[2023] UGCC 121

# 10 THE REPUBLIC OF UGANDA, IN THE CONSTIruTONAL COURT OF UGANDA AT KAMPAI. A (CORAM; EGONDA NTENDE, MUSOKE, MAD RAMA, MUG EI. IYI, GASHIRABAKE, JJCCruJCA) CONSOLIDATED CONSTruTIONAL PETITION NO. 17 OF 2O'I8 AND coNsnrunoNAL APPLICATIoN N0. 0025 0F 2018 MUKTSA PATRtCI0 PETITIONER VERSUS 5

ATTORNEY GENERAL} RESPONDENT

#### 15 JUDGMENT OF JUSflCE CHRISTOPHER MADRAMA IZAMA, JCC

I have read in draft the Judgment of my tearned brother Hon. Mr. Justice Christopher Gashirabake, JCC.

20 White I agree that the Petition ought to fait, I do not concur with the order dismissing it on the merits. The Petitioner chattenged about 30 laws and some acts done under the authority of Law. The questions as to interpretation of the Constitution were set out by my learned brother Hon. Mr. Justice Christopher Gashirabake, JCC and I do not need to repeat them.

25 The Constitution is a serious document which shoutd receive due anatysis based on retevant materiats for consideration whenever questions as to interpretation of the constitution are considered. Such questions are handl.ed by five Justices of Appeal. under articte 137 (2) of the Constitution and the court may under articte 137 (7) of the Constitution suspend atl other matters pending before it in order to determine the questions. Further, such a petition shoutd atso be preceded by futt address on the issues at a deeper

[eve[ and more exhaustive anatysis by the petitioner and therefore they 30

I

⁵ ought not to be bundted together in one petition addressing a myriad of diverse and unretated questions.

0verthirty questions touching on a range of different laws and acts atteged to be inconsistent with the Constitution are pl.eaded and these cannot be convenientty heard together in one petition and at one time. To do so woutd Lead to the court being saddted with innumerabte issues which it cannot handte convenientty in one bundte but which ought to be handted separatety and considered in-depth. ln fact, the Petition amounts to over 20 petitions squeezed into one petition.

- As has been pointed out in the tead judgment of my tearned brother Hon. Mr. Justice Gashirabake, JCC, some issues were atready determined by the constitutionat court in earlier fited and determined petitions. In such circumstances fiLing an omnibus petition amounts to vexatious pteading which ought to be struck out for pteading questions as to rnterpretation that the court has conctusivety determined before. lf the petitioner so wishes, 15 - he can fite specific petitions supported by retevant evidence on particutar questions as to interpretation but not atteging to be aggrieved by and picking a myriad of unretated and aLl.eged questions about inconsistency with various provisions of the Constitution ranging from sections of the Penal Code Act, court vacations under the Court Vacation Rutes, severa[ rutes of 20 - the Rutes of Civit Procedure, sections of The Government Proceedings Act and rutes made thereunder, sections of the Civil. Procedure and Limitation (Miscettaneous Provisions) Act and rutes made thereunder, sections of the Tria[ on lndictment Act and the Magistrates Courts Act, chattenges to payment of nonrefundabte fees under different provisions of the [aw, attack 25 - on the requirement for obtaining recommendations before issuing passports, or recommendations for persons shifting ptaces of residences, charging of fees for potice reports, chal.l.enge to rutes catering for leave to appeat, the requirements for notices to appeat, nationwide setection of pupits to join higher schoots or institutions, mandatory registration of 30 - mobite tetephone numbers etc. Al.t these issues were bundted up for consideration by this court in one petition. The evidence in support is in the 35

sol.e affidavit of the Petitioner. This petition is supposed to decide matters which have the potential of affecting atl Ugandans and persons tiving in Uganda.

This petition therefore ought not to be resotved on the merits in tight of the myriad of issues tightty bound together for consideration. This woutd enabte ¹⁰ any matter to be handted on the merits in future.

ln the premises, I woutd not make an order dismissing the petition to avoid some issues being rendered res judicata but would instead strike out the petition with no order as to costs for being frivotous and vexatious for bringing a myriad of questions atteged to be questions as to interpretation

15 of Constitution in such a casual manner by citing whatever laws the petitioner conceived for determination by this court as to their constitutionatity in one petition supported by the sole affidavit of the Petitioner and on a myriad of issues some of whlch require proof of facts.

Dated at Kampala the ,Jf^ day of .t ²⁰²³

Christopher Madrama lzama

Justice of the Constitutional Court

### THE REPUBLIC OF UGANDA IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA **CONSTITUTIONAL PETITION NO. 17 OF 2018** AND

# **CONSTITUTIONAL APPLICATION NO. 25 OF 2018**

MUKISA PATRICK::::::::::::::::::::::::::::::::::::

$\overline{1}$

### **VERSUS**

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

### CORAM: HON. MR. JUSTICE FREDRICK EGONDA-NTENDE, JCC HON. LADY JUSTICE ELIZABETH MUSOKE, JCC HON. MR. JUSTICE CHRISTOPHER MADRAMA, JCC HON. LADY JUSTICE MONICA K. MUGENYI, JCC HON. MR. JUSTICE CHRISTOPHER GASHIRABAKE, JCC

### **JUDGMENT OF ELIZABETH MUSOKE, JCC**

I have had the advantage of reading in draft the judgment of my learned brother Gashirabake, JCC. I agree with him that both the Petition and the Application have no merit and ought to be dismissed, with the order on costs that my learned brother proposes.

Dated at Kampala this $\theta$ $\theta$ $\theta$ $\theta$ $\theta$ $\theta$ $\theta$ $\theta$

Elizabeth Musoke

Justice of the Constitutional Court


THE REPUBLIC OF UGANDA

### THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA

(Coram: Egonda-Ntende, Musoke, Madrama, Mugenyi & Gashirabake, JJCC)

#### **CONSTITUTIONAL PETITION NO. 17 OF 2018**

#### **BETWEEN**

PATRICK MUKISA ....................................

**AND**

ATTORNEY GENERAL ....................................

