Uganda National Roads Authority v Irumba and Another (Constitutional Appeal No. 02 of 2014) [2015] UGSC 131 (29 October 2015)

THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPALA (CORAM: KATUREEBE CJ, TUMWDSIGYE, ARACH-AMOKO, J.rsq oDoKI, TSDI(OOKO, ONDLLO, KITUMBA, AG. JJ,SC.) CONSTITUTIONAL APPEAL NO.O2 OF 2014 BET\VEEN UGANDA NATIONAL ROADS AUTHORITY : : : : : : : : : : : : : : : : : : : : ::APPELLANT \IERSUS t0 l5 20 25 30 35 40 1. IRI'MBA ASUMANI 2. PETERMAGELAH RESPONDENTS [An appeal from judgment and orders of the Constitutional Court (Kasule, Mutongusla, Muondha, Kakuru, Kiryabwlre JJA) ln Constlttttional Petition No 4O of 2O72 deliuered at Katnpala on &h Noaember, 2O731 JUDGMENT OF KITUMBA AG.JSC This appeal arises from the decision of the Constitutional Court allowing the petition which was originally brought by three petitioners but the third one was struck out by Court for lack of capacity to sue. Irumba Asuman and Peter Magelah (hereinafter referred to as the respondents) filed a petition against the Attorney General who was the first respondent and the Uganda National Roads Authority which was the second respondent under Article 137 (1) (2) and (3) of the Constitution challenging the constitutionality of Section 7 of the Land Acquisition Act (Cap 226 of the Laws of Uganda). They alleged that the Act was in contravention of Article 26 of the Constitution. There were supporting ; I. I L- -s affidavits to the petition. The Uganda National Roads Authority, hereafter referred to as the appellant, denied that the impugned section contravened the Constitution. The appellant filed affidavits in opposition to the petition. ro BACKGROUND: The background to the petition as found by the Constitutional Court is briefly as follows: l5 The government of Uganda commissioned a project to upgrade Hoima - Kaiso - Tonya road, Hoima District in order to ease and facilitate the oil exploration activities in the area. The project was being implemented by Uganda National Roads Authority (appellant), a government agency. 20 25 30 The process of upgrading the road necessitated acquiring more land. The government then proceeded under Section 7 (1) of the Land Acquisition Act to compulsorily acquire land from the people affected by the project. The complaint by the respondents was that their land was taken from them without prior payment of compensation which contravened their right to property as enshrined in Article 26 of the Constitution. The respondents did not complain about the value of the land as assessed or the quantum of the award. It was argued for the appellant that section 7(1) of the Land Acquisition Act is still good law because it pre-dates the L995 Constitution. During the trial in the Constitutional Court, the following two issues were framed for determination: 2 35 7. Whether section 7 (1) of the Land Acguisition Act is inconsistent with Article 26 (2) (c) of the Constitution. ) 2. Whether the various acts of the ?d respondent complained of in the petition Violated the ?d respondent's rights guaranteed under Article 26 (2) (c) of the Constitution. In its judgment the Constitutional Court only considered and resolved the first issue because, in the couft's view, that would automatically answer the second issue. The Constitutional Court resolved the first issue in favour of the current respondent and made the following declarations. 7. That Section 7(7) of the Land Acquisition Act is hereby nullified to the ertent of its inconsistency with Article 26(2) of the Constitution. That is to say, to the ertent that it does not provide for prior payment of compensation, before government compulsorily acquires or takes possession of any person's property. 2.It is hereby declared that, the acts of the ?d respondent complained of in the petition, to wit:-taking possession of the ?d respondents land prior to payment of compensation contravened his right to property as enshrined in Article 25(2) of the 7995 Constitution. 3. No order is made as to costs. Dissatisfied with the decision of the Constitutional Court, the appellant filed its appeal in this Court on five grounds which were framed as follows:- 7. The Learned Justices of the Constitutional Court erred in law when they proceeded to determine the petition in respect to l0 l5 20 25 30 3 ) Section 7(1) Land Acquisition Act after having found that the same did not require constitutional interpretation. 2. The Learned Justices of the Constitutional Court erred in law when they failed to consider the question as to whether Constitutional Petition No 40 of 2072 as against the Appellant raised a question for constitutional interpretation. 3. The Learned Justices of the Constitutional Court erred in law and fact when they held that the appellant's acts complained of were unconstitutional without evaluating the evidence presented by the parties. 