Hassan Bassajjabalaba and Others v Legal Brains Trust (Constitutional Appeal No. 4 of 2020) [2025] UGSC 37 (18 September 2025)

5 THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPALA CONSTITUTIONAL APPLEAL NO: 0004/2020 1 102 3 4 5 6 1s7 8 9 10. 11. 20 12. 13. '14. 15. 25 30 35 40 45 50 HASSAN BASSAJJABALABA HABA GROUP (GROUP) LTD VICTORIA INT. TRADING CO. LTD SHEILA INVESTMENT LTD YUDAYA INT. LTD FIRST MERCHANT INT. TRADING COMPANY BANK OF UGANDA HON. SYDA BBUMBA HON. PROF. KHIDDU MAKUBUYA PROF, EMMANUEL TUMUSIIME-MUTEBILE UN|TED BANK OF AFRTCA (UGANDA) LTD I& M BANK LIMITED BANK OF BARODA (U) LTD TROPTCAL BANK (UGANDA) LTD THE ATTORNEY GENERAL OF UGANDA VERSUS LEGAL BRAIN Date. 18th September, 2025 al l'l:00am APPELLANTS RESPONDENT Mr. Caleb Alaka jointly with Mr. Alex Kamukama h/b former Kyazze for 1"r 2nd, 3rd 4rh , 5th & 6th Appellants. Mr. Albert Byamugisha for Bank of Uganda. The parties at all. Fatuma, Court Clerk. Caleb Alaka: We are ready to receive the Judgment of Court as communicated Court: Judgment of court read out in open court. Copies availed to the parties. Registrar, Suprem- Court 18t9t2025 tt/s. Adong lmelda PSA represents the 15th Appellant. Mr. Jude Byamukama for the Respondent to together with Ambrose Even h/b for Mr. lsaac Ssemakadde, SC & Gawaya, Tegule CONSTITUTIONAL APPEAL NO. 4 OF 2O2O 1. HASSAN BASSAJJABALABA 2. HABA GROUP(UGANDA) LTD 3. VICTORIA INTERNATIONAL TRADING COMPANY LTD 4. SHEILA INVESTMENTS LTD 5. YUDAYA INTERNATIONAL LTD 6. FIRST MERCHANT INTERNATIONAL APPELLANTS AND LEGAL BRAINS TRUST RESPONDENT /CROSS APPELLANT AND I. HASSAN BASSAJJABALABA 2. HABA GROUP(UGANDA) LTD 3. VICTORIA INTERNATIONAL TRADING COMPANY LTD 4. SHEILA INVESTMENTS LTD 5. YUDAYA INTERNATIONAL LTD 6. FIRST MERCHANT INTERNATIONAL TRADING COMPANY LIMITED 7. BANK OF UGANDA 8, HON. SYDA BUMBA, MP 9. HON. KHIDDU MAKUBT'YA, MP IO. PROF. EMMANUEL TUMUSIIME MUTEBILE 1T. UNITED BANK OF AFRICA 12. I &M BANK LIMITED I3. BANK OF BARODA (U) LTD 14. TROPICAL BANK (U) LTD I 5. ATTORNEY GENERA1......,........... CROSS RESPONDENTS (Appeal & Cross Appeal from the decision of the Constitutional Court in Constitutional Petition No. 4 of 2012 before Kakuru, Kiryabwire, Musoke, Cheborion & Musora, JJCC) 1 THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPALA CORAM: OwINY - DOLLO, CJ; TIBATEMWA-EKIRIKUBINZA, CHIBITA, MADRAMA, BAMUGEMEREIRE & MUGENYI; JJSC) TRADING COMPANY LIMITED JUDGMENT OF OWINY _ DOLLO' CJ I have had the benefit of reading in draft the judgment of my learned sister Mugenyi JSC. I entirely concur with the reasoning, and conclusion that this appeal succeeds on preliminary points of law, rendering it unnecessary to consider the merits of the Appeal and cross Appeal. I also agree with the orders proposed therein. Since all the members of the Coram are in agreement, orders are hereby issued in the terms proposed by Mugenyi JSC. Dated at Kampala ttris l6[oay or 2025 onse C. Owiny - Dollo CHIEF JUSTICE tc,t tl;- IRfiJ:) &C aoas gc- 2 .)"1 ,lQt"J- Y," Lb ML'{f ff"+ IcoRAM: THE REPUBLIC OT'UGANDA IN THE SUPREME COURT OF UGAITDA AT KAMPALA owffv-oou o, cJ; TIBATEMWA-EKIRIKUBINZA; TUHAISE; CH IBITA; MADRAMA; BAMUGEMEREIRE; MUGENYI; JJ SC. ] T CONSTITUTIONAL APPEAL NO. 04 OF 2O2O I.IIASSAN BASAJJABALABA 2.TIABA GROUP (UGANDA} LTD s.VICTORIA INTERNATIONAL TRADII{G COMPAI T LTD 4.SHEILA INVESTMENTS LTD 5,YUDAYA INTERNATIOI{AL LTD 6.FIRST MERCIIANT INTERNATIONAL TRADING COMPAIfY LTD AND LEGAL BRAINS TRUST : : : : : : : : : : : : : : : 3 : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : RESPONDENT/ CROAS-APPELLANT AND I.IIASSAN BASAJJABAIABA 2.HABA GROUP (UGANDAI LTD 3.VICTORIA INTERNATIONAL TRADING COMPANT LTD 4. SHEILA INVESTMENTS LTD S.YUDAYA INTERNATIONAL LTD 6.FIRST MERCI{ANT INTERNATIONAI TRAI}ING COMPANY 7.BANK OF UGANDA 8.HON. SYDA BUMBA, MP g.HON. KHIDDU MAKUBIIYA, MP IO.PROT. EMMANI'EL TUMUSIIME MUTEBILE r 1,UI{ITED BANI( OF AFRICA I2.I&MBANKLIMITED l3.BANK OF BARODA (U} LTD I4.TROPICAL BANK (U) LTD I5.ATTORNEY GEI{ERAL [Appeal from tle judgment of the Constitutional Court in Constitutional Petition No. 4 of 2O12 sitting at Kampala before Hon. Justices: Kaktn4 Kiryabuire, Musoke, Cheboion and Musota, JJCC deliuered on 24th March, 2O20.1 1 BETWEEN ::::::::: APPELLANTS ::::: CROSS-RESPONDENTS 0 tr Au6 2025 JUDGMENT OF PROF. TIBA TEMWA -EKIRJKUBIN zA. JSC. I have read, in draft, the judgment of my learned sister, Hon' Justice Monica Mugenyi, JSC and I agree with her that this appeal ought to succeed on the premise that there is nothing for constitutional interpretation but rather enforcement. Indeed, I agree that Article 119 (51 of the Constitution is clear and unambiguous in its requirement. It was conceded that contracts were entered into without compliance with the dictates ofthe Article. It was conceded that a constitutional breach occurred. In a legal dispute where a contravention of a right is conceded, the court's duty is to determine the appropriate remedy and provide redress to the affected party. This may involve issuing declaratory orders, making specific performance orders, or awarding damages. Once the breach is admitted and the meaning of the constitutional provision is not in doubt, the matter becomes one of enforcement, which properly lies before the High court or other competent forum. Article 50 0f the constitution exists to deal with such a situation because thereunder, there is no need to interpret constitutional provisons - what is expected is an order for enforcement of rights. No interpretative question arises where the facts are admitted and the constitutional provision is plain. The matter was one of enforcement, falling within the jurisdiction of other courts. Article 137 (f l of the Constitution, under which the petition was brought before the Constitutional Court is only relevant where the issuing of orders and providing of redress is dependent on the need for court to.;Erst and foremost interpret the meaning of a constitutional provlsion and then declaring whether the impugned acts and/or omissions violated the relevant provision. It is oniy thereafter that Article 137 (41 comes into play' Article 137 (4) specilicalty empowers the court to grant declarations and other redress it deems fit if it finds that an act , omission, or law is inconsistent with or contravenes the Constitution. (My emphasis) we cannot resurrect the order of the constitutional court that the Attorney General shouid enforce whatever liabilities were found against those who violated the powers granted to him under Article I 19(5) of the Constitution. The order cannot stand because the Court which gave the order had no 2 ,.i'€ jurisdictiontoentertainthematterinthefirstplace.Courtsderivetheirpower tohearanddecidecasesfromthelaw(Statuteorconstitution).Withoutthe necessary jurisdiction, a court lacks the authority to make legally binding decisions. When a court acts outside its jurisdiction, its actions, including orders and judgments, are considered a nullity' This means they are invalid from the beginning and have no legal force' I ttrerefore concur with my leamed sister, Hon. Justice Monica Mugenyi' JSC' that the appeal succeeds, and the orders of the Constitutional Court shOuld be set aside. Each party shall bear its own costs, as the issues raised are of significant public importance and the Respondent acted in the public interest. The alleged violalions of the Constitution did not affect the petitioner's rights at a personal level but rather in his position as a citizen of the country' Dated at Kampala tht".....1'Rfi. dav of 2025 t- \r-o \r.l-E- PROF. LILLIAN TIBATEMV/A.EKIRIKUBINZA JUSTICE OF THE SUPREME COURT. 3 0 q AUG 2025 E t,t Z N * t c OU THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPALA CORAM: Oruiny-Dollo CJ, Tibatemwa-Ekirikuhinza, Tulnise, Clibita, Mndranm, Bantugemereire €t Mugetryi, IJSC CONSTITUTIONAL APPEAL NO. 04 OF 2O2O BETWEEN 1. HASSAN BASAJJABALABA 2. HABA GROUP(UGANDA) LTD 3, VICTORIA INTERNATIONALTRADING COMPANY LTD 4. SHEILA INVESTMENTS LTD 5. YUDAYA INTERNATIONAL LIMITED 5. FIRST MERCHANT INTERNATIONAL TRADING COMPANY LIMITED APPELLANTS AND LEGAL BRAINS TRUST (LBT) LTD.......RESPONDENryCROSS APPELLANT AND 1. HASSAN BASAIJABALABA 2. HABA GROUP(UGANDA) LTD 3. VICTORIA INTERNATIONAL TRADING COMPANY LTD 4. SHEILA INVESTMENTS LTD 5. YUDAYA INTERNATIONAL LIMITED 6. FIRST MERCHANT INTERNATIONAL TRADING COMPANY LIMITED 7. BANK OF UGANDA 8. HON. SYDA BUMBA, MP 9. HON. KHIDDU MAKUBUYA, MP IO.PROF. EMMANUEL TUMUSIIME.MUTEBILE 11.UNrrED BANK OF AFRICA (UGANDA) LTD 12. r & M BANK (UGANDA) LTD 13. BANK OF BARODA (UGANDA) LTD I4.TROPrCAL BANK (UGANDA) LTD 15.THE ATTORNEY GENERAL... ........CROSS RESPONDENTS Page 1of 2 (Appeal against tlu decision of tlv Constitutional Court i,t Constihttiotml Petition No. 04 of 2012 before Kakuru, Kiryabruire, Musok, Cheborion €t Musota, JJCC delittered on 24n, March,2020) I have had the benefit of reading in draft the Judgment prepared by -y leamed sister Monica K. Mugenyi, JSC. I agree with her analysis and decision. I also agree with the orders she has proposed. Signed this 12th day of September, 2025. '^\.^4--^.Sq Percy Night Tuhaise fustice of the Supreme Court Delivered at Kampala this &4h day of 2025. Page 2 of 2 Tudsment of Percy l{igh!-Tg-h4Ee.J.5e THE SUPREME COURT OF UGANDA AT I(AMPALA (Coram: Owlng-Dollo, CJl Tlbatemwa-Eklrlkubtnz.a; I\tho;lse; Chlblto, ; Madrama; Bamug emerelre ; Mug enyfl; .USC/ CONSTITUTIONAL APPEAL NO. 4 OF 2O2O BETWEEN I. I{ASSAN BASAJJABALABA 2. r{ABA GROUP (UGANDA}LTD 3. VICTORIA INTERNATIONAL TRADING COMPANY LTD 4. SHEILA INVESTMENTS LTD : : : : : : ::: : : : : : : : : ! :: : : : : 3 : : : : : : : APPELLAilTS 5. YUDAYA INTERNATIONAL LTD 6. FIRST MERCHANT INTERNATIONAL TRADING COMPAITY LIMITED AND LEGAL BRAINS TRUST : : : :r:::: : RESPONDENT/ CROSS APPELLANT AND 1. HASSAN BASA"'JABALABA 2. !{ABA GROUP lUGArrDAl LTD 3. VICTORIA IITITERITATIONAL TRADING COMPANY LTD 4. SHEILA INVESTMENTS LTD 5. YUDAYA INTERNATIONAL LTD 6. TIRST MERCHAITT INTERNATIONAL TRADING CO. LTD 7. BANK OF UGANDA :::::::::::::::::::::: CROSS RTSPONDENTS 8. HON SYDA BtmBA, MP 9. HON. KHIDDU MAKUBUYA, MP 10. PROT. EMMANT'EL TTIMUSIIME MUTEBILE 11. T'NITED BANK OF ATRICA [Appeal & Cross Appeal Jrom the Judgment of the Constltntlonal Cottt.t (Kakttn4 Klryabulre & Irtusoke,,trcC; ufih CheborTon & lllusoto', JJCC dlssentlng) ln Congtltntlonal Petltlon No. 4 oJ 20721 CONCURRING JUDGMENT OF MIKE J. CHIBITA, JSC I have read the judgment of my leamed sister, Monica Mugenyi, JSC, in draft. I am in agreement with the decision, conclusions and orders made and therefore concur. Dated at Kampala this ...J day of September, 2O25 \ I\ zDn \ $---.[))x-L--Iz^f-^-fr Hon. Mike J. Chibita JUSTTCE OF THE SUPREME COURT Curif ttL l( E"b . &00s. e6 gw,{ 2 ,SL L2. I&MBANKLIMITED 13. BANK OF BARODA (UILTD 14. TROPTCAL BANK (Ul LTD 15. ATTORNEYGENERAL de"^,*l i^ ,fl,* 5 THE REPUBLIC OF UGANDA, IN THE SUPREME COURT OF UGANDA AT KAMPALA (C0RAM: OWI NY-DOLL0, CJ; Tl BATEMWA-EKIRIKUB I NZA, TUHAISE, CHIBITA, MADRAMA, BAMUGEMEREIRE & MUGENYI, JJSC) CONSTITUTIONAL APPEAL NO. 4 OF 2O2O BETWEEN 10 -L) 1. 2 3 4 5 6 HASSAN BASAJJABALABA} HABA GROUP (UGANDA) LTD} VICTORIA INTERNATIONAL TRADING COMPANY LTD} SHEILA INVESTMENTS LTD} YUDAYA INTERNATIONAL LTD} FIRST MERCHANT INTERNATIONAL TRADING c0MPANY LIMITEDi APPELLANTS AND 20 LEGAL BRAINS TRUST} RESPON DENT/ CROSS APPELLANT AND 1. HASSAN BASAJJABALABA} 2. HABA GROUP (UGANDA) LTD} 3. VTCTORIA INTERNATIONAL TRADING COMPANY LTD) 4. SHETLA INVESTMENTS LTD) 5. YUDAYA INTERNATIoNAL LTD) 6. FIRST MERCHANT INTERNATIONAL TRADING CO' LTD} ?. BANK OF UGANDA} 8. HON SYDA BUMBA, MP} 9. HON. KHIDDU MAKUBUYA, MP} 10. PROF. EMMANUEL TUMUSIIME MUTEBILE} 11. UNITED BANK OF AFRICA} 12.r&MBANKLIMITED) 13. BANK OF BARODA (U) LTD} 30 1 5 14.TROP|CAL BANK (U) LTD) 15. ATToRNEY GENERAL) CROSS RESPONDENTS [Appeat & Cross Appeal from the iudgment of the Constitutional Court (Kakuru, Kiryabwire & Musoke, JJCC; with Cheborion & Musota, JJCC dissenting) in Constitutional Petition No. 4 ot 2012J JUDGMENT OF CHRISTOPHER MADRAMA IZAMA, JSC 15 I have read in draft the judgment of my learned sister Justice Monica Mugenyi, JSC, and I concur with the outcome of the appeal'. However, I do not agree that one previous precedent conctusivety determined the issue of the requirement for the Attorney Genera['s consent in execution of agreements or contracts except in ctearty defined categories of cases. This is particutarty in tight of the Supreme Court's interpretation of Articte 119 of the constitution in Theodore ssekikubo & others v Attorney General & others [2015J UGSC 19. I see that there was no specific or exhaustive interpretation of the word "Government" or "Publ'ic lnstitution" as used in the judgment and as derived from Article 119 of the Constitution to delineate the limits of the articte. 