Constitutional Petition No. 17 of 2018

$\mathbf{1}$

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

- 1. I have had the benefit of reading in draft the judgment of my brother, Christopher Gashirabake, JCC. I agree with the conclusion therein that this Petition would fail. - 2. More specifically, I am in agreement with the finding that some of the matters canvassed in the Petition have in fact since been settled by this Court and to that extent raise no new questions for constitutional interpretation; while the Petitioner fell short on proof of constitutional violations in respect of those allegations that did raise questions for constitutional interpretation. - 3. Accordingly, I would think that this Court having determined the Petition on its merits (the cavalier manner in which it was presented notwithstanding), it would rightly suffer the fate of dismissal. Having thus been conclusively determined, the dispute as between the present parties would be res judicata. - 4. Consequently, I do respectfully agree with the final orders in the lead Judgment that this Constitutional Petition be dismissed. Accordingly, I would decline to grant the injunction sought in Constitutional Application No. 25 of 2018. - 5. I do abide the decision in the lead judgment on costs.

I would so order

Dated and delivered at Kampala this & day of [.to ..............., 2023.

I I

Monica K. Mugenyi

Justice of the Constitutional Court

#### THE REPUBLIC OF UGANDA

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

[Coram: Egonda-Ntende, Musoke, Madrama, Mugenyi & Gashirabake. JJCCJ

#### CONSTITUTIONAL PETITION NO. 17 OF 2OI8

&

CONSTITUTIONAL APPLICATION NO. OO25 OF 20I8

#### BETWEEN

| MUKISA PATRICK<br>PETITIONER | |--------------------------------| | AND | | ATTORNEY GENERAL<br>RESPONDENT |

### JUDGMENT OF FREDRICK EGONDA-NTENDE. JCC

- tl I ^Ihave had the opportunity ofreading in draft the judgment by my brother, Gashirabake, JCC., with whom, my sisters, Musoke and Mugenyi, JJCC, agree, that this petition must fail on its merits for a number of different reasons. - l2l ^Ihave also read the judgment of my brother, Madrama, JCC., who agrees that this petition must fail for being frivolous and vexatious in part, and suffers from a misjoinder of a multiplicity of causes of actions in one petition that cannot be conveniently tried together in one action. - t3l I am inclined to agree with Madrama, JCC. - t4l This petition is dismissed in accordance with the majority of the court with no order as to costs. Likewise, the application for a temporary injunction is dismissed with no order as to costs.

Dated, signed and delivered at Kampala this Aday of

dep. Fredrick Egonda-Ntende Am

Justice of the Constitutional Court

May

# ⁵ THE REPUBLIC OF UGANDA

### IN THE CONSTITUTIONAL COURT OF UGA}TDA AT KA}IPALA

[Coram: Egonda-Ntende, Musoke, Madrama, Mugenyi & Gashirabake. JJCC/JJCAJ

### CONSOLIDATED CONSTITUTIONAL PETITION NO. 17 OF 2018 AND CONSTITUTIONAL APPLICATION NO. OO25 OI' 2OI8

#### BETWEEN

MUKISA PATRICK PETITIONER

#### AND

# ATTORNEY GENERAL ....... RESPONDENT

#### JUDG OF CHRIST OPHER GASHIRABAKE

The petitioner brought this petition under article 137(3) of the constitution of uganda and the constitutional court (Petitions and References) Rules,2005. The petitioner invoked the jurisdiction of this court for a declaration that certain legislations are inconsistent with the provisions of the constitution. The petitioner also filed a constitutional application seeking an injunction halting the implementation of the impugned provisions. The impugned legislations are:

> '1. Section f68(l) (d) of the Penal Code Act which makes a person 'wandering'in or upon or near any premises or Io any road or highway or any place adjacent thereto to be a vagabond is inconsistent and contravenes Article 29(l) (d) & (2) (a) ofthe Constitution.

> 2. Judicature (Court Vacations) Rules which provide for mandatory vacations for civil courts between l5d July and 156 August and between 24rh December and 7th January every year, are inconsistent and contravene Article 28 (l) and Articte 126(2Xb) ofrhe Constitution.

l lPage | 5 | 3. Order 5l rule 4; Civil Procedure Rules contravene Article 28(l) and<br>Article 126(2) (b) ofthe Constirution. | |----|------------------------------------------------------------------------------------------------------------------------------------------------------------------------------| | | 4. Section 26(2) (a); Government Proceedings Act contravenes and is<br>inconsistenr with Articte 23 (7) and Articte 126(2) (a) &(b) of the<br>Constitution. | | 10 | 5. Section 26(2) (b); Government Proceedings Act contravenes and is<br>inconsistent with Article tZ6(Zl (z) & (b) and Article 23 (7) of the<br>Constitution. | | 15 | 6. Section 2; Civil Procedure and Limitation (Miscellaneous provisions)<br>Act is inconsistent and contravenes Article 23(7) and Article 126 (2) (b) of<br>the Constitution. | | | 7. Rule 6; Government Proceedings (Civil Procedure) Rules contravenes<br>and is inconsistent with Article 23(7) and f26 (2) (a), (b) ofthe Constitution. | | 20 | 8.<br>Rule 8(b); Government Proceedings (Civil Procedure) Rules<br>contravenes and is inconsistent with Article 23(7) and Article 126(2) (a) &<br>(b) of the Constirution. | | | 9. Rule l5; Government Proceedings (Civil Procedure) Rules contravenes<br>and is inconsistent with Article 23(7) (a) and Article 126(2 (a) & (b) ofthe<br>Constitution. | | 25 | 10. Rule l7; Government Proceedings (Civil Procedure) Rules contravenes<br>and is inconsistent with Articte f26 (2) (e) of the Constitution. | | | I l. Section l; Trial on Itrdictments Act contravenes and is inconsistent with<br>Articles 23(3)(b), 28(l), 126(2) (r) r39(r) & (2) ofrhe Constitution. | | | 12. Section 155 Magistrrtes Court Act contravenes and is inconsistent with<br>Articles 23(3)(b), zE(l),126(2) (a) l39(l) & (2) ofrhe Constitution. | | 30 | 13. Section 37(i) ofthe Judicrture Act or any other law contravenes and is<br>inconsistent with Article 128(3) & (5) ofrhe Constitution. |