4. The Learned Justices of the Constitutional Court erred in law when they failed to consider that Article 25 of the Constitution is not absolute but a derogable right. 5. The Learned Justices of the Constitutional Court erred in law when they failed to consider that in certain circumstances Section 7(1) of the Land Acquisition Act is a necessary limitation of the right to property under Article 26. During the hearing of the appeal in this Court the appellant was represented by Ms Ruth Sebatindira, Ms Olive Matovu, and Mr. Francis Tumusiime, appeared for the respondents. Counsel for both parties relied on their written submissions which had been filed in Court. In their written submission counsel for the appellant argued grounds 1 separately, 2 and 3 together and 4 and 5 jointly. On the other hand counsel for the respondent argued grounds 1., 2 and 3 separately and grounds4&5jointly. 10 l5 20 25 30 35 4 5 In this judgment I will handle the grounds of appeal in the following manner. Grounds 1, 2 and 3 are interrelated and I will consider them together first. Lastly I will deal with grounds 4 and 5 jointly. l0 l5 20 The complaint by the appellant's counsel in the first three grounds is and can be summarized as follows: a. That the Constitutional Court erred to determine the petition after holding that it did not require constitutional interpretation. b. The Constitutional Court did not consider whether the petition raised issues for constitutional interpretation and c. The Constitutional Court did not evaluate the evidence before concluding that the appellant's action was unconstitutional. Arguing grounds L, 2, and 3 appellant's counsel contended that the jurisdiction of the Constitutional Court as provided by Article 137(1) and 2s (3) of the Constitution is to determine matters that raise issues for constitutional interpretation. Counsel argued that where there is no question for constitutional interpretation the Constitutional Court should refer the parties to appropriate Courts for redress. In support of that submission counsel relied on Attorney General versus Major General 30 Tinyefuza Constitutional Appeal No 7 of 7997where this Court stated that the Constitutional Court has jurisdiction under Article 137 of the Constitution to interpret the Constitution and to deal with matters arising there from. 35 Counsel submitted further that following the above interpretation by this Court, the Constitutional Court dismissed the cases which did not require 5 5 constitutional interpretation, namely: Re Sheilc Abdul Sentamu & Another, Constitutional Petition No 7 of 1998 and Richard Mwami Vs Attorney General, Constitutional Application No. 82L of 2013. Counsel argued that in the Constitutional Court the appellant contended that the petition did not raise matters for constitutional interpretation. The argument was and is still that section 7 of the Land Acquisition Act was saved by Article 274 of the Constitution, because it was an existing law before the 1995 Constitution came into force. Article 274 provides that the existing law shall continue to operate and that law ought to be construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring it into conformity with the Constitution. l0 I5 25 30 35 6 .; The Constitutional Court upheld the appellant's contention and in its zo judgments at page 20 stated: " The Constitution clearly envisages that existing laws would in one way or the other be inconsistent with its provisions. It is therefore not necessary that every time a law is found to be inconsistent with the Constitution, recourse is made to this court. Some of the inconsistencies such as the impugned Section 7 (7) of the Land Acquisition Act are too obvious and require no interpretation by this court. The purpose of Article 274 of the Constitution was to avoid a situation where each and every provision of the old laws, those that pre-date the 7995 Constitution, found to be inconsistent with the Constitution had to end up in this Court, for interpretation and for declarations to that effect. All courts of law have the power to do that. To enforce and put into effect Article 274 of the Constitution. This court has applied the provisions of Article 5 l0 l5 20 25 30 35 274 in the case of Pyarali Abdu Rassaul Ismail vs Adrian Sibo; Constitutional Petition Number 9 of 7997". Counsel criticized the Justices of the Constitutional Court that having stated as above, they erred in law when they proceeded to determine the petition. She argued that after that holding the Constitutional Court should have forwarded the case to the High Court for determination. In reply, counsel for the respondent submitted that Article 274 of the Constitution does not limit or