[2024] UGCC 25

#### THE REPUBLIC OF UGAIIDA

# IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA

# CONSTITUTIONAL PETITION NO. 03 OF 2O2O

5 [Coram: Egonda-Ntende, Luswata, Kihika, llazibwer Mugenyi, JJCCI

#### 1. HUB FOR IN\IESTIGATIVE MEDIA

# 2. E;DWARD RONALD SEKreWA :::: PEIITIONERS

#### VERSUS

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

#### 10

# JUDGMENT OF OSCAR JOHN KIHII{A. JA

# Introduction

This Constitutional Petition was brought under Articles L37 (1), (2), (3) and (7) of the Constitution of the Republic of Uganda 1995 and Rule 3 of the Constitutional Court (Petitions and reference) RuIe 2005. The Petitioners seek a number of declarations and orders as will be set out.

#### Background

The 1"t Petitioner is a duly registered Non-Governmental Organrzation engaged in the promotion of access to information, with the sole aim of engendering good governance and accountability within government ministries, dgencies, authorities, commissions and other public bodies. The 2nd Petitioner is an investigative journalist and Executive Director of the 1"t Petitioner. 20

The Petitioners allege that particular provisions of the Leadership Code (Amendment) Act 2Ol7 are discriminatory in nature, violate the principle of proportionality and are inappropriate for achieving the overreaching accountability and transparency objectives thus are inconsistent with the 1995 Constitution.

In 1992, Parliament enacted the Leadership Code Act. Amendments were made rn 2OO2, 2Ol7 arrd subsequently in 2O2l , that gave effect to Article 235A of the Constitution, which mandated Parliament to enact laws to regulate the relationship between persons holding public offices and lawful agencies mandated to enforce the Leadership Code.

The Leadership Code Act was enacted to provide for a Leadership Code for ensuring a minimum standard of behavior and conduct for leaders; to establish a Leadership Code Committee charged with ensuring compliance with the Code; and for other connected purposes.

In 2OL7, the Parliament of Uganda amended the 2OO2 Leadership Code Act by introducing Sections 4A (5) of the Leadership Code Act, 2OL7 which stipulates that a public officer is required to declare their incomes, assets and liabilities to the accounting officer within three months of commencing work in a public office and thereafter, every 2 years.

The Petitioners contend that whereas Sections 4A(5) of the Leadership Code Act, 2Ol7 amendment provides that a public officer is required to declare their incomes, assets and liabilities to the accounting officer within three months of commencing work in a public office and thereafter every 2 years requiring him or her to 25

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submit a written declaration of his or her incomes, assets and liabilities, the accounting officers and heads of department are precluded from disclosing the information so declared.

5 The Petitioners contend further that the amendments of S. 7 (2) and (9) of the Code that classifies declared information as public and makes it accessible only upon payment of UGX 2OO,000/=, is discriminatory as it contravenes and is inconsistent with Article 2l of the Constitution. The Petitioners contend that amendment of S. 7l2l & (9) of the Code gives the Inspectorate of Government discretion to make a subjective determination to what extent the public should access information by putting limitations that are not envisaged under Article 41(1) of the Constitution. Article 4L (lf of 1995 Constitution provides that every crtrzer:r has a right of access to information in the possession of the State or any other organ or agency of the State except where the release of the information is likely to prejudice the security or sovereignty of the 10 15

According to the Petitioners, Sections 7l2l & (91 of the Leadership Code Act limits public officers from answering to the people; limits the measures to be taken to expose, combat and eradicate corruption and abuse or misuse of power by those holding political and other public offices; limits the constitutional duties imposed upon ordinary Ugandans to cooperate with lawful agencies in the maintenance of law and order and combating corruption and thereby defeating the National objectives and directive principles of state policies as well as other international laws and treaties to which Uganda subscribe to. 20 25

State or interfere with the right to the privacy of any other person.

### The Petitioners alleges that;

- 1. Section 4A (5) of the leadership Code , 2Ol7 amendment contravenes and is inconsistent with Article 4 1(1), objectives XXVIII(i)(b) and XXVI of the Constitution, in so far as it precludes the accounting officer or the head of the Ministry, Department or Agency (MDA) from disclosing information contained in the declaration made by a public officer and further imposes an obligation of confidentiality: that the effect of this is to unilaterally take away the right of access to information guaranteed under Articles ⁴1 (1) of the Constitution. - 2. Sections 7 (2) and (9) of the Code classifies declared information as public and makes it accessible only upon payment of UGX 2OO,OO0 (Two Hundred Thousand Shillings Only): - approximately USD 53 (Fifty-Three) ("the prescribed fee"). The estimated average household monthly expenditure of ordinary Ugandans is UGX. 351,600 (Three Hundred Fifty-One Thousand, Six Hundred shillings only): - approximately USD 94 (Ninety-Four) considered against the 27 percent increase in the proportion of the population living in poverty during the period 2Ol2 I 13 to 2OL6 I ¹⁷. - 3. Sections 7 (2) & (9) of the Code contravenes and is inconsistent with Articles 41(1), 2l(I), 29(1)(a), 43(c), objectives XXVIII (i) (b) and XXVI of the Constitution in as far as it gives the Inspectorate of Government discretion to make a subjective determination to what extent the public should access information by limitations that are not envisaged under Article 4l(1) of the Constitution.

## Representation

At the hearing, Mr. Gerald Batanda appeared for the Petitioners while Mr. Brian Musota, State Attorney, appeared for the Respondent. Counsel proceeded by way of written submissions, which have been considered by the court.

The petition is supported by two affidavits deponed by Mr. Edward Ronald Sekyewa, the 2nd Petitioners and Executive Director of the 1"t Petitioners. The Respondent filed an answer to the petition which was supported by an affidavit sworn by director civil litigation Mr. Martin Mwambutsya.

## Declarations sought

- 1. A declaration that Section 4A (5) of the leadership Code , 2Ol7 amendment contravenes and is inconsistent with Article 4l(1), objectives XXVIII(i)(b) and XXVI of the Constitution. - 2. A declaration that Section 7(21 of the Code contravenes and is inconsistent with Articles 41(1), 2l(L1,29(L) (a), 43 (c) of the Constitution. 15 - 3. A declaration that Section 7 (a) of the Code contravenes and is inconsistent with Articles 4l(1l.,21 (1),29(ll (a), a3 (c) of - the Constitution. 20

#### Orders sought

1. An order compelling the Inspectorate of Government to grant access to declarations submitted under the Code subject to the requirements under Article 4 1 (1).

