CONSTITUTIONAL INTERPRETATION OR RIGHTS ENFORCEMENT? A CLOSER LOOK AT THE LEGAL BRAIN TRUST V. ATTORNEY GENERAL, 2021 RULING

Kityo Martin* 

Abstract

This case commentary examines the Legal Brain Trust (LBT) Ltd v. Attorney General, 2021 ruling, focusing on the jurisdictional issues concerning constitutional interpretation and human rights enforcement. The central question addressed is whether every alleged violation of constitutional rights requires the Constitutional Court's interpretation, or if such matters can be adjudicated by other competent courts such as the High Court or Magistrate Courts. The author argues that the High Court erroneously dismissed the case as one requiring constitutional interpretation, overlooking its primary focus on human rights enforcement. Through a detailed analysis of constitutional provisions and relevant case law, the commentary highlights the need for a clear distinction between public interest litigation aimed at constitutional interpretation and that intended for human rights enforcement. The commentary concludes with the importance of recognising this differentiation to ensure proper case allocation, uphold justice, and maintain the integrity of Uganda's legal system thereby calling for a more streamlined approach to prevent future misinterpretations and better support the enforcement of human rights.

1.0         INTRODUCTION

Upon reading the Legal Brain Trust (LBT) Ltd v Attorney General,[1] ruling, a pertinent question arises: Does every matter in which a party alleges a violation of rights in the Constitution[2] necessitate the Constitutional Court’s interpretation? The lines can often be blurred in cases involving human rights enforcement or constitutional interpretation, as both inherently require determining or interpreting whether provisions of the Constitution were violated. This case primarily involved the enforcement of specific human rights rather than requiring constitutional interpretation. This misinterpretation undermines the distinction between public interest litigation[3] which seeks constitutional interpretation and that meant for rights enforcement.

Structured into four parts: Part 1 of this comment introduces the central question of whether every alleged violation of constitutional rights necessitates interpretation by the Constitutional Court, and further presents then position that the High Court was incorrect in dismissing the Legal Brains Trust application as one meant to be heard by the Constitutional Court; Part 2 provides the background of the Legal Brains Trust application, detailing the brief facts, major issue, and its ruling; Part 3 critically analyses[4] the High Court's reasoning and interpretation of the Judicature (Fundamental & Other human Rights and Freedoms) (Enforcement Procedure) Rules[5] in light of the Constitution and relevant case law; and Finally, part 4 concludes by summarising the main arguments and the broader implications of the ruling for human rights enforcement and public interest litigation.

2.0         BACKGROUND OF THE CASE

In Legal Brain Trust (LBT) Ltd v. Attorney General,[6] the applicant filed a complaint against the Government of Uganda contesting the government's decision to award an exclusive contract for transporting petroleum products by barges over Lake Victoria to and from Uganda, to Mahathi Infra Services Private Limited. The major point of contention was whether the applicant’s matter was competently laid before the High Court in light of the Judicature (Enforcement Procedure) Rules. Represented by the Attorney General, the Government contended that the suit was a public interest suit and as per Rule 7(2) of the Judicature (Enforcement Procedure) Rules, the matter had to be filed in the Constitutional Court rather than, and not, in the High Court. Therefore, on that basis, the case was dismissed because it was framed as a public interest matter claiming a violation of human rights, which should have been filed in the Constitutional Court.

3.0         JURISDICTIONAL ANALYSIS

It is trite law that jurisdiction is a creature of law.[7] This implies that no court can confer on itself jurisdiction unless it is explicitly provided for in the law.[8] Before filing a suit, parties must ensure that the court in which they are filing the matter, has the requisite jurisdiction and that such parties have the standing to file the suit.

3.1         CONSTITUTIONAL PROVISIONS ON JURISDICTION

Since the Constitutional Court and High Court’s jurisdiction are the centre of discussion in this comment, it is necessary to restate the Constitutional provisions that grant these Courts the power to adjudicate over matters before them.

3.1.1    ARTICLE 137: INTERPRETATION OF THE CONSTITUTION

Article 137 of the Constitution provides that any question as to the interpretation of the Constitution shall be determined by the Constitutional Court. Specifically, Article 137(1) states that the Constitutional Court has the authority to interpret any constitutional questions that arise. Furthermore, Article 137(2) mandates that when a question arises in any proceedings in a court of law other than the Constitutional Court, as to the interpretation of the Constitution, the court may, if it considers that the question involves a substantial question of law, and shall if any party to the proceedings requests it, refer the question to the Constitutional Court.

3.1.2    ARTICLE 50: ENFORCEMENT OF RIGHTS

Article 50 of the Constitution provides for the enforcement of rights. It states that any person who claims that a fundamental right or freedom guaranteed under the Constitution has been infringed, or is threatened, is entitled to apply to a competent court for redress, which may include compensation. [M1] 

4.0 COURT’S INTERPRETATION OF RULE 7(2) OF THE JUDICATURE (ENFORCEMENT PROCