88, 94(1), all of the Constitution of the Republic of Uganda. - 2. The Petition is brought underArticles 137(1), (3) and (a) of the Constitution, and is supported by the affidavits of Ms. Primah Kwagala, Mr. Frederick Kawooya, Ms. Agnes Kirabo and Ms. Jane Nalunga that were all lodged in this Court on 30th July 2015. Ms. Kwagala did file a supplementary affidavit in the matter on Sth October 2015. - 3. lt is opposed by the office of the Attorney General ('the First Respondent'), which denies the infringement of the cited constitutional provisions by any section of the Plant Variety Protection Act and contends that the Petition does not raise any question for constitutional interpretation. The First Respondent's Answer to the Petition is supported by the affidavit of Mr. Richard Adrole that was lodged in the Court on 28th January 2016. - 4. At the hearing, Messrs. Kenneth Ssebabi, lbrahim Nsereko, Rose Wakikona and Paul Wasswa appeared for the Petitioners, while the First Respondent was represented by Ms. Patricia Mutesi, Assistant Commissioner (Legal) at the Attorney General's Chambers. The Second Respondent did in 2016 successfully apply to be joined as a party to the Petition but has since neither filed pleadings nor submissions (despite due service by the Petitioners), or made any appearance in the matter.

#### B. Petitioners' Case

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- 5. The Petitioners contend that on 20th December 2013 the enactment of the impugned Act ensued without any determination by the 9th Parliament of Uganda as to whether there was requisite quorum, which in itself is a contravention of Articles 2(1) and (2), 88 and 94(1) of the Uganda Constitution, and Rule 23 of the Parliamentary Rules of Procedure. The presiding Speaker at the third reading of the Plant Variety Protection Bill, 2010 is faulted for not having ascertained the presence of quorum in the House before the Bill was passed into law, as required under Rule 23(3) of the then applicable Parliamentary Rules of Procedure. lt is argued that in exercising its mandate under Article 79 of the Constitution, the Legislature is required to have the requisite quorum as stipulated in Article 88 of the Constitution. ln support of their case, the Petitioners infer alia rely on the affidavit of Ms. Primah Kwagala that specifically introduces in evidence the Hansard of 20th December 2013, which highlight the proceedings of the House on that day. ln addition, they rely upon the decisions in Paul K Ssemoqerere & Othens v Attornev General. Constitutional Appeal No. 1 of 2002 and @@ Onvanqo & Others v Attornev General. Constitutional Petition No. 8 of 2014. - 6. The process adopted by the 9th Parliament in the enactment of the Plant Variety Protection Act is further opined to have been unconstitutional in so far as it excluded the participation of communities affected by the !aw, particularly farmers, thus flouting the right to civic engagement and participation in decision making contrary to Principle XIV of the Nationa! Objectives and Directive Principles of State Policy, and Articles 8A and 38 of the Uganda Constitution. - 7. lt is the Petitioners' contention that Objective Il(ii) of the Constitution enjoins the State to encourage the active participation of the Ugandan citizenry in their governance, while Article 38 of the Constitution recognizes Ugandans' right to participate in the affairs of government either individually or through their representatives. Consequently, Parliament should have consulted all the communities and individuals that were affected by the Plant Variety Protection Bill when it was being legislated, failure of which flouted the communities' right to civic engagement and participation in decision-making. The Petitioners concede that

the responsible parliamentary committee did consult the Ministry of Agriculture, Animal Industry and Fisheries; National Agricultural Research Organisation; African Forum for Agricultural Advisory Services; Uganda Forum for Agricultural Advisory Services; Science Foundation for Livelihoods and Development, and the Plant Variety Protection Bill Stakeholders' Working Group, but argue that there is no indication that the communities or farmers that would be affected by the Bill were similarly consulted before it was tabled in Parliament. This Court is urged to find the non-consultation of those groups unlavvful and inconsistent with Objective ll(ii) of the National Objectives and Directive Principles of State Policy, and Article 38 of the Constitution.

- 8. Sections 13(a) and (b), and 15(a), (b), (c) and (e) of the Act are specifically challenged for prohibiting the production and sale of reproductive materialof plants of new plant varieties, thus inhibiting the principle of exhaustion of rights and contravening the right to property under Article 26 ol the Constitution. lt is argued that whereas section 13 of the Act grants plant breeders the exclusive right to sell and produce their plant varieties and reproductive materials thereof, section 15 provides exceptions to those rights in so far as it permits farmers to propagate, exchange, grow or use parts of the variety for purposes other than commerce, as well as sell plants as food or for any other purpose but the growing or production of the plant. - 9. The Petitioners call for a balance between the private rights of plant breeders as protected under section 13 of the Act and the rights of farmers as community breeders, asserting that the exceptions in section 15 of the Act emphasize the use of protected plant varieties for non-commercial purposes thus denying farmers the opportunity to financially benefit from what would otherwise be their property. They rely upon the decision in Aesociation Kokopelli v Graines Baumax (SAS 2012 EUECJ C-59r1 1) to propose that the limitation in section 15 of farmers' right to use the plant varieties for non-commercial purposes, as well as the interference by the Act with the farmers' right to trade in the plant varieties, should be proportional to the interests of the plant breeder and should genuinely meet the objectives of the Plant Variety Protection Act.

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### C. First Respondent's Case

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- 11. On its part, the First Respondent faults the Petition for being misconceived, prolix, frivolous and an abuse of court process in so far as it supposedly raises no question for constitutional interpretation. ln paragraph 6 of the Answer to the Petition, it is averred that the question of quorum was never raised by any member of Parliament during the passing of the Bill. Meanwhile, in paragraph 3 of his affidavit in support of the Answer to the Petition, Mr. Richard Adrole categorically denies the absence of quorum in the House at the material time, attesting in paragraph 4 of the same affidavit to the quorum in the House having been consistent with Articles 2(1) and (2), 88 and 94(1) of the Constitution, as well as Rule 23 of the 9th Parliament's Rules of Procedure. - 12. The First Respondent further contends that in so far as the Bill was passed with the participation of Members of Parliament, the Ugandan citizenry did by representation participate in its enactment, and neither Articles 8A and 38 of the Constitution nor Principle XIV of the National Objectives and Directive Principles of State Policy were violated. Noting the concession by the Petitioner on the consultations undertaken by the Committee, it is argued that consultation may take on different forms and, in this case, ensued through the representations of Members of Parliament in accordance with Article 79 of the Constitution.

13. lt is further opined that section 13(a) and (b) of the impugned Act preserves the rights of plant breeders in respect of new plant varieties in accordance with the right to ownership of property that is guaranteed under Article 26 of the Constitution. Furthermore, that whereas section 15(a), (b), (c) and (e) is designed to protect the rights of Ugandans to food and livelihood; those legal provisions read together with sections 15(d), (e) and (0; 17(b), (d) and (e) and 32 of the Act are intended to protect food security in Uganda. The First Respondent thus contends that the purpose of the impugned Act is to promote the development of new plant varieties and guarantee their protection, which initiatives are in accordance with Objectives ll(i), XIV(b), XXll(a) and Article 8A of the Constitution.

#### D. Issues for Determination

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- 14. Pursuant to a Scheduling Conference held on 1Sth December 2015, the following issues were framed for determination: - l. Whether the Petition raises issu es for constitutional interpretation. - tt. Whether the passlng of the Plant Variety Protection Act, 2014 without asceftaining whether there was requisite quorum uyas inconsistent with and in contravention of Articles 2(1) and (2), 88 and 94(1) of the Constitution and Rule 23 of the Parliamentary Rules of Procedure. - tll. Whether the enactment of the Plant Variety Protection Act, 2014 without the pafticipation and consultation of the communities fo De affected by the Act was inconsistent with and in contravention of Pinciple XIV of the National Objectives and Directive Principles of Sfafe Policy, Articles 8A and 38 of the Constitution. - lV. Whethersecfions 13(a) and (b), 15(a), (b), (c) and (e) of the Plant Variety Protection Act, 2014 are inconsistent with and in contravention of the pinciple of exhaustion of rights and the ight to property under Afticle 26 of the Constitution. - V. Whether the Petitioners are entitled to the remedies soughf.

## E. Determination

15. The question as to whether a Constitutional Petition raises any question for constitutional interpretation speaks to the jurisdiction of this Court and is therefore the gravamen of any matter lodged before the Court. lt shall thus be determined forthwith, alongside /ssue No. 2 of the Petition, the justiciability of which by this Court is debatable.

# lssues 1 & 2: Whether the Petition raises t'ssues for constitutional interpretation & Whether fhe passing of the Plant Vaieties and Protection Act, 2014 without asceftaining whether there was requisite quorum was inconsisfenf with and in contravention of Articles 2(1) and (2), 88 and 94(1) of the Constitution and Rule 23 of the Parliamentary Rules of Procedure.