20 10 25 30 The constitutional. court overruled objection to the petition on the ground that it tacked jurisdiction to try the petition. The appel.tants herein were aggrieved, among other grievances, by the decision. ln the context of this appeat, the issue of competence of the petition, arises from the central issue as to whether there was an obvious answer to the issue of whether the Attorney Generat's consent was necessary for Kampata city councit (KCC) to execute the various contracts with some of the respondents to the cross appeat. The answer, in tight of the precedents coutd be that the consent was necessary and the matter was for enforcement and not interpretation. I further wish to assert that if consent was not required under articte 119, then the petition disctosed no cause of 2 action, as its foundation was the al.Leged faiture to obtain such consent under articLe '119 of the constitution and the consequentiaI compensation of the affected companies by termination of contract. My tearned sister has detaited the facts of the appeaL, but, for the purpose of resoLving this specific question, I wit[ restate the necessary facts. Between January 2000 and December 2011, the 3'd, 4th, 5'h and 6th appetlants executed various contracts with KCC for the management of severaI markets as we[[ as the constitutional square. These contracts were subsequentLy terminated, and the appettants sought compensation from KCC and the Government of Uganda for wrongfuI termination, some of which was paid. The respondent/cross-appel.tant chattenged these contracts in the Constitutional. Court, arguing they were executed in breach of the Constitution and were therefore nu[[ and void, meaning that compensation was wrongty paid out to the relevant parties. The chattenge was based, rhler alia, on the assertion that the contracts were executed without the Attorney Genera['s approvat, in contravention of Articte 119 (5) of the constitution. This ted to the conctusion that the compensation for the termination of these contracts was fraudutent and iLLega[. Articl.e 119 of the Constitution provides, inter alia. '119. Attorney Generat. (1)... (3) The Attorney Generat shatt be the principal [ega[ adviser of the Government (4) The functions of the Attorney General sha[[ inctude the fotlowing- (a) to give tegat advice and tegat services to the Government on any subject; (b) to draw and peruse agreements, contracts, treaties, conventions and documents by whatever name calted, to which the Government is a party or in respect of which the Government has an interest, 10 15 20 30 5 10 15 25 (c) to represent the Government in courts or any other [ega[ proceedings to which the Government is a party; and (d) to perform such other functions as may be assigned to him or her by the President or by [aw. (5) Subject to the provisions of this Constitution, no agreement, contract, treaty, convention or document by whatever name catted, to which the Government is a party or in respect of which the Government has an interest, shatt be concluded without Legat advice from the Attorney Genera[, except in such cases and subject to such conditions as Parliament may by law prescribe. (6) Untit Parliament makes the [aw referred to in clause (5) of this Articte, the Attorney GeneraI may. by statutory instrument, exempt any particutar category of agreement or contract none of the parties to which is a foreign government or its agency or an international organisation from the application of that ctause' ArticLe .|19 establ.ishes the Attorney General as the Principat Legat Adviser of the Government. lt is noteworthy that the word "Government" is capitatized. This emphasis is cruciat for anatyzing whether "Government" inctudes Local Governments, under which KCC operated. Furthermore, ctause 5 of Articl.e 119 outtines the Attorney Generat's role in drawing and perusing agreements, contracts, treaties, conventions, and documents to which the Government is a party or in which it has an interest' were the contracts in question agreements, contracts, treaties, conventions, or documents in which the Government was a party or had an interest? ArticLe 119 (5) stiputates that no such instrument shatt be conctuded without the Attorney Generat's Legal' advice, untess Partiament prescribes otherwise bY taw. The primary inquiry is: who or what constitutes the "Government"? Articte 257 def ines "Government" as the Government of uganda. separatety, ArticLe 25? defines a "district councit" (a corporate body estabtished under Articte 180) and a "tocaI government councit" (a councit referred to in Articte 180)' significantty, under Article 257, the 'g' in "tocat government councit" is not capitatizeO. This stytistic distinction prompts an inquiry into the nature of 35 20 30 4 tocaI government. The capitatization of "Government" in Articte 'l'19, contrasted with the lowercase "government" in "tocaI government councit" under Articte 180, suggests a del.iberate drafting choice by the Legistature to differentiate between the central Government and [oca[ government cou ncits. ln Theodore ssekikubo & others v Attorney General & others [2015J UGSC /2 the term ,,Government" was considered without strict adherence to this constitutionat drafting styte regarding "Government" and "tocaI government councit." However, the conctusion reached in that case could not be universatty apptied to both centraI Government and [oca[ government councils, as this distinction was not the centraI issue. lndeed, the Constitutionat Court found that the Speaker of Par[iament was not bound to seek the Attorney Generat's advice, apptying the doctrine of separation of powers. They stated: ,,we agree that the principte of separation of powers shoutd be duty observed to avoid erosion of the constitutionaI functions of the other arms of government. ln the instant case, the effect of interpreting the [ega[ opinion of the Attorney Genera[, a member of the Executive, retating particutarty, to the manner in which the speaker of Parl.iament, the head of the Legislative arm of Government, shou[d carry out his/her constitutionaI functions, as binding ctearly violates that princip[e of separation of powers. ln our opinion, in apptying the generous and purposive rute of constitutionat interpretation, while the legat opinion of the Attorney General must be accorded the highest respect, it must be binding where it relates to contract, agreement or any other [ega[ transactions to which government or pubtic institution is a party or has an interest. This is to give confidence to third parties to deat with the government." ln my judgment, the use of the word ,,pubtic institution, in the above passage is unfortunate because it does not arise from the wording of articLe 119 of theConstitutionandissusceptibl'etowideningthescopeofbodiessubject tothevettingpoweroftheAttorneyGeneral.Kampal'aCityCouncit(KCC), now succeeded by Kampata Capitat City Authority (KCCA)' was a locaI government counci[ when the cause of action in the petition arose. ln terms 10 15 20 25 30 5 35 5 of its corporate status, KCC was a def ined as "Government." locaI government counciI and is not The interpretive issue is whether the contracts the cross-appettant sought to inval.idate under ArticLe 119 (5) of the Constitution, for Lacking the Attorney Generat's legaL advice, were contracts to which the "Government" was a party or rn which the "Government" had an interest. Firstty, the Government was not a party to these contracts, they were executed by the former KCC, a [oca[ government counci[. Secondty, the Government does not possess an "interest" in [ocaI government contracts in terms of revenue cottection or sharehotding. lt has no materiaI interest, and the al.l.ocation of resources between the Government and [ocaI government councits is tegatty defined. Local governments manage their own resources and services. Articte 180 (1) of the Constitution states that a local government shal.t be based on a councit, which is the highest potiticat authority within its jurisdiction and possesses [egistative and executive powers to be exercised in accordance with the constitution. lt provides: '180. Locat government councits. (1) A tocat government shatL be based on a council which shatt be the highest potiticat authority within its area of jurisdiction and which shatt have legis[ative and executive powers to be exercised in accordance with this constitution. (2) Partiament shatt by taw prescribe the composition, qualifications, functions and etectoral procedures in respect of tocat government councits, except that- 10 15 20 25 30 Furthermore, Local' governments are estabLished decentraLization, separating them from centraI under the PrinciPte of Government authoritY. SubjectingthemtotheAttorneyGenera[.sauthoritywithouttheirconsent would contradict this principte. Articte 176 of the constitution outtines the principl.es of decentraLization and devotution of powers as foundational to the Locat government system. lt states: 6 5 "176. Locat government sYStem (1) The system of [oca[ government in Uganda shatt be based on the district as a unit under which there shatt be such lower [oca[ governments and administrative units as Partiament may by law provide. 10 15 20 25 30 7 (2) The fottowing principles shatt appty to the toca[ government system- (a) the system shatt be such as to ensure that functions, powers and responsib itities are devotved and transferred from the Government to [oca[ government units in a coordinated manner; (b) decentratisat ion shatt be a principte apptying to atl levels of [oca[ government and, in particutar, from higher to lower locaI government units to ensure peop[es' participation and democratic control in decision making; (c) the system sha[t be such as to ensure the futt reatisation of democratic governance at a[[ [ocaI government [eve[s; (d) there shatt be estabtished for each [oca[ government unit a sound financial base with retiabte sources of revenue; (e) appropriate measures shatt be taken to enabte locaI government units to ptan, initiate and execute poticies in respect of a[[ matters affecting the peopte within their jurisdictions; (f) persons in the service of tocat government shatt be emptoyed by the tocal governments; and (g) the tocat governments shatl oversee the performance of persons employed by the Government to provide services in their areas and to monitor the provision ofGovernmentServicesortheimplementationofprojectsintheirareas. (3)Thesystemoftocatgovernmentshal'tbebasedondemocraticallye[ected counci[s on the basis of universat adult suffrage in accordance with Articte lEl (4) of this Constitution.' Regarding the principte of devolution of power' conferring upon the Attorney General the power to draft and vet contracts executed by or on behatf of a [oca[ government council represents centratization of power, contrary to the devotution principLes outl'ined in ArticLe 176 (2) (a), (e), (f), and (g). ln other words, the Attorney Generat, under Articte 119, is the principal. tegal, advisor of the "Government," not "tocaI government councits." Section 96 (3) of the Locat Government Act, Cap 138 (revised edition 2023), mandates that a district contracts committee shatl seek the services of the district tegal. adviser in its work. This provision also appl.ies to city or municipal. councits under section 99 (4) of the LocaI Governments Act. Local government units are empowered to ptan, initiate, and execute pol.icies concerning at[ matters affecting peopte within their jurisdictions. Service providers fal.l. under the control of [oca[ government councits through emptoyment or service contracts, as per Articl'e 176 (f) of the constitution. lf emptoyed by the Government, service providers fat[ under the supervision of [oca[ government councits according to Articte 176 (S). The functions of the Government are specified in the sixth schedute to the constitution; remaining powers are exercisabte by [oca[ governments. LocaI government councits can engage their own [awyers for tegaI services, atthough they are not barred from seeking the Attorney Generat's services. Such services, however, are sought under the Locat Government Act, not Article '119 of the constitution, and their provision does not fal[ under constitutionaI mandate. ln Nsimbe Hotdings Limited vs Attorney General and lnspector General of Government, (constitutionat Petition No. 2 ot 2005) [2007J UGCC 7 (5 Nov 2007),lhe constitutionat court cited Articl.e 119 (5) of the constitution f or the proposition that "no agreement, contract, treaty, convention or document by whatever name catted to which the Government is a party or in respect of which the Government has an interest, shatt be conctuded without the I'egaL advice from the Attorney Generat." This advice was deemed mandatory even for contracts where the Government has an interest. The court found that NSSFisaGovernmentbodyandthattheGovernmenthadaninterestinthe .joint venture between Premier Devetopments Ltd and Mugoya Construction 10 15 20 30 8 35 Ltd, making the Attorney Generat's advice necessary under Articte 119 (5). The constitutionaI court noted that NSSF is a pubtic company estabtished by statute and whol.l.y controlted by the Government of Uganda on behaLf of workers and benef iciaries. ln Arnold Brooktyn & company vs Kampala capital city Authority and the Attorney General, (Constitutionat Petition No 23 of 2013) [2014J UGCC I (4 Aprit 2014), the parties entered into a contract on January 19, 2009, at KCCA,s instance, for the petitioner to suppty 1540 books of business levy and licenses. The books were dul.y detivered on December 16, 2010. 