oust the powers of the Constitutional Court to interpret the Constitution. According to counsel, Article 137 empowers the Constitutional Court once called upon to interpret the law in accordance with the Constitution. He further submitted that there were issues for constitutional interpretation because the appellant did not construe section 7(1) of the Land Acquisition Act in accordance with Article 26(2) of the Constitution. Besides, there were two issues framed for determination at the beginning of the trial. If the Constitutional Court had not considered whether the impugned section 7(1) of the Land Acquisition Act was unconstitutional it would have determined the second issue which concerned the constitutionality of the actions of the appellant. He contended that the authorities which were cited by the appellant, Sheik Abdul Sentamu & Another and Richard Mwami Vs Attorney General (supra) are not relevant to the instant appeal. He argued that those cases were purely on enforcement of fundamental human rights. The issue of contention in this appeal, however, is whether the Constitutional Court should have proceeded to interpret the impugned 7 Consideration of Counsel's Arguments: Counsel for the appellant has argued mainly that since section 7(1) of the ro Land Acquisition Act as found by the Constitutional Court, is existing law i.e. pre - 1995 Constitution, the learned Justices erred in fact and law to interpret that law. On the other hand, counsel for the respondent has contended that Article 274 of the Constitution does not limit or oust the powers of the Constitutional Court to interpret the existing law to be in l5 conformity with the Constitution 20 30 In the petition that was before the Constitutional Court, it was specifically pleaded that section 7(1) of the Land Acquisition Act was inconsistent with Article 26 of the Constitution. This was in paragraphs 9 and 10 of the petition wherein it was stated as follows: "9. Section 7(7) of the Land Acquisition Act Cap 226 is inconsistent with Article 26 of the constitution in a sense that the article preconditions the prompt payment of fair and adequate compensation, prior to the taking of possession or acquisition of the property but 5.7 (1) of the Land Acquisition Act cap 226, empowers the assessment officer to take possession of the land as soon as he or she has made his or her compensation award. 70. That section 7(1) of the Land Acquisition Act Cap 226 is inconsistent with Article 26 of the Constitutian in that if the Minister ceftifies that it is in the public interest for the assessment officer to take possession of the lan{ the section empowers the assessment officer to take possession of the land 8 35 s provision of the law which was a subject of complaint by the respondent that it was inconsistent with the Constitution. 25 at any time after the publication of the declaration that the land is needed for a public purpose". Before deciding that issue the Constitutional Court, rightly took into account the principles that guide courts in Constitutional interpretation as laid down by the courts. The Court relied on the authority of Advocates Coalition for Development and environment and 40 Others Vs Attorney General & Another (Constitutional Petition No. 14 of 2011). 20 I agree with those principles though I will not reproduce them here. The Court considered both Article 26 of the Constitution and the impugned section 7(1) of the Land Acquisition Act. 1t Section 7(1) of the Land Acquisition Act states: 10 l5 30 "Where a declaration has been published in respect of any land, the assessment officer shall take possession of the land as soon as he or she has made his or her award under section 6; except that he or she may take possession at any time after publication of the declaration if the Minister certifies that it is in the public interest for him or herto do so." 9 The first issue and the only issue that was dealt with by the Constitutional Court was, "Whether section 7(1) of the Land Acquisition Act is inconsistent with Article 26(2) (c) of the Constitution". t. ) Article 26 of the Constitution which the respondents alleged to have been contravened provides: "26 Protection from deprivation of property. 1. Every person has a right to own property either individually or in association with others. l0 2. No person shall be compulsorily deprived of property or any interest in or right over property of any description except where the following conditions are satisfied- l5 (a) e takin of essto n or acquisition is necessary for public use or in etn t of defence, public safety, 70 public order, public morality or public health; and (b) the compulsory taking of possession or acquisition of property is made under a law which makes provision for- (i) prompt payment of fair and adequate compensation prior to the taking of possession or acquisition of the property and 2) (ii) a right of access to a court of law by any person who has an interest or right over the property." 