# 2s Issues

The followirrg issues were framed by the parties;

- 1. Whether the Petition raises matters for constitutional interpretation under Article L37 (3) of the Constitution, 1995? - 2. Whether Section 7 (2) and Section 7 (9) of the leadership Code (Amendment) Act 2Ol7 contravenes and are inconsistent with Articles 41(1), 2l(1),,29(1)(a) , 43(2)(c), objectives XXVIII(i)(b) and XXVI (ii)(iii) of the Constitution, 1995? - 3. Whether SectionT (a) of the leadership Code (Amendment) Act 2OI7 contravenes and is in inconsistent with Articles 41(1), 2r(1),,29(1)(a) ,43(2)(c), objectives XxVIII(iXb) and xxVI (ii)(iii) - 10

of the Constitution, L995?

4. What remedies are available to the parties?

# Constitutional court jurisdiction

Before resolving the issues, I find it necessary to briefly revisit the jurisdiction of this Court in petitions such as has been presented to the Court. The jurisdiction of the Constitutional Court of Uganda is derived from the provisions of Article 137 of the 1995 Constitution. 15

Article L37 provides that:

"(1) AnA question as to the interpretation of this Constitution shall be determined bg the Court of Appeal sitting as the co nstitutio na"l court.

(3) A person who alleges that\_

a) an Act of Parliament or anA other law or anAthing in or done under the authorita of anA laut; or

b) anA act or omission by anA person or authoitg, is inconsistent utith or in contrauention of a prouision of this constitution, maA petition the constitutional court for ^a declaration to that effect, and for redress where appropriate.

(4) Where upon determination of the petition under clause (3) of this article the constitutional court considers that there is need for redress in addition to the declaration sough| the constitutional court maA \_

a) grant an order of redress; or

b) refer the matter to the High Court to inuestigate and determine the appropriate redress.

The Supreme Court has interpreted this Article in Ismail Serugo v Kampala City Council Constitutional Appeal No. 2 of 1998 (SCl, which was referred to by Odoki CJ, (as he then was) in the case of Raphael Baku Obudra v Attorney General Constitutional Appeal No. 1 of 2OO3 (SC). While addressing the issue of what amounts to a cause of action in constitutional matters, he obserued: 15

"According to the principles in Serugo (supra) the Petitioners had to show that the prouisions of the section he is complaining about uiolated a ight guaranteed bg the Constitution. The instant petition does not allege those facts, which are alleged to contrauene the prouisions of the Constitution or those that are inconsistent with its prouisions. For those reasons we think the petition does not disclos e a cause of action. TTtere would be nothing to interpret. The petition u)ould be dismissed utith costs.

*In Serugo vs Kampala City Council, Constitutional Appeal No.2* of 1998, this Court pronounced itself on the meaning of a cause of action as regards Constitutional petitions. Generally, the main elements required to establish a cause of action in a plaint apply to a Constitutional petition. But specifically, I agree with the opinion of Mulenga, JSC in that case that a *petition brought under Article 137 (3) of the Constitution* "sufficiently disclose a cause of action if it describes the act or omission complained of and shows the provision of the Constitution with which the act or omission is alleged to be inconsistent or which is alleged to have been contravened by the act or omission and pray for a declaration to that effect."

*In my opinion, where a petition challenges the constitutionality* of an Act of Parliament, it sufficiently discloses a cause of action if it specifies the Act or its provision complained of and identifies the provision of the Constitution with which the Act or its provision is inconsistent or in contravention, and seeks a *declaration to that effect. A liberal and broader interpretation* should in my view be given to a Constitutional petition than a plaint when determining whether a cause of action has been *established."* (sic)

#### **Principles of constitutional interpretation**

Let me restate here below some of the principles of constitutional interpretation, that I consider pertinent in the determination of the Constitutional Petition before me. These have been laid down in several decided cases by the Supreme Court, this Court and

$\overline{5}$

Courts of other jurisdictions. They have also been expounded upon in a number of legal literatures of persuasive authority.

1. The Constitution is the Supreme law of the land and forms the standard upon which all other laws are judged. Any law that is inconsistent with or in contravention of the Constitution is null and void to the extent of the inconsistency. See: - Article 2(21 of the Constitution.

- 2. In determining the constitutionality of a legislation, its purpose and effect must be taken into consideration. Both purpose and effect are relevant in determining constitutionality, of either an unconstitutional purpose or an unconstitutional effect animated by the object the legislation intends to achieve. See: - Attorney General vs. Salvatori Abuki Constitution Appeal No. 1 of 1998.(SCU) - 3. The Constitution must be interpreted as a whole. This principle was settled in the case of South Dakota V North Carolina L92 US 268 (19401 448 by the Supreme Court of the United States in stating that; "no single prouision of the constitutionis /o be segregated from others and be considered alone but that all proulsions bearing upon a partiatlar subject are to 15 20

be bought into uieut and to be so interpreted as to effectuate the purpose of the instrutment".

4. Therefore, in law, the Constitution is a wholesome legal document and all provisions must be regarded as constituting it. The normal logic in this caron is that in order to ascertain the true meaning and intention of the legislators, all relevant provisions must be considered. It is thus dangerous to consider any one particular human right provision in isolation of all others, and any Court which tries to do this is bound to get an inconsistent conclusion.

- 5 5. Where words are clear and unambiguous, they must be given their primary, plain, ordinary and natural meaning. Such language must be given in its common and natural sense and, natural sense means that natural sense which they bore before the Constitution carne into force. The cardinal rule for the construction of Acts in parliament is that they should be construed according to the situation expressed in the Acts themselves. The tribunal that has to construe an Act of a legislature or indeed any other document has to determine the intention as expressed by the words used. If the words of the statute are themselves precise and unarnbiguous, then no more can be necessary than to expound those words in their ordinary and natural sense. The words themselves alone do in such a case best declare the intention of the law giver. 10 15 - 6. Narrow construction to is to be preferred in case of derogation from a guaranteed right. It is not in doubt that save for the rights mentioned in Article 44 which are stated to be nonderogable, the rest can be limited. But the power to do so is not at large and is not to be arbitrarily exercised by Courts. Indeed, under article 43, it is stated that in the enjo5rnent of the rights and freedom prescribed in this chapter, no person shall prejudice the fundamental or other human rights and freedom of others or the public interest. Public interest is in

turn stated not to permit among others any limitation of the enjoyment of those rights beyond what is acceptable and demonstrably justifiable in a free and democratic society or what is provided in this constitution.