0n Aprit 7,2011, KCCA paid the Petitioner US$ 83,160.80, teaving an outstanding batance of US 156,3?1.52. When the Petitioner demanded payment, KCCA dectined, ctaiming the contract was unenforceable due to the absence of the Attorney Generat's consent. The matter was referred to the Constitutiona[ Court, with the question for determination being: "whether non-compliance with Articte 119 (5) of the constitution by not obtaining the advice from the Attorney General in the contract is a bar to payment where goods and services are supptied, to and consumed by a government entity " The ConstitutionaI Court hetd that there was no question for constitutional interpretation and that the court Lacked the power to amend questions referred for interpretation. Seeking the Attorney Genera['s consent under the LocaL Government Act does not invotve a question as to the interpretation of the constitution, and thus the constitutional court had no jurisdiction to determine it. ln these premises, I find that the severaL contracts executed by KCC were executed by a tocat government. Therefore, there was no constitutional requirement for tegal. advice or consent f rom the Attorney GeneraI pursuant to Articl.e 119 (5) of the constitution. consequentl.y, no question as to the interpretation of the constitution was disctosed under Articte 137 (1) of the Constitution, rendering the petition incompetent' 10 15 20 25 30 9 5 I therefore concur with the judgment of my learned sister Justice Monica K. Mugenyi, JSC, that the appeal. shoutd succeed with the orders she has proposed. Signed at KampaLa the 15th day of August 2025 10 Christopher Madrama lzama Justice of the SuPreme Court Detivered at Kampata,h" ffiy ", (nf* 2025 15 Sc- irir.}.S 10 { THE REPUBLIC OF UGANDA IN THE SUPREAAE COURT OF UoANDA AT KAAAPALA CORAil: (Owiny-Dollo, CJ: Tibotemwo-Ekirikubinzo; Tuhoise; Chibito; tlAodromo; Bomugemereirc; Mugcnyi; JJSC) CON5TITUTIONAL APPEAL NO. 04 OF ?O2O BETWEEN I. HASSAN BASAJJABALABA 2.HABA 6ROUP (U6^NDA) LTD 3.WCTORIA INTERNATIONAL TRADINo COAiiPANY LTD 4.SHEIL^ INVESTAAENTS LTD s.YUDAY^ INTERNATIONAL LTD 6.ETRST I^ERCH^NT INTERN^TIONAL TR^DIN6 COAAP^NY LTD :::::::: APPELLANTS AND LE6AL BRAIN5 TRUST RESPONDENT/CROSs - APPELLANT AND 1 . HA5SAN BA5AJJABALABA z.HABA &OVP (U6ANDA) LTD 3.WCTORTA INTERNATIONAL TR^DIN6 COA'IPANY LTD 4.SHETLA INVESTAAENTS LTD 5.YUDAYA INTERNATIONAL LTD 6.ETRST'AERCH^NT INTERNATION^L TPADINo COAAP^NY 7.BANK OF UcANDA E.HON. 5YDA BUAIIBA. ,IAP g.HON. KHIDDU A,IAKUBUYA, II'IP IO.PROF. EIAAA^NUEL TU'I,IUSII,IAE iIAUTEBILE ll.UNITED BANK OF AFRTCA 12.I & A'1 BANK LTfiITED I3.BANK OF BAROD^ (U) LTD l4.rROPrCAL BANK (U) LTD l5.ATTORNEY 6€NE^RL : r : : : r : : ; : : CROSS-RESPONDENTS [An Appol & Cross Appal from the Judgment of [Kakurt, Kit yobwire, lAusoke, JJCCI with [Cheborion, liusoto, JJCC dissentirg] in Constitutioml Petition No. 4 of 20121 1 I I JUDGMENT OF CATHERINE BA]VIUGEMEREIRE, JSC 1] I had the opportunity to read the draft opinion of my learned Sister, Monica Mugenyi JSC, and I agree with her reasoning and final order. 2] My reading of Article 137 highlights that Clause (1) primarily assigns the Constitutional Court the role to interprete the Constitution of Uganda. Clauses (3) and (5) are essential for enabling access to the court through permitting direct petitions or referrals from other courts. 3] The above clauses specify that only questions that warrant constitutional interpretation serve as grounds for referral, limiting the issues to matters of law. When viewed alongside Clause (6), Clause (5) clarifies the Court's jurisdiction,, focusing on statutory interpretation based on uncontested facts rather than factual disputes. This arrangement promotes a streamlined and efficient process for constifutional cases. 2 4] Therefore, I believe that the core spirit of article L37 of the Constitution is that constitutional interpretation would stem from purely legal questions, whether arising from court proceedings as outlined in clause (5) or those directly arising from the causes of action in clause (3)(a) and (b) of article 137. 5] Consequently, I have no reason to fault the lower court's minority view. The majority had no jurisdiction to grant the orders and declarations that they did. 6]The Constitutional Court is not a trier of fact in civil and criminal or other factual matters that are triable under Article 50. It is a court of original jurisdiction in constitutional interpretation. Given that the claims made were unsubstantiated, the Constitutional Court's interpretirze jurisdiction could not be invoked. 7] I would thcrefore allow the above appeal and disallow the cross- appeal 3 8] Given that this appeal did not address the merits of the grounds laid down by either party in their appeals and cross-appeals it has been decided only on a preliminary point of law. 9]I would make no further orders, and it is appropriate that no order be made regarding costs. Catherine Bamugemereire Justice of the Supreme Court Caw{t ,lr* ,l@/ lw ff, t-006- g<- 4 ;.-u DtI^**A X'f"* tkt4 ( THE REPUBLIC OF UGANDA THE SUPREME COURT OF UGANDA AT KAIVIPALA (Coram: Owiny-Dollo, CJ; Tibatemwa-Ekiikubinza, Tuhaise, Chibita, Madrama, Bamugemereire & Mugenyi, JISC) CONSTITUTIONAL APPEAT I.IO,4 OF 202! BETWEEN 1. HASSANBASAJJABALABA 2. HABA GROUP (UGANDA)LTD 3. VICTORIA INTERNATIONAL TRAOING COMPANY LTD 4. SHEILA INVESTMENTS LTD 5. YUDAYA INTERNATIONAL LTD 6. FIRST MERCHANT INTERNATIONAL TRADING COMPANY LIMITED ,.. APPELLANTS AND RESPONDENT/ CROSS APPELLANT AND 1. HASSANBASAJJABALABA 2. HABA GROUP (UGANDA}LTD 3. VICTORIA INTERNATIONAL TRADING COMPANY LTD 4. SHEILA INVESTMENTS LTO 5. YUDAYA INTERNATIONAL LTO 6. FIRST MERCHANT INTERNATIONAL TRADING CO. LTO 7. BANK OF UGANOA 8. HON SYDA BUMBA, MP 9. HON. KHIODU MAKUBUYA, IIIP 10, PROF. EMMANUEL TUMUSIIME MUTEBILE t1. UNITED BANK OF AFRICA 12. I& M BANK LIMITED ,I3. BANK OF BARODA (U) LTD 14. TROPICAL BANK (U)LTD 15. ATTORNEY GENERAL CROSS RESPONDENTS [Appeal & Ctoss Appeel from the iudgmqnt ol the Constitutional Courl (Kakwu, Kiryabwire & Musoke, JJCC; with Chebo on & Musota, JJCC dissenting) in Constitutional Petition No. 1 of 20121 LEGAL BRAINS TRUST I 1 Constitutional Appeal No. 4 of 2020 JUDGMENT OF MONICA KALYEGIRA MUG ENYI. JSC A. lntroduction On various dates between January 2000 and December 20'11, the third - sixth appellants [Victoria lnternational Trading Company Limited, Sheila lnvestments Limited, Yudaya lnternational Limited and First Merchant lnternational Trading Company Limitedl executed a series of contracts/leases with the then Kampala City Council (KCC) for the management of the Nakasero, Nakivubo Shauri Yako, St. Balikuddembe and Nakawa Markets; and the Constitutional Square. 3. The respondenU cross appellant (Legal Brains Trust) challenged the constitutionality of the foregoing contractual arrangemenls in the Constitutional Court uide Constitutional Petition No. 4 of 2012, faulting them for having allegedly been executed without the approval of the Office of the Attomey General ('the fifteenth cross respondent') and without adherence to existing statutory laws, while the ensuing compensation for termination thereof is alleged to have been fraudulent and illegal, 4. The petition was opposed by the appellants, who lnler a/ia contested the Constitutional Court's jurisdiction to entertain a petition that canvassed matters to do with rights enforcement rather than constitutional inlerpretation, and supposedly sought remedies that could best be enforced in an ordinary suit. They additionally questioned the competence of the petition for being prolix, argumentative and vexatious. Those points of law were largely supported by the tenth - fourteenth cross respondents. 5. By a 3-2 majority, the Constitutional Court over-ruled the preliminary objections raised by the appellants and cross respondenls, and partially decided the petition in favour of the present respondent, hence the present Appeal, 2 Constitutional Appeal No. 4 of 2020 l^tili 2. Those contractual arrangements were subsequently terminated whereupon the cited appellants sought compensation for wrongful termination from KCC and the Government of Uganda. lt is alleged that the said compensation was effected through direct disbursements from the Consolidated and other Publrc Funds, as well borrowings by the appellants' sister company, Haba Group (Uganda) Limited ('the semnd appellant') on the strength of letters of comfort and guarantee issued by the seventh cross respondent (Bank of Uganda) in favour of the eleventh, twelfth, thirteenth and fourteenth cross respondent banks [United Bank of Africa (Uganda) Limited, the then Onent Bank Limited (now renamed 'l & I/ Bank (Uganda) Limited'), Bank of Baroda (Uganda) Limited and Tropical Bank (Uganda) Limitedl, 6. The appellants raised the following groundsof appeal (reproduced verbatim): L THAT the majorly of the Learned Juslices of the Constitutional Couft erred in law and fact when they found and held that the preliminary objections to the competence of the Respondent's Petition and its supporting affidavit and to the jurisdiction of the Constitutional Coutt to hear and determine the Petition had no merit and thereforc disnissed the same. ll. THAT the majority of the Learned Justices of tho Constitutional Coun erred in law and fact when they found and held that the RespondenlS Petltlon raised questions fot Constlutional interpretation and that the same was neither frivolous nor vexatious, thereby declining fo dismrss rt lll. THAT the malority of the Leamed Justices of the Conslilaional Couft erred in law and fact when they tound, held and declared that all the impugned management contrads. sub /eases and joint ventue agrcements and contracts between the 7th Respondent to the Petition and the 2N, ?, 4n, il, and @ Appellants herein were null and void having apparcntly been executed in contravention of the Constitution. lV. THAT the majow of the Leamed Justices of the Constitutional Cout erred in law and fact when they found and held that no conpensation was payable undet the inpugned leases and contracts rcfened to in ground 3 above which were apparently illegal and therefore null and void ab initio. Y. THAT the majorty of the Leamed Justices of the Constitutional Court ened in law and facl when they found. held and ordered that all the money that was paid to the 1*, 2N, ?a, 4h, 5h and ff Appellants herein by Govemnent under the impugned contrads and or /eases shou/d be refunded by the said Appe ants jointly and or severally to the Govemnent thtough the office of the Attomey General, contrary to their respeclive findings and conclusions. Yl. THAT the majority of the Leamed Justices of the Constilutional Couft efied in law and fact when they ordered that the exact anount of money to be refunded to Governnent by 1st, 2nd, gd, 4th, 5th and 01h Appellants hercin be asceftained and appropriated by High Couft contrary to thet respective findings and conclusions. Yll. THAT the majority of the Leamed Justicos ofthe Constitutional Courl ened in law and facl when they found, held and declared that allll,e acts or ornissions of the ffi and 1N Respondents to the Petition of lssu,ng guarantees and or lette^. of conforl in favour of the 1s,2,n, gd,4n, * and ff Appellants hercin to the 13h, 14k, 10h and 1fi Respondents to the Petrtion to facilitate payment of the inpugned compensation were lncors,ste/,1 wrth and in contravention of Adicle 159(2) and (7) of the 1995 Constttution. 3 ntr^* B. Appeal and Cross Appeal Constitutional Appeal No. 4 of 2020 lX. The Leamed malority Justices of the Constrtutional Couft injudiciously exercised thei discretion in lailing to condemn the ,sr to ,4ri Cross Respondents to pay the costs ol the petition. 8. At the hearing of the Appeal/ Cross Appeal, the appellants/ first - sixth cross respondents were represenled by Messrs. Mwesigwa Rukutana (SC), Caleb Alaka, Joseph Kyazze, Edgar Ayebazibwe and Kenneth Paul Kakande, while the respondenU cross appellant was represented by Messrs, lsaac Semakadde and Gawaya Tegulle. The seventh and tenth cross respondents were represented by Mr. Albert Byamugisha; the eighth cross respondent was represented by Mr, Joseph Matsiko and Ms. Barbara Musimenta; the eleventh and thirteenth cross respondents were represented by Messrs, Dennis Wamala, Rushongoza Begumya, Joel Basoga and Wycliff Busobozi, while the twelfth cross respondent was represented by Messrs. Andrew Kibaya and Allan Mark Lutaya, Ms. lmelda Adong, a Senior State Attorney, appeared for the fifteenth cross respondent, 9. Before going further with the Appeal, lmnsider it necessary to settle forthwith the controversy sunounding the majority decision ofthe Constitutional Court. This question is posed by the 11u,and 13t' cross respondents and relates to the trial court's handling of /ssue No. 3 before it, which read as follows: Whether the /etle/s of comfort issued by the N and 1N respondents (BOU and Prof. Tumusiime Mutebile) to the 13h. 14th, 15h and 10th respondents (United Bank of Africa (Uganda) Limited, I & M Bank (Uganda) Limited, Bank of Baroda (Uganda) Limited and Tropical Bank (Uganda) Limited) violated the provisions of Atticles 159(2), 159(3). 