- 16. lt is the Petitioners' contention under /ssue No. I that Article 137(3) of the Constitution prescribes the jurisdiction of the Constitutional Court to include addressing any unconstitutional act or omission by any person or authority. Therefore, in so far as it challenges the enactment of the Plant Variety Protection Act without either quorum or public participation, as well as the constitutionality of highlighted sections thereof, the petition does call for constitutiona! interpretation. They cite Center for Health. Human Rishts and Development & Otheni v Attornev General. Constitutional Aopeal No. 1 of 2013 and !g@!!-!iggg Kampala CiW Council & Another. Constitutional Appeal No. 2 of 1998 in support of their position. - 17. The First Respondent does similarly cite Attornev General v Mai. Gen. David Tinvefunza. GonstitutionalAppeal No. 1 of 1997 and lsmail Seruqo v Kampala Citv Council & Another (supra) in support of its proposition that this Petition does not invoke this Court's interpretative mandate. !t is argued that the impugned Act neither violates the rights of farmers nor is it detrimentalto food security in Uganda but, in any case, the Petitioners would have a remedy for any alleged violation of rights before the High Court of Uganda under Article 50 of the Constitution. - 18.8y way of rejoinder, it is reiterated that the petition does indeed raise matters for interpretation as to the constitutionally prescribed quorum for the passing of laws by the legislature, as well as the consistency of sections 13(a) and (b) and 15(a), (b) and (c) of the enacted law with Article 26 of the Constitution. - 19. For ease of reference, I reproduce below Article 137(1) and (3) of the Constitution. They read as follows:

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- (11 Any question as to the lnterpretation of this Constitution shall be determlned by the Court of Appeal slttlng as the constltutlonal court. - l2l

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- (3) A percon who alleges that - (a) An Act of Parliament or any other law or anything ln or done under the authorltY of anY law; or - (b) Any act or omlsslon by any percon or authority,

is lnconsistent with or ln contravention of a provlslon of thls Constltutlon, may petitlon the constltutional court for a declaratlon to that effect, and for redress where appropriate.

- 20. The jurisdiction of a court or tribunal is defined by three elements: ratione petsonae, ratione mateiae and rutione temporis. Whereas a court's ratione mafteriae refers to its subject-matter jurisdiction, its ratione personae pertains to parties' loctts standito institute proceedings before it. Ratione temporis, on the other hand, pertains to the time frame within which proceedings may be instituted. See ft Attornev General of the llnited Reoublic of Tanzania vs. Anthonv Calist Komu. EACJ Appeal No. 2 of 2015. Against that background, Article 137(1) addresses this Court's ratione materiae while Article 137(3) addresses its ratione personae. Accordingly, although the present Petition is brought under both constitutional provisions, the context within which the question of jurisdiction arises presently is in relation to the Court's ratione materiae as delineated under Article 137(1) of the Constitution. - 2l. Article 137(1) has been severally construed to restrict the Court's subject-matter jurisdiction solely to the interpretation of the Constitution. See Attornev Genenl v Maior General David Tinvefuza (supr4, lsmail Seruoo v Kampala Cittr Council & Another (supra) and, more recently, Georoe William Alenvo v The Chief Reoistrar. Courts of Judicature & 2 Otherc. Constitutional Petition No. 32 of 2014 (ConstitutionatCourt). ln that regard, this Court and the Supreme Court have repeatedly observed that a constitutional breach perse would not necessarily give rise to a matter for constitutional interpretation. - 22.1n Attornev General v Mai. Gen. David Tinvefunza (supra), it was held (per Wambuzi, CJ):

ln my view, jurisdiction of the Constitutional Court is limited in Article 137(1) of the Constitution to interpretation of the Constitution. Put in a different way, no other jurisdiction apart from interpretation of the Constitution is given. ln these circumstances I would hold that unless the question before the Constitutional Court depends for its determination on the interpretation or construction of a provision of the Constitution, the Constitutional Court has no jurisdiction.

# 23.|n the latter case of lsmail Seruso v Kampala Gitv Council & Another (supra) the learned CJ further observed:

ln my view for the constitutional court to have jurisdiction the petition must show, on the face of it, that interpretation of a provision of the Constitution is required. lt is not enough to allege merely that a Constitutional provision has been violated. lf therefore any rights have been violated as claimed, these are enforceable under Article 50 of the Constitution by another competent Court.

- 24. From the foregoing authorities, two factors would appear to determine whether the Court's jurisdiction has been properly invoked. First, whether the question before the Court depends for its determination on the interpretation of a constitutiona! provision and, secondly, such question should go beyond the mere allegation of a constitutionalviolation. Stated differently, an allegation of a constitutional violation would not necessarily invoke the Court's jurisdiction unless there is a discernible question the resolution of which is wholly dependent on the interpretation of ^a specific provision of the constitution. - 25.1n the matter presently before the Court, the substratum of the Petitioner's case is encapsulated in paragraph 5(a) - (d) of the Petition as follows: - (a) THAT the process and procedures of enactment of the Plant Variety Protection Act, 2014 on December 20, 2013 by the 9th Parliament of the Republic of lJganda without determining whether there was the prerequisite quorum was in contravention of and inconsistent with the provisions of Articles 2(1) & (2), 88 and 94(1) of the Constltution of the Republic of llganda and Rule 23 of the Parliamentary Rules of Procedure. - (b) THAT whole process of enactment of the Plant Variety Protection Act, 2014 adopted and used by the 9th Parliament, in so far as rT uvas canied out without the participation and consultation of the affected communities adversely affected the right to civic engagement and pafticipation in

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decision making and is inconsistent with and in contravention of Principle XIV of the National Obiectives and Directive Principles of Stafe Policy Articles 8A and 38 of the Constitution of the Republic of Uganda.

- (c) THAT section 13(a) and (b) and section 15(a), (b), (c) and (e) of the Plant Vaiety Protection Act, 2014, in prohibiting the production and selling of reproductive materialof a plant variety rb lnconsisfent with the principle of exhaustion of rights and is in contravention and inconsistent with the provisions the right to property under Afticle 26 of the Constitution of the Republic of Uganda. - @) THAT the overall effect and purpose of the Plant Variety Protection Act, 2014 threatens the livelihoods and food security of the citizens of Uganda by placing the interest of a small group over the overall protection against hunger, livelihood and sulival and is in contravention of and inconsistent with Principle ll(i), XIV(b), Obiective Xll(a) ot the National Obiectives and Directive Principles of Sfafe Policy and Article 8A of the Constitution of the Republic of Uganda amended by the Constitution. - 26.1n a nutshell, it is the Petitioners'contentaon under /ssue No.2 that the Speaker was required to ascertain the presence of quorum before the impugned Act was passed, and herfailure to do so was in contravention of Articles 88, 94(1) and Rule 23(1), (2) and (3) of the Parliamentary Rules of Procedure. Reference in that regard was made to the observation in Oloka Onvanqo & Others v Attornev Generat (supra) that'Rule 23 of the Parliamentary Rules of Procedure require the Speaker, even without prompting by any Member of the Parliament to ensure that Quorum exists before a law is passed.' Reference was further made to the observation in that case that'the enactment of the law is a process, and if any of the stages therein is flawed, that vitiates the entire process and the law that is enacted as a result of it.' Learned Counsel for the Petitioners further relied upon the observation in Paul K Ssemoserere & Otherc v Attornev General (supra) that supposedly equated the ascertainment of quorum to members of Parliament that are proved to have been in the Chamber of the House and able to vote in accordance with Article 89 of the Constitution. - 27.1 am constrained to state from the onset that I do not find either of the cases cited by the Petitioners in support of this issue applicable thereto for the reasons I shall elucidate forthwith. ln Paul K Ssemoqerere & Others v Attornev General

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(supra), the contestation before the court was that the Consfifutional (Amendment) Act No. 13 of 2000 had been passed in contravention of the quorum outlined in Articles 259 and 262 of the Constitution, and had the effect of amending the additional provisions of the Constitution 'by infection' without observing due process. The import of those constitutional provisions is that an amendment to the Constitution should be supported at the second and third readings by 'votes of not less than two-thirds of all members of Parliament.' This was simply contrasted with the position under Article 89 which was paraphrased to mean that 'any question proposed for decision of Parliament shall be determined by ^a majority of votes of members "present and voting".' There was no attempt in that case to define the ascertainment of quorum, as suggestdd by Counselfor the Petitioners. By contrast, the matter before this Court presently does not pertain to a constitutionalamendment. The ratio decidendiin Paul K Ssemoqerere & Others v Attornev General (supra) is therefore inapplicable to the issue under consideration presently.