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| | 14. Lack of a procedure by courts in fixing and hearing cases according to<br>first-come - first-served policy contravenes and is inconsistent with<br>Articles2S(l) and 126(2) (a) ofthe Constitution. | |----|------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------| | 10 | 15. Charging of non-refundable fee from a person seeking service(s) or<br>good(s) conravenes and is inconsisrent with Article 26(2) (a), Article 40<br>(l)(b), and Article 43(f) & (2Xc) ofthe Constirution. | | | 16. Flat charges by a service-provider to a customer who hasn,t used or<br>consumed that service contravenes and is inconsistent with Articles 20(2),<br>26(2) (a),40(r) (b), (2)(b),4r and a3(r) & (2)(c) ofthe constiturion. | | 15 | 17. The requirement for a recommcndation from any person or authority<br>before issuing a passport/travel document contravenes and is inconsistent with<br>Articles 20(a), Article 29(2)(c) ofrhe constitution. | | | 18. The requirement for a recommeDdstion from any person or authority<br>while a person shifu from one place to another contravenes and is inconsistent<br>with Article 20, Article 29(2)(e) ofthe Constitution. | | 20 | 19. The requirement for recommendation from any person seeking for ajob<br>or promotion or any position by any person or authority contravenes and<br>inconsistent with Article 20, Article 40(2) ofthe Constitution. | | 25 | 20. The charging of fees from any person seeking for police reports<br>contravenes and is inconsistent with NOaDPoSPs III(v), V(i) and Article 212<br>ofthe Constitution. | | | 21. Any le rule requiring a pe6on to first seek leave of a court whose<br>decision he/she intends to appeal against to a higher court or tribunal before<br>appealing, contavenes and is inconsistent with Articles 28(l),50(3). 126(b),<br>129(2),132(2),134(2) andr39(l) & (2) ofrhe Constitution. | | 30 | 22. Any ladrule requiring a person to give notic.e ofappeal to a higher court<br>or tribunal before appealing, contravenes and is inconsistent with Articl€s<br>28(l), s0(3), 126(b), 129(2),, 132((2), 134(21 and 139(l) & (2) of the<br>Constitution. |

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23. Mandrtory nation-wide selectiotr of which studentVpupils should join which higher schoolVinstitution depending on anything else other than their qualifications contravenes and is inconsistent with NODPSPXUI(iD, Articles 20(l) & (2), 2f, 29(b) and 30 ofthe Constitution.

24. Mandotory registrstion of tclcphone numbers and thc mandatory disclosure of personrl detaib and the forceful withdrswal ofsuch numbers in case ofdefault, contravene and are inconsistent with Articles 27 and 40(2) ofthe Constitution.'

The petition was supported by an affidavit by Mr. Mukisa Patrick.

In response, the respondcnt denied the avernents in the petition and stated that the said provisions uue consistent with the provisions of the constitution of the republic ofUganda.

## Representation

At the hearing of the petition / application, the petitioner represented himself. Mr. Ojambo Bichachi, State Attomey from the Attorney General's chambers appeared for the respondent.

## Analysis.

Before I consider the petition, I want to first dispose of the application. The petitioner filed Constitutional Application No 0025 of 2018 for a grant of ^a temporary injrurction. The petitioner/applicant prayed that a temporary injunction be

issued against the respondent and anybody to suspend all the laws and actions mentioned in the petition. It is a presumption that every law is constitutional until declared unconstitutional by this court. For this reason, this court cannot grant an injunction against the said laws or actions. 25

⁵ The principles of constitutional interpretation guiding this court were summarized by Mwondha JSC, in David Tusingwire vs. Attorney General, [20171 UGSC ll, as follows:

> '(l) The constitution is the Supreme law ofthe land and forms the standard upon which all other laws are judged. Any law that is inconsistent with or in contravention ofthe Constitution is null and void to the extent of its inconsistency (see Article 2(2) ofthe Constitution. Also see Presidential Election petitiotr No. ²of 200,6 (SC), Rtd Dr. Col. Kiiza Besigre v. Y. I( Museveni.

(2) In determining the constitutionality ofa legislation, its purpose and elfect must be taken into consideration. Both purpose and effect are relevant in determining the constitutionality of either unconstitutional purpose or unconstitutional effect animated by the object the legislation intends to achieve. see Attorney General v. Salvatori Abuki ,Constitutional Appeat No. I of f988(SC)

(3) The entire Constitution has to be read together as an integral whole with no particular provision destroying the other but each sustaining the other. This is the rule of harmony, the rule of completeness and exhaustiveness (see p. K Ssemogerere and Another V. Attorney General Constitution Appeal No. I of 2002 (SC) and The Attorney General of Tanzania vs. Rev. Christopher Mtikila, (20r0) EAr3.

(4) A Constitutional provision containing a fundamental human right is ^a permanent provision intended to cater for all times to come and therefore should be given dynamic, progressive liberal and flexible interpretation keeping in view the ideals ofthe people, their social economic and political cultural value so as to extend the benefit ofthe same to the maximum possible. see Okello Okello John Livingstone and 6 others vs. The Attorney Generrl and another ,Coostitutionol Petition No. f of 2ffig South Dakota v. South Cerolina 192, usA 268. 1940. 25 30

> (5) Where 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.

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(6) Where the language of the constitution or a statute sought to be interpreted is imprecise or ambiguous a liberal, general or purposeful interpretation should be given to it. (see. Attorney General vs. Major General David Tinyefunza Constitutional Appeal No. f of 1997 (SC),

(7) The history ofrhe country and the legislative history ofthe constitution is also relevant and useful guide to constitutional interpretation see (Okello John Livingstone and 6 others v. Attorney G€neral and another (supra)).

(8) The National objectives and Directive principles ofstate policy are also a guide in the interpretation of the Constitution. Article 8A of the Constitution is instructive for applicability of the objectives.'