159(4), 159(5), 159(6) and 159(7), 1ffi, 1U and 119(5) of the Constitution, section 25 of the Public Finance and Accountabihty Act, sections 14(1). 29(1)(g), (6) and (7) of the Bank of Uganda Act. '10. Upon careful consideration of the majority decision in the court below, it becomes apparent that two of the majority judges (Kakuru, JCC and Musoke, JCC - as she then was) intenogated /ssue No. 3 above on its merits, declared a breach of article 159(2) and (7)(a) in respect of the impugned financial arrangements, and ordered a refund of the compensation paid to the appellants, the exact sums of which would be determined by the High Court. On the other hand, Krryabwire, JCC adjudged the impugned market leases and contracts to violate article 'l'19(5) of the Constitution, before deciding as follows in relatron to the financial transactions: Having answered as I have in the above question which vitiates some of the root contracts and therefore those otherc llike the benkino contact mede pursuent to them, I do not find it 5 Constitutional Appeal No. 4 of2020 C. Determination U'uJ-.t necessary to answer the rest of the queslions as they do not ln substarco ral.se guestions for interpretation but rcther requte the resolutions and or determination of disputod facts which in my view are matters for enforcenent of the Constitutton. (my emphasis) 11. Therefore, his lordship did vitiate the banking transactions alongsrde the impugned contracts, but declined to consider the residual question of receipt of unauthorised public funds that entrenched unjust enrichment and conuption. I am therefore satisfied that the majority decision of the Constitutional Court did adjudge the impugned linancial transactions to have been unconstitutional. 12. lt is nonetheless noted that, whereas his learned colleagues explicitly ordered a refund of the impugned compensation, Kiryabwire, JCC refened the appropriate remedial relief flowing from the vitiated market contracts to the High Court for determination without pronouncing himself on any refund. Given that Cheborion, JCC and Musota, JCC (as he then was) had dismissed the petition for seeking constitutional enforcement rather than interpretation, the silence of Kiryabwire, JCC on the issue of a refund would not support their position. Consequently, itwould appear that lhere was no majority position on the refund ordered by Kakuru and Musoke, JJCC and thus, most regrettably, no majority position on the remedies proposed by the Constitutional Court in that regard. 13. Be that as it may, I propose to address Grounds 7 and 2 at the onset, touching as they do on points of law that could conclusively dispose of the Appeal. Grounds 'l & of the ADoeal: rHAr rhe nakrity of the Leamed Justices of the Constitdional Coud ened in law and fact when they found and held that the prelininary objections to the competence of the Respondent's Petition and rts supporling affidavit and to the jurisdiction of lhe Constitdional Coud to hear and deternine the Petition had no merit and thercfore disnissed the same. THAT the mahrtty of the Leamed Justices ot the C,onstitLtional Coul ened in law and fact when they tound and held that the Respondent's Petition raised questions for ConstitLlional interprctation and that lhe same was neither fivolous nor vexatious, thercby declining to dismiss it. 14. Under Ground 1of the Appeal, the appellants challenge the competence of the petition that was before the Constitulional Court on two fronts: flrst, that it offended rules 3 and 23 ol lhe Constitutional (Petitions and References) Ru/es, 2005 ('lhe Constitutional Court Rules'), as well as rule 66(2) of the Judicature (Courl of AppealRules) Dtecflons, S/ 73-10 ('the Court ofAppeals Rules'): and secondly, that it raises no question for constitutional interpretation. The latter issue is canvassed in considerable detail under Ground 2 of the Appeal and shall therefore be considered at that stage. 6 Constitutional Appeal No. 4 of 2020 f^^il1 15. ln terms of its competence, the petition is contested for being a long nanative of paragraphs that lump several provisions of various laws together with several constitutional provisions, without highlighting the specific matters for constitutional interpretation. This is considered to violate the requirement in the afore-cited procedural rules for a petition to be clear, brief, and concise so as to engender clarity on the specific questions for constilutional interpretation, On the authority of Eno. Edward Turvomuruqvendo & Others v Attornev General & Others t20191 UGCC 2 and Perez Kaku muv Attorne v General & Nati e I Forest Autho ritv [20 0 6l UGCC 8 it is argued that constitutional petitions must conform with the applicable procedural rules, 16.The appellants additionally seek to have the affldavit in support of the petition struck down for offending the rules on affidavits by setting forth averments that are prolix, argumentative and laced with hearsay and conjecture. The majority decision ofthe Constitutional Court, which acknowledged the poor drafiing ofthe affidavit but declined to strike it down, is faulted for undermining the provisions of Order 19 rule 3 of the Civil Procedure Rules (CPR) on the non-admissibility of affidavits thatdepone to matters not within a deponent's knowledge. Reference in that reg ard is made to Male Mabirizi K. Kiwanuka v Attornev neral 120181 UGSC 55 18. Conversely, the respondent asserts that the petition substantially complies with rule 3(2)(a) and (b) of the Constltutio nal Court (Petitions & References) Ru/es insofar as it clarifies the actions under 7 @, 17. 0n the other hand, Ground 2 of lhe Appeal challenges the jurisdiction of the Constitutional Court in this matter on the premise that the petition raised no question for constitutional interpretation as envisaged under article 137 of the Constitution. The appellants support the observation by the minority in the Constitutional Court that a constitutional petition should go beyond mere allegation of constitutional violations to demonstrate that the issues it raises do in fact require constitutional interpretation. lt is further argued that the relief for rights violation per se is to be found in article 50 of the Constitution that addresses the enforcement of rights, and does not fall within the jurisdiction of the Constitutional Court. This Court's decisions in General David Tinvefuza v Attorney General 119981 UGSC 34 and lsmail Seruqo v Kampala Citv Council & Attornev General [19991 UGSC 23 are cited in support of that position. The appellants particularly contest paragraph 14 of the petition for raising matters of rights enforcement ralher than constitutional interpretation, insofar as it invokes article 50('1) and (2) of Constitution, with no relief whatsoever sought under article 137(4)(a) and (b). It is thus proposed that the Constitutional Court was devoid of jurisdiction to entertain the petition and should have struck it down. Constitutional Appeal No. 4 of 2020 challenge, as well as the substantive and procedural law under which it was lodged. ln learned respondent counsel's view, the minority position on paragraphs 14(a) - (h) of the petition was eisegetical (the interpretation of a text in such a way as to supporl one's presuppositions or biases) rather than exegetical (the critical examination of a text so as to deduce its mntextual meaning). 19. With specific regard to the alleged incompelence of the affidavit in support of the petition, it is argued that the matter was never raised before the Constitutional Court and therefore raising it at this stage would contravene article 132(3) of the Constitution given that there is no decision in respect of which an appeal would lie. That notwithstanding, it is the respondent's contention that the impugned affidavit does not violate Order 19 rule 3 of the CPR and, in any case, the appellants do not highlight the particular paragraphs thereof that are offensive, lt is further opined that the decision in Male Mabirizi K. Kiwanuka v Aftornev General (supra) is cited out of context. ln learned Counsel's view, unlike the applicant in that case who filed three affidavits of 2il paragraphs that contained arguments and counter arguments, the present respondent only filed one 74-page affidavit in support of the petition, which sets forth facts supported by annexures that were not oblected to by the appellants. 20. ln response to Ground 2 ol lhe Appeal, the respondent conlests the findings of the minority Justices of Appeal in relation to paragraph 44(b) of the petition, which highlights orders for redress. That position is faulted for having been grounded in the purportedly eisegetical view that a prayer for redress (including damages), on the one hand, and constitutional interpretation that results in declarations, on the other hand, are mutually exclusive functionsi the former being a function of the High Court or other competent fora, and the latter being the preserve of the Constitutional Court. Reference is made to the decisions in Gonqo & Others v Zimba . SADC Tribunal Case No. SADCT 05 of 20081 Fose v Minister of Safetv a nd Securitv. 1997 IZACCI 62 and Vancouver v Ward 2010 SCC 27 3 as well as General Comnent No. 31 on the N 0 blioation lmoosed o n Paiv to lhc CC PR to urge this Court to disabuse the minority justices t{ ature of the General Leoal of this position, and adjudge the Constitutional Court's remedial jurisdiction to not be so unduly restricted, ln any evenl, it is proposed that the alleged shortcomings of the petition were not prejudicial to the appellants as they were able to respond to it effectively without seeking any clanfications, 1 SADC Tribunal Case No. SADCT 05 of 2008 , 1997 [ZACC] 6 3 2010 SCC 27 Constitutional Appeal No. 4 of 2020 U^)Jl/ 22. No submissions in rejoinder were forthcoming from the appellants. From the pleadings and submissions on record, it seems to me that the appellants challenge both the form and substance of the petition that was before the Constitutional Court. I shall dispose of the matters in relation to the form or competence of the petition forthwith, followed by the interrogation of the court's jurisdiction and the related question as to whether the petition discloses a cause of action. For ease of reference, the invoked provisions of the Conslrlutlo nal (Petitions and References) Rules, 2005 and Coul of Appeals Rules are reproduced below. Rule 3, Constitutional Coutt Rules (1) A petition under article 137(3) shall be in the form specified in the Schedule to these Rules. (2) The petition shall allege- (a) that an Ac{ of Parliament or any other law or anything in or done under the authority of any law is inconsistent with or in contravention of a provision of the Constitution; or (b) that any act or omis3ion by any person or authority is inconsistent with or in contravention of a provision of the Constitution; (3) The petition shall be divided into paragraphs numbered consecutively, each of which shall be confined, as nearly as may be, to a distinct inconsistency or contravention complained of. (4) No costs shall be allowed for the drawing or copying oI any petition not substantially in compliance with this rule, unless the Court otheMise orders. (s) 9 Constitutional Appeal No. 4 of 2020 @, 21. The minority justices of the Constitutional Court are further faulted for ignoring the most recent guidance of the Supreme Court on what would amount to a matter for constitutional interpretation, as stated in Centre for Health. Human Riqhts & Develooment (CEHURD) & 3 Others v Attornev General t20151 UGSC 69; in deference to what were considered to be 'old' Constitutional Court decisions. These include Mbabali v Ssekandi t20141 UGCC'15, Edward Turyomuruqvendo v Attornev General (supra), Kikonda Butema Farm v Attorney General, Constitutional Petition No. 10 of 2012 (unreported), Perez Kakumu v Attorney General (supra), Charles Kabaoambe v Uqanda Electricitv Board (UEB) t19991 UGCC 1 and the High Court's decision in Kikunqwe lssa v Standard Chartered Bank. Civil Suit No. 409 of 2004 (unreported). lt is thus opined that the minority decision not only offends article 132(4) of the Constitution, it was rendered per incuriam. (6) The petition shall conclude with a prayer that the Court- (a) make a declaration that an Act of Parliament or any olher law or anything in or done under the authority of any law is inconsistent with the Constitution; or (b) make a declaration that any act or omission by any person or authority is inconsistent with or in contravention of a provision of the Constitution; (c) grant an order for redress; or refer the matter to the High Court to investigate and determine the appropriate redress. (7) (8) The petition shall- (a) be accompanied by an affidavit setting out the matters refered to in rule 3(2); (b) where appropriate, the redress prayed for. Rule 2i. Civil Procedure Act, and rules to apply (1) Subiect to the provisions of these Rules, the praclice and procedure in respecl of a petition or a reference shall be regulated, as nearly as may be, in accordance with the Civil Procedure Act and the rules made under that Act and the Court o, Appeal Rules, with such modifications as the Court may consider nec$sary in the interest of iustice and expedition of the proceedings. (2) For purposes of appeals against a decision of the Court, the Supreme Court Rules 3hall apply with such modifications as may be necessary. Rule 66(4, Coutt of Apqeal Rules Memorcndum of appeal (1) (2) The memorandum of appeal shall set forlh concisely and under distinct heads numbered consecutively, without argument or narrative, the grounds of objec{ion to the decision appealed against, specitying, in the case of a firsl appeal, the points of law or tact or mixed law and fact and, in the case of a second appeal, the points of law, or mixed law and fact, which are alleged to have been wrongly decided, and in a third appealthe matters of law of great public or general importance wrongly decided. 