28. The Petitioners in this case do not challenge the absence of a quorum per se but the failure by the Speaker of the House to ascertain whether in fact there was a quorum in the House when the impugned Bill was passed. That is the gist of paragraph 5(a) of the Petition, which for ease of reference is reproduced below.

> THAT fhe process and procedures of enactment of the Plant Variety Protection Act, 2014 on December 20, 2013 by the 9th Parliament of the Republic of Uganda without determinino whether there was the pre-reouisite ouorum Was in contravention of and inconsistent with the provisions of Articles 2(1) & (2), 88 and 94(1) of the Constitution of the Republic of Uganda and Rule 23 of the Parliamentary Rul\* of Procedure. (emphasis mine)

29. The question of parliamentary quorum in the enactment of an Act of Parliament did arise in Oloka Onvanqo & Otherc v Attornev General (supra). !n Oloka OnvanEo & Others v Attornev General (supra), as quite correctly proposed by Counsel for the Petitioners, this Court did recognize the duty upon a Speaker to ascertain requisite quorum. ln that case, the petitioners had alleged that the Anti-Homosexuality Act had been passed without requisite quorum. The Respondent, on the other hand, contended that no evidence had been adduced to prove

absence of quorum, the onus therefor lying with the petitioners. No attempt whatsoever had been made by the respondent therein, by pleading or affidavit evidence, to deny the absence of quorum at the enactment of the Anti-Homosexuality Act. lt was on that premise that, applying Order I rule 3 of the Civil Procedure Rules (CPR), this Court adjudged the respondent to have admitted the lack of quorum and nullified the Anti-Homosexuality Act for having been passed in contravention of Articles 2(1) and (2),88 and 94(1) of the Constitution, and Rule 23 of the Parliamentary Rules of Procedure. lt was held:

> It is our decision that the respondent having been presumed to have admitted the allegations of the Petitioners in the petition that there was no Coram, we find that on the balance of probabilities, the Petitioners have proved that at the time the Prime Minister (twice) and Hon. Betty Aol, raised the objection that there was no Coram and Coram was never established, and that was in contravention of the Constitution and the Rules. (my emphasis)

30. The foregoing decision seemingly equates the violation of Parliament's Rules of Procedure to a constitutional violation. However, although the issue of jurisdiction was not raised before it, I find the Supreme Court decision in Male H. Mabirizi Kiwanuka & Othere v Attornev General. Constitutional Appeal No. 2 of 2018 instructive on the issue. That Appeal had arisen from Male H. Mabirizi Kiwanuka & Others v Attornev General. Consolidated Constitutional Petition Nos.49 of 2017. and 5. 10 & 13 of 2018, where the alleged failure by Parliament to observe its own rules of procedure during the enactment of the Constitutiona! (Amendment) Act No. 1 of 2018 was opined to contravene certain constitutional provisions, including Article 94(1) of the Constitution. /ssue No. 2 as framed in the Supreme Court read as follows:

> Whether the learned najority Jusfibes of the Constitutional Court erred in law and fact in holding that the entire process of conceptualizing, consulting, debating and enactment of Constitutionat (Amendment) Act No. 1 of 2018 did not in any respect contravene nor was it inconsistent with the 1995 Constitution of the Republic of Uganda and the Rules of Procedure of Parliament?

31. The appellants in that case inter a/ra posited that the motion to introduce the Constitutional (Amendment) Bill had been 'smuggled' onto Parliament's Order

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Paper and was presented in contravention of Rules 8,17,25,27,29 and 174 of the Rules of Procedure. The Supreme Court resolved the issue on its merits without addressing the issue that is presently before this Court as to whether a violation of the parliamentary rules of procedure raises a question for constitutional interpretation. Correctly so, in my view, because that issue had not been raised either in the Petition or on Appeal. ln so doing, nonetheless, the majority Justices of the Supreme Court interrogated the procedure adopted by Parliament against specific constitutional provisions, only making recourse to the Parliamentary Rules of Procedure in so far as they re-echoed the applicable constitutional provisions. ^I reproduce their decisions below.

32. The Hon. Lady Justice Arach Amoko, JSC held:

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ln my view, Article 94(4) together with Rule 24 and 165 of the20'12 Rules (25 and 174 respectively of the 2017 Rules) are clear that the Speaker shall determine the order of business in the House. Further Rule 7 (2) and 7(3) give the Speaker general authority to decide questions of order and practice stating reasons for her decision.

33.|t seems to me that in determining this issue the learned Justice of the Supreme Court primarily relied upon Article 94(4) of the Constitution, only deferring to the Rules of Procedure in so far as they expound the constitutional principle laid down therein. Of particular relevance to the present Petition, her lordship further held:

> However, having amended the Order Paper the Speaker should have sent the same to the Members at least three hours before the sitting as required under Rule 26(1)(b). Rule 26 reads:

"Order Paper to be sent in advance to Members

(1) The Clerk shall send to each Member a copy of the Order Paper for each sitting.

(a) ln the case of the first sitting of a meeting, at least two days before the sitting.

(b) ln the case of any other sitting, at least three hours before the sitting without fail.'

Clrrnstitutional l)etition No .22 ol'70l5 Failure to comply with this Rule was an irreoularity in mv view but not a violation of the Constitution that would lead to the nullification of the Act. (my emphasis)

34. Justice Arach Amoko thus makes the pertinent observation that a violation of the parliamentary rules of procedure is not tantamount to the violation of the Constitution under which they are made, let alone one that would render an Act of Parliament unconstitutional. Indeed, in respect of the signing of the Committee Report by non-Members of the Committee, she similarly opined:

> It was established that some Members who joined the Committee at a later stage signed the Report although they did not participate in the proceedings before the Committee. This was irregular but not unconstitutional because Article 94(3) of the Constitution provides that:

"(3) The presence and participation of a person not entitled to be present or to participate in the proceedings of Parliament, shall not, by itself invalidate those proceedings."

- 35. The Hon. Justice Aweri Opio adopted the same emphasis on constitutional provisions in determination of the question before the court, premising his decision on the allegedly smuggled Order Paper on Article 94(4) of the Constitution while observing Rule 25 to simply re-echo that provision. - 36. On his part, the learned Chief Justice largely deferred to Justice Amoko's position on the issue. He additionally cited with approval the doctrine of separation of powers as espoused in Attornev Generat v Mai. Gen. David Tinvefunza (supra) as follows (per Kanyeihamba, JSC):

The doctrine of separation of powers demands and ought to require that unless there is the clearest of cases calling for intervention for the purposes of determining constitutionality and legality of action or the protection of the liberty of the individual which is presently denied or imminently threatened, the courts must refrain from enterino arenas not assiqned to them either by the constitution or laws of Uoanda. lt cannot be over-emphasized that it is necessary in a democracv that courts refrain from enterino into areas of disoutes best suited for resolution by other oovernm€nt aoents. The courts should onlv intervene when those aoents have exceeded their powers or acted uniustlv, causino iniurv therebv. (emphasis mine)

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## 37. Katureebe, CJ then held:

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The above view brings to mind the principle of exhaustion of local remedies within institutions and public bodies. The Rules of Procedure of Parliament allow a member to move a motion challenging the decision of a Speaker of which a member is dissatisfied with. Where a member does not take up that option, which the law provides to him or her, it is not open in my view to call in the court to determine how the Speaker should conduct the business of the House.

- 38. The foregoing positions bring into purview the sanctity of Parliament, Iaying emphasis on constitutional provisions for the determination of the constitutionality of actions, decisions or Acts of Parliament. Hence the observation in Paul K Ssemoserere & Otherc v Attornev Genera! (supra), that 'if Parliament is to successfully claim and protect its powers and internal procedures (pursuant to the doctrine of separation of powers) it must act in accordance with the constitutional provisions which determine its legislative capacity and the manner in which it must perform its functions.' - 39.1t wil! suffice to observe here that the minority position in Male H. Mabirizi Kiwanuka & Others v Attornev General. Constitutional Appeal No. 2 of 2018, relied upon the decision in Oloka Onvanqo & Others v Attornev General (supra). Thus, Lady Justice Ekirikubinza, JSC (dissenting) held that 'failure to obey procedural rules of parliament while enacting a law rendens the whole enacting process a nullity .... an Act of Parliament so enacted is by such reason unconstitutional'; a position that was re-echoed by Justice Mugamba, JSC. Undoubtedly, that minority position would not represent the decision of the Supreme Court so as to be binding upon this Court, therefore the flouting of parliamentary rules of procedure would not necessarily amount to a constitutiona! violation. - 40. More importantly, for present purposes, is the observation by Katureebe, CJ that Parliament has internal mechanisms by which the procedure adopted by the House or Speaker may be challenged without necessarily subjecting them to judicial intervention, let alone the Constitutiona! Court's determination. Equally important is the observation by Amoko, JSC (should the matter find its way to the courts) that

the violation of rules of procedure is not tantamount to a constitutional violation. On the issue of the Constitutional Court's jurisdiction that is presently under consideration, I would add that in so far as the question as to whether there is in fact a violation of Rules of Procedure (or indeed statutory laws) enacted by dint of a constitutional provision does not require the interpretation of the Constitution for its determination, such a violation does not invoke the jurisdiction of this Court. '

41 . Turning to the instant case, in relation to whether paragraph 5(a) of the Petition as replicated in /ssue No. 2 does in fact raise any matter for constitutional interpretation, the Petitioners invoke the following constitutional provisions for interpretation.