30 After considering the historical background in this country where people's properties were compulsorily acquired by Government during the past regimes, the Constitutional Court concluded that the 1995 Constitution is very restrictive on the powers of the Government to acquire land compulsorily. The Constitution also provides for prior payment of compensation before taking possession or acquisition. 35 Before such compulsory acquisition takes place Arlicle 26 (b) (i) provides that: t0 5 "Prompt payment of fair and adequate compensation; prior to the taking of or acguisition of property." The Constitutional Court noted that it was not in dispute that the Government had taken over the second respondent's property under Statutory Instrument No 5 of 2013, The Land Acquisition Act (Hoima - Kaiso- Tonya road), Instrument issued under section 3 of the Land Act Cap 226, dated 8th February, 2013. The Constitutional Court held that since section 7(1) of the Land Acquisition Act does not provide for prior payment of compensation before Government takes possession or before it acquires any person's property to that extent it is inconsistent with and contravenes Articles 26(2) (b) of the Constitution. After holding so however, the Constitutional Court noted Article 274 of the Constitution which states: "(7). Subject to the provisions of this article, the operation of the existing law after the coming into force of this Constitution shall not be affected by the coming into force of this Constitution but the existing law shall be construed with such modification, adaptations, qualifications and exceptions as may be necessary to bring it into conformity with this Constitution". The Constitutional Court observed that the Land Acquisition Act commenced on the 2"d )uly 1965 that is thirty years before the coming into force of the 1995 Constitution. The Court stated that Section 7 of the Land Acquisition Act could have been interpreted according to the provisions of Article 274 of the IO t5 20 25 30 35 II Constitution and this would have involved reading into the section the phrase " prior payment'. However, the Justices went on to hold that since the matter was before the Court they were required to solve it. "Be that as it may, since the matter is before this court, we are required to resolve it. We clarify that both the ?d and ld petitioners are not seeking compensation or enforcement of any orders in this petition. All the orders sought in this petition are declaratory. Any parties or other persons affected by the actions of the respondents are at liberty to seek redress from a competent court under Article 5O of the Constitution or any other relevant law," Counsel for the appellant has strongly criticized them for taking that course of action as according to her when a petition does not raise issues for constitutional interpretation the Constitutional Court should forward it to the High Cour-t for enforcement. With due respect to counsel, that is and cannot be the mandatory procedure for the Constitutional Court to follow for two reasons. Firstly, not all the petitions which fail at the Constitutional Court have issues of enforcement. One may file a petition in the Constitutional Court simply seeking for a declaration like in the instant appeal. Secondly, and more importantly, the Constitutional Court has the originaljurisdiction to interpret the Constitution. Article 137 provides: (1) Any question as to the interpretation of the Constitution shall be determined by the Court of Appeal sitting as the constitutional court. (2) t2 l0 15 20 l) 30 35 (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 of omission by any person or authority is inconsistent with or in contravention of a provision of this Constitution may petition the constitutional court for a declaration to that effect, and for redress where appropriate. (4) Where upon determination of the petition under clause (3) of this article the constitutional court considers that there is need for redress in addition to the declaration sought, the constitutional court may- (a) (b) grant an order ofredress; or refer the matter to the High Court to investigate and determine the appropriate redress. In the case of Ismail Serugo and Another Vs Kampala City Council and Another Constitutional Appeal No 2 of 1998, this Court held that a case for constitutional interpretation is made out once a petition makes allegations which fit the provisiohs of Article 137(3) (a) and (b) of the Constitution This is what the respondents did in the petition. The allegation was that section 7 (1) of the Land Acquisition Act was in contravention of the Constitution and that the appellant had taken over their land without prior compensation which was in contravention of the Constitution It is correct that Article 274 could have been used by any other Court to interpret section 7(1) of the Land Acquisition Act to be in conformity with l0 l5 20 25 30 35 l3 5 J l0 l5 20 25 30 35 Article 26 of the Constitution but that did not oust the jurisdiction of the Constitutional Court to interpret the Constitution. The authorities of the Re Sheik Abdul Sentamu& Another and Richard Mwami us Attorney General (supra) are distinguishable from the instant appeal. They were references to the Court and the petitioners were seeking for enforcement of fundamental human rights and there were no issues requiring constitutional interpretation. This petition had issues for constitutional interpretation. Though Article 274 of the Constitution allows existing laws to be interpreted by other courts and tribunals so as to bring them in conformity with the Constitution, the Constitutional Court has the original jurisdiction for constitutional interpretation which should not be denied to it by anybody if it so chooses to exercise it. Counsel for the appellant requested this Court to rule that whenever there is a petition seeking for the interpretation of the law that pre dates the 1995 Constitution the Constitutional Court should never attempt to interpret the Constitution. I respectfully disagree with that view as it tantamounts to requesting this court to amend the Constitution. I am of the considered view that it would not be prudent for this Court to do so as the amendment of the Constitution is not its role. Article 2(7) of the Constitution provides for supremacy of the Constitution. It reads; "2. Supremacy of the Constitution. (1) This Constitution is the supreme law of Uganda and shall have binding force on all authorities and persons throughout Uganda. (2) If any other law or any custom is inconsistent with any of the provisions of this Constitution, the Constitution shall prevail, t4 l I It and that other law or custom shall, to the extent of inconsistency, be void. " I am unable to fault the constitutional jurisd iction. Constitutional Court for exercising its The appellant's counsel has complained that the Constitutional Court did not deal with the issue of whether the petition raised issues for constitutional interpretation. It is difficult for me to appreciate this complaint. In the instant appeal the Court considered the impugned section of the Land Acquisition Act and Article 26 of the Constitution. The Court interpreted the two and stated thus at page 19 of its judgment: '1In this case it is common ground that the government indeed has taken over the second respondent's property under Statutory Instrument Number 5 of 2073, The Land Acquisition (Hoima-Kaiso - Tonya road) Instrument issued under Section 3 of the Land Acquisition Act Cap 226, and dated dh February 2013. The issue in this petition is whether Section 7(1) of the Land Acquisition Act Cap 226 is a law that is in conformity wit'h Article 26(2) of the Constitution. We have already set out the provisions of Section 7(7) of the Land Acquisition Act ahove. Clearly that Section does not provide anwhere for prior payment of compensation before government takes possession or before it acquires any person's property. To that ertent therefore we find that Section 7(1) of Land Acquisition Act Cap 226 is inconsistent with and contravenes Article 26(2) (b) of the Constitution". l5 l0 I5 20 25 30 35 5 According to my understanding of the above quotation the Constitutional Court was interpreting the Constitution. According to Article 26 of the Constitution, compensation should have been made before the land was gazetted for acquisition by government By the operation of the law the appellant took over the respondent's land. There was no need to evaluate the evidence. The appellant's complaint of the Constitutional Court's failure to evaluate evidence is not, therefore, justified. Grounds 1,2 and 3 should fail. I now turn to grounds 4 and 5 Ground 4 The learned Justices of the Constitutional Court erred in law when they failed to consider that Article 26 is not absolute but a derogable right. Ground 5 The learned Justices of the Constitutional Court erred in law when they failed to consider that in certain circumstances S.7 (1) of the Land Acquisition Act is a necessary limitation to the right to property under Afticle 26. Learned counsel for the appellant submitted that in exceptional circumstances the right to payment of adequate compensation prior to taking possession of property under Article 26 is derogable in the interest of public good. According to Article 43 of the