[2025] UGHCCD 24

### **THE REPUBLIC OF UGANDA**

## **IN THE HIGH COURT OF UGANDA AT KAMPALA**

# **(CIVIL DIVISION)**

### **MISCELLANEOUS CAUSE NO. 198 OF 2023**

**GERALDINE SSALI:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT**

# **VERSUS**

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

### **BEFORE: HON: JUSTICE SSEKAANA MUSA**

### **RULING**

This is an application for judicial review brought under Article 28, 42, 44(C) of the Constitution and Sections 33, 36 & 38 of the Judicature Act Cap 13; rules 3, 6, 7 & 8 of the Judicature (Judicial Review) Rules, 2009 for Declarations and Orders:

- *1) A DECLARATION that the report of the Parliamentary Sectoral Committee on Tourism, Trade, and Industry on the investigations into the utilization of the supplementary budget for FY 2021/22 by the Ministry of Trade, Industry, and Co-operatives for rent of new office premises was ultra vires, illegal, irregular, and in contravention of the principles of natural justice. .* - *2) A WRIT OF CERTIORARI doth issue quashing the observations and recommendations, contained in the report of the Parliamentary Sectoral Committee on Tourism, Trade and Industry on the Investigation in to the utilization of Supplementary Budget for the FY- 2021/22 to the Ministry of Trade, Industry and Co-operatives for rent of new office premises.*

- *3) AN ORDER OF PROHIBITION prohibiting the implementation of the observations and recommendations of the impugned Parliamentary Sectoral Committee on Tourism, Trade and Industry on the investigation in to the utilization of Supplementary Budget for the FY- 2021/22 to the Ministry of Trade, Industry and Co-operatives for rent of new office premises.* - *4) AN ORDER expunging the observations and recommendations contained in the impugned Parliamentary Sectoral Committee on Tourism, Trade and Cooperatives for rent of new office premises from any public record and official communications in Uganda.* - *5) A PERMANENT INJUNCTION restraining the Respondent or any of the government agencies or Ministries from relying on, referring to , citing and implementing any of the observations and recommendations contained in the report of the Parliamentary Sectoral Committee on Tourism, Trade and Industry on the investigation in to the utilization of supplementary Budget for the FY- of new office Premises.* - *6) AN ORDER awarding the Applicant General damages.* - *7) Costs of this application be provided for*

The grounds upon which this application is based are set out briefly in the Notice of motion and the affidavits of the applicant as follows;

- 1. The Applicant is the Permanent Secretary of the Ministry of Trade, Industry, and Cooperatives. She was appointed to this position in July 2021 and officially assumed her duties on August 23, 2021. - 2. That upon assuming office, the applicant found that my predecessor, who was the Acting Permanent Secretary of the Ministry of Trade, Industry, and Cooperatives, had already applied for a supplementary budget for the FY

2021/2022. This budget, amounting to UGX 5,000,000,000/=, was approved by Parliament on November 18, 2021, through the Committee on Tourism, Trade, and Industry. Additionally, UGX 3,016,000,000/=was allocated for the renovation of the Ministry's office premises at Farmers House for the FY 2022/2023.

- 3. On May 20th, 2022, the applicant wrote to the Permanent Secretary and Secretary to the Treasury at the Ministry of Finance, seeking authorization to reallocate funds from rent to renovating the Ministry's premises, as renting did not provide value for money. However, my decision faced political resistance, and despite initial support from the Minister during committee proceedings, he later reversed his position in Parliament, disowning the renovation plan and agreeing to implement the impugned report. - 4. The Parliamentary Sectoral Committee on Tourism, Trade and Industry flouted Parliamentary rules of procedure by carrying out an investigation in to the utilization of supplementary budget for the FY 2021/22 to the Ministry of Trade, Industry and Co-operatives for the rent of new office premises as it has no legal mandate whatsoever to investigate. - 5. The Parliamentary Sectoral Committee on Tourism, Trade and Industry acted illegally when they usurped the powers of the Parliamentary Select Committee(s), Adhoc Committee(s) and Committee on Public Accounts (Commissions, Statutory Authorities and State Enterprises (COSASE) when they purportedly carried out and investigation in to the utilization of supplementary budget for the FY 2021/22 to the Ministry of Trade, Industry and Co-operatives for rent of new office premises. - 6. The Parliamentary Sectoral Committee on Tourism, Trade and Industry acted with bias, irrationally, unreasonably and procedurally improper when they purportedly investigated a matter in which they have a direct interest as an over sight committee.