## Article 2: Suoremacv of the Constitution

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- (1) Thls Gonstitution ls the supreme law of Uganda and shall have blndlng force on allauthorlties and perEons throughout Uganda. - l2l tf any other law or any cuEtom ls lnconeistent wlth any of the provlslons of thls Constltutlon, the Constitutlon shal! prevail, and that other law or custom shall, to the extent of the inconsistency, be void.

## Article 88: Quorum of Parliament

- (f ) The quorum of Parliament shall be prescribed by the rules of procedure of Parllament made under article 94 of this Constltutlon. - (2) For the avoldance of doubt, the rules of procedure may prescribe different quorums for dlfferent purposes.

## o Article 94(1): Rules of Procedure in Parliament

Subiect to the provislons of this Constitution, Parllament may make rules to regulate its own procedure, Including the procedure of lts commltteea.

- 42. Rule 23(1) and (3) of the then applicable Parliamentary Rules of Procedure, as formulated under Article 94(1) of the Constitution, provides as follows: - (f ) The quorum of Parllament shall be one thlrd of all Memberc of Parllament entitled to vote. - (21 - (3) At any time when a vote ls taken, the Speaker shall ascertaln whether the Members present ln the House form a quorum for the vote to be taken, and

if he or she finds that the number ls less, shall suspend the proceedings of the House for an interval of flfteen minutes, and the bell shall be rung.

- 43. A literal construction of Articles 88(1) and 94(1) of the Constitution read together with Rule 23(11of the Parliamentary Rules of Procedure is that, unless otherwise prescribed, the quorum of Parliament shall be 'one third of all Members of Partiament entitled to vote', which voting members shall exclude ex-officio members of the House and the presiding Speaker atthe time. See Afticles 78(1)(d) and 89(2) of the Constitution. However, as quite correctly opined by learned Counsel for the First Respondent, there is no evidence in the Petition before the Court that there was no quorum in the House at the passing of the Bill and neither is that issue in contention herein. lt is simply not the Petitioners' case that the Speaker acted on a quorum less than or contrary to that prescribed by Rule 23(1) by dint of Article 88(1) and 94(1), or indeed Articles 78(1)(d) and 89(2) of the Constitution. - 44. Perhaps more importantly, from the Supreme Court's elucidation in Attornev Generat v Mai. Gen. David Tinvefunza (supra) and lsmail Seruso v Kampala Citv Gouncil & Another (supra), this Court's jurisdiction is only properly invoked where there is a discernible question in a constitutiona! petition, the resolution of which is dependent on the interpretation of a specific provision of the Constitution. ln the instant case, it seems to me that the legality of the Speaker's failure to ascertain the presence of quorum at the third reading of the Bill does not depend for its determination on any provision of the Constitution. Certainly, the question of her failure to ascertain the quorum cannot be said to hinge for its determination on an interpretation of Articles 2(1) and (2), 88 or 94(1) as cited by the Petitioners. Rather, the legality of that alleged omission would wholly require the interpretation of the Parliamentary Rules of Procedure and possibly the interrogation of best ⁱnternational parliamentary practice. - 45. Drawing inspiration from the stance adopted by the Supreme Court in Attorney Generat v Mai. Gen. David Tinvefunza (supra) and Citv Council & Another (supra), ! do not find the interpretatlon of Rules of Procedure, simply because they are enacted by dint of a constitutional provision,

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to ipso facto raise a matter for constitutional interpretation so as to fall within the jurisdiction of this Court as delineated in Article 137(1) of the Constitution. The same would apply to any statutory laws that cascade from the Constitution. I might have drawn a different conclusion if the constitutionality of the Speaker's failure to ascertain parliamentary quorum in this case directly hinged on the interpretation of a constitutional provision, Rule 23 of the Parliamentary Rules of Procedure being but a supplementation thereof or, in other words, if the prescription for the ascertainment of quorum had been prescribed in the Constitution. I state as much against the backdrop that in certain jurisdictions parliamentary quorum is to be presumed unless proved otherwise, Reference in that regard is made to Chapter 43, section 1 of the United States House of Representatives Rules of Procedure, which provides as follows:

> A quorum is presumed to be present unless a polnt of no quorum ls entertalned and the Ghair announcos that a quorum is in fact not present or unless the absence of a quorum is dtsclosed by a vote or by a catt of the House'1

- 46. !n the instant case, there is no evidence on record that a question of quorum was raised in the House or that the Speaker was asked to ascertain quorum. On the contrary, the First Respondent explicitly denied the absence of quorum at the third reading of the Plant Variety Protection Bill and attested to that averment in the affidavit evidence in support of the Answer to the Petition. No affidavit in rejoinder was forthcoming from the Petitioners to refute those assertions therefore they remain uncontroverted. - 47.|n my judgment, therefore, unless a statutory law, rule or regulation is alleged to be inconsistent with a provision of the Constitution and would require the interpretation of that constitutional provision for the determination of its constitutionality, the interpretation of such legal instruments would not necessarily fall within the jurisdiction of this Court. Certainly not in a case such as the instant one, where no constitutional interpretation is required to determine whether the

⁷See Johnson, Chorles W, Sullivan, John V & Wickhom Jr, Thomos J, House Practice: A Guide to the Rules. precedents and Procedures of the House. IJS Government Publishing Office, Washington, 2077.

(lonstitutittnal Petition No . 22 ol'20 I 5

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omission by the Speaker to ascertain quorum would amount to a violation of the Constitution.

48. That is not to say that there is no legal remedy for any non-compliance with such !aws, rules or regulations. The interpretation and enforcement of statutory laws, procedural rules and regulations is aptly provided for before the ordinary courts of judicature. tndeed, the majority view in lsmail Seruqo v Kampala Citv Council & Another (supra) did recognise that a party may have a valid cause of action but present it in the wrong court, drawing a distinction between a court's jurisdiction and a cause of action in the following terms (per Kanyeihamba, JSC):

> ln my opinion, the question of cause of action must be distinguished from the matter of jurisdiction. A court may have jurisdiction while the plaint lacks a cause or a reasonable cause of action and vice versa. ln other words, a plaintiff mav have a oerfectlv leqitimate and reasonable cause but the court before which the olaint is filed lack iurisdiction, just as the court may have jurisdiction but the litigant before it lack a c€luse of action. (my emphasis)

4g. For purposes of judicial intervention in respect of legislative processes that are not prescribed in the Constitution, as is the case presently, I draw apposite inspiration from the notion of the judicial review of legislative processes as was most compellingly espoused an Bar-Simon-Tov, lttai. 'The Puzzlinq Resistance to Judiciat Review of the Leqislative Process'. Boston Universitv Law Review. (201lt. Vol. 91. p. 1915. That literature draws a distinction between the judicial review of legislative processes and substantive judicial review, to wit, the interrogation of the constitutionality of a statute's content. The judicial review of legislative processes is defined therein as follows:

> "Judicialreview of the legislative process" (JLRP) is a form of judicial review in which courts determine the validity of statutes based on an examination of the procedure leading to their enactment. The idea is that a bill must meet certain minimum procedural requirements in its enactment process in order to become law and that courts should be given the power to determine whether these requirements have been met.2