- 5 7. A constitutional provision containing a fundamental right is a permanent provision intended to cater for all times to come and must be given an interpretation that realizes the full benefit of the guaranteed right (Attorney General V Uganda Law Society Constitutional Appeal No. 1 of 2OO6 (SCl). - 8. The Constitutional Court has no jurisdiction in any matter which does not involve the interpretation of a provision of the Constitution. Also, for the Constitutional Court to have jurisdiction, the petition must show on the face of it that the interpretation of a provision of the Constitution is required. An application for redress can be made to the Constitutional Court only in the context of a petition under Article ¹³⁷ Constitution, brought principally for interpretation of the Constitution (Attorney General v Tinye faza Constitutional Appeal No. 1 of 1997l'. 10 15

# 20 Resolution of the issues

I now proceed to resolve the issues followit g the order in which they were framed;

### Issue 1:

Whether the Petition raises matters for constitutional ²⁵ interpretation under Article 137(3) of the Constitution, 1995? The Respondent, in paragraph 5 of the a.nswer to the petition, states that a preliminary objection shall be raised to the effect that the petition raises no issue for Constitutional interpretation by this Court.

# 5 PRELIMINARY POINT OF LAW

## Respondent's Submissions

The Respondent raised a preliminary point of law and contended that section 4A(5) of the Leadership Code (Amendment) Act, 2Ol7 , which the Petitioners alleges contravenes and is inconsistent with

- Articles 41(1), Objective XXVIII(i)(b) and XXVI of the Constitution, was replaced and was not in any way or any form preserued, saved or re-enacted by Section 4,A' of the leadership Code (Amendment) Act, 2021. 10 - The Respondent further contends that Article L37(3)(a) of the Constitution envisages interpretation of valid and existing Acts of Parliament, or provisions thereof, and not those which have been repealed and, or replaced and not presenred. According to the Respondent a different situation would arise if the repealed or replaced Act or provision thereof had been preserued, retained, reenacted or saved in a subsequent enactment with similar effect. 15 20

Section 4A (5f of the Leadership Code (Amendmentf Act, 2OLT (Replaced and not preserved, saved or re-enacted) provides:

"The a"ccounting olficer or the head of the ministry, department or agencA to whom a declaration is made under subsection (1) shall keep the information contained in the declaration confidential and shall not disclos e it to any person."

The Respondent argued that to this extent, the petition does not present any live matter for Constitutional Interpretation. The Respondent prayed that paragraphs 10.1, 11 ,t2, 13.1 and 13.4 of the Petition, which are in respect of the repealed provisions, be strurck out with costs.

## Petitioners' submissions

10 Counsel for the Petitioners submitted that Article 137(1) of the Constitution establishes the Constitutional Court and clothes it with power to adjudicate over any question pertaining to the interpretation of the Constitution and that Article 137 (3) provides that where it is alleged that an Act of Parliament or any other law is in contravention or inconsistent with the Constitution, a person may petition the Constitutional Court for a declaration to the effect or for redress where appropriate. The Petitioners relied on the

15 decision in Attorney General VS Tinyefaza Constitutional Appeal No. 01 of 1997; Ismail Serugo VS Kampala city council, Constitutional Appeal No. 02 of 1998 in support of the argument that this Court has jurisdiction and that its jurisdiction is limited to interpretation of the Constitution.

#### 20 Court's consideration of the preliminary point of Law

As has been noted earlier, the law that provides for jurisdiction of the Constitution Court, is provided for under Article 137 (3) of the 1995 Constitution of the republic of Uganda. It provides;

# "A person who alleges that-

af An act of parliament or any other law or anything in or done under the authority of any lawl or 25

bf Any act or omission by any person or authority, is inconsistent with or in contravention of a provision of this Constitution, may petition the Constitutional court for a declaration to that effect, and for redress where appropriate."

A Constitutional Petition before this court should, prima facie, raise issues for constitutional interpretation or a cause of action. In Ismail Serugo vs Kampala City Council, Constitutional Appeal No.2 of 1998, the Supreme Court pronounced itself on the meaning of a cause of action as regards Constitutional petitions and found that a petition brought under Article 137 (3) of the Constitution should " suffi,cientlg disclose a cause of action if it describes the act or omission complained of and shows the prouision of the Constitution utith which the act or omission ls alleged to be inconsistent or which is alleged to haue been contrauened bg the act or omission and praA for a declaration to that effect." 10 15

The Act complained of should be an Act in force and not a repealed Act. When an Act is repealed, its text is simply deleted from the Code and replaced by a note summartzing what used to be there. Once deleted, the repealed statute or part of the statute no longer has the force of law. The Petitioners cannot require this court to interpret a provision of a statute that was repealed and not replaced, preserved, saved or re-enacted.

The preliminary objection, with regard to paragraphs 10.1, 11 ,12, 13.1 and I3.4 of the Petition, which is in respect of the repealed provisions, is hereby upheld. 25

### Issue 2:

Whether Sections 7l2l and 7l9l of the Leadership Code (Amendmentf Act, 2OL7 are inconsistent (?l with Articles 4ULl,21(11,291U (al and a3(cl of the 1995 Constitution?

s Petitioners' submissions.

Section 7l2l of the Leadership Code (Amendment) Act 2OL7 provides that the person intendirrg to access a declaration submitted by a leader shall make a written application to the Inspectorate and pay the prescribed fee. The prescribed fee as laid out by Section 7l9l must not exceed 25 currency points (UGX5O0,0O0). The fee prescribed by the Minister in the Leadership Code Regulations is UGX 2OO,00O [Two Hundred Thousand Uganda Shillingsl.