- 7. That the observations and recommendations contained in the impugned report of the Sectoral Committee on Tourism, Trade and Industry were reached upon through a process that was biased, procedurally improper and in total abuse of the Applicant's right to a fair hearing. - 8. That the entire parliamentary proceedings of the 3rd session first meeting of Tuesday, 29th August 2023 that led to the adoption of the impugned report was marred with premeditation, biasness, illegality and procedural impropriety.

The respondent filed an affidavit in reply and opposed the application through the affidavit of Nadunga Esther a Clerk Assistant to the Sectoral Committee on Tourism, Trade and Industry in her personal capacity which briefly states that;

- 1. The use of UGX 5,000,000,000/= initially allocated for renting new office premises for the Ministry of Trade, Industry, and Cooperatives. The Sectoral Committee discovered that the funds had been used instead for renovating the Ministry's offices at Farmer's House, during its scrutiny of the Ministerial Policy Statement for FY 2023/2024 and the FY 2022 annual performance report. - 2. The Committee investigated the use of the supplementary budget for the financial year 2021/2022, which was initially allocated for renting office space. It was found that, by 24th May 2022, the applicant had authorized the procurement process for renovations, estimated at UGX 6,200,000,000/=, without prior approval from the Permanent Secretary/Secretary to the Treasury. The Applicant later signed a contract with M/s Sarick Construction Ltd for UGX 6,023,319,346/= and made an advance payment of UGX 4,800,000,000/=, which exceeded the legal 30% limit for advance payments. - 3. The investigations revealed that funds allocated for renovations in FY 2022/2023 had been diverted for other expenditures. These included UGX 570,000,000/= for transportation, UGX 1,196,000,000/= for furniture purchased from Footsteps Furniture Ltd, and UGX 362,316,812/= for fuel cards that were used at various petrol stations by Ministry officials.

- 4. On 12th April 2023, the applicant appeared before the Sectoral Committee to present the Ministerial Policy Statement for FY 2023/2024. During this appearance, the Committee informed the applicant of its findings concerning the diversion of the UGX 5,000,000,000/=. The Committee offered the Applicant an opportunity to prepare a response, but this request was declined. The applicant thereafter made multiple appearances before the Committee to address queries arising from the investigation into the utilization of the funds allocated for renting new office premises. - 5. The inquiry found that the applicant had committed the Ministry to a renovation contract without obtaining the required Parliamentary approval. The decision to reallocate the funds for purposes other than those originally intended raised concerns about compliance with financial regulations and proper budgetary procedures. - 6. The Sectoral Committee's report, produced after the investigation, concluded that there was evidence of financial mismanagement and misallocation of funds. The applicant had failed to justify the diversion of the UGX 5,000,000,000/=, despite being given several opportunities to respond during the Committee's proceedings. - 7. The Sectoral Committee's report was free from any bias and resulted from an impartial and thorough examination of all the evidence and testimonies presented. The findings were based on a careful review of facts, underscoring the absence of any prejudice in the investigation's outcome.

### *Issues for determination*

### **1.** *Whether the application raises grounds for judicial review?*

## *2. What remedies are available to the parties?*

The applicant was represented by *Kigenyi Emmanuel* while the respondent was represented by *Moses Mugisha(SA)*

The parties were directed to file written submissions which they did and the same have been considered in this ruling.

#### **Determination of the Application.**

## *Whether the application raises grounds for judicial review*

The Applicant contended that the Sectoral Committee acted ultra vires by investigating the utilization of supplementary budgets, a power that falls outside its mandate. Article 90(f) of the Constitution of Uganda grants Parliament the authority to establish committees and define their functions, which is further detailed in Rule 187 of the Rules of Procedure of the Parliament of Uganda. However, the Applicant highlighted that Rule 189 specifies the functions of these committees, explicitly excluding the authority to conduct investigations. The applicant asserted that such investigative powers are reserved for the Public Accounts Committees, Statutory Authorities, and State Enterprises. Additionally, an affidavit was submitted stating that the Applicant had referred a policy statement to the Sectoral Committee for consideration, not investigation, during her tenure as Permanent Secretary.