23. With the greatest respect, I am unable to deduce the relevance of rule 66(2) of the Court of Appeal Rules to the format of constitutional petitions. First and foremost, rule 66 falls under Part lll of the Court of Appeal Rules, which pertains to criminal appeals. A constitutional petition cannot by any shade of imagination be equated to a criminal appeal, Consequently, I would respectfully decline to abide the Constitutional Court's decision in Enq. Edward Turvomuruqyendo & Ohers v Attorney General & Others (supra) (to which we were refeffed by learned counsel for the appellants) given its extensive reliance on rule 66(2) of the Court of Appeal Rules. l0 Constitutional Appeal No. 4 of 2020 24. Nonetheless, even if the applicable provision of Part lV of those Rules had been invoked, lwouldnot equate a constitutional petition to a civil appeal either. Whereas an appeal may lie to the Court of Appeal from decisions of the High Courtj the Courl of Appeal sitting as the Constitutional Court is the court of original jurisdiction in the determrnation of constitulional questions or legal questions that are resolved by constitutional rather than statutory interpretation. So that, the nature of pleadings applicable to a court of first instance, such as the Constitutional Court, cannot be equated to those applicable to a court sitting in its appellate jurisdiction as does the Court of Appeal. 25. With specific regard to the competence of the petition, rule 23(1) of the Constitutional Court Rules renders the Civil Procedure Rules (CPR) applicable to the practice and procedure in respect of constitutional petitions, and thus adapts to constitutional petitions the general rule on pleadings in Order 6 of the CPR. Rule 1 of that Order stipulales as follows: (a) Every pleading shall contain a briet statement of the material facts on which the party pleading relies for a claim or defence, as the case may be. (b) The pleadings shall, when necessary, be divided into paragraphs, numbered consecutively; and dates, sums and numbers shall be expressed in figures. 26. Read together with rule 3(3) of the Constitutional Courl Rules, Order 6 rule 1 of the CPR requires constitulional petitions to be concise and structured in paragraphs, each of which encapsulate the distinct constitutional violation complained of. Similarly, whereas affidavits in support of constitutional petitions ought to abide rule 3(7) of the Constitutional Court Rules, setting out the deponent's knowledge of the matters giving rise to a cause of action under article 137(3) of the Constitution as highlighted in rule 3(2) of the Rules; they should also observe the rules governing affidavits as outlined in Order 19 of the CPR and clarifled in applicable case law, 27. With regard to the petition before us, I have carefully considered paragraphs 14 - 44 that are particularly bolhersome to the appellants. I am also alive to the designated format of constitutional petitions as set out in Form 1 of the Schedule to the Constitutional Court Rules, which outlines three structural components: the alleged constitutional violations; the reasons that underlie the alleged violations, and the reliefs sought in respect thereof. Constitulional Appeal No. 4 of 2020 ll W, 28. Paragraph 14 duly spells out the alleged constitutional violations, together with the invoked provisions of the Constitution. In a nutshell, the respondent (the petitioner before the lower court) contests the 'See section 66 of the Civil Procedure Act, Cap. 282 and section 10 of the iudicature Act, Cap. 13. execution of agreements, management contracts and leases in respect of designated markets under the KCCA without requisite authorisations and clearance from the responsible agencies, equating it to preferential treatment, illegitimate concealment of information, insider kading, and a violation of Ugandans' right to a corruption-free society. The respondent further alleges constitutional violations by the appellants and some cross-respondents in terms of their failure to extend the first option of purchase to existing market vendors and other tenants in the designated markets, or otherwise empowering them to purchase the markets. The respondent additionally cites as constitutional violations the sourcing of funds from commercial banks and the Consolidated Fund for purposes of compensating the appellants, following the termination of the impugned agreements. 29. Accordingly, without necessarily delving into the merits thereof, the petition embodies the following perceived constilutional violations: the execution of market leases by and in favour of the appellants without eilher the approval of the Attorney General's office as prescribed in article 119(5) of the Constitution or adherence to applicable land and procurement laws; the compensation that was wrongfully paid to the appellants following the cancellation of those impugned mntractual anangements, and the actions and omissions of the various cross respondents in facilitating the impugned compensation in violation of the Constitution, the Bank of Uganda Act and the then Public Finance and Accountability Act of 2003. 12. Constitulional Appeal No. 4 of 2020 30. My findings above would dispel the notion that the petition's format is so flawed that the matters in contention between the parties are rendered obscure and unclear. The petition does abide the requirements of rule 3(2) of the Constitutional Court Rules insofar as it highlights the alleged constitutional violations. Although they are lumped up under paragraph 14 of the petition rather lhan different paragraphs, as dictated in rule 3(3) of the Constitutional Court Rules; their subdivision into sub-paragraphs that each raises a distinct contravention largely serves the mischief of clarity that rule 3(3) seeks to entrench. In any case, rule 3(4) of the Constitutional Court Rules .implicitly emphasizes substantial rather than absolute compliance with the provisions of that procedural rule, when it stipulates that 'no costs shall be allowed for the drawing or copying of any petition not g1!gh!&lly in compliance with this rule, unless the Court otherwise orders.' (my emphasis) 31. However, the petition's substantial compliance with the format envisaged in rule 3 of the Constitutional Court Rules does not extend to its content, lt cannot be said to conform with the procedural command of conciseness that is contemplated in Order 6 rule 1 of the CPR and applicable to constitutional petitions by dint of rule 23(1 ) of the Constitutional Court Rules, Rather than illuminate 32. ln my view, the content of conslitutional petitions that is envisaged in Schedule 1 of the Constitutional Court Rules is tied to the requirement of concise, structured pleadings in Order 6 rule 1 of the CPR. That rule could not have contemplated the 18-page, superfluous factual background that was presented in this petition or indeed the 12-page argumentative narralive of remedies sought. Neither, in any event, would the rules of affidavit evidence condone the inclusion of legal argument in affidavit evidence. Thus, in Male Mabirizi K. Kiwan uka v Attornev General (supra), this Court approbated the definition of prolixity as the 'unnecessary and superfluous stating of facts and legal arguments in pleading or evidence.'5 33. Be that as it may, I am alive to the constitutional duty upon courts in article 126(2)(e) of the Constitution lo administer substantive justice without undue recourse to technicalities. ln this particular case, having found the petition to pnnra facrb delineate the matters in contestation, it follows that its lack of conciseness notwithstanding, the appellants were sufficiently on notice of the nature of the case against them as to effectively defend themselves. That essentially is the over-riding purpose of pleadings, procedural rules being but hand maidens of, rather than hindrances to, the course of justice in that regard. See hbrtreioht Forwarders lU Linited v East African De veloomenl Bank I 1993 I UGSC '6 Caolain Hany Gandv v Caspa ir Air Chalters Ltd. fi956) 23 EACA 139 and The lron & Steelwares Limited v C. W. Martvr & Companv [19561 EACA 175 s see definition in Elack's low Oictionory, Ninth Edition. p. 1331 Constitutional Appeal No. 4 of 2020 l3 wr the reasons that underlie the alleged constitutional violations, paragraphs 15 - 43 of the petition narrate a lengthy, superfluous and procedurally misplaced factual background to the alleged violations. Similarly, paragraph 44 outlines the declarations and orders sought by the respondent in an unwarranted degree of narrative and the affidavit in support of the petition was unduly argumentative and prolix. Contrary to the respondent's assertion that the said affidavit was not in issue before the lower courl; the record of appeal bears reference by Cheborion, JCC to a position advanced by the then respondents (present appellants) that the affidavit was 'argumentative, narrative and contains matters of hearsay.'This confirms that the competence of that affidavit was indeed a matter of contention before the lower court. 34. Furthermore, the inclusion of unnecessary legal arguments in the afiidavit in support of the petition, while undoubtedly offensive, oughl not to necessarily result in striking out the entire affidavit. The offensive aspects of such an affldavit may be expunged from it and/or ignored in lhe determination of a matter. The impugned affidavit would be interrogated on that basis. In any event, an additional remedy for such offensive affidavits is to be found in Order 19 rule 3(2), which makes provision for the offending party to bear the costs of such an affidavit. For those reasons, I would decline to strike down either the petition or its supporting affldavit. Ground 7 of this Appeal is thus resolved in the negative. 36. The doctrine of precedent requires lower courts to abide the decisions of higher courts on questions of law. This means that the Constitutional Court is bound to follow decisions of the Supreme Court on questions of law insofar as they apply to the matters in contention before it. ln Uganda, this principle is codified in article 132(4) of the Constitution. With specific regard to the matters in contestation before us, this Court has long settled any questions as to the Constitutional Court's jurisdiction as delineated in article 137(1)of the Constitution and what would constitute a cause of action before that court under article 137(3). For ease of reference, those constitutional provisions are reproduced below, (1) Any question astothe interpretation ofthis Constitution shall bedetermined bythe Court of Appeal sitting as the constitutional court. (2) ..... (3) A person who alleges that - (a) An Act of Parliament or any other law or anything in or done under the authority of any law; or (b) Any act or omission by any person or authority, is inconsistent with or in contravention of a provision of this Constitution, may petition the constitutional court lor a declaration to that ettecl, and tor redress where appropriate. 37. Article 137(1) has been severally construed to reskict the Constitutional Court's subject-matter lunsdiction or juris diclion ratione martenae solely to the interpretation of the Constitution. ln Attorney General v Major General David Tinvefuza (supra), the Court was quite categorical on this, stating as follows (per Wambuzi, CJ): In my view jurisdiction is limited under Article 137(1) of the Constitution to interpretation of the Constitution. Put in a different way no other jurisdiction apart from interpretation of the Constitution Constitutional Appeal No. 4 of 2020 l.+ l.t-u4 35. On the other hand, Ground 2 of the Appeal raises the fundamental question as to whether the Constitutional Court correctly exercised its jurisdiction by entertaining the petition, This invokes the Constitutional Court's interpretative and remedial jurisdiction under articles 50, 137(1) (3) and (4) of the Constitution; the Common Law principle of slare declsis, and the doctrine of precedent, is given. In these circumstances I would hold that unless the oue3tion before the Constitutional Court depends lor its determination on the interoretation or construclion of a orovision ofthe Constitution. the Constitutional Court has no iurisdiclion . (my emphasis) 38. ln the matter before us, there is particular contestation as to whether the impugned petition raised matters for constitutional interpretation or challenged actions that though posing constitutional violations, would necessitate rights enforcement under article 50 rather than declarations or redress under article 137(3) and (4) of the Constitution. Considerable mileage was made by learned counsel for the respondenU cross appel lant of this Court's decision in CEHURD & Others v Attorney General (supra), where it was held that a petition that depicts acts or omissions that are allegedly inconsistent with the Constitution should be entertained by the Constitutional Court provided that it discloses a cause of action as was defined by this Court in lsmail Seruoo v Kampala Citv Council & Another (supra). 