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- 50. By contrast, substantive judicial review restricts itself to an examination as to 'whether the content of legislation is in accordance with the Constitution. Typically, it asks whether the content of a certain statute infringes upon individuat liberties or rights guaranteed in the Bi!! of Rights.'3 This latter form of judicia! review is provided for under Article 2(2) ol the Uganda Constitution that inter alia renders void any law that is inconsistent with the Constitution. Under this process, this Court would strictly lend itself to constitutional interpretation that is typified by the interrogation of statutory content to ascertain its consistency with the Constitution, as aptly provided for under Article 2(2) ol the Constitution. The Court would, nonetheless, retain the exclusive mandate to review legislative processes that are specifically delineated in the Constitution, for instance, legislative processes in respect of amendments to the Constitution as succinctly encapsulated in Chapter Eighteen of the Constitution. - ⁵¹. However, the Court would not necessarily have jurisdiction over a matter where an impugned act or omission is alleged to be inconsistent with rules of procedure or, for that matter, the provisions of a statutory law. Under Article 137(3Xa) of the Constitution, this Court is restricted to a determination of the consistency of 'any Act of Parliament or any other law' (or anything done thereunder) with 'a provision of the Constitution.'Article 137(1)(b) mandates the Court to also inquire into the consistency of any act or omission by any person or authority with 'a provision of the Constitution.' For present purposes, the net effect of those constitutional provisions is to provide for a challenge to the omission or failure by the Speaker to ascertain quorum, but strictly in so far as that failure was inconsistent with a constitutional provision NOT a rule of procedure. - 52. Thus, in a case such as the one presently before the Court, where the Rule that is subject to interpretation is not a constitutional provision, legal redress for the allegedly flawed legislative process may be sought under the judicial review of legislative processes in the ordinary civil courts and not necessarily the Constitutional Court. lt will suffice to observe here that the judicial review of legislative processes grants the courts the power to invalidate a statute solely on

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the defects in the enactment process but 'does not preclude legislative reenactment; itsimply remands the invalidated statute to the Iegislature, which is free to re-enact the exact same legislation, provided that a proper legislative process is followed.'4 I therefore find that the question of the alleged failure by the Speaker to ascertain parliamentary quorum in the passing of the impugned Act as raised in paragraph 5(a) of the Petition, is improperly before this Court.

- 53. With regard to paragraph 5(b) of the Petition, although it does also pertain to the enactment of the impugned law, it raises the question as to whether the alleged non-participation of the citizenry in that enactment process contravened specific constitutional provisions on the subject of civic participation. The invoked constitutional provisions are Principle XIV of the National Objectives and Directive Principles of State Policy, and Articles 8A and 38 of the Constitution. To that extent, that contestation does raise a question the determination of which is dependent on the interpretation of a constitutional provision and thus correctly invokes the jurisdiction of this Court. That issue is, therefore, properly before the Court. !n the same vein, paragraph 5(c) of the Petition challenges the constitutionality of sections 13 and 15 of the impugned Act vis-A-vis Article 26 ol the Constitution. Quite clearly, the determination of the Petitioners' contestations in that regard would similarly necessitate the interpretation of Article 26 of the Constitution. To that extent, that issue too is properly before the Court. - 54. On the other hand, paragraph 5(d) of the Petition questions the constitutionality of the content, purpose and effect of the Act vis-i-vis Principle ll(i), XIV(b), Objective Xll(a) of the National Objectives and Directive Principles of State Policy and Article 8A of the Constitution. Not only does its determination similarly hinge on the interpretation of those constitutional provisions but, in so far as it questions the purpose and effect of the impugned Act, it does raise a matter for constitutional interpretation. As was observed in The Queen v Biq M. Druq Mart Ltd LRC (1986) 332 and cited with approval in Paul K Ssemoqerere & Others v Attornev General (supra), 'both purpose and effect are relevant in determining

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consfitutionality.' I am therefore satisfied that the question of the purpose and effect of the impugned Act vr's-d-vis specific constitutional provisions is properly before this Court.

- 55. ln the result, /ssue No. 1 partially fails to the extent that I do not find the failure by the Speaker to ascertain parliamentary quorum to raise a matter for constitutional interpretation within the confines of Article 137(1) of the Constitution. Having so held, I respectfully find no merit in /ssue No. 2. - tssue No. 3: Whether the enactment of the Plant Vaiety Protection Act, 2014 without the participation and consultation of the communities fo be affected by the Act was inconsrsfenf with and in contravention of Principle XIV of the National Objectives and Directive Principles of Sfafe Policy, Articles 8A and 38 of the Constitution. - 56. The Petitioners propose that the omission by the Parliamentary Committee on Agriculture, Fisheries and Animal lndustry to consult communities or farmers that would be affected by the Plant Variety Protection Bill was inconsistent with Principle XIV of the National Objectives and Directive Principles of State Policy, and Articles 8A and 38 of the Constitution. ln their written submissions, though, the said non-consultation is additionally opined to have contravened Objective ll(ii) of the National Objectives and Directive Principles of State Policy. The First Respondent refutes this with the contention that the citizenry participated in the enactment of the impugned Act through their Members of Parliament, and was similarly consulted through the same peoples' representatives in accordance with Article 79 of the Constitution. - 57. The cited provisions are reproduced below for ease of reference - ll. Democratic PrinciPles - (l) The State shatt be based on democratlc princlples which empower and encourage the actlve particlpatlon of all cltlzens at all levels In their own governance. - (ii) Att the people of Uganda shall have acceaa to leaderchlp posltlons at all levels, subJect to the Gonstltutlon.

o ## lV. National Sovereionty, independence and territorial inteority

- The State and citizens of Uganda shal! at all times defend the independenco, sovereignty and territorial integrity of Uganda. (i) - The State and citizens of Uganda shall endeavour to build national strength in political, economic and social spheres to avoid undue dependence on other countries and institutions. (ii) - The State shall endeavour to mobilise, organise and empower Ugandans to build independent and sustainable foundations for the development of Uganda. (iii)

### Article 8A: National lnterest

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- (1) Uganda shall be governed based on prlnclples of nationa! lnterest and common good enshrined ln the natlonal objectlves and dlrectlve princlples of state pollcy. - l2l Parllament shall make relevant laws for purposes of givlng full effect to clause (1) of thls Article.

#### Article 38: Civic riqhts and activities

- (1) Every Ugandan has the right to particlpate in the affairc of government, lndlvidually or through his or her repreeentatives In accordance wlth the law. - l2l Every Ugandan has a rlght to partlclpate In peaceful activltles to lnfluence the policies of government through clvic organlsations.

### Article 79: Functions of Parliament

- (1) Subfect to the provlsions of this Gonstitution, Parllament shall have the power to make laws on any matter for the peace, order, development and good governance of Uganda. - (21 Except as provlded in thls Gonstltutlon, no perton or body other than Parliament shal! have the power to make provisions having the force of law in Uganda except under authority conferred by an Act of Parllament. - (3) Parllament shall protect thls Gonstltution and promote the democratlc governance of Uganda. - 58. The Petitioners rely on the averments contained in paragraphs 11,12,13, 18 and 19 of Ms. Primah Kwagala's affidavit, and paragraph 9 of Mr. Frederick Kawooya's affidavit, both in in support of the Petition. Ms. Kwagala attests to the applicability of the National Objectives and Directive Principles of State Policy to the

governance of the country on account of Article 8A of the Constitution. She further attests to Article 38 of the Constitution granting Ugandans the right to participate at al! levels of their governance, either individually or through their representatives. Drawing from the experience of the Marriage and Divorce Bill, 2009 and Biotechnology and Biosafety Bill, 2010, where Members of Parliament were advised to consult their constituencies; Ms. Kwagala attests that Ugandan citizens should have been consulted on the content of the Plant Variety Protection Bil! before it was enacted, given its significant bearing on the livelihoods of Ugandan farmers. ln the same vein, Mr. Kayondo attests to there having been no deliberate effort by the parliamentary committee to inform or consult the public on content of the Bill, aside from the consultations that were initiated by civil society organisations.

# 59. The Petitioners defer to the South African Constitutional Court case of Doctors for Life lnternational v The Speaker of the National Assemblv & Othens. Constitutional Gase No. 12 of 2005 where it was held:

A long-standing, deeply entrenched and constantly evolving principle of our society has accordingly been subsumed into our constitutional order. lt envisages an active, participatory democracy. All parties interested in legislation should feel that they have been given a real opportunity to have their say, that they are taken seriously as citizens and that their views matter and will receive due consideration at the moments when they could possibly influence decisions in a meaningful fashion. The objective is both symbolical and practical: the persons concerned must be manifestly shown the respect due to them as concerned citizens, and the legislators must have the benefit of all inputs that will enable them to produce the best possible laws. An appropriate degree of principled yet flexible give-and-take will therefore enrich the quality of our democracy, help sustain its robust deliberative character and, by promoting a sense of inclusion in the national polity, promote the achievement of the goals of transformation.

60. On the other hand, the First Respondent relies on Mr. Richard Adrole's averments in paragraphs 8 and 9 of his affidavit in support of the Answer to the Petition. The gist of his evidence is that the Plant Variety Protection Bill was passed by directly elected representatives of their constituents, which underscores the representative participation of the said constituents within the confines of Article 38 of the Constitution.