The Petitioners submitted that the imposition of a fee as ^a prerequisite to accessing information in the possession of the State violates the right to access information and the right to freedom of expression and violates the principle of non-discrimination. Further, that the fee prescribed by the Minister in the Leadership Code Regulations is unreasonably high and intolerably extortionate. Counsel argued that Article 20( 1l of the Constitution provides that human rights are inherent and not granted by the State, that these rights are not given by the State as gifts or privileges they belong to Ugandans by the reason of being human beings. 15 20

The Petitioners contended that the imposition of a fee as ^a prerequisite to accessing information in Section 7 (21 and (9) of the Code is inconsistent with Article 41 (1) in as far as it commoditizes 25

public information. Counsel relied on the decision in Attorney General VS Tinyefuza (supra) for the proposition that the constitution guarantees that disclosure of information is ^a fundamental aspect of the right to access information in possession of the State.

Paragraph 55 of the affidavit deponed by the 2"d Petitioners is to the effect that the 'costs accompanying access to information pertaining to asset declaration in other countries like Nigeria and Tanzania only exist to cover duplication of the information sought rather than the mere process of accessing information. The Petitioners argued that no fee should be imposed as a prerequisite to access information in the possession of the State. This information belongs to the citizens.

# Respondent's submission in reply

The Respondent submitted that Parliament has the authority to prescribe such fee or delegate such function to the minister responsible under Article L5.2 of the 1995 Constitution. The prescription of a fee is reasonable and justifiable and it supports a self-sustaining operation by the Inspectorate of Government. The prescribed fees are not inordinately high or excessive as alleged by the Petitioners. The Petitioners make a hypothetical point and do not provide evidence of income to prove that the 2nd Petitioners or any other persons have been directly affected or are unable to afford to pay the prescribed fee. Further that this does not discriminate against any persons on the basis of economic standing. 15 20 25

### Consideration of issue 2

The issue for this court to determine is the constitutionality of Section 7 (21 and 7 (9) of the Leadership Code (Amendment) Act, 2017. The petition is seeking a declaration that the said Sections 7 (21 andT (9) of the Leadership Code (Amendment) Act 65(1) are inconsistent with Articles 4 1 (ll, 2L (L), 29 (1) (a) and 43 (c) of the Constitution of the Republic of Uganda 1995;

For ease of reference and for completeness and context, I have set out the impugned sections of the Leadership Code (Amendment) Act below; 10

7. Declaration to be public.

(2) A person intending to access a declaration submitted bA a leader shall make a witten application to the Inspectorate, accompanied by the prescibed fee.

(9) The fees referred to under subsection (2) shall be prescribed bg the Minister and shall not exceed tuenty-"ftue qfirencA points."

The Petitioners' case is that Section 7l2l of the Code as quoted above, requires a person intending to access a declaration submitted by a leader to pay a prescribed fee. The prescribed fee as laid out by Section 7l9l must not exceed 25 currency points. The Petitioners' contention is that this provision contravenes Articles 41(1) and Article 2U 1l of the Constitution which provide for right of access to information. 20 25

Article 4L (11 of the Constitution provides;

- 7) Euery citizen ho.s a right of access to lnforrnation in the possession of the state on ang other organ or qgencg of the state except uthere the release of the lnformation is likelg to prejudice the securitg or souereigntg of the state or interfere urtth the right to the priuacg of ang other persott. - 2) Parliament shall mq.ke laws prescribing the cla,sses of inforrnatlon referred tD in clause (1) of thts artlcle and the procedure for obtaining access to that infonnation - ¹⁰ Article 21(1) and (2) provide as follows;

- 1) All persons are equal before and under the lqw in all spheres of polltlcal, ecottomic, social and qtlturo,l fife and in eLery other respect and shall enjog equal protectl.on of the law. - 2) Without prejudice to clause (1) of this article, a person shall not be discriminated against on the ground of sex, race, color, ethnic origin, tribe, bitth, creed or religious, social or economic standiftg, poltticq,l opinion, or disabllitg. 15 - ²⁰ In my view, the impugned section imposes payment of a fee to every person who wishes to access information declared by public officers for lawful purposes. It does not in any way segregate or discriminate among persons basing on class, status, sex, color tribe, or ethnicity arnong other forms of segregation or ²⁵ discrimination.

The word "discriminate" is defined under Article 21(31 of the Constitution to mean giving different treatment to different persons attributable only or mainly to their respective descriptions by sex, race, color, ethnic origin, tribe, birth, creed, or religion, social or economic standirg, political opinion, or disability. The definition points out the different prohibited forms of discrimination which must be put into context in alleging unconstitutionality of particular provisions of a statute.

It is my considered view'that the amended section does not in any way discriminate against persons in as far the payrnent of prescribed fees in order to access information declared by public officer is concerned. According section 7 (2) and (9) a person with a good intention who wishes to use declared information by public officers, may apply to access the declared information and upon payment, such a person will be availed with that information. This provision has got a universal application effect to all persons who wish to obtain such information, as such I do not find it in any way discriminatory among persons. 10 15

To my mind, the condition for pre-payment of certain amounts of money to access the information of a particular officer is a common practice adopted by many public bodies in this country. The underlyrng principle is to support self-sustaining operations of institutions. For instance, a Petitioner(s) is required to pay UGX. 2OO,00O/= as securit5r for costs prior to filing a constitutional petition in this court. Litigants are as well expected to make payment of court fees before accessirrg courts of law. Similarly, members of the public make payrnents to the Uganda National Examinations Board before accessing certified copies of academic documents. My view, is that the fees imposed under Section 7 (9)

of the Leadership Code (Amendment) Act 2Ol7 are also not inordinately high so as to limit access to information, &s alleged by the Petitioners.

Sections 7l2l and 7l9l of the Leadership Code (Amendment)

- 5 Act simply state that whoever is willing, should make a written application to the Inspectorate, accompanied by the prescribed fee not exceedirg twenty-five currency points. This provision does not, in my considered opinion, negate or limit the right to access to information. - In view of the above, I therefore find that Sections 7l2l and (91 of the Leadership Code (Amendmentf Act, 2OL7 (now Sections 1U2) and 11(91 of the Leadership Code Act Cap 33) do not contravene Articles 41(11, 2l-lLl,29lU(al and a3(c) of the Constitution. 10 - ¹⁵ Issue 2 is thus resolved in the negative.