In constitutional matters, the burden ofproof rests with the petitioner to raise a prima facie case that a fundamental right has been contravened. once this is established the burden shifts to the state or respondent to rebut or justifr the limitation. See charles Onyango Obbo and Anor v Attorney General, 120041UGSC 8f. 15

I will be guided by the above principles in determining this petition.

## 20 Submissions

Before I consider the issues raised by the petitioner, it is important to note that the constitutional court derives its jurisdiction from article 137(l) of the constitution which provides that;

| 25 | "Any question as to the interpretation ofthis constitution shall be determined<br>by the Court of appeal sitting as the constitutional court. | |----|------------------------------------------------------------------------------------------------------------------------------------------------------| | | Article 137(3) states that, A person who alleges that | | | a) an Act of Parliament or any other law or anything in or done under the<br>authority of any law; or | | 30 | b) any act or omission by any person or authority, is inconsistent with or in<br>contravention of a provision of this Constitution, may petition the |

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(-&

⁵ constitutional court for a declaration to that effect, and for redress wherc appropriate. "

Accordingly, for the jurisdiction of this court to be invoked there must be a question that requires constitutional interpretation. It must be evident on the face of it that constitutional interpretation is required. It is not enough for the petitioner to merely allege that a constitutional provision has been violated. This was the position of the law in the case of Ismail Serugo vs. Kampala City Council & Attorney General,

## Constitutional Appeal No. 2 of 1998, Wambuzi, CJ held that;

"ln his view for the constihrtional court to have jurisdiction the petition must show, on the face of it, that the interpretation ofa provision ofthe constitution is required. It is not enough to allege merely that ^a constitutional provision has been violated." Following the above holding, this court in Constitutional Reference No.3 l of 201 0: Uganda vs. Atugonza Francis, held that: "Articlel3T(5) should be read in the proper spirit ofthe Constitution. The applicant must go further to show prima facie the violation alleged and its effect before a question could be referred to the Constitutional Court.,'

The petitioner alleges very many violations and inconsistences. However as noted in the above case, this court's jurisdiction should only be invoked in matters that require interpretation of the constitution under article 137. I note that there are two sets ofgror.rnds in this petition. There are grounds that this court has already handled and there are those that have not been handled by this court. It seems the petitioner was on a searching spree of constitutional issues. one would appropriately call him a busy body on a fishing expedition. I will not follow the chronological way the supposed to be questions are laid down in the petition. They are bundle up and unrelated. While submitting , the petitioner merged the issues. I want to first dispose ofwhat has been addressed by this court before I consider the rest. This is ^a 7lPage 25 30

- ⁵ specialized court, and the exercise of its jurisdiction must be exercised within the parameters of the law. - 1) It was submitted for the petitioner that section 168(l)(d) of the penal Code Act Cap 120 is contrary to Article 29(2) (a),28(7) and32(t). In response the Respondent submits that Section 16S(lXd) of The penal Code Act clearly provides for the circumstance and conditions that qualiff one to be deemed a rogue and vagabond and the said section is not inconsistent with Article 29(l) & 2(a) of the Constitution of the Republic of Uganda.

This court handled this matter in Francis Tumwesige Ateenyi vs. Attorney General, Constitutional Petition No. 36 of 2018 and there is nothing new to add. The court stated that; 15

> "Following my analysis in relation to rhe question of legality as provided under Article 28(12) ofthe Constitution it would follow that offences that do not pass constitutional muster cannot lawfully be the cause of restriction of one's fundamental right to move freely throughout Uganda. In facl as an aggravation the impugned offences clearly contravene the right to fieely move throughout Uganda and justification ofsuch contravention as saved by article 43 ofthe Constitution would have to be justified by the respondent."

This matter having been handled by this cour! there is nothing novel that the petition is introducing and therefore there is nothing that the court is required to interpret.

2) As regards to govemment proceedings, issues (iv)- (x) of the petition, it was submitted that by providing for compulsory notice, the Government Proceedings Act creates a preferential or superiority statuses for Government

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c.s

⁵ and its agencies in civil cases. This is contrary b Article23(1), Article 126(2), (a) and (b) ofthe Constitution of the Republic of Uganda.

> The respondent submitted that the requirement of statutory notice is ^a procedural requirement. The rationale is to enable a statutory defendant like Govemment to investigate a case before deciding whether to defend it or even settle it out of Court.

> This court handled a similar matter in Nampongo and Anor v Attorney General (Constitutional Petition 43 of 2012) [202U UGCC 37 (09 February 2021'1 and I see no need therefore ofreproducing it here.

- 3) On the Trial on Indictonents Act, it was submitted for the petitioner that section I of the Trial on Indichnent Acts and section 166 and 168(b) of the Magistrates' Courts Act contravene articles 23(4Xb),28( 1) ,126(2)(b) and I 39. - Counsel for the respondent submitted that the committal processes/proceedings and remand by Magistrate Courts as provided rurder relevant statutes are both jurisdictional and procedural issues/matters for the orderly preparation and dispensation of justice. 2U - It is submitted that committal proceedings is one of the aspects of a speedy fair trial and it is also the onset of a formal criminal process of remanding a suspect by court to a gazzstB6 place of detention so as to avoid violation of article 23(4) on detention beyond 48 hours. 25 - Section 1 of the Trial on Indictments Act states that; 30

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5 Jurisdiction ofthe High Court.

The High Court shall have jurisdiction to try any offence under any written law and may pass any sentence authorized by law; except that no criminal case shall be brought under the cognizance ofthe High Court for trial unless the accused prenon has been committed for trial to the High Court in accordance with the Magistrates Courts Act.

Section 166 of The Magistrates Courts Act states that: -

"where a charge has been brought against a person in a court having no jurisdiction to try the offence with which he or she is charged, the magistrate shall remand the accused person in custody to appear before a court having jurisdiction to try that offence".

The petitioner referred to section 168B of the Magistrates' Court Act, but the same is not in the Act. He did not substantiate on it in the submissions. I considered the same abandoned.

4) As regards whether committal proceedings contravene Article 28(l) and ¹³⁹ of the constitution, this was exhaustively handled by this court in Barihaihi Grace Peter and Fred Biryomumaiso vs. Attorney General, constitutional Petition No 23 of2011. There is therefore no need to reproduce here what has been previously determined by this court.