The applicant reinforced her argument by referencing the Parliamentary debates in the Hansard, where Mr. Sekikubo clarified that the committee's mandate is restricted to examining and commenting on policy matters, and any actions beyond this would violate Rule 174. The applicant emphasized that the supplementary allocation under scrutiny was intended for rent and vehicle procurement, which does not fall within the committee's purview, thereby illustrating the overreach of its powers. The applicant argued that the Sectoral Committee's actions were illegal due to a lack of proper authorization, supporting her claim that the committee acted outside its legal mandate.

The applicant argued that the Sectoral Committee's findings lacked an evidentiary basis and were instead driven by speculation. The applicant's submissions highlighted that the Permanent Secretary, the Solicitor General, and the Auditor General all cleared the Ministry's use of funds for the new office premises. These approvals, the Applicant contended, demonstrated that there was no financial loss to the government, making the Committee's decision to investigate and subsequently condemn the Ministry's actions unreasonable.

The Applicant argued that the Sectoral Committee's actions were based on fear and speculation rather than concrete evidence, referencing the decision in **Council of Civil Service Unions & Others vs Minister for Civil Service [1985] AC 374** to emphasize the unreasonableness of the committee's findings.

The Applicant contended that she was not granted a fair hearing, as evidenced by the Chairperson's premature comments regarding the alleged diversion of funds before the Applicant had the chance to present her case. This instance is portrayed as indicative of a biased process that denied her a fair opportunity to defend herself. Additionally, the Applicant argued that the involvement of non-members in the hearing contravened Rule 188 of the Rules of Procedure of Parliament, which specifies the composition of Sectoral Committees. This procedural irregularity, she claimed, undermined the legitimacy of the proceedings and could have influenced the investigation's outcome.

The Applicant contended that she was denied the right to cross-examine witnesses Edward Ahimbisibwe and Alfred Lapyeem, which hindered her ability to challenge the allegations against her and compromised the fairness of the process. Additionally, she highlighted procedural impropriety in the Speaker's actions during the Parliamentary debate, claiming he silenced members discussing value for money, undermining open dialogue.

Counsel for the Respondent *argued that the Public Accounts Committee (PAC) acted within its jurisdiction and mandate in investigating the Applicant. The* investigation was justified by issues related to the procurement and supply of drugs, as identified in the Auditor General's report. The respondents contend that PAC's mandate includes examining such reports to ensure the proper appropriation of funds by Parliament, especially when there are close links between the Applicant and the entities monitored by PAC. This authority is supported by Article 90 of the Constitution and Rule 171(2) of the Rules of Procedure of Parliament.

The respondents argued that PAC operated within its legal limits and did not overreach its statutory authority, that its findings were based on a comprehensive investigation involving meetings, field visits, and document reviews, thereby disproving any claims of irrationality, and that there was no procedural impropriety as PAC conducted its proceedings fairly, in accordance with the principles of natural justice under Articles 28 and 44 of the Constitution, providing the Applicant with ample opportunity to participate and present its case.

The respondents argued that challenging the report is premature because it has not yet been adopted by the House. Even if adopted, the report would not be legally binding; judicial review would focus on the decision-making process, not the outcome. The cases *[Kenya Vision 2030 Delivery Board v Commission on](https://sheriahub.com/cases/ke/caselaw/kenya-vision-2030-delivery-board-v-commission-on-administrative-justice-2-others-2021-eklr) [Administrative Justice & 2 others \[2021\] eKLR](https://sheriahub.com/cases/ke/caselaw/kenya-vision-2030-delivery-board-v-commission-on-administrative-justice-2-others-2021-eklr) and Master links Uganda Limited and Another v Attorney General (Miscellaneous Civil Cause No. 167 of 2022) [2023]* are cited to support the view that recommendations by statutory bodies guide actions rather than impose binding legal obligations.

The Respondents maintained that the Applicant did not show any aspect of the report that was illogical or outrageous, and that procedural fairness was observed throughout the proceedings.

## *Analysis*

Judicial review is the power of courts to keep public authorities within proper bounds and legality. The Court has power in a judicial review application, to declare as unconstitutional, law or governmental action which in inconsistent with the Constitution. This involves reviewing governmental action in form of laws or acts of executive and legislature for consistency with the Constitution.

Judicial review also establishes a clear nexus with the supremacy of the Constitution, in addition to placing a grave duty and responsibility on the judiciary. Therefore, judicial review is both a power and duty given to the courts to ensure supremacy of the Constitution. Judicial review is an incident of supremacy, and the supremacy is affirmed by judicial review.