39. In the lsmail Seruqo case , Mulenga, JSC (with whom Oder and Tsekooko, JJSC agreed in the minority position) considered a petition brought under article 137(3) of the Constitution to 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(s) for a declaration to that effect.' ln his dissenting judgment in the same case (which formed part of the majority position), Kanyeihamba, JSC expressed the view that a cause of action in constitutional matters is distinguishable from the question of jurisdiction; defening to the majority view in that case that for the Constitutional Court to have jurisdiction the petition must show, on the face of it, that interpretation of a provision of the Constitution is required. I respectfully agree. lndeed, Wambuzi, CJ essentially reiterated in the lsmail Seruqo case his earlier view in Attorney General v Maior General David Tinvefuza (supra) that mere allegation that a constitutional provision had been violated would not suffice. 40. On the other hand, the position advanced by Mulenga, JSC in the lsmail Seruqo case was in the latter case of Raphael Baku & Another v A rnev General 120031 UGSC 3 ado pted as this Court's position on what would amount to a cause of action before the Constitutional Court. The gist of the decision in the Raohael Baku case was that a petition that is lodged under article 137(3) of the Constitution would sufficiently disclose a cause of action if it outlines the Act of Parliament (or provisions thereof), acts or omissions complained of; cites the constitutional provisions allegedly contravened by the impugned law, acts or omissions, and seeks declarations to that effect. l5 (\1r4 ( Constitutional Appeal No. 4 of 2020 41 . I find no contradiction between that view and the posilion adopted in CEHURD & Others v Attornev General (supra) given the Court's deference to a cause of action as had been deflned by the minority in the Seruoo case.6 Even if it were to be argued that this was not the decision of the Courl in that case, the majority position had clearly maintained the view in the Tinvefuza case that mere allegation of a constitutional violation was not sufficient to establish the jurisdiction of the Constitutional Court without constitutional interpretation being the primary objective of a petition. lt thus seems to me that not only was that the view advanced in the Raphael Baku case approbated in the CEHURD case, it is the cunent position of the Court on causes of action before the Constitutional Court. 42. I therefore find to be the settled position of the law that for the Constitutional Court's interpretative jurisdiction to be duly invoked, not only should a petition demonstrate that the interpretation of the Constitution is required; the question or controversy that is before the court should solely or primarily depend on constitutional interpretation for its determination. See lW j! _9_99v (g4p3!3 Council & Another supra) and Attornev General v Maior General David Tinvefuza (supra). I have strenuously perused the Petition and I have found within I severcl allegations that ceftain acts and/ot omissions on the pan of the various respondents were inconsistent wth and/or in contravention of the Constrtdion. I have lwlher found that the petlioner cited various afticles of the Constitution which those acls or omissions were allegedly inconsistent with and/or whlch those acts contravened. Those allegations nust be investigated by this Courl. ... The above avermenls,i, the Petftion, which soecifu the acts ot omissions of the rcspective respondents, as well as the Dtovisions of the Constftufion thev arc elleoed to have violalod oive dse to ouestions lot this Coutt to heeL interpret and delenap, with a view to eslab/lsh,n g whether the petitionefs allegations have some nerit. ln other words, those averments ra,se questons for constitutional i nterprctation. (my emphasis) 44. With the greatest respect, it seems to me that there was some overlap in that conclusion between a cause of action before the Constitutional Court and the court's jurisdiction. As was observed under 5 See the lead judgment of Kisaakye, JSC at p. 28 Constitutional Appeal No. 4 of 2020 l6 43. In the matter before us, the learned majority justices in the lower court proffered varying reasons for their finding that the petition that was before them did invoke the jurisdiction of the Constitutional Court. Musoke, JCC (as she then was) extensively cited this Court's decisions in the David Tinvefuza, lsmael Seruqo and Raphael Baku cases as highlighted above, before concluding as follows: my consideration of the petition's format, paragraph 14 thereof does outline the constitutional violations in respect of which the respondent takes issue, together with the constilutronal provisions it alleges to have been flouted; while paragraph 44 highlights the declarations and other orders sought, Whereas this might have denoted acauseof action under article 137(3) of the Constitution, such a cause of action would be unsustainable if the jurisdiction of the Constitution Court (before which it purports to accrue) has not been duly invoked. lt is therefore to the question of jurisdiction that I now turn. 45. Before the lower court, the respondent essentially questioned the constitutionality of the impugned contractual anangements for having been executed without the approval of the Attorney General in violation of article 119(5) of the Constitution. Similarly contested for having been made without the Attorney General's approval is the provision by the seventh, eighth and tenth cross respondents of letters of comfort to the eleventh - fourteenth cross respondents to facilitate the transfer of compensational funds by the said banks to the appellant companies following the termination of the impugned contracts. This is pleaded in paragraph 14(f) of the petition. On the other hand, paragraphs 1a(g) - (k) of the petition challenge related actions and omissions by the different cross respondents in respect of the flnancial transactions that underpinned the impugned compensation. 47, lt will suffice to state forthwith that no cross appeal was lodged in respect of Kampala City Council Authority (KCCA), James Ssegane, Ruth Kijambu, Gordon Mwesigye or William Tumwine, and therefore the constitutional violations attributed to them under paragraph 14(a) - (e) of the petition are deemed not to be in issue before this Court. 48, With regard to article 119(5) as invoked by the respondent, having carefully considered the jurisdiction of the Constitutional Court as laid down in the Tinvefuza and Seruqo cases, I take the view that insofar as the Constitutional Court's interpretative jurisdiction is tied to the existence of a 7 See judgment of Kiryabwire, JCC at p. 1299 of the record of appeal 17 ^,lL<* 46, The foregoing pleadings would appear to have informed the conclusion by Kiryabwire, JCC that the entire petition tumed on the unauthorized contractual and financial transactions, and his decision that the question as lo'whether any and all lease and management agreenents or other contractlike documents by whatever name called ... were illegal, unconstitutional, null and void ab initio for having been concluded without obtaining legal advice and approvalfrom the th Respondent in contravention of Arlicle 1 1 9(5) ot the Constitulion .'7 Constitutional Appeal No. 4 of 2020 question for constitutional interpretation, a petition that seeks the interpretation of a question that this Court has already pronounced itself on would be moot and improperly before that court, This is because the Constitutional Court would be bound to follow this Court's decision(s), in effect (all factors being equal) Ieaving no need for fresh interpretation by that court as the interpretative conkoversy would have been resolved in full measure. 49. I would hasten to add that under the principle of stare declsls this Court too would normally be bound by its decisions, provided that it may depart from a previous decision when it appears to it right to do so;g and when faced with two of its own conflicting decisions, it would be entitled to decide which of the two decisions it will follow. lt may additionally depart from its own decision if it is satisfied that the decision was m ade per incurium.s Needless to say, such departure from its own binding decisions ought never to be approached flippantly but should be grounded in solid reasons. 50. Having so stated, it is recognized that some constitutional provisions are multi-faceted in nature so that a given conskuction thereof might not necessarily extend to a different set of facts. However, this is not the case in the matter before us presently as shall be demonstrated shortly. ln this case, the respondenUcross appellant literally challenged the impugned contracts for having been executed without the approval of the Attorney General's office as is required by article 119(5) of the Constitution. The invoked article '119(5) of the Constitution stipulates as follows: Sub,ect to the provisions of thig Constitution, no agreement, contracl, treaty, convention or document by whatever name called, to wtrich the Government ie a party or in respect of which the Government has an interest, shall be concluded without legal advice lrom the Attorney General, except in such cases and gubject to such conditions as Parliament may by law prescribe. 51. ln Theodore Ssekikubo & Others v Attornev General & Others t20 15 UG sc '19. this Court unanimously pronounced ilself on that constitutional provision in the following terms Under Article 119(5) of the Constitution, the legal opinion of the Attorney General is mandatory lor the conclusion of agreement, contract, treaty, convention or document by whatever name called lo which government is a pady ot in respect of which government has an interest.ln our opinion, in such a circumstance, applying the generous and purposive rule of constitutional interpretation, the 18 Constitutional Appeal No. 4 of2020 3 See article 132(4) of the Constitution. e See Paul Semwoserere & Others v Attornev General [20041 UGSC 49 (per Odoki, CJ). @t legal opinion of the Attorney General must be binding on the government and or on public institutions to give third parties confidence to deal with govemment and public institutions. 52. ln my considered view, article 119(5) of the Constitution is fairly seltexplanatory and the foregoing decision is crystal clear on the construction to be applied to it, leaving nothing to conjecture. What remains is the application of that constitutional interpretation to any given set of relevant facts or circumstances. Any incidental questions as to whether a contracting entity is either gove rnmentalor one in which govemment has an interest would, in my estimation, be a question of mixed fact and law that hinges on available evidence, as well as statutory rather than constitutional interpretation. This lies not within the domain of the Constitutional Court but in that of any other court of competent jurisdiction. 53. ln this case, it is noteworthy that the impugned contracts were subsequently terminated, meaning that their execution would no longer have been in issue. lt is only the compensation that purportedly ensued from that termination that remained a live dispute between the parties. lt thus follows that paragraph 14(f) of the petition is misconceived and improperly before this Court on two lronts: first, the substratum upon which it is grounded no longer exists and, secondly, even if it did, the controversy surrounding the interpretation of article 119(5) of the Constitution would have been rendered moot by this Court's interpretation of that constitutional provision in Theodore Ssekikubo & Others v Attorney General & Others (supra) 54. I now turn to the outstanding allegations of constitutional violation. These are captured in paragraph 14(g) - (k) of the petition and can be summed up as follows: l, The authorization of withdrawal of funds from the Consolidated Fund or other public fund by the seventh, eighth, ninth, tenth and fifteenth cross respondents working alongside the eleventh - fourteenth cross respondent banks without either parliamentary approval through an Appropriation Act or parliamentary resolution or the approval of the Auditor General under the applicable provisions of the Public Finance and Accountability Act, 2003 to facilitate the second appellant's compensation, which actions are alleged to have contravened articles 154(1Xb), (2) and (3), 1 56, 159(2) - (7), 160, 163(3)(a) and (b) and l64 of the Constitution ll. The conduct of the seventh and tenth respondents is particularly called out for supposedly allowing themselves to be co-opted to further the interests ofthe Presidency, the appellants and their bankers without conducting independent due diligence checks as by law required, l9 Constitutional Appeal No. 4 of 2020 ril$ contrary to article 162(2) of the Constitution; while all the cross respondents' conduct in that regard is alleged to have undermrned good governance and the rule of law, and threatened the right of Ugandans to live in a corruptionjree society as guaranteed under National Objective XXVI and articles 8A, 17(1)(D 20(1)(2), 21,25(1\,36, 38, 41, 25,107,118,|U, 196,202 and 233(2Xb) ofthe Constitution. 