Constitution the right to property is not among the non derogable rights and freedoms provided for under Article 44 of the Constitution. l0 I5 20 25 30 35 l6 s She submitted further that Article 26 can be derogated in exceptional circumstances lilce disasters and emergencies under Article 110 of the Constitution that warrants the immediate taking of possession of the land to avert loss of lives and other public inconveniences. Counsel implored Court to take judicial notice of the disasters that have occurred r0 in the recent past. Suich examples include the land slides in Bududa, torrential rains that caused the collapse of roads and bridges in Kasese and Mbale. These emergencies necessitated resettling the affected communities and diversion of the road to enable the public access to those areas. t5 25 30 35 In support of limitation to the enjoyment of fundamental rights within the provisions of Article 43, counsel relied on the case of Chailes Onyango Obo &tAnor V Attorney General, Supreme Court Const. Appeal No. 2 of 2002. She contended that the learned Justices, therefore, erred, when they considered Article 26 in isolation of Article 43 which is contrary to the cardinal principles of constitutional interpretation that a Constitution has to be read together as an integratal whole and with no one particular provision destroying the other. In support of that submission she relied on the case of Paul K Ssemwogere&ors V Attorney General, Supreme Court Const. App No.J- of 2002 (SC). Counsel further submitted that if the Constitutional Court decision is upheld without due regard to disasters and emergencies, Government would be in a dilemma when faced with such calamities yet the process of payment takes time. That this Court should find that in emergency situations the provisions of Section 7 of the Land Acquisition Act should Counsel argued that it is impractical to compensate the land owners prior to addressing the urgent needs of the affected communities. In such situations, section 7 of the Land Acquisition Act should not be limited by the rights enshrined in Article 26(2) of the Constitution. She submitted further that Article 26 can be derogated in exceptional circumstances lil<e disasters and emergencies under Article 110 of the Constitution that warrants thc immediate taking of possession of the land to avert loss of lives and other public inconveniences. Counsel implored Court to take judicibl notice of the disasters that have occurred in the recent past. Such ex5tnples include the land slides in Bududa, torrential rains that caused Sre collapse of roads and bridges in Kasese and Mbale. These emergencies necessitated resettling the affected communities and diversion of the road to enable the public access to those areas, l0 l5 20 25 30 35 Counsel argued that it is impractical to compensate the land owners prior to addressing the urgent needs of the affected communities. In such situations, section 7 oflthe Land Acquisition Act should not be limited by the rights enshrined in Article 26(2) of the Constitution. I In support of limitation to th6 enjoyment of fundamental rights within the provisions of Article 43, counsel relied on the case of Charles Onyango Obo &Anor V Attorney General, Supreme Court Const. Appeal No. 2 of 2002. She contended that the learned Justices, therefore, erred, when they considered Article 26 in isolation of Article 43 which is contrary to the cardinal principles of constitutional interpretation that a Constitution has to be read together as an integratal whole and with no one particular provision destroying the other. In support of that submission she relied on the case of Paul K Ssemwogere&ors V Attorney General, Supreme Court Const. App No.1 of 2002 (SC). Counsel further submitted thbt if the Constitutional Court decision is upheld without due regard to disasters and emergencies, Government would be in a dilemma when faced with such calamities yet the process of payment takes time. That this Court should find that in emergency situations the provisions of Section 7 of the Land Acquisition Act should t7 be invoked. Counsel prayed that the appeal allowed and each party bears its own costs. In reply, counsel for the respondents contended that Article 26 has no exceptions and should be interpreted as it is. Article 43 cannot be interpreted to put a limitation to Article 26. Afticle 26 caters for acquisition in public interest but subject to payment of a fair and adequate compensation prior to taking possession. Respondents' counsel submitted that Article 110 on State of emergencies does not apply to this case. Counsel argued that the literal rule of interpretation should be used in constitutional interpretation. According to him Section 7 of the Land Acquisition Act is clearly inconsistent with Article 26(2) (b) of the Constitution. He contended that the spirit of Article 26 was to ensure payment prior to taking of possession or acquisition of the property. Counsel argued that paving a road to ease oil activities is a public benefit and its construction should be carried out in accordance with the law. Government holds oil on behalf of the public in accordance with Article 244 and it can never be justified that in the process of extracting public resources it should deprive the owners of their right to property and life. Counsel prayed that the appeal should be dismissed with costs to the. respondents. In reply to grounds 4 and 5, counsel for the appellant submitted that Counsel for the respondents argued that Section 7 of the Land Acquisition Act is inconsistent with Article 26(2) of the Constitution and recognized that government has an obligation to pay compensation for land compulsorily acquired prior to taking possession, That Section 7 of IO l5 20 25 30 35 l8 ) the Land Acquisition Act was saved by Article 274 and construed to bring it into conformity with Article 26(2) Constitution. should be (b) of the l0 l5 25 30 Counsel for the appellant reiterated that the appellant seeks Court to find that there are exceptional circumstances where Section 7 of the Land Acquisition Act may not be construed strictly in conformity with Article 26. Counsel contended that although the right to fair compensation must always be upheld, it is the timing for payment against the taking of possession that this Couft must look into especially in situations of natural disasters and other emergencies. On the issue of costs, Counsel cited the case of AG Vs David Tinyefuza Supreme Couft Const. App No.1 of 1997 and prayed that this being a matter of public interes! each party bears its own costs. Consideration of arguments Counsel for the appellant submitted that Article 26 of the Constitution is derogable in exceptional circumstances of natural disasters or emergencies and in the interests of public good. That it is impracticable to compensate property owners prior to addressing the urgent needs of the communities in emergency situations. Article 26 of the Constitution requires prior payment of compensation for the deprivation of property by the Government. Article 43 of the Constitution limits the enjoyment of fundamental rights and freedoms where it is demonstrably justifiable and is provided for by the Constitution. l9 20 j Article 43 (2) (c) of the Constitution states that public interest shall not permit "any limitation of enjoyment of rights and freedoms prescribed by this Chapter beyond what is acceptable and demonstrably justifiable in a free and democratic society or what is provided in this Constitution". The provisions are very clear and I cannot appreciate the arguments by appellant's counsel that when one reads Articles 26 and 43 together taking one's land prior to compensation becomes constitutional. This in my view would be contrary to the rules of statutory and constitutional interpretation. Where a provision of the law is clear it must be interpreted as it is. The authorily of Paul K. Semwogerere and 2 others Vs Attorney General (Supra) does not permit interpretation which result into constitutional amendment. It is evident from Article 44 that Article 26 is not included among the non- derogable rights. That notwithstanding, it does not give powers to Government to compulsorily acquire people's property, without prior prompt payment of fair and adequate compensation prior to the taking of possession of the property.ln the instant appealwe are dealing with a project that had been planned for by the Government of Uganda before it was carried out. In my view appellant's counsel is requesting Court to determine academic issues which are not before Court. The Constitutional Court was not dealing with emergency situations and disasters. In the premise, I am not persuaded by the arguments of the appellant that the learned Justices erred when they considered Article 26 in isolation from Article 43. l0 l5 20 25 30 35 20 " Grounds 4 and 5 should fail. In the result I would dismiss this appeal. I would uphold the judgment of the Constitutional Court and the orders made therein. l0 I would order that each party bears its own costs in this Court and the Court below. rft aav or.L). 