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- 61.1 deem it necessary to commence my interrogation of this issue by retracing the general rules of constitutional interpretation as have been severally laid down by the courts. l draw apposite inspiration from General. Constitutiona! Petition No. 52 of 2017, where the following rules of interpretation were espoused : - 1. - 2. - 3.

- All provisions bearing on a particular issue should be considered together to give effect to the purpose of the instrument. 4. - 5. Where the words or phrases are clear and unambiguous, they must be given their primary, plain, ordinary or natural meaning. The language used must be construed in its natural and ordinary sense. - 6. Where the language of the constitution or statute sought to be interpreted is imprecise or ambiguous a liberal, general or purposeful interpretation should be given to it. - 62.ltems 5 and 6 of that decision are of particular importance to the issue under consideration presently. They essentially enjoin a literal interpretation of the Constitution where the words or phrases under scrutiny are clear and unambiguous; recourse only being made to a liberal or purposive interpretation where the language of the Constitution is imprecise or ambiguous. - 63.|t is common ground in this Petition that there were in fact no consultations either with the public or specifically Ugandan farmers in the course of enacting the impugned Act. That fact is apparently conceded by the First Respondent given the gist of the pleadings from that office and evidence in support thereof. Against that factual background, the constitutiona! provisions that have been invoked are fairly clear and unambiguous, and would thus attract a literal interpretation thereof. - 64. To begin with, Article 8A of the Constitution simply entrenches the National Objectives and Directive Principles of State Policy as justiciable provisions of the Constitution to which the State can be held to account. lt is indeed in that context that Principle l(ll) thereof enjoins the President to annually appraise Parliament and the nation on steps taken to realise those policy objectives and principles.

- 65. On the other hand, a literal interpretation of Principle ll(ii) of the National Objectives and Directive Principles of State Policy would gravitate around the meaning attached to the word 'access' therein. That word literally means to either approach, enter or obtain something or an opportunity. Literally construed, therefore, that Principle simply embodies the democratic right of all Ugandans to vie for or attain any leadership position, subject of course to the constitutional qualifications therefor. I do not find the non-consultation of Ugandan farmers to in any way impede the right available to all Ugandans under this Principle. - 66.|n like vein, the thrust of Principle lV of the National Objectives and Directive Principles of State Policy is, in my view, summed up in clause (i) thereof, to wit, the protection of Uganda's national and territorial sovereignty, ensuring that it is neither dependent on foreign countries or institutions [as proposed under clause (ii)] nor lacking in independent institutional capacity for the country's development [as underscored in clause (iii)]. Again, I take the view that a literal interpretation of that Principle would not yield to any contravention thereof on account of Parliament's failure to consult Ugandan farmers on the impugned Act' - 67. However, Article 38 does substantively delineate the right of a Ugandan to 'participate in the affairs of government, individually or through his or her representatives in accordance with the law' and 'in peaceful activities to influence the policies of government through civic organisations.' This Iiterally translates into Ugandans enjoying the right to participate in the governance of the country, either individually or by representation; as well as influence governance policies through civic organisations. I am alive to the fact that the instrument that is under challenge presently is an Act of Parliament and not government policy per se. To that extent, Article 38(2) would be inapplicable to the present case. Although government policy might very well influence public Bi!!s tabled before the House, it seems to me that once an enacted statute has been challenged any policy that might have informed its formulation would be inapplicable to a determination of its constitutionality. ln any case, such policies could have been dropped in the course of debate during the legislation process.

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- 68. Be that as it may, Article 38(1) re-echoes the provision in Principle ll(i) of the National Objectives and Directive Principles of State Policy that literally urges the State to encourage 'the active participation of all citizens at all Ievels in their own governance.' The net effect of those two provisions is to encourage Ugandans to actively participate in their own governance by empowering them with the right to so engage either individually or by representation. The question is what is the ambit within which the said participation or engagement would ensue. - 69. The case of Doctors for Life lnternational v The Speaker of the National Assemblv & Othens (supra) to which the Court was referred by the Petitioners, posits that active participation would entail the perception by all parties interested in a piece of legislation that'they have been given a real opportunity to have their say, that they are taken seriously as citizens and that their views matter and will receive due consideration at the moments when they could possibly influence decieions in a meaningful faehion.' - 70.!n Mate H. Mabirizi Kiwanuka & Others v Attornev General. Constitutional Appeal No. 2 of 2018, faced with the same judicial precedent in relation to the same issue of public participation, Arach Amoko, JSC posited that the important consideration in determining adequacy of public participation in legislative processes was that 'a reasonable opportunity is offered to members of the public and all interested parties to know about the issue and to have an adequate say. What amounts to a reasonable opportunity will depend on the circumstancea of each case.'5 - 71.1n the same vein, Katureebe, CJ, in his interrogation of the notion of public participation in legislative processes as espoused in Law Societv of Kenva v Attornev General. Gonstitutional Petition No. 3 of 2016, similarly observed as follows in that case:

One should avoid the temptation of taking public consultation or participation in ^a legislative process as though it were a referendum exercise. lt has to be borne in mind that in a situation that does not call for a referendum, the elected representatives hold

( )onstitutional Petition Nt> . 22 o l'20 I 5

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^sCiting with approval the South African case of The Mlnister of Heatth v New Cticks South Africa (ftvl Ltd (20051 ZACC 25 (per Sachs, J).

the mantle to do such as they perceive their electorates' views. I am persuaded to agree with the submission of the Attorney General that the above holding by the Kenyan Constitutional Court had more to do with the specific provisions that are in the Kenyan Constitution and the County Governments Act of Kenya. As such, the same standard or parameter is neither universally applicable nor can it apply with equalforce in Uganda.

72.1do abide the foregoing judicial positions. As aptly opined by Katureebe, CJ, it is important to consider the legal context within which judicial pronouncements are rendered. ln that regard, the proposition in Doctors for Life lnternational v The Speaker of the National Assemblv & Others (supra) that all parties interested in a piece of Iegislation be accorded 'a real opportunity to have their say' was grounded in the provisions of section 72(11(a) of the South African Constitution. That provision reads as follows:

### The National Counci! of Provinces must -

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- (a) facllltate public involvement in the legislatlve and other processes of the Councitand its committees; (my emphasis) - 73. It is abundantly clear that the use of the word 'must in that constitutional provision placed an unequivocal obligation upon the South African National Council of Provinces to 'facilitate public involvement in the legislative and other processes of the Council and its committees.' This is a manifestly different legal scenario from the legal rights created under Article 38(1) of the Ugandan Constitution. I construe nothing in the Ugandan constitutional provision that imposes a corresponding obligation upon the Ugandan Legislature to engenderthe public's direct involvement in the legislative function thereof, as appears to be the mainstay of the Petitioners' case. With respect, therefore, I am unable to follow the decision in Doctorc for Life lnternational v The Speaker of the National Assemblv & Others (supra). - 74. As quite correctly opined by Counsel for the First Respondent, Article 38(1) of the Constitution succinctly confers upon Ugandans the right to participate in the affairs of government either individually or by representation 'in accordance with law'. Where the law is silent on individual participation, as is the case presently,

Members of the Ugandan Parliament - as elected representatives of their different constituencies, woutd represent those constituencies in the legislative function of Parliament. As was aptly opined by Katureebe, CJ in Male H. Mabirizi Kiwanuka & Others v Attornev General. Constitutional Appeal No. 2 of 20{8, 'in ^a situation that does not call for a referendum, the elected representatives hold the mantte to do such as they perceive their electorates' viewE.'Accordingly, the Ugandan citizenry is at liberty to exercise its right to participate in the enactment of Iegislation by forwarding their views on any Bill under consideration to their elected representatives. The citizenry's failure to exercise that right (as supposedly transpired in this case) would not, in my view, render the enactment of a law unconstitutiona!.

- 75.!n the result, I find that the enactment of the Plant Variety Protection Act, 2014 without the direct participation and/ or consultation of farmers and some other stakeholders in the agricultural sector was not inconsistent with and in contravention of Principle XIV of the National Objectives and Directive Principles of State Policy, Articles 8A and 38 of the Constitution, and would accordingly resolve /ssue No. 3 in the negative. - lssue No.4: Whether secftons 13(a) and (b), 15(a), (b), (c) and (e) of the Plant Variety Protection Act, 2014 are inconsistent with and in contravention of the principle of exhaustion of rights and the ight to property under Afticle 26 of the Constitution. - 76. The Petitioners question the import, purpose and effect of sections 13(a) and (b), and 15(a), (b), (c) and (e) of the Plant Variety Protection Act for impinging Article 26 of the Constitution in so far as they promote the interests of plant breeders to the detriment of the proprietary rights of farmers, as well as Ugandans' right to food security. They further challenge the overall effect and purpose of the impugned Act for allegedly threatening the livelihood and food security of Ugandans in contravention of Principles ll(i), XIV(|i) and Xll(i) of the National Objectives and Directive Principles of State Policy and Article 8A of the Constitution.