Judicial review as an arm of Administrative law ensures that there is a control mechanism over, and the remedies and reliefs which a person can secure against, the administration when a person's legal right or interest is infringed by any of its actions.

The effectiveness of a system of judicial review under Administrative law depends on the effectiveness with which it provides remedy and redress to the aggrieved individual. This aspect is of crucial significance not only to the person who has suffered at the hands of the administration but generally for the maintenance of regime of rule of law in the country.

In Uganda, great faith has been placed in the courts as a medium to control the administration and keep it on the right path of rectitude. It is for the courts to keep the administration within the confines of the law. It has been felt that the courts and administrative bodies being instruments of the state, and the primary function of the courts being to protect persons against injustice, there is no reason for the courts not to play a dynamic role in overseeing the administration and granting such appropriate remedies.

The courts have moved in the direction of bringing as many bodies under their control as possible and they have realized that if the bodies participating in the administrative process are kept out of their control and the discipline of the law, then there may be arbitrariness in administration. Judicial control of public power is essential to ensure that that it does not go berserk.

Without some kind of control of administrative authorities by courts, there is a danger that they may be tempted to commit excesses and degenerate into arbitrary bodies. Such a development would be inimical to a democratic constitution and the concept of rule of law.

Article 42 of the constitution permits any person to apply to a court of law for judicial review against public bodies and/or agencies. The article provides that; *"Any person appearing before any administrative official or body has a right to be treated justly and fairly and shall have a right to apply to a court of law in respect of any administrative decisions taken against him/her."*

According to **Rule 7A of the Judicature (Judicial Review Amendment) Rules, 2019**, a court shall grant an order for judicial review if it is satisfied that the decisionmaking body or officer did not follow due process in reaching the decision, resulting in unfair and unjust treatment of the applicant.

An applicant who wishes to succeed in an application for judicial review must therefore as a matter of law, plead and prove that the decision complained of was arrived at either illegally, irrationally or there was procedural impropriety implying, flouting of well-known procedure in that regard.

In *R (A) vs Secretary of State for the Home Department [2021]UKSC 37* and *R (BF) (Eriteria) vs Secretary of State for the Home Department [2021] UKSC38,*

The UK Supreme court observed that while applying for Judicial review, it is important for courts to have in mind the Constitutional principle of separation of powers. In this regard, Parliament enacts laws, wherefore the executive or public bodies set out to apply the said laws and courts intervention is only warranted where any of the other two arms transgresses the well-established laws or legal principles.

From the outset therefore, I wish to state that the judicial review function by courts of law, has evolved over the years with the now overriding principle being that courts shall always exercise the same in a limited way.

The applicant contends that the sectoral committee on Tourism, Trade and industry acted illegally when they usurped the powers of the Parliamentary Committees, Ad hoc Committees and Committee on Public Accounts (COSASE) when they purportedly carried out an investigation into the utilization of Supplementary Budget for FY 2021/2022 to the Ministry of Tourism, Trade and industry for rent of new office premises.

Article 90(1) of the Constitution enjoins Parliament to appoint committees necessary for the efficient discharge of its functions. Clause 3 of the same Article provides that the rules of procedure of Parliament shall prescribe the composition and functions of the committees of Parliament.

Rule 157(1) of the Procedure of the Parliament of Uganda SI No. 30 of 2021 provides that the house shall have standing committees whose general functions shall include Rule 159 to assess and evaluate activities of Government and other bodies.

This court finds that the Sectoral Committee acted legally and within its powers when it invoked its mandate under the Rules of procedure of Parliament and inquired into the utilization of supplementary budget for the FY 2021/2022 to the Ministry for the rent of office premises.

In the present case, the Applicant challenges the decision-making process of the Parliamentary Sectoral Committee on Tourism, Trade, and Industry, arguing that it was tainted with procedural impropriety. She contends she was denied an opportunity to cross examine witnesses and that they were biased.

The Sectoral Committee conducted an inquiry into the utilization of the supplementary Budget for FY 2021/2022 to the Ministry of Tourism, Trade and Industry for rent of new office premises.