I agree with the findings of this court in Barihaihi case (supra) and have no reason to depart from the above position of the law. It was therefore my conclusion that section I of the Trial on Indictments Act and section 166 and 168 of the Magistrates' Court are not in contravention of the constifution. 25

5/ Tuming to the issue of court vacations, it was submitted by the petitioner that court vacation, and holidays contravene the constitution. It is submitted that according to article 23(4) of the constitution, justice should be given within

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h ⁵ 48 hours. Courts should be open every hour of the day in order to fulfill this obligation. Furthermore, it was submitted that under Article 126(2) (b), 'justice shall not be delayed'. In closing courts in other hours of the day and in court vacations, the hearing and disposing off of cases delays which builds case backlog. 'Justice delayed is justice denied'.

It was further submitted that under Article 28(l), both civil and criminal cases are supposed to be handled in the same way, determined in a fair and a speedy manner. While civil courts go into vacations, criminal courts remain open for a few extra days.

Therefore, any law or practice instituting court vacations, closing on public holidays, suspension ofcases during leave ofjudicial offrcer and closing after normal working hours of the day like other offices ought to be declared unconstitutional.

It was submitted for the respondent that Order 5 I rule 4 of the Civil Procedure Rules and The Judicature (Court Vacation) Rules S. I No.13-20, do not curtail freedom to a fair and a speedy hearing under Article 2S(l) & ¹²⁶ (2)(b) of the Constitution of the Repubtic of Uganda. The Respondent submitted that matters can still be heard and entertained during court vacation provided a certificate of urgency is obtained for the purpose of hearing ^a matter during Court Vacation. 20 25

> Court vacations are provided for under Rule 4 of the Judicature (Court Vacation) Rules SI 13-20. It provides that:

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⁵ "ln vacation the court shall deal with criminal business but shall not sit for the discharge of civil business other than such civil business as shall, in the oDlnton fthe oresidinq irr ge- be ofan urpent nature." (Emphasis mine)

> It is misleading and devoid of tnrth for the petitioner to state that court does not work during court vacation. During court vacation, courts restrict the public hearings and conduct work in chambers. During court vacation, judicial offtcers concentrate mainly on deskwork like judgment writing, weeding out inactive cases from the system, review of the work in the previous period and planning for the next period. The court registries continue functioning by registering new cases and conducting other registry activities. Judicial work shetches way beyond the court room.

I must emphasize the fact that during the vacation, civil courts are not completely closed off. Courts are allowed to handle civil matters of urgent nature and there is always ajudge at every station to handle these urgent cases. The courts remain open and continue with the hearing of all criminal matters. It is, therefore, erroneous for the petitioner to suggest that court vacations are "wasteful and unjustifiably delay the delivery of justice". Court vacations enable courts to handle case backlog. It also enables court to run reliably and effrciently.

Furthermore, the petitioner mistakenly thinks that Judicial officers working hours are confined to court sitting hours, which are normally 8:00am-5:00pm. The reality is very different for most Judicial Officers do work out of the stipulated office hours. Often times Judicial offrcers do work beyond the "open court" time. They do not claim overtime for this.

Public holidays are provided for under the public Service Standing Orders Chapter C-J. The working hours are from 8:00 amto 12:45 pm or 2:00pm to 12 lPage

- 5:00pm, from Monday to Friday. It is a public service norm and legally backed up that weekends are left out. It is therefore my view that the vacations, weekends, and holidays are not in contravention ofArticle 28(l) and 126(2). - 6) On the issue ofassessment and charging offiling fees under section 37(p) of the Judicature Act being unconstitutional and contrary to Articles 2l,50, Sl, 126(2) ofthe Constitution, the respondent opposed this ground and stated that Section 37(J) does not exist

I have peruscd through the Judicature Act and section 37(p) does not exist and as such this ground is abandoned. There is nothing for constitutional interpretation for a non-existent section.

7) As regards to first come- first served, counsel submitted that currently in Uganda there is no law regulating the attendance, hearing, and disposing of cases on first-come-first-served basis. Cases are fixed, heard or attended to beginning with those with lawyers (starting with most senior to the lowest). This contravenes Article 20,2t,32(t)(2),t26(2) (a), NODpSp XXIX (a) & (f), NoDPSP xxlx (g), 2t(4) 43(t), aa(c), so(l), 126(2) (a). 15 20

> The Respondent submitted that a litigant who files a matter in court has the enviable duty to follow up and prosecute the same. The fixing of matters for hearing and cause listing of the same is an administrative matter that is handled by courts and judicial officers depending on the worklo ad,, capacity and human resource of each and every Court/Judicial Officer which change from time to time. Such matters/issues cannot be a ground for constitutional interpretation and the same is not inconsistent with Article 28(3) and Articles 126(2) (a) of the Constitution of the Republic of Uganda.

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⁵ As a general practice, courts are masters in their own house. In the absence of specific rules laid down by statute or regulation they control their own procedures subject to the provisions of the constitution and complying with the rules of faimess and, where they exercise judicial or quasi-judicial functions, the rules of natural justice are applied. Hence mere allegations that absence of the law regulating first in first out is in contravenes articles 20,2r,32(t)(2),126(2)(a) NODPSP. XXIX (a) and (f) is not true. 10

Furthermore, I agree with the submissions of the respondent that such matters are not grounds for constitutional interpretation. The petitioner does not show how the unrepresented litigants are being discriminated in the courts of law. The petitioner in this matter, represented himself but he did not elaborate how court discriminated against him. I therefore find that this is no issue for this court to address.

8) On non-refundable service and flat fees or charges for any service or goods counsel submitted that it contavenes and is inconsistent with Articles 20, 26(2)(d,40(l) (b) & (2) (b), 4l and 43(t) & (2) (c). 20

The Respondent in reply, submits that the contentions raised therein on the charging of non-refundable, service and flat fees/charges for any service or goods is too vague and broad for constitutional interpretation and amounts to an abuse ofthe mandate ofthis honourable court.

This is not an issue for constitutional interpretation. The petitioner has not demonstrated how these fees contravene articles, 20 ,26(2)(g),40(lxb) 30 ¹⁴lPage

- &(2Xb), 4l and a3(1)(2)(c). These fees are applicable to only those who are interested in services. As such they cannot be said to be unconstitutional. - 9) on the issue of recommendation, it is submitted that the requirement for ^a recommendation from any person or authority before getting a service or goods is inconsistent with and contravenes articles 20 and29.

In reply the respondent submits that the requirement for a recommendation before being issued with a passport or a travel document, is one of the several authentication criteria./processes for confirming the true identity and citizenship ofan applicant and the same cannot be said to be inconsistent with Articles 20(a) and 29(2\(a) of the Constitution of the Republic of Uganda

- nor does it limit on the freedom and right to movement and to reside in any part ofUganda. 15 - Recommendation letters cannot be said to be inconsistent with articles 20(a) and29(2)(a). Article 20(l) provides that all rights are inherent and not granted by state. Articles 29(2)(a) guarantees free movement of every Ugandan to all parts of Uganda. Recommendation letters validate the applicant. They also play an important part in communicating and revealing certain crucial information about a person. It is not so much with individual freedom but also being mindfi.rl ofrights and social security ofothers, the peace and good order of the community in which we live. Again, the petitioner failed to demonstrate how the recommendation letters violate the right to movement and expression. 20 25 - 30

10) Furthermore, on the issue of Police reports, the petitioner submitted that it is a practice in Uganda today that police reports are paid for by people who

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need them before they are passed to them. This is contrary to NODpSps III(v), V(i) and VIII, and Article2l2 and hence unconstitutional.

It was submitted for the respondent that under Article l7(1)(g) of the Constitution of the Republic of Uganda, it is the duty of every citizen to pay taxes and fees that are approved by the Govemment. That therefore this issue does not qualiff for constitutional interpretation as the same is not inconsistent with Articles 20,29(2)(a),212 arrd NODPSP V(i).

Objective III(v), provides that the State shall provide a peaceful, secure and stable, political environment which is necessary for economic development. Objective V(i), states that the State shall guarantee and respect institutions which are charged with responsibility for protecting and promoting human rights by providing them with adequate resources to function effectively. Article 212 provides for the functions of the police. All the above provisions do not condemn fees that are charged by police. The petitioner failed to demonstrate how the charging of fees was in contravention of the above provisions of the constitution. 15

fl) The other aspect of this petition was one of leave of court. It was submitted that any law or order imposing a requirement to obtain leave of any coud before appealing court's decision contradicts and is inconsistent with articles 28(l), 50(3), 126(b), 129(2), t32(2) 134(2), 139(t) and (2) of the Constitution.

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⁵ The Respondent in reply submitted that the court is a creature of statute and the requirement for leave of court before appealing as provided in different statutes is to avoid abuse ofcourt processes and the same cannot be said to be inconsistent with Articles 28(1), 50(3), 126(b), 129(2),132(2) 134(2),139 (t) & (2) of the Constitution.

Leave of court is part of the court procedure to ensure that rules of natural justice and right to a fair trial are adhered to. An appeal is a creation of statute. However ,there are exceptional circumstances where a litigant can get audience of court by first seeking leave ofcourt. As a matter offact, this leave is granted in the interest ofjustice and right to a fair trial guaranteed under article 28(l ). The petitioner quotes, articles 126 (b), the Constitution does not have article 126 (b) and as such it cannot be contravened when it is nonexlstent.

The petitioner did not demonstrate how leave of court contradicts articles s0(3),r29(2), 132(2), 134(2). I 39( I ) and (2).

12) The petitioner further invited this court to consider the national selection of students/pupils as contradictory and inconsistent with NODPSp xviii(ii); articles (20(1) & (2);2t,29(1) (b), 30.

The Respondent in reply submitted that, each and every profession requires its own unique set of skills and qualifications, thus selection of students into higher institutions of learning for professional courses depends on the performance and grades ofa student. The Respondent flrther contends that no student is forced by Govemment to undertake any course andlor

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⁵ profession. Thus, the national selection ofstudents to determine which higher institutions of leaming they join basing on their grades is not inconsistent with the right and freedom ofthe right to education under Article 30, the right and freedom of academic freedom in institutions of leaming under Articles 29(b); Equality of all persons before and under the law in all spheres of political, economic, social and cultural life and in every other respect under Article 21 and NODPSP XVm (ii).

> It is my view that the national selection of shrdents in higher education is not inconsistent with article 30 which guarantees the right and freedom of education. These are procedures and criteria that are justified. The student is free to join the said school if he or she scores the required results. So it is up to the student to work hard to eam their way in the said school. The selection cannot be said to be inconsistent with either article 30, 29(b) or 2l of the constitution.

13) As regards the requirement of a national identity card, the petitioner asserted that this contradicts and is inconsistent with articles 18,20,27(2) and 40(2). In the same vein, the charging ofpeople to get, replace or correct errors in the so-called IDs also defies these Articles and ought to be declared unconstitutional.

The Respondent in reply submits that, a national identity card is purely a document for proving and confirming identification of holder/possessor of the same. There is no directive by Govemment to deny Government services to persons who don't have National Identity Cards. ?5

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- ⁵ This issue does not present a question for constitutional interpretation. Even if there was a directive by government, it might be a requirement that the State uses its resources for its citizens to be easily identified by the possession ofan identity card. This cannot be said to be discriminatory and does not limit the citizen from enjoying the rights enshrined in the Constitution. Under article 18, the state is required to register all births. Article 20 provides that Fundamental rights and freedoms of the individual are inherent and not granted by the State. The rights are inherent. Whereas article2T(2) provides that no person shall be subjected to interference with the privacy of that person's home, correspondence and communication or other property. Article 40(2), states that every person in Uganda has the right to practice his or her profession and to carry on any lawful occupation ,trade or business. These provisions are clear and do not need interpretation but rather enforcement if there is any infringement. 10 15 - 14) Regarding the offrce of the Administrator General, the petitioner submitted that sections 4(3), 5,6(2),7,8 and 9 of the Adminishator General's Act and sections 234,235, and236 ofthe Succession Ac! contravene and are inconsistent with articles 50(1) and 126(2) and 128(l) & (2) of the Constitution . 20

These sections provide that Letters of Administration (LOA) or letters of Probate (LOP) are granted by courts of law.