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77. The duty upon this Court in the exercise of its interpretative function could not be articulated any better than was stated in the case of US v. Butler. 297 US 1 (1936) as follows:

> There should be no misunderstanding as to the function of this court in such a case. lt is sometimes said that the court assumes a power to overrule or control the action of the people's representatives. This is a misconception. The Constitution is the supreme law of the land ordained and established by the people. All legislation must conform to the principles it lays down. When an act of Conqress is appropriatelv challenoed in the courts as not conforminq to the constitutional mandate, the judicial branch of the oovernment has onlv one duty: to lav the article of the Constitution which is invoked beside the statute which is challenoed and to decide whether the latter squares with the former. All the court does, or can do, is to announce its considered judgment upon the question. The only power it has, if such it may be called, is the power of judgment. This court neither approves nor condemns any legislative policy. (my emphasis)

78.1 am duly mindful of the rules of constitutional interpretation as espoused in Uoanda Law Societv v Attornev General (supra) and reproduced earlier in this judgment. Furthermore, as observed earlier in this judgment, the purpose and effect of the impugned statute shall be taken into account given its relevance in determining its constitutionality. An unconstitutional purpose or an unconstitutional effect can invalidate a statute. See R ^v Biq M Drus Mart fi98\$ l SCR 295. Thus, in Attornev General v Salvatori Abuki. Gonstitutional Appeal No. 1 of 1998 it was held:

> Should the purpose of legislation be inconsistent with a provision of the Constitution, the provision or a section of that legislation should be declared unconstitutional. Similarly, should the effect of implementing any provision of the Constitution, the provision should be declared unconstitutional as well.

- 79. Needless to say, the burden of proof of a constitutional violation would lie with the party that alleges it. See Paul Kawansa Ssemoqerere & Another v Attornev General, Constitutional Petition No.3 of 1999. - 80. For ease of comparison, the invoked constitutional provisions (with the exception of those reproduced earlier in this judgment), as well as the challenged statutory provisions are reproduced below.

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### Xll. Balanced and equitable development

- (i) The State shall adopt an integrated and coordinated planning approach. - The State shall take necessary measures to brlng about balanced development of the different areas of Uganda and between the rural and urban areas. (ii) - The State shall take special measures in favour of the development of the least developed areas. (iii)

### Article 26: Protection from deorivation of prooerty

- (1) Every peraon has a rlght to own property elther lndividually or ln association wlth otherc. - l2l No percon shall be compulsorlly deprived of property or any lnterest ln or rlght over property of any description except where the followlng condltlons are satisfled - - (a) The taking of possession or acquisitlon ls necessary for publlc use or in the lnterest of defence, publlc safety, publlc order, public morality or Public health; and - (b) The compulsory taking of posseesion or acquisltlon of property ls made under a law which makes provislon for - - (i) Prompt payment of fair and adequate compensatlon, prior to the taklng of possession or acqulsltlon of the property; and - (li) A rlght of access to a court of law by any pelson who has an lnterest or right over the ProPefi.

### Section 13: Riqhts of olant breeders

Plant breeders' rlghts, ln respect of a new varlety are -

- (a) The exctusive rlght to sell, lncludlng the right to licence other pertons to sell and export ptant varietles and reproductive material of plants of that varlety; and - (b) The excluslve right to produce, lncludlng the rlght to licence other percons to produce, reproductive materlal of plants of that variety for sale.

### Section 15: Exemotions of the riohts of breeders

Notwithstanding that plant breeders' rights subsist ln respect of a variety, ^a person may -

(a) Propagate, grow and use parts of the variety for purposes other than commerce;

a - (b) Sell plants, seed or propagating materlal of plants of that varlety as food or for another use that does not lnvolve growlng of the plants or the production of plants of that varlety; - (c) Belng a farmer, exchange seed, plants or propagating materlal of plants of that variety with another farmer for purposes other than commerce; - (d)

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- (e) Use the protected varlety in further breedlng, research or educatlon for noncommercial purpoees; - ⁸¹. A synopsis of the Plant Variety Protection AcL,2014 is pertinent. The objective and purpose of the Act are instructive to a better understanding thereof. lts objective is spelt out in its long title as follows:

An Act to provlde for the promotlon of development of new plant varletles and thelr protectlon as a meana of enhanclng breederc lnnovatlons and rewards through granting of plant breedert rlghts and for other related matters.

82. Meanwhile, section2 of the Act specifically spells out its purpose as follows:

The purpose of this Act shall be to -

- (a) Recognize and protect the rights of breeders over the varletles developed by them; - (b) Promote approprlate mechanlsms for a falr and equltable sharlng of beneflts arlslng from the use of plant varietles, knowledge and technology; - (c) Provlde approprlate lnstltutlonal mechanlsms for the effectlve lmplementatlon and enforcement of the rlghts of breeders; - (d) Promote improvements in the productlvity, profltability, stabllity and sustainabitity of cropplng systems through yleld enhancement and malntenance of plant varletles, and - (e) Promote the supply of good quallty seed or ptantlng materlals to farmerc ln order to strengthen the food securlty of the natlon. - 83. Having carefully considered the foregoing provisions alongside sections 13 and 15 of the Plant Variety Protection Act, it seems to me that the objective of the Act is to enhance food security in Uganda by encouraging innovations in plant varieties that will yield greater productivity. !n order to achieve that objective, the Act does in section 13 provide incentives to plant breeders that are, however, subject to the limitations in section 15. Thus, whereas section 13 of the Act grants plant breeders

the exclusive right of sell and production over the plant varieties that they generate, as well as the reproductive materials thereof; section 15 permits the limited use, sell and propagation of the new plant varieties by farmers and other persons not being plant breeders.

- 84.1t would appear that the Petitioners take no particular issue with the objective of the Act perse, their main bone of contention being with the restriction in section 15 of the use of protected plant varieties solely for non-commercial purposes thus denying farmers the opportunity to financially benefit from what would otherwise purportedly be their property. They seek to buffer this position with the advice of the Advocate General to the European Court of Justice in the case of Association Kokopelli v Graines Baumax (supra). I do not deem it necessary to reproduce that advisory opinion given that it would not constitute the decision of the court. - 85.ln that case, the validity of two of the European Council's Directives was inter alia challenged in the context of the freedom or right to pursue an economic activity and the principle of proportionality. The principle of proportionality was persuasively espoused as a principle that'requires that measures implemented through provisions of EU law be appropriate for attaining the legitimate objectives pursued by the legislation at issue and must not go beyond what ig necessary to achieve them.' With specific regard to agricultural policy, however, the court observed that 'the lawfulness of a measure adopted in that sphere can be affected only if the measure is manifestly inappropriate, having regard to the objective which the competent institution is seeking to pursue.' The court then held:

The EU legislature did not thereby breach the principle of proportionality since, notwithstanding the fact that that legislation may have adverse consequences, and even substantial adverse consequences, for certain traders, it must be held that, having regard to the objectives pursued by the acceptance regime laid down by Directives 2002155 and 2009/ 145, which seeks, in particular, to ensure increased agricultural productivity and to ensure the free movement of accepted seed, that regime simultaneously promotes the economic interests of agricultural producers and those of traders who market the accepted vegetable seed.

Constitutional Petitiott No . 22 ol'?0 I 5

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86. With regard to the principle of freedom to pursue an economic activity, the court further held:

> It is clear from the settled case-law that freedom to pursue an economic activity forms part of the general principles of EU law. Those principles are, however, not absolute, but must be viewed in relation to their social function. Consequently, the exercise of freedom to pursue an economic activity may be restricted, provided that any restrictions in fact correspond to objectives of general interest pursued by the European Union and do not constitute in relation to the aim pursued a disproportionate interference, impairing the very substance of the rights guaranteed.

87. Two pertinent principles emerge from the decision in that case. First, that under the principle of proportionality the enforcement measures enshrined in statutory laws should be appropriate for attaining the legitimate objectives of the statute and must not go beyond what is necessary to achieve them. Secondly, that agricultural policy warrants special consideration such that the laMulness of a measure adopted in that sector may only be interfered with where it is manifestly inappropriate.