#### Issue 3:

Whether section 7l4l of the Leadership Code (Amendment) Act, 2OL7 is consistent with Articles 41(11, 2Ll1O, 29lll (al, a3(c) and Objectives xxvIII(i) (bl and xxlfl (iil &(iiif of the 1995

20 Constitution?

## Petitioners' submission

Counsel's submissions on this issue were comprehensive. I will not therefore rehash them, but will highlight the salient points made. Aspects of Counsel's submissions that are not contained in the summ ary herein will be touched upon in my analysis of the issue in order not to be repetitive.

Counsel submitted that Section 7 (41 (now Section 1 1 (4)) of the Leadership Code Act Cap.33, provides that the Inspectorate shall only grant access to a declaration submitted under this Code being satisfied that the access to the declaration will help in the enforcement of this Code or any other law. In additior, the inspectorate must be satisfied that the applicant will not disclose the contents of the declaration to any other person. The Petitioners argue that the impugned section restricts the access to ^a declaration by grring the Inspectorate of Government discretion to make a subjective determination on whether the access sought will aid the enforcement of the Code and be kept confidential. Counsel further submitted that Section 11 4 of the Leadership Code whittled away both the right to access to information and freedom of expression by imposing further limitations that are not envisaged under Article 4l(1) of the Constitution.

1\_0

The Petitioners argues that the above Section contravenes Article 4ll1f read together with Article 29ll-l of the Constitution, which confer every citizen with a right of access to information of the State except where the release of the information is likely to prejudice the security or sovereignty of the state or interfere with the right to privacy of any other person. Counsel additionally asserts that the Constitution grants every person the right to freedom of speech and expression which includes freedom of press and other media, which right goes hand in hand with the right to access to information.

Counsel pointed out that paragraphs 45 and 64 of the 2"d Petitioners' affidavit states that the Petitioners believe that the provisions of the Code create extra-constitutional exceptions to the right of access to information in the possession of the State. The 2nd Petitioners states in the affidavit, that the Uganda Human Rights Commission noted that the discretionary power conferred upon the IGG to determine who is deserving of information and who is not is contrar5r to the constitutional spirit behind disclosure.

Counsel argued that Article 41(1) of the Constitution is a standalone provision that protects the right to access information in the possession of the State. It entitles the citrzen to information in the possession of the State and takes away discretion of accounting officers to determine whom to give information basing their decision on anything outside the precincts of this provision. 10

Counsel further opined that the responsibility of holding leaders to account is not supposed to be an exercise in futility. He referred the Court to Objective XXVI of the National Objectives and Directive Principles of State Policy which provides that all public offices are held in trust for the people and that in exercise of their duties they are answerable to the people. Counsel argued that the citizen's right to access information in the possession of government serues the purpose of holding government officials accountable so as to combat corruption and misuse of public resources. Counsel contended that the State in passing any law cannot do so in isolation of the National Objectives and as such every law needs to be tested against its fidelity 15 20 25

Counsel submitted that the crtrzer:-'s right to access information in the possession of government serues the purpose of facilitating their duty to hold government officials accountable to combat corruption and misuse of public resources. The Petitioners argues that Section 7l4l imposes extra- constitutional exceptions to the access to information, it renders redundant the duty of the citizen to hold public officials accountable hence facilitates the scourge for corruption.

# Respondent's submission in reply

For the Respondent, it was submitted that the right of access to information stated in Article 4 1 ( 1) of the Constitution has to be balanced against the right to privacy contained in Article 27 (I) of the Constitution and that therefore, Article 4 1 (1) protects the privacy of "any other persons including that which may be contained in the declaration forms of public officers/leaders. The Inspectorate would therefore be required to scrutinize declaration forms to ensure that information provided does not car.se injury to any other person. Further, that the facts do not indicate whether the Petitioners applied for information and was denied.

20 The Respondent submitted that the right to privacy is ^a fundamental right flowing from the right to life and personal liberty as well as other fundamental rights. That the sphere of right to privacy includes a right to protect one's identity and also recognlzes the fact that all information about a person is fundamentally his lher owrr and helshe is free to communicate it or retain it. Practices that require information from individuals should be carefully handled to protect the right of privacy. Information should be picked only for clear, specific and lawful purposes. 25

Counsel relied on the decision of the Constitutional court of South Africa in NM & Others vs Smith & Others,2OOT(5) SA 25O(CC) which held that; "An implicit part of this aspect of priuacA is the right to choose what personal information of ours is released into

5 the public space. The more intimate that iruformation, the more important lt ls in fostering piuacg. Dignity and autonomA that an indiuidual makes the pimary decision whether to release the information or not. That decision should not be made bg others. This aspect of right to piuacA must be respected bg all of us, not onlg the State." 10

The Respondent contended that where a request is not granted within time or declined, the Applicant may apply to the leadership Code Tribunal for redress under section 7 (71 of the Leadership Code Act,2O2l . Counsel prayed that this court finds that section

7l4l of the Leadership Code (Amendment) Act, 2OL7 is not in any way inconsistent with or in contravention of the 1995 Constitution. 15

### Consideration of issue 3

The Petitioners' contention is that Section 7l4l (now Section 11

(4)) of the Leadership Code Act Cap.33, contravenes Articles 4L ( 1l an d 291 1) of the Constitution. 20

Section 11 l4l of the Leadership Code Act Cap 33 provides as follows;

"(4) The Inspectorate shall only grant access to a declaration submitted under this Code on being satisfied that-

(a) the access to the declaration will help in the enforcement of this Code or anA other law;

(b) the applicant utill not disclose the contents of the declaration to any other person.