The Respondent in reply submitted that Sections 4(3), 5, 6(2) 7,8 and 9 of The Administrator Generals Act Cap. 157; Sections 234,235 and 236 of The Succession Act Cap. 162 are all in place to protect the estates of the deceased

19 lPage ⁵ persons from intermeddlers and to enable the smooth and proper administration oftle estates ofthe deceased persons by Courts. The Judiciary being an independent arm of govemment does not operate in a vacuum. Furthermore, remedies under Article 50(l) are for enforcement of human rights and not for constitutional interpretation. Thus, Sections (3), 5,6(2\ 7, 8 and 9 of The Administator General's Act Cap. 157; Sections 234,235 and 236 of The Succession Act Cap. 162 are not inconsistent with Articles 50(l), 126(2), atrd 128 (l) & (2) of the Constitution. 10

As earlier noted actions under article 50 are not for constitutional interpretation. The said impugned provisions do not contravene the independence of the judiciary nor do they interfere with the powers of the judiciary. I therefore frnd that this allegation fails. 15

15) On lock downs, the petitioner submitted that the nation-wide covid-l9 lockdowns, the closure ofcourts, section 27(a), (0, (i) & (o); public health ac! the arbitrary arrest and detention and the failure ofgoverrunent to compensate those affected contravene and are inconsistent with NODPSP iv, xiv, xxiii and articles 20. r7(t) (D& (3), 23, 27(a), (0 & 9(o), 2B(7), 40(t) (a), (2), 4s,46,47,7e(2)e9Q)& (3)and ll0(2), 128(1) &(2)and 133(t)(b)of the Constitution. 20 ?5

> It was submitted that the executive authority of Uganda is vested in the President which authority is exercised in accordance with the constitution and other laws of Uganda. Under Article 110(l) of the Constitution of the Republic of Uganda the President is empowered to declare the existence of ^a

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⁵ state of emergency in Uganda, or any part of Uganda if the President is satisfied that circumstance exist in Uganda or in any other part of Uganda which render necessary the taking of measures which are required inter-alia for securing the public safety in Uganda.

It is my view that by the president exercising the powers vested in him under the law for a just cause there was no contravention of the articles referred to by the petitioner. The petitioner does not demonstrate how the lockdown violated any of the provisions alluded to. I agree with the submissions of the respondent that the president of Uganda is empowered under article I l0(l ) of the Constitution to declare the existence of a state of emergency in Uganda, when there are prevailing circumstances rendering it necessary to take the said precaution. 10 15

It is judicially noticed that covid 19 was and is still a very infectious disease that did not only affect Uganda but affected the whole world. Under article ll0(lxb) ofthe Constitution, the president is required to take necessary measures to ensure the safety of the public. Considering the fact that the constitution should be interpreted as a whole, and considering both the economic and social implications, the president's directives were not inconsistent with the provisions of the constitution. 20 25

> It is trite that the right and freedom to personal liberty is not absolute and under Article 23(lxd) a person can be deprived ofpersonal liberty for the purpose of preventing the spread of an infectious or contagious disease. Furthermore, Sections 11,27, and 138 of the Public Health Act empowers the

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⁵ ministers of health to inter-alia make rules applicable to disease outbreaks, infectious diseases and duties of medical persornel for the purpose of preventing the spread ofany infectious disease. Thus, the minister ofhealth pursuant to Sections 11,27 and 138 of the Public Health Act did make The Public Health (Control of Covid-19) Rules 2020 (SI 83/2020) to control the spread of Covid-l9. Under Article a6(l) of the Constitution, an Act of Parliament cannot be taken to contravene the rights and freedoms guaranteed in the Constitution, if that Act authorizes the taking of measures that are reasonably justifiable for dealing with a state of emergency like the lock down. 10

Furthermore, the prompt response by the chiefjustice cannot be said to be an interference with the independence of the judiciary but rather it was in conformity the obligation of the Chief Justice under article 133(l)(b) that implores the chiefjustice to issue directives or orders necessary for the proper and effrcient administration of justice. It has to be emphasized that judicial power has to be exercised in the name of the people and in conformity with the law, norms and values as provided for under article 126 ( I ). It is therefore my conclusion that the lock down and the directives thereof were not inconsistent with the provisions of the constitution.

fO The electoral rules, the petitioner submitted that the 2021 electoral roadmap, nomination fees, signatures of seconders contravene and are inconsistent with NODPSP v(i), viii, xxix(a) & (f) and Articles 3g 43, 61(l) (a),62,66 and 132(4) ofthe Constitution.

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- ⁵ It was submitted that the Electoral Commission (EC) based its 2021 Electoral Road Map on Covid-I9 Standard Operating Protocols (SOPs) which were themselves issued and enforced contrary to Articles 46, 79 and 62 of the Constitution. - It was further submitted that the EC nominated 11 presidential candidates, but they allowed one ofthem to use state facilities including vehicles, planes, state house and state lodges, security, cash, and state-owned media while the remaining 10 were denied even a single coin or any other facility to campaign with. This contravened Article 61(1) (a), NODPSP XXVI, Articles 8A and 106(1) & (3) of the Constitution. 10 15

Additionally, the EC had nominated a candidate while he was holding the office of the president well knowing that he would take advantage of his position as president to use state facilities against other candidates which Articles 61(1) (o), 109(4) and 106(1), (3) & (5) ofthe Constitution.

The petitioner also submitted that the EC did not carry out or allowed to be carried out primary elections in political parties and/or organizations as required of it under Article 61(1Xb). of the Constitution

Furthermore, no voter-education was conducted as under Article 61(l) (g) of the Constitution. First time voters and other people were never sensitized on their roles in elections and what is required of them and their rights and roles in voting and in standing for elections are at stake.