55. The foregoing allegations are flatly denied by all the cross respondents, save for the Attomey General's Office (lifteenth cross respondent), which concedes the omission to secure its approval prior to the execution of the impugned contracts. The same cross respondent further concedes the illegality of the linancial instruments that were executed in the favour of the cross respondent banks to extinguish the second appellant's indebtedness to them, averring that it was done in violation of articles 119(5) and 159(2) of the Constitution, as well as section 25 of the Public Finance and Accountability Act, 2003 and section 29 of the Bank of Uganda Act, and therefore the 'disbursed' monies should be refunded. However, this is roundly dismissed by the cross respondent banks who contend that they engaged with the second appellant on purely commercial basis, were not privy to the authorizations that underpin public financial transactions and therefore cannot b€ held liable for any omissions in that regard. 56. ln like vein, the Central Bank and the then Central Bank Govemor categorically assert that the requisite approvals from the Attomey General were obtained but parliamentary or the Auditor General's approvalwere not required, They totally decline to take responsibility forwhat they consider to be false claims against them including that they were party to any withdrawal of monies from the Consolidated Fund or othenrise co-opted to further the interests of the second appellant or the Presidency. Additionally, the tenth cross respondent denies personal liability for actions that were undertaken with the approval of the Central Bank's Board of Directors and is supported in this averment by the flfteenlh cross respondent, which additionally denies the allegations of a raid on the Central Bank (the seventh cross respondent), a plot by the Presidency to render the Central Bank subservient or any corruption on the part of the Attorney General's office. 57. lt seems to me that the gravamen of the petition thal was before the Constitutional Court was a convoluted fusion of pflvate commercial banking transactions and public finance processes that required the intricate interrogation of applicable commercial and public flnance laws. The petition contains grave allegations with connotations of economic crime, which it attributes to the various cross respondents. lt does also allude to fraud, impropriety and abuse of oflice on the part of the 20 Constitutional Appeal No. 4 of 2020 ""4 cross respondents. As highlighted above, there is no consensus on the facts that underpin those allegations. lt thus follows that any interrogation of the constitutionality of the alleged actions or omissions ought to be preceded by and anchored in established fact as opposed to supposition and conjecture. This is particularly necessary in this case given that the affidavit evidence on record on behalf of the Central Bank, respondent commercial banks and public officials not only entails vehement denials of wrongdoing, but in the case of the Central Bank a serious claim of false allegations by the petitioner/ cross appellant. Furthermore, the delimits of individual versus vicarious liability for the holders of public office do also require due interrogation. 58. ln my judgment, such a fact-flnding mission is not within the domain of the Constitutional Court. Although the Constitutional Court Rules make provision for affidavit evidence in constitutional litigation, it seems to me that the objective of that evidence is to satisfy the court of the veracity of the allegations of constitutional infringement made in a petition rather than draw that court into a clash of contested facts. I am aware that in Rose Kateeba & Others v Justus Musyenzi& ltters 120251 UGSC 6, this Court defined mixed questions of law and fact as essentially 'questions of law albeit those which depend for their determination on recourse lo uncontested or uncontroverted facfs.' (my emphasis). Certainly, the skongly contested allegations that are before us presently would not represent questions of law in that regard. 59. I draw fortitude for the foregoing view from the provisions of article 137(1), (3) and (5) of the Constitution itself on access to the Constitutional Court. ln so doing, I advert to two inter-related principles of constitutional interpretation that were highlighted by Kanyeihamba, JSC in Attornev General v Maior General David Tinvefuza (supra). First, is the principle that a Constitution must be given a generous and purposive interpretation as was articulated in the cases of Attornev General v Momodou Jobe [1984)l AC 689 at 700 (per Lord Diplock) and Attorney General v Whiteman [199'll2WLR '1200 at 1204 (per Lord Keith) as follows The language of a Constitution falls to be construed, not in a narrow and legalistic way, but broadly and purposively so as to give effect lo its spirit, and this is particularly true of those provisions which are concerned with the protection of constitutional rights. 60. Second, is the principle that constitutional interpretation should be grounded in the letter of the Constitution but should have appropriate regard for the spirit of the Constitution given the fallibility of any drafting language. To that end, the learned judge cited with approval the Trinidad and Tobago 2l ttt-<A, Constitutional Appeal No. 4 of 2020 Privy Council case of Boodram v Attorney General & Another, Civil Apo. No. 173 of 1994 (unreported), where it was observed (per Sharma, JA): The courts are not entirely on their own in this process. They cannot ignore the text ofthe applicable Constitutional document, for it is the Constitution, (and) not the Courts, that is the supreme law of the land. They should, however, seek guidance in the spirit of the Constitution, rather than from its inevilably imperfect language. 61 . The spirit of the Constitution on the Constitutional Court's interpretative jurisdiction is discernible from the thrust of article 137, clauses (1), (3), (4) (5) and (6) of which stipulate as follows: (1) Any question as to the interpretation ofthis Constitution shallbe determined by the Court of Appeal 3itting as the constitutional court. (2) ....... (3) A person who alleges that - (a) An Acl of Parliament or any other law or anything in or done under the authority of any law; or (b) Any act or omission by any person or authority, is inconsistent with or in contravention of a provision of this Constitution, may petition the constitutional court for a declaration to that effect, and for redre33 where appropriate. (4) Where upon determination of a petition under clause (3) of this article the constitutional court consider3 that there is need for redre33 in addition to the declaration sought, the constitutional court may - (a) Grant an order of redress, or (b) Reter the matter to the High Court to investigate and determine the appropriate redress. (5) Where any question as to the interpretation of this Constitution arises in any proceedings in a court ot law other than a field court martial, the court- (a) may, if it is ot the opinion that the question involves a suhtantial ouestion ot Iaw; and (b) shall, if any party to the proceedings requests it to do so, reter the question to the constitutional court for decision in accordance with clauee (1) of this article. (6) Where any question is referred to the constitutional court under clause (5) ot this article, the constitutional court shall give its decision on the question, and the court in which the question arises shall dispose of the case in accordance with that decision. (ny enphasis) 62, lVy construction of article 137 above is that whereas clause (1) unequivocally lays down the constitutional mandate of the Constitutional Court, solely restricting it to constitutional intepretationl 22 l/r4 Constitutional Appeal No. 4 of 2020 clauses (3) and (5) make provision for access to the Constitutional Court either directly by petition or through reference from another court. ln addition, clause (3) specifically demarcates the matters that would give nse to a cause of action before the Constitutional Court, while clause (5) restricts matters that are referred to the Constitutronal Court to questions of law, Indeed, reading clause (5) together with clause (6) of the same article, it becomes apparent that contested questions of fact remain outside the domain of the Constitutional Courl, the jurisdiction of that murt being exclusively restricted to the interpretation of the Constitution vis-d-vis questions of law that are grounded in otheruise uncontested fact, Therefore, questions of fact ought to be determined by the appropriate court, recourse being made to the Constitutional Court only where a question of law attendant lo the disputed facts does necessitate constitutional interpretation, Where such aquestionof law is referred to the Constitutional Court, the referring court retains the duty to determine the underlying questions of fact before it in accordance with the constitutional interpretation duly rendered by the Constitutional Court on refenal. 63. I do not think that the framers of our Constitution sought to establish two different interpretation regimes for the Constitutional Court under article 137(3) and (5) of the Constitution. The effect of those constitutional provisions aptly illustrate that point. Whereas a challenge to the constitutionality of an Act of Parliament is fairly straightforward and would give automatic right of access to the Constitutional Court; the other parameters that would give rise to a cause of action under article 137(3), to wil, 'anything in or done undet the authority ot any law; ot any act ot omission by any percon or authorig'could either be lodged independently under a constitutional pelition or arise from the proceedings of another court thus necessitating a reference to the Constitutional Court. I find no reason to believe that it was the intention of the legislature to subject the constitutionality of 'anything in or done under the authority of any law; or any act or omission by any person or authority' to two distinct jurisdictional standards, one that that entertains law and fact under clause (3) and another that is restricted lo questions of law under clause (5). 64. Neither, in any case, does it seem to me that the questions for consideration under clause (5) would transcend the parameters that give rise to a cause of action highlighted in clause (3). ln my estimation, the cause of action delineated in article 137(3)(a) and (b) of the Constitution is applicable to both constitutional petitions and constitutional references. So that, insofar as another court cannot refer to the Constitutional Court questions of facl under article 137(5Xa), a constitutional petition lodged under article 137(3) ought not to present for the Constitutional Court's determination contested questions of fact. lndeed, should a murl refer a matter to the Constitutional Court for t5 Constitutional Appeal No. 4 of2020 W, interpretation under article 137(5Xb) that delves into questions of fact, the latler court would be well within its remit to consider whether or not the constitutional reference does in fact invoke its jurisdiction. 66. Before taking leave of this issue, I consider it necessary to address the case of Fose v Minister of Safetv and Securitv (supra) to which the Court was referred by learned counsel for the respondenUcross appellant on the question of jurisdiction. To begin with, I must point out that the jurisdiction of the South African Constitutional Courl under the Interim South African Constitution (which was the focal instrument in that case) is fundamentally different from that of the Ugandan Constitutional Court. Whereas article 137(1)of the Ugandan Constitution restricts the Constitutional Court's mandate to constitutional interpretation, the South African Constitutional Court was under article 98(2) of the Interim South African Constitution clothed with jurisdiction 'as the court of final instance over all mafters relating to the interpretation. protection and enforcernenf of the provisions of this Constitution; (my emphasis) ln my view, the remedial jurisdiction of a court that is mandated to interpret and enforce constitutional provisions is incomparable with that of a court that is restncted solely to interpretation, 67. Even then, in the Fose case the contestation before the court gravitated around whether under section 7(4) of the lnterim South African Constitution, so-called 'constitutional damages' (which include an element of punitive damages) were awardable as'appropriate relief over and above general damages. Section 7(4)(a) stipulates as follows: When an infringement of or threat to any right entrenched in this Chapter is alleged, any person referred to in paragraph (b) shall be entitled to apply to a competent court of law for approuiate relief, which may include a declaration ol rights. (my emphasis) 2.1 Constitutional Appeal No. 4 of 2020 Mill 65. Consequently, I take the view that the spirit of the Constitution is such that questions for constitutional interpretation would ensue from pure questions of law whether arising from court proceedings as envisaged under clause (5) or those that directly ensue from the causes of action delineated in clause (3Xa) and(b) of article 137. The Constitutional Court is not a trial court of fact but acourtof original jurisdiction in constitutional interpretation. ln thiscase, given the unsubstantiated nature of the factual allegations made, I am unable to agree that the Constitutional Courl's interpretative jurisdiction was properly invoked, Accordingly, I cannot fault the minority view in the lower court that by entertaining a matter where the allegations made by the petitioner required proof, the Constitutional Court abdicated its exclusive constitutional interpretation mandale. 