5 Article 2911f of the Constitution, which the Petitioners claim has been contravened by the aforementioned provision of the Leadership Code Act, provides for the right to freedom of speech and expression, which is stated to include freedom of the press, while Article 41(lf provides for the right of access to information in the possession of the State provided that such access will not prejudice the security or sovereignty of the State or interfere with the right to the privacy of any other person. 10

The Petitioners'contention brings to the fore, in this petition, the question as to whether or not persons appointed to hold public office, should in the first place make declarations of their personal wealth and whether such declarations ought to be made public or freely accessible to the public. This is a question that many a nation has been grappling with for quite some time now. 15

With the exception of United Kingdom, which adopted its Prevention of Cormption Act as early as 1889, the rest of the world appears to have awoken to the need of bringrng bearers of public office to account after the Second World War. In the United States, for example, growing government and recurrent corruption scandals created impetus for initiatives to strengthen public integrity. One of the early political statements regarding the need to impose public disclosure of personal finances on certain federal 20 25

officials was voiced in the message of President Truman to the Congress in 1951 wherein he stated thus

"With all the questions that are being raised todag about the probitg and honestU of public oJficials, / think all of us should be prepared to place the facts about our income on the public record."l

Yet, it was not until 1978 that the US Congress enacted the Ethics in Government Act. This enactment was prompted by the Watergate and other scandals. That Act, which is still in force to date, requires detailed public financial disclosure by government employees above a certain level in all three branches of the federal government.2

The disclosure of public officials' income, assets and financial interests ca-rne to most of Western Europe later in the following decade. For example, in 1982 a law introducing the requirement

- to make declarations of assets and liabilities by public officials was adopted in Spain. That same yetr, Italian members of parliament became obliged to disclose their additional income and property status. In 1983 a law for public control of the wealth of elected officials was adopted in Portugal.3 15 - The late 1980s and 1990s saw democratization in much of Central and Eastern Europe and elsewhere. This development, along with the growing prominence of the global anti-corruption agenda, saw the introduction of legislation requirirg declarations from public 20

¹ Asset Declarations for Public Officials A Tool to Prevent Corruption @ OECD 20LL htt os ://www.oecd.o rslen/p u bl i cations. htm

²htt ps : //www.co n a re ss. o ov /b i I ^I/9 Sth -co n o re ss /se n ate-b i I ^I/5 5 ⁵

officials by former socialist countries during the 1990s.a The African Continent followed suit in 2OO3, when the African Union passe d I adopted the African Union Convention on Preventing and Combating Corruption. ^s

5 It would appear to me that the framers of our 1995 Constitution may have been keenly aware of the aforementioned backdrop. This, in my view, is reflected in provisions of our Constitution that demand of our public officers to act with honesty, probity and integrity in the conduct of public affairs and protection of public funds and other property. 10

For example, Objective XXVI of the National Objectives and Directive Principles of State Policy provides as follows;

# "i. All public oflices shall be held in ttttst for the people.

ii. All persons placed in positions of leadership and responsibilitg shall" in their work, be answerable to the people. 15

iii. All lawful mea"sures sho,ll be taken to e;xpose, cotrtbat and eradicate corruption and abuse or miszse of pouter bg those holding political and other public offices. "

In furtherallce of this objective, the framers of our Constitution then introduced Article 233 which laid the foundation for the establishment of the Leadership Code Act. It provides as follows; 20

3 tbid.

sAdopted by the 2nd Ordinary Session of the Assembly of the Union Maputo, Mozambique 11th July 2003 "1. Parliament shall by law establish a Leadership Code of Conduct for persons holding such offices as may be specified by Parliament.

2. The Leadership Code of Conduct shall require specified officers to declare their incomes, assets and liabilities from 5 time to time and how they acquired or incurred them, as the case may be;

**b.** prohibit conduct-

$(i)$ likely to compromise the honesty, impartiality and integrity of specified officers; or $10$

ii. likely to lead to corruption in public affairs; or

iii. which is detrimental to the public good or welfare or good governance;

c. prescribe the penalties to be imposed for breach of the Code, without prejudice to the application of criminal 15 penalties prescribed for the breach in question;

d. prescribe powers, procedures and practices for ensuring the effective enforcement of the Code; and

e. make any other provision as may be necessary for ensuring the promotion and maintenance of honesty, probity, $20$ impartiality and integrity in public affairs and the protection of public funds and other public property."

Parliament, in compliance with the directive contained in Article $233(1)$ , then enacted the Leadership Code Act of 2002. This Act was subsequently amended twice. First in 2017, and more

significantly, for the purposes of this petition, in 2O2t, The Leadership Code (Amendment) Act, 2O2l is a law that amended the Leadership Code Act, 2OO2 to require public officers to declare their income, assets, and liabilities to the Inspector General of Government (IGG) and contained Section 7\$l (now Section 11(4)) which is being challenged as being unconstitutional in this petition.

i

It is the Petitioners' contention that the impugned Section 1 1(a) of the Leadership Code Act sets its own exceptions to the right of access to information other than those already set out in the Constitution. The Petitioners appear to be uncomfortable with the discretionary powers granted to the IGG in determining who calt be granted access to the information sought. The Petitioners argue that the impugned provision is effectively a claw-back clause to the progress made in the fight against graft. 10 15

The Respondent on the other hand, as has already been noted, contends that that the right to privacy is a fundamental right flowing from the right to life and personal liberty as well as other fundamental rights. The Respondent further argues that the sphere of right to privacy includes a right to protect one's identity and also recognizes the fact that all information about a person is fundamentally his/her owrr and helshe is free to communicate it or retain it. In support of its contention, the Respondent referred this Court to the South African authority of NM & Others vs Smith

& Others (supral which in effect holds that the right to privacy is the right to choose what personal information is to be released into the public space. It further holds that the more intimate that 25

information, the more important it is in fostering privacy. The Respondent thus contends that the impugned section is not unconstitutional and adds that if the IGG fails to disclose the information required recourse can be made to the provisions of Section ll(71 which provides for an applicant seeking redress from the Leadership Code Tribunal.

I would at this point hasten to point out that the case presented by the Respondent, NM & Others vs Smith & Others (supra), the Constitutional Court of South Africa was tasked to balance privacy rights with press freedom. In that case, the narnes of three women who were HIV+ were disclosed in a published biography without their consent. Those were private persons whose personal records could only be disclosed with their consent. With respect, that authority does not serve any useful purpose in the context of the issue to be resolved given that we are here dealing with persons who hold public office. 10

In order to resolve the competing views advanced by both parties, I find it imperative to set forth the following question; Should declarations of assets and liabilities by public officials be made freely available to the public?

To my mind, resolvir.g this question necessitates the need to balance the right to access information and the right to privacy as stipulated in Article 27 (2) while bearing in mind Objective XXVI of the Constitution.