The nature and or form of the hearing may vary from in case to another and there is no standard hearing otherwise the court would be advocating for form over substance. In the case of *National Medical Stores versus Attorney general HCMC No. 180 of 2021* quoted with approval the Canadian Supreme case of *The Board of Education of the Indian Head School Division No. 9 of Saskatchewan versus Ronal Gary Knight [1990] S. C. R 653*, where it was held that-

*"It must not be forgotten that every administrative body is the master of its own procedure and need not assume the trappings of a court. The object is not to import into administrative proceedings the rigidity of all the requirements of natural justice that must be observed by a court, but rather to allow administrative bodies to work out a system that is flexible, adapted to their needs and fair. As pointed out by De Smith (Judicial review of Administrative Action (4th ed. 1980), at p. 240, the aim is not to create "procedurally perfection" but to achieve a certain balance between the need for fairness, efficiency and predictability of outcome. Hence, in the case at bar, if it can be found that the respondent indeed had knowledge of the reasons for his dismissal and had an opportunity to be heard by the Board, the requirements of procedural fairness will be satisfied even if there was no structured 'hearing' in the judicial meaning of the word……."*

The applicant was invited for hearing on 29th June 2023, 4th July 2023 and 27th July 2023. The applicant in the latter dated 30th June, 2023 the applicant addressed the Chairperson of the Sectoral Committee indicating that she had on 12th April, 2023, presented all the required documents and the committee had sufficient information to make a final decision. She also made oral submissions to the sectoral committee. This is clear that she was heard and the court should not impose courtlike hearing on sectoral committees of parliament.

Essentially, procedural fairness involves elementary principles that ensure that, before a right or privilege is taken away from a person, or any sanction is otherwise applied to him or her, the process takes place in an open and transparent manner. It is also called 'fair play' in action and embraces the means by which a public authority, in dealing with members of the public, should ensure that procedural rules are put in place so that the persons affected will not be disadvantaged and are treated justly and fairly.

## Article 42 of the Constitution provides;

*Any person appearing before any administrative official or body has a right to be treated justly and fairly and shall have a right to apply to a court of law in respect of any administrative decision taken against him or her.*

The applicant seemsto confuse the right to just and fair treatment in administrative decisions under Article 42 with the right to a fair hearing under Article 28 of the Constitution. The two rights are quite different and distinct since the latter is only applicable before an independent and impartial court or tribunal established by law. Therefore, Parliamentary proceedings or investigations cannot be treated as court proceedings in order to require fair hearing as envisaged under Article 28 of the Constitution.

In working out what amounts to 'justly and fairly' treatment, the courts are wary of over-judicialising administrative process. They recognise that administrative decision-makers are not courts of law, and that they should not have to adopt the strict procedures of like a court or tribunal. The nature of the ad-hoc committee proceedings of Parliament was inquisitorial /investigatory in order to obtain as much evidence as possible. The manner in which the proceedings were conducted was procedurally sufficient to constitute an opportunity to be heard or a hearing of the applicant fairly and justly in the circumstances of the present case.

In the case of *Kenya Revenue Authority vs Menginya Salim Murgani Civil Appeal No. 108 of 2009*. The Court of Appeal delivered itself as follows;

"*There is ample authority that the decision-making bodies other than courts and bodies whose procedures are laid down by statute are masters of their own procedures. Provided that they achieve the degree of fairness appropriate to their task it is for them to decide how they will proceed*".

The court should look beyond the narrow question of whether the decision was taken in a procedurally improper manner, to a question of whether a decision properly taken would have been any different or would have benefited the applicant. The applicant as an afterthought believes she should have been given more than what she received as a fair hearing or just and fair treatment while she appeared at Parliament. The respondent should accord the applicant a due process in order to arrive at a decision which is fair and just as provided under Article 42 of the Constitution. In the case of *R v Chelsea College of Art and Design, ex p Nash [2000] ELR 686*, the court held that *"would a reasonable person, viewing the matter objectively and knowing all the facts which are known to the court, consider that there was a risk that the procedure adopted by the tribunal in question resulted in an injustice or unfairness"*

The applicant did not set out any evidence to prove that she was not given a fair hearing apart from merely alleging she was not given an opportunity cross-examine the witnesses. This ground has not been proved by the Applicant. The applicant has failed to prove the allegations of bias by the Chairperson of the Sectoral Committee or its members.

The application fails and is dismissed with no order as to costs.

I so Order

*Ssekaana Musa Judge 14th February 2025*