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⁵ It is submitted that no tribunal was instituted to hear and equitably dispose of concems and/or complaints arising out of the elections process from candidates and other state-holders. Such cases have to be referred to courts which causes congestion and delay in disposing them offcontravening Article

## 61(1Xf) of the Constitution.

The petitioner submitted that there is no mechanism enabling people living in the diaspora and in prisons or detention to vote as provided for under Article se(l), (2) & (3). 10

It was submitted that the EC required candidates on several levels to pay Nomination Fees which contravened NODPSP V and VIII and articles 38, 43 and 66(3). Under these Articles, all the expenses of the EC should be charged on the Consolidated Fund and not from candidates. It is unconstitutional to impose another hardship of Fees for them whose use is not provided by the constitution.

Apart from the Presidential Elections Nomination, the EC provided for second ment of candidates on other lower levels, fixed education qualifications and age for intending candidates for the 2021 'general elections. All these contradicted Chapter Four (especially Articles 21, 38 and 43 and NODPS II (ii), Articles 80(1) (c), 102(c), 183 (2) (a) ofthe Constitution. 20

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In response it is submitted that, the Electoral Road Map for the 2021 General Elections is one of the processes to ensure that regular, free and fair elections are held and organized by the Electoral Commission. The road map helps and inform Ugandan Citizens as to when and at what stage action leading to the voting day and after results are to be carried out. Thus, the same cannot be

⁵ said to be inconsistent with Artictes 6l(a),62 and 132(4) of the Constitution on the powers of the Supreme Court to depart from her own decisions.

Additionally, it is submitted that the levying and payment of nomination fees from aspiring candidates for electoral positions is created under the various election laws of Uganda such as Section I l(3) of the Parliamentary Election Act, 2005 which provides for 10 curency points for members of parliament nominations and 400 crurency points for presidential aspirants under Section 6(b) of The Presidential Elections Act, 2005. These requirements for payments for nominations to positions of decision making and representation are not abused. Thus, the lelying and payment of nomination fees from aspiring candidates for electoral position is not inconsistent with Articles 6l and 66 of the Constitution.

The Respondent submitted that, that Under Article 38(1) of the Constitution of the Republic of Uganda, every Uganda citizen has the right to participate in the affairs of Govemment, individually or through his or her representatives in accordance with the law. The law providing for election process in Uganda such as Section l0(1) (b) ofthe Presidential Elections Act, 2005 and Section ^II (1) (c) of The Parliamentary Elections Act, 2005 require for signatures of seconders for aspiring candidates before they are nominated for elections by the Electoral Commission. Thus, such requirement being a creature of the law as provided under Article 38(1) of the Constitution, the same cannot be said to be inconsistent with the enjoyment of the rights and freedoms prescribed in Article 38(l) and 43 of the Constitution nor Prejudicial and,/or a limitation to the enjoyment of the rights and freedoms fundamental or other human rights

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⁵ and freedoms of others or the public interest beyond that is acceptable and demonstrably justifiable in a free and democratic society.

> It is trite law that not every infringement qualifies to be before the constitutional court unless it requires constitutional interpretation. The issues raised by the petitioner do not raise questions that need constitutional interpretation. For stance the petitioner raises the issue of standard operating procedures (SOPS). Article 46(1) guarantee that any Act passed in a state of emergency shall not be held to infringe constitutional rights. The SOPS rose from an act of parliament and hence cannot be said to be unconstitutional.

Secondly issues like one of the candidates accessing govemment facilities, holding office while contesting, voters' education are issues of enforcement and not interpretation as alleged by the petitioners. It is also not true that there's no tribunal as required under article 66(l)(f), the article does not require a tribunal, as a matter of fact any issue is lodged with the electoral commission. It is therefore my conclusion that there is no question for interpretation in the circumstances.

17) It was submitted that the publication of school materials in the media and the levying of examination fees was unconstitutional since very few school children are able to access media. This is contrary to Articles 8d NODPSP XVIrr, NODpSp Xvrrr, NoDpsp xrv (b), NoDpsp xvrrr,20, 21,30, 3 4(2), 43,17 5 (b) of the Constitution.

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⁵ The petitioner does not demonstrate how the publication of school materials is unconstitutional and requires constitutional interpretation.

- ^f8) It was submitted that the under-remuneration (or non-remuneration) of LCs by govemment, contravenes and is inconsistent with NODpSp iii(v) (i) and Article 8A. There is no specific regular remuneration for Local Councils commiftee members at LCI and LC2. It is only the chairman that is paid only UGX10,000/= a month. It is also legally established that it is LCs that handle grass-root government oversighg judicial and conflict-resolution services and stimulate economic development in villages around the country. - The Respondent in reply to contentions and averments raised in 3(xxxiii), 3(xxxv) and 3(xxxviii) of the petition submits that the same do not raise any maters for constitutional interpretation and the petition shall be put to strict proofthereof. 15 - I agree with the submissions of counsel for the respondent that this does not raise a question for constitutional interpretation. 20 - 19) The petitioner submitted that, it is the practice of court to award ^a petitioner in civil matters costs that this is contrary to NODPSP [(IVXV), )o{Ix(f)(g), articles 17(bXD,28(3Xd), 43,44,s0(t),r26(t),r28(3)(s) and 104(3X5) of the Constitution.

In response the respondent submits that costs in any matter in court are mainly awarded to the successful party and this is guided by Section 27(2) of the Civil Procedure Act, Cap. 7l which is to the effect that costs of any action, cause

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⁵ or other matter or issue shall follow the event unless the court or judge shall for good reason or otherwise order.

> I frnd that this allegation had no merit whatsoever. There is no need for constitutional interpretation. It is not true that the court usually awards costs against the petitioner. The costs are awarded to the successful party as provided forunder sectiot?T(2) ofthe Civil Procedure Act,CapTl.

## Declarations

ls dismissed. It is my declaration that this petition does not have any merit. It is accordingly

I would dismiss constitutional Application No.25 of 2018 for the reasons earlier glven.

I make no order as to costs, as doing so, would deter people with genuine grievances from petitioning court for fear of costs.

I

Dated, signed and delivered at Kampala this 2,|1}. day of2023

Christopher Gashirabake Justice of AppeaV Justice of Constitutional Court

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