Article 27 of the 1995 Constitution which provides for the right to privacy of individuals states as follows; 25

27. Right to privacy of person, home and other property.

(1) No person shall be subjected to—

$\mathsf{S}$

- 1. (a) unlawful search of the person, home or other property of that person; or - 2. (b) unlawful entry by others of the premises of that $\frac{1}{2}$ person.

## (2) No person shall be subjected to interference with the of that person's home, correspondence, privacy communication or other property.

Clearly, the constitution does recognize the fact that the right to 10 privacy ought to be upheld. It is on that basis that the Respondent puts forth the strong argument that the right to privacy is a fundamental right flowing from the right to life and personal liberty as well as other fundamental rights. Consequently, as the Respondent further argues, declarations made by public officials 15 to the IGG ought to be afforded the protection accorded by Article 27 given that all information about a person is fundamentally his/her own and he/she is free to communicate it or retain it. And once they choose to retain it contrary to the law, they then can be subject to sanctions included in the Code. 20

However, Article 27 ought to be read together with Article 43(1) of the Constitution. It provides as follows;

"In the enjoyment of the rights and freedoms prescribed in this Chapter, no person shall prejudice the fundamental or

other human rights and freedoms of others or the public 25 *interest*." (emphasis mine)

Black's Law Dictionary (Revised 4tr, Edition) defines public interest to be; "Somlething in uthich the publlc, the com;munitg at large, has some pecuniary interest, or some interest bg which their lcgal rights or liabilities are affected."

- 5 It is my considered view that Article 233 (21 which demands that there be passed a law that requires specified officers to declare their incomes, assets and liabilities from time to time and how they acquired or incurred them, was included by the framers of our Constitution so as to protect the public interest. - The point to ponder therefore is whether the limitations to access to declarations made by public officers contained in the impugned section 1 1(4) are not in the public interest and by extension have the effect of being unconstitutional. The case of Dauid htsingwire ^aAttorneg @neral [2014 UG'SC 77, set out the parameters to 10 - be considered when determining the constitutionality or otherwise of a piece legislation. It held as follows; 15

"ht detennlning the constittttionalitg of legislatl.on, its purpose and effect nutst be taken into consideratlott. Both purpose and effect are releaant in detertninlng constittttionalitg, either of the uncottstittttional Wrpose, or unconstittttionq.l effect anima@d bg the object the legislation intends to achiette."

The question thus would be what is the purpose and effect of Section 1 1(4) of the Leadership Code Act? To my mind, Section ¹1(4)(b) gives the Inspectorate powers to withhold the disclosure of contents of a declaration to the public at large. I am doubtful that

this provision is in the public interest and will presently explain the reason for my doubt,

Sectio n 4 of the Leadership Code Act provides for the declaration of income, assets and liabilities by a leader. It provides in part as follows;

\* (2) A person sho,ll-

@)unthln three months after becoming a leader; and

(b)thereafi,er euery tuto gears, during March, submit to the Inspectordte a uritten declarqtion of his or her lncottue, assets and ltqbllities in the prescrlbed fortn

(3) A leader shall, before the expiration of his or her tenn of office, declare his or her income, assets and liqhllitles, tf his or her tertn of ofifrce explres stx month"s afi.er his or h.er lqst declsration.

15 (4) A lcader shall stqte hout he or she acquired or incttrred, cs the caste mag be, the lncome, assets or liabilttles lncluded tn a declaratlott sttbmtttcd to the Inspectorqte.

One would therefore ask what is the intended purpose of requiring a person in a leadership position to make such declarations from time to time while in the said position of leadership. The a.nswer, in my view, is that such declarations ensure that the leaders at all times act with honesty, probity, impartiality and integrity in public affairs as is required by Article 233 (21 (e) of the Constitution. For emphasis, I will set out Article

233 (21 (e) it states as follows;

\*(2) The l\*adership Code of Conduct shall- (a). . . . . .. . . . . . . . . . . . . . . . . . . . . .

| (b) | |-----| | (c) | | (d) |

(e) m'o,ke ang other prouision as mag be necessary for ensuring the promotion and maintenantce of honesty, probitg, impartialitg and integritg in public affairs and the protcction of public funds and

## other public propertg"

I would think the dictates of Article 233 (2)(e) are better complied with when declarations by leaders are made subject to public scrutiny. The provisions of Section 1 1(4) of the Leadership Code Act go against the spirit and intentions contained in Article 233(2Xe) of the Constitution on account of the fact that those provisions operate to keep declarations largely hidden from the purview of the public. 10 15

Having said that, it is important to stress that it is without doubt all of us enjoy the right to privacy. However, once a person assumes a position of leadership, a higher level of scrutiny is demanded in respect of that person's affairs, especially in relation to property acquisition, given the possible connection between illicit use of public office for private gain (property acquisition). It is no wonder, therefore, that the Leadership Code Act specifically requires a public officer to state how he or she acquired income, assets or liabilities in the declaration.

The purpose of the Code (inter alia) was to make provision for public officers to declare their incomes, assets and liabilities and the amendment was to improve on strengthening enforcement of the Code. In my view, there is an overwhelming public interest in 25

a

the way public officers conduct their public duties and use public funds. Once one agrees to senre in the public arena, they should not be allowed to unrestrictedly use the right to privacy as a shield.

5 There has been push back against the requirement to make public such declarations in other jurisdictions. In Wgpgch t . Poland (October 25, 2OO5, application rto. 2428/OS), which was cited by Counsel for the Petitioners, the European Court of Human Rights rejected the complaint of a local council member in Poland who refused to submit his asset declaration claiming that the obligation to disclose details concerning his financial situation and property portfolio imposed by legislation was in breach of Article 8 of the European Convention of Human Rights. The Court found that the requirement to submit the declaration and its online publication were indeed an interference with the right to privacy, but that it was justified and the comprehensive scope of the information to be submitted was not found to be excessively burdensome. In finding so it stated as follows; 10 15

"The Court considers that it is preciselg this comprehensiue character which makes it realistic to q.stsum;e that the impugned prouisions trtU meet their objectiue of giuing the public q. req.sonahlg exhaustiue picture of couttcilors' financia,l positions ... that the additional obligation to submit information on propefig, including marital propettU, cant be said to be reasionable in that it ts designed to discourage attempts to conceal assets simplg bg acquiring them using the name of a courtcilor's spouse." 20 25

The European Court of Human Rights also endorsed the publication and internet access to declarations arguing that 'the general public ha.s a legitimate intcrest in ascerto;lning that local politics are transparent qnd Intcrnet cccess to the declarations makes o;ccess to such information effectlae and eq.sg. Without such cccess, the obligation would hante no practical importance or genuine incidence on the degree to which the pftlic is inforrncd about the political process."