68. That constitutional provision is also matenally different from article 137(3) and (4) of the Ugandan Constitution, Clause (3) mandates a petitioner before the Ugandan Constitutional Court to claim 'a declaration ..., and for redress where appropriate,' which position is reinforced in clause (4) that empowers the court to only grant redress, in addition to the declarations sought, where the need so arises. So that, the Constitutional Court would have the discretion to either grant an order of redress in addition to the appropnate declarationsl0 or make the necessary declarations and refer the matter to the High Court for a determination of the appropriate redress,rt 70. That said, I do acknowledge the position of Ackermann, J in Fose v Minister of Safetv and Securitv (supra) on the inappropriateness of punitive constitutional damages as a deterrent tool where a party is otheruise entitled to general damages, The learned jurist observed: For awards to have any conceivable deterrent effect against the government they will have to be very substantial and the more substantial they are the greater the anomaly ... lt seems lo me to be inappropnate to use these scarce resources to pay punitive constitutional damages to plaintifis who are already fully compensated forthe injuries done to them wilh no real assurance that such payment will have any detenent or preventative effect. 71 . Whereas I am alive to the perceived inadequacy of the common law tort remedies, I note that Uganda has a specific law on human nghts enforcement,lhe Human Rights (Enforcement) Act, 2019,lhal derives from article 50(4) of the Constitution and guides the enforcement of an infringement or threat to fundamenlal rights, as well as the appropriate remedies. I am satisfied, therefore, that the impugned petition in this case did not invoke the interpretative jurisdiction of the Constitutional Court and was wrongly entertained by that court. 10 Paragraph (4)(a) of article 137 11 Paragraph (4Xb) of article 137 Constitutional Appeal No. 4 of 2020 25 iil,l* 69. lt would appear, lherefore, that the Ugandan Constitutional Court is pflmarily clothed with jurisdiction to grant or issue declarations, with additional redress as a secondary consideration in appropriate case. Conversely, the South Afncan Constitutional Court (perhaps on account of the court's enforcement jurisdiction) primarily grants appropriate redress or relief with declaralions as a secondary option. Such differences in law (and procedure, I might add) are material to the applicability, wilhin the framework of a country's domestic law, of constitutional remedies developed in other jurisdictions. 72. I now turn to the remedial jurisdiction of the court, which is also in issue before us. Redress that is grounded in a constitutional violation the resolution of which hinges on the interpretation of the Constitution is addressed in article 137(4) of the Constitution as follows: Where upon determination of a petition under clause (3) ol this article the constitutional court considers that there is need for redress in addition to the declaration sought, the constitutional court may - (a) Grant an order of redress, or (b) Refer the matter to the High Court to inv$tigate and determine the appropriate redress. 73. On the other hand, a constitutional violation the remedy for which lies not in constitutional interpretation but in the enforcement of the infringed constitutional rights is envisaged under Article 50(1) of the Constitution in the following terms: 74. ln the matter before us, paragraph 14 of the impugned petition invoked the supremacy of the Constitution under article 2 thereof but the substantive constitutional provisions under which the petition was lodged are articles 50(1) and 137(3) of the Constitution. This would suggest that the nature of remedies sought by the petitioner includes redress that flows directly from the Constitutional Court's remedial jurisdiction under article 137(3) of the Constitution (if appropriate), as well as that which accrues from the infringement of or threat to a constitutional right or freedom as envisaged under article 50(1). 75. Article 50(1) of the Constitution mandates a person whose claim is rooted in the infringement of or threat to a constitutional right or freedom to lodge such claim in 'any competent court.' lt is well settled law that any claim that is rooted in the enforcement of rights under that constitutional provision would clearly fall outside the jurisdiction of the Constitutional Court. Hence, in lsmail Seruqo v Kamoala Citv Cou ncil & Another (supra), Wambuzi, CJ succinctly drew a distinction between a constitutional violation that requires conslitutional interpretation for its determination, in respect ot which the Constitutional Court would have jurisdiction, and rights violatrons per se the remedy for which lies in the enforcement of the infringed rights by another competent court other than the Constitutional Court. 26 &, Constitutional Appeal No.4 of 2020 Any per3on who claims that a fundamental or other right or freedom guaranteed under this Constitution has been infringed or threatened, is entitled to apply to a competent court for redress which may include compensation. 76. ln this case, however, the bone of contention appears to be the restrictive approach adopted by the minority justices in relation to the Constitutional Court's remedial jurisdiction, Whereas it is wholly supported by the appellants and cross respondents, the respondenUcross appellant faults the minority judges for construing the court's remedial jurisdiction under article 137(3) and (4) to be mutually exclusive. For the avoidance of doubt, I reproduce below the pertinent part of the minority position on this issue (per Cheborion, JCC), with whom Liusota, JCC (as he then was) agreed. I an awarc that, in appropiate ctcumstances, especially wherc the pettion is specitically brought undet Afticle 137(4Xa) & (b) of the Constitution. this couft nay grant appropiate redress. Ihls ls only applicable, wherc in the dispute, there is an apparent conflict which exists and this nust be such that its resolution nust be only when and afret the Constitutional Coutt has interpreted the Constitdion. The coutt would be requied to first interpret the provision allegedly contravened before resolving the dispfie and grcnting appropiate reliefs. ln that conbrt. the Petitioner must have brought the petition specifically under Afticles 137(1) and (4)(a) and (b) of the Constltt/tlon. Ihat is the position taken by this couft in Conslitutional Petition No. N2A2il2 llbabali Jude versus Edwerd Kiwanuke Sekandi The Petitioner did not move under Afticle 137(4) of the Constrtdion. ln ny view,lt ls nol open lo lhls coudto deem it nec$sary on its own notion to invoke the mandate of the Cowl under Afticle 137(4) of the Constitution, where the Petitioner opted not to claim rclief thereunder. Rule 3(2) and (3) ofthe Constitutional Pettions and References Ru/es, 51912005, undet which the instant petition was brought, requies the Pettionet to specifically plead the bas,b ofthe petition and reliefs sought. 77. With the greatest respect, I am unable to abide the view that the Constitutional Court may only grant redress under article 137(4) where a petition is explicitly lodged under that constitutional provtsion. This would be to presuppose that clauses (3) and (4) of article 137 are mutually exclusive, which in view of my construction of those clauses hereinabove, is not the case. I flnd fortitude for this view in lsmail Seru v Kamoala Citv Council & An other (supra), where the import of those constitutional provisions was summed up as follows (per Mulenga, JSC) It is the provisions in clauses (3) and (4) of Article 137 that empower the Constitutional Court, when adjudicating on a petition lor interpretation of the Constitution, to grant redress where appropriate. Clause (3) provides, in effect, that when a person petitions for a declaration on interpretation of the Constitution, he may also petition for redress where appropriate. 78, ln order to resolve the controveBy as to whether the Constitutional Court may only grant redress under article 137(4) where a petition is explicitly lodged under that constilutional provision, it seems to me that once the Constitutional Court has pronounced itself on a matter, it may under clause (4)(a) 27 Constitutional Appeal No. 4 of 2020 W, 79. Rule 23(1) of the Constitutional Court Rules makes provision for the application of the Court of Appeal Rules to constitutional petitions. lt reads: Subject to the provisions of these Rules, the practice and procedure in respecl ol a petition or a reference shall be regulated, as nearly as may be, in accordance with the Civil Procedure Acl and the rules made underthat Act and the Court of Appeal Rules, with such modificationg as the Court may consider necsssary in the interesl of iustice and expedition ol the proceedings. 80. Rule 2(2) of the Court of Appeal Rules acknowledges and restates the inherent power of the Court of Appeal (even when sitting as the Constitutional Court) 'to make such orders as may be necessary for attaining the ends of justice or to prevent abuse of the process of (the) court,' Accordingly, I read nothing in article '137(4)(a) that would forestall the Constitutional Court from exercising its inherent powers to grant an appropriate order of redress suo moto, provided that the redress granted flows directly from the declarations issued by the court. 81. Be that as it may, it is abundantly clear that recourse cannot be made to the Constitutional Court's remedial jurisdiction without its interpretative jurisdiction having been properly invoked. The allegations set forth in the petition may be interrogated by any other competent court, but not necessarily the Constitutional Court, the jurisdiction of which is exclusively restricted to constitutional interpretation. Consequently, I would uphold the minority position in the Constitutional Court to conclude that Constltutional Petition No. 4 of 2012 did not rarse questions for constitutional interpretation as contemplated under article 1 37(1) of the Constitution and therefore the court had no jurisdiction to entertain it. ln the result, Ground 2 of this Appeal is upheld. llt grant an order of redress where it considers it necessary. I do not think that the use of the word 'granf'should be literally construed to restrict the orders of redress thereunder to such redress as has been sought in the petition, given the succinct provisions of rule 23(1)of the Constitutional Court Rules, rule 2(2) of the Judicature (Court of Appeal Rules) Directions, Sl 13-10 (Court of Appeal Rules) and Order 2 rule 9 of the CPR. D. Disposition 82, Theupshotof my judgment is that this Appeal substantially succeeds. Given thatthe merits of either the Appeal or Cross Appeal have not been intenogated, I consider the appellants to be the successful party in the preliminary points of law that formed the basis of this judgment. Constitutional Appeal No. 4 of 2020 wi 83. For purposes of the award of costs, however, the appellants have succeeded and lost in equal measure, having emerged successful on Ground 2 but lost Ground 7 of the Appeal. On that premise, I would depart from the general rule that costs should follow the event, to order each party to bear its own costs. 84, I accordingly make the following declaration and orders l. Constitutional Peti No. 4 ol 2012 did not invoke the jurisdiction of the Constitutional Court as delineated in article 137(1) of the Constitution and was therefore wrongly entertained by that court. ll. The judgment, declarations and orders of the Constitutional Court in Constitutional Petition No. 4 ol 2012 are h ereby set aside. lll. Each party shall bear its own costs. Dated and delivered.t X.rprf, tfti, ....f .K ,J^^1 t, / .... day of 2025. Constitutional Appeal No.4 of2020 2L) I would so order. tt- Monica K. Mugenyi Justice of the Supreme Court