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- SS. Turning to the case before this Court, the long title and section 2 of the impugned Act clearly demarcate its over-arching objective as the strengthening of food security in Uganda by encouraging innovations in plant varieties that will yield greater productivity. lt is within that context that section 13 of the impugned Act entrenches plant breeders' exclusive rights of sell and production over the plant varieties that they innovate, as well as the reproductive materials thereof. That legal provision simply seeks to guarantee innovators in the agri-business sector the right to benefit from their innovations. Section 15, on the other hand, mandates non-breeders such as farmers to benefit from the innovations albeit restricting commercial benefits therefrom to their innovators. - 89. The protection of plant-breeders' right to benefit from their innovations is the legitimate interest of any intellectual property system, that is, to stimulate innovation by attracting investments, enabling innovators to profit from their innovations and incentivizing further creativity in the knowledge that their innovations are protected. With regard to the restrictions placed on farmers and other non-breeders in that regard, as aptly observed in Association Kokopelli v

Clonstitutionerl Petitiott No . 22 of'?0I .5

Graines Baumax (supra), the right to pursue an economic activity is not absolute but may be restricted, provided that any restrictions in fact correspond to objectives of general interest and do not, in relation to the intended purpose of the law, constitute a disproportionate interference that impairs the very substance of the guaranteed rights.

- 90. Under the Plant Variety Act regime, the entire agri-business is anticipated to benefit from increased crop yields owing to innovations in plant varieties. Farmers and other non-breeders are in particular permitted under section 15(a) and (b) to grow these varieties and 'sell plants, seed or propagating material of plants of that variety as food or for another use.' Those provisions thus provide for some limited commercial activity even under the statutory restrictions, sub-section (b) particularly urging the processing of the varieties into food or other by-products for commercial purposes. Therefore, to the extent that the measures in the Plant Variety Protection Act would spur increased innovation and crop yield, as well as stimulate agro-processing activity in the new varieties; they do simultaneously promote the interests of farmers and other non-breeding players in the agricultural sector of Uganda. - g1.lt is on the basis of such productivity consideration and its impact on the different sector players' economic interests that the European Court of Justice did in Association Kokopelli v Graines Baumax (supra) find no breach of the principle of proportionality 'notwithstanding the fact that that legislation may have adverse consequences, and even substantial adverse consequences, for certain traderc.' ln so deciding, the court significantly paid specia! consideration to the intricacies of agricultural policy, such that the legality of a measure adopted in that sector may only be interfered with where it is manifestly inappropriate. In the instant case, finding nothing inappropriate about protecting plant-breeders' intellectual property rights, I am satisfied that there is nothing disproportionate about the plant-breeders' rights under section 13 vis-i-vis the restrictive measures in section 15 of the Plant Variety Protection Act. lndeed, the protection of plantbreeders' intellectual property rights over their innovations can scarcely be said to violate Article 26 of the Constitution given that that constitutional provision seeks to preserve the right to ProPertY.

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92.ln any event, the Act does not grant the plant-breeders unfettered rights. The case of Uqanda Law Societv v. Attornev General (supra) espouses the principle that in constitutional interpretation 'al! provisions bearing on a particular issue shoutd be considered together to give effect to the purpose of the instrument.' ln this case, section 17(1Xb), (d) and (e) of the impugned Act does provide for Ugandans' livelihood and food security in the following terms:

> Where the Mlnlster coneiderc it necessary in the publlc interest that the plant breederc' rights in respect of a new variety shall be subJect to conditione restricting the rights of breeders, conditions may be lmposed underthe following circumstanceg -

(a)

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- (b) Where food security or nutritlonal or health needs are affected orthreatened; - (c) - (d) Where the requirements of the farmlng communlty for propagating material of a particular variety are not met; or - (e) Where it ls considered important to promote publlc interest for socloeconomic reasons and for developing lndlgenous and other technologles. - 93. Consequently, not only are the food security, nutritional and health needs of the society taken into account under sub-section (b); sub-sections (d) and (e) do address the needs of the farming community, as well as socio-economic considerations geared towards developing indigenous and other farming methods. These interventions all point to the well-being and livelihood of Ugandans and Ugandan farmers. I would therefore disallow the proposition that the overall effect and purpose of the impugned Act threatens the livelihood and food security of Ugandans. - 94. At any rate, I find no nexus between the invoked constitutional provisions and the alleged threat to Ugandans' livelihood and food security. Principle ll(i) of the National Objectives and Directive Principles of State Policy literally enjoins the State lo encourage the Ugandan citizenry to actively participate at all levels of their governance. As observed in my determination of /ssue No. 3, there is nothing to stop Ugandans from exercising their right to participate in the enactment of legislation by forwarding their views on any Bill under consideration to their elected

representatives. That seems to be the very essence of parliamentary representation, as well as the national duty of Members of Parliament under Article 79 of the Constitution. How then does a statute that seeks to protect plant breeders' rights to their innovations impede Ugandans' right to participate in their national governance?

- 95.!n the same vein, I am hard-pressed to appreciate how the preservation of plant breeders' rights so as to spur more innovation impedes the State's duty under Principle lV(ii) to insulate Uganda's national and territorial sovereignty from dependence of foreign countries of institutions. I would think the more innovation is generated by Uganda's plant breeders, the more independent the country would be of external influence in the agricultural sector. - 96. Consequently, I am unable to agree with the Petitioners that the enactment, purpose and effect of the impugned Act represents a disintegrated and uncoordinated planning approach contrary to Principle Xl! of the National Objectives and Directive Principles of State Policy, neither was any evidence in support of this proposition presented. There is no evidence of a direct co-relation between the preservation of plant breeders' rights, on the one hand, and the hunger, non-survival or absence of a means of livelihood for Ugandans so as to support the conclusion of a disintegrated and uncoordinated approach to planning. On the contrary, it seems to me that the checks and balances in the Act as highlighted hereinabove are intended to foster the interests of both the plantbreeders and persons affected by their innovations. - 97. No submissions were forthcoming from the Petitioners on the principle of the exhaustion of rights. That principle is defined in Black's Law Dictionatf as 'the principle that once an owner of an intellectual propefi right has placed ^a product covered by that right into the marketplace, the right to control how the product is resold within that internal market is lost.' I do not find that issue to arise within the context of the statutory provisions that were challenged in this petition. Those statutory provisions simply pertain to the rights of plant-breeders and limited exemptions thereto in favour of non-breeders. No reference is made

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⁶1999, Eighth edition , p. 6L4.

in either section 13 or section 15(a), (b), (c) and (e) of the Act to the sale of a patented plant variety to a third party within the market place so as to invoke the exhaustion of the breeders' intellectualproperty rights; neither is any mention made of the right of the intellectual property ownerto sue a partyto whom the plant variety has been sold.

98.|n the result, lfind thatsections 13(a) and (b), 15(a), (b), (c) and (e) of the Plant Variety Protection Act, 2014 are neither inconsistent with nor in contravention of the principle of exhaustion of rights and the right to property under Article 26 of the Constitution. /ssue No. 4 is therefore resolved in the negative.

## lssue No. 5: Whetherthe Petitionerc are entitled to the remedies sought.

- 99. It is the finding under /ssue No. 1 that save for the constitutionality of the Speaker's failure to ascertain quorum, the rest of the matters raised in this Petition do correctly invoke the jurisdiction of this Court. Thus, the issue of public participation in the enactment of the impugned Act and the constitutionality of sections 13 and 15 of the Act as raised in this Petition are properly before the Court. - 1OO. However, having resolved those questions as I have under /ssues 2, 3 and 4 above, I would decline to grant declarations that the enactment of the Plant Variety Protection Act, 2014 by the 9th Parliament violated Principle XIV of the National Objectives and Directive Principles of State Policy, and Articles 2(1) & (2),8A, 38, 88 and 94(1) of the Constitution; or that the overall purpose, intent and effect of the Act, specifically section 13(a) and (b) and section 15(a), (b), (c) and (e) thereof, are inconsistent with Principles ll(i), XIV(b) and XXll(a) of the National Objectives and Directive Principles of State Policy and Articles 8A and 26 of the Constitution, as sought under paragraphs 8(l)(a), (b), (c) and (d) of the Petition. I would similarly decline to grant an order for the permanent stay of the implementation of the Plant Variety Protection Act, as sought in paragraph 8(llXa) of the Petition.

## F. Conclusion

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101. lt is trite law that costs should follow the event unless a court for good reason decides otherwise. See secfion 27(2) of the CPA. However, given the nature of this Petition where the wellbeing of the Ugandan citizenry, particularly farmers was in issue; I find this a befitting case for a departure from that general rule.

The upshot of my consideration hereof is that the Petition is hereby dismissed 102. with no order as to costs.

It is so ordered.

Dated and delivered at Kampala this ....................................

Midnigeny

Monica K. Mugenyi **Justice of the Constitutional Court**