15 Dated at Kampala this.... 2015 C.N.B. KITI'MBA, AG.JUSTICE OF THE SI'PREME COI'RT 2t I THE REPUBLIC OF UGANDA IN THE SUPREME COURT OT UGANDA AT KAMPALA (CORAM: KATUREEBE CJ, TUMWESIGYE, ARACH-AMOKO, JJ.SC, ODOKI, TSEKOOKO, OKELLO AND KITUMBA, AG, JJ.SC) CIVIL APPEAL NO: 02 OF 2Ot4 BETWEEN UGANDA NATlONAL ROADS AUTHORITY APPELLANT AND ,IRUMBAASUMANI . PETER MAGELAH RESPONDENT [Appeal from judgment and orders of the Constitutional Court (Kasule, Mwangusya, Mwotrdho, Kakuru and Kiryabwire IIA) in Constitutional Petition No. 40 of 2072 delivered ot Kamoala on 9ta November,2073l IUDGMENT OF TUMWESIGYE, JSC I have had the benefit of reading in draft the judgment prepared by my learned sister, Hon. Justice Kitumba, Ag. lSC. I agree with it and the orders she has proposed. Dated at Kampala this .....L t .hu. . ..rort 1 2 "1 d f Jotham mwe OC-4-c IUSTICE OF THE SUPREME COURT REPUI}LIC OI] UGANDA IN'I'HE SUPREME COURTOF UGANDA AT KAMI'ALA (CORAM: KATUR-EEBE CJ, TUMWESIGYE, ARACH-AMOKO, JJSC, ODOKI TSEKOOKO, OKELLO AND KITUMBA, AG.JJSC) CML APPEAL NO: 02 OF 2014 BETWEEN UGANDA NATIONAL ROADS AUTHORITY: : : : : : : : : : : : : : : : : : : : :APPELLANT AND l.IRUMBA ASUMANI 2. PETER MAGELAH::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENTS [Appeal from jadgmenl and orders of lhe Constitrttional Courl (Kasule, Mwangttsya, Mwondha, Kakuru and Kiryabwire .IJA in Conslilulional Pelition No.40 of 2012 deliveretl al Kampala on lt' November, 2013J JUDGMENT OF ARACH-AMOKO. JSC I have had the advantage of reading in dra-ft the judgment prepared by my learned sister, Kitumba Ag.JSC. I agree with her that this appea-l ought to be dismissed. I also agree with the orders she has proposed. Dated at Kampala this +'- day of October, 2015 ARACH-AMOKO, JSC 7 I THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPALA (CORAM: KATUREEBE CJ, TUMWESIGYE, ARACH-AMOKO JJ. SC; ODOKI, TSEKOOKO, OKELLO, AND KITUMBA AGJJ.SC) CONSTITUTIONAL APPEAL NO 02 OF 2014 BETWEEN UGANDA NATIONAL ROADS AUTHORITY APPELLANT AND 1. IRUMBA ASUMAN RESPONDENTS 2. PETER MAGELAH JUDGMENT OF DR ODOKI AG JSC I have had the advantage of reading in draft the judgment prepared by my learned sister, Kitumba, Ag JSC, and I agree with it, and the orders she has proposed. ...2t..... a,v or o 2015 Dated at Kampala this .r(4, Dr B J Odoki AG JUSTICE OF THE SUPREME COURT ) IAppeal from iudgment and orders of the Constitutional Court at Kampala (Kasule, Mwangusha, Mwondha, Kakuru, and Kiryabwire, JJ.A) in Constitutional Petition No 40 of 2012 dated lth November 20131 5 {Coram. Katureebe CJ., Turnvesigte & Arach-Amolo, JJSC.; Dr. Odoki, Tselaoko, Okello & Kinmba, Ag. JJSC.) ConsnunonalAppal IVo. 02of fl14. l0 15 UGAI{DA NAIIONAL ROADS AUTHORITY (TINRA). APPELI.ANT. RRSPONDENIS- turl 1. IRUMBA ASUMANI 2. PETIR MAGELI.AH 20 25 JUDGME{T OF J.WN. TSEKOOKO, AG. JSC.I I have had the benefit of reading in draft the judgment prepared by my leamed sister, the Hon. Lady Justice C.N.B. Kitumb4 Ag. JSC., and I agree with her conclusions thatthis constihrtional appeal should be dismissed. 30 I also agree that each party should bear their own costs here and in tlre Constitutional Court. Delivered at Kampalathis -€auyot Oc-l--be-r 2015. 35 ko ce of the Supreme Court. Ps.lofl I THE REPUBUC OF UGANDA IN THE SUPREME COURT OF UGANDA AT IGI}IPALA Mltru1 {Aweai firtn drc decision ol'tln ConstinLtional Court at Kanlxzla (Kasule, Mwlguslzt, Mwondlta KakLtu & Kirybwirc ,IttA. / CC) dated 08 Noventlxr, 201,? h Constitutiottal Pctition No. 40 of 201 3.) I THE REPUBLIC OF UGANDA IN TH E SUPRE ME COURT OF UGANDA AT KAMPALA (CORAM: Katureebe CJ; Tumwesigye & Arach-Amoko JJSC; Dr. Odoki, Tsekooko, Okello & Kitumba, Ag. JJSC) CONSTITUTIONAL APPEAL NO. 02 OF 2OL4 BETWEEN ucAN DA NATTONAL ROADS AUTHORTTY(U N RA)..........APPELLANT AND 1)TRUMBAASUMAN i 2) PETER MAGELLAH RESPONDENTS JU DGMENT OF G.M. OKELLO, AG. JSC I have had the opportunity to read in draft the judgment prepared by my learned sister Lady Justice C.N.B. Kitumba, Ag. JSC, and I agree with her that this appeal must, for the reasons she has given, be dismissed. I also concur with the Order of costs she proposed. 'j\^ Dated at Kampala nis....2.-a1.....day of c) 2015 G.M. OKELLO AG. JUSTICE OF THE SUPREME COURT L 1 l{l,ll'U l}l,lC Olr tJ(lAN l)i\ lN'l'llE SUI'l{l,lMll COtllt'l' OF Il(;ANl)A A'l' KAMl'>AL;\ (CORAM: KATUREEBU CJ, TUMWESIGYE, ARACH-AMOKO, JJSC, ODOKI TSEKOOKO, OKELLO AND KITUMBA, AC.JJSC) CIVIL APPEAL NO: 02 OF 2014 BIIl'WEIiN UGANDA NATIONAL ROADS AUTIIORITY: : : : : : : : : : : : : : : : : : : : :APPELLANT AND I. IRT]MBA ASUMANI 2. PETER MAGELAH: : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : :trLESPONDENTS [Appeal from judgmenl and orders of lhe Constilutional Court (Kasule, Mwangusya, Mwondha, Kakuru and Kiryabwire JJA in Constilutional Pelilion No.40 of 2012 delivered at Kampala on dh November, 201jJ JUDGMENT OF KATUREEI]E, CJ I have had the benefit of reading in draft the judgment of my learned sister, Kitumba Ag.JSC. I concur with her judgment and the orders proposed therein. As the other members of the Court also agree, this appeal is dismissed with costs here and in the Courts below. Dated at Kampala this 2q day ofOctober,20l5 B.M. Katureehe CHIEF JUSTICII 1 I