To put this decision in context, Article 8 of the European Convention of Human Rights is some what similar to the provisions of Article 27 of our Constitution. Article 8 of The Europea.n Convention of Human Rights states as follows; 10

## "Etreryone ho,s the right to respect for his prtaqte and familg life, his home and his cotrespondence."

The Wgpgch u. Poland (supra) case, although not binding on uS, nevertheless succinctly justifies the need to make public declarations made by public officials notwithstanding the provisions of Article 8 of The European Convention of Human Rights. I therefore find it persuasive authority, although I would not go as far as stating that declarations made under the Leadership Code Act ought to be made public via the internet. There ought to be in place safe guards. The information so released ought not to be used for nefarious or criminal purposes. To that end, there ought to be measures in place that ensure that disclosure of declarations will not be abused. In other words, I would recommend that parliament should pass measures that would delineate parameters that ensure release of information will 15 20 25 not be maliciously used to the detriment of the individual's privacy in the context of a justifiably democratic and open society.

So, in answer to the question; should declarations of assets and liabilities by public officials be made freely available to the public,

5 I would state that such declarations indeed ought to be made available to the public with necessary safeguards. In doing so I find that the provisions of Section lL(2) and Section 11(4) of the Leadership Act to be inconsistent with our Constitution.

I thus make the following declarations;

1. Section 1 1 (21 of the Leadership Code Act Cap 33 contravenes and is inconsistent with Articles 4l(1),,21(1),29(1) (a) ,43 (c) of the Constitution. 10

2. Section 11(4) of the Leadership Code Act Cap 33 contravenes and is inconsistent with Articles 41(1), 2l(1l.,29(ll (a), 43 (c) of the Constitution.

## Orders

1. It is hereby ordered that the Inspectorate of Government grant access to declarations submitted under the Leadership Code Act subject to the requirements under Article 41(1) of the Constitution.

- 2. The petition partially succeeds. - 3. Since the petition has been brought in the public interest, there shall be no order as to costs.

Dated this ....................................

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . OSCAR JOHN KIHIKA<br>JUSTICE OF APPEAL/CONSTITUTIONAL COURT

$\mathcal{E} = \mathcal{E}$

$\mathsf{S}$

# IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA **CONSTITUTIONAL PETITION NO. 03 OF 2020**

[Coram: Egonda-Ntende, Luswata, Kihika, Kazibwe, Mugenyi, JJCC]

## 1. HUB FOR INVESTIGATIVE MEDIA

2. EDWARD RONALD SEKYEWA **:::: PETITIONERS**

**VERSUS**

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

## **JUDGMENT OF JUSTICE DR. ASA MUGENYI, JCC**

I have had the advantage of reading in draft the judgement prepared by my Learned brother, Hon. Justice Oscar Kihika, JCC. I agree with the reasoning and orders proposed.

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

Dr. Asa Mugenyi JUSTICE OF CONSTITUTIONAL COURT

# IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA

# CONSTITUTIONAL PETITION NO. 03 OF 2O2O

## BETWEEN

# 1. HUB FOR INVESTIGATIVE MEDIA

# 2. EDWARD RONALD SEKYEWA PETITIONERS

AND

# ATTORNEY GENERAL RESPONDENT

CORAM: HON. JUSTICE F. M. S EGONDA NTENDE, JCC HON. JUSTICE EVA LUSWATA, JCC HON. OSCAR JOHN KIHIKA, JCC HON. JUSTICE MOSES KAZIBWE KAWUMI, JCC HON. JUSTICE DR. ASA MUGENYI, JCC

# JUDGMENT OF MOSES KAZIBWE KAWUM! JCC

I have had the benefit of reading in draft the Judgment prepared my learned brother the Hon. Justice Oscar John Kihika, JCC. I agree with the reasoning and orders he has proposed. I have nothing usefulto add.

Dated and delivered at Kampala this rfh t& day of (L 2024.

Moses Kazi mi Justice of the Constitutional Court

## IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA

*[Coram: Egonda-Ntende, Luswata, Kihika, Kazibwe-Kawumi,*

& *Mugenyi*, *JJCC*

## **CONSTITUTIONAL PETITION NO 003 OF 2020**

**BETWEEN**

## 1. HUB FOR INVESTIGATIVE MEDIA 2. EDWARD RONALD SEKYEWA.................................... AND

THE ATTORNEY GENERAL ....................................

## JUDGMENT OF EVA K. LUSWATA, JCC

I have had the opportunity to read in draft the judgment of my learned brother Hon. Justice Oscar Kihika, JCC.

I agree with him and have nothing useful to add.

Dated, signed and delivered at Kampala this ........ day of ................................... 2024.

EVA K. LUSWATA JUSTICE OF APPEAL/CONSTITUTIONAL COURT

$\mathbf{1}$

## IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA

fCoram: Egonda-Ir{tende, Luswata, Kihika, Kazibwe Kawumi, and Mugenyi, JJCq

## Constitutional Petition No. 03 of 2020

## BETWEEN

Hub For Investigative Media Petitioner No.l Edward Ronald Sekyewa Petitioner No.2

ANT)

Attorney General Respondent

## JUDGEMENT OF FREDRICK EGONDA-NTENDE. JCC

- tl ] ^Ihave had the opportunity to read in draft the judgment of our brother, Kihika, JCC. I agree with it and have nothing useful to add. - l2l As Luswata, Kazibwe Kawumi and Mugenyi, JJCC, also agree, this petition is allowed in part and dismissed in petr, with the orders proposed by Kihika, JCC, and each party bearing its, or his costs as the case maybe.

41^ Signed, dated and delivered at Kampala this lf. day of Dec-- zo24

ck Ego a- de ^t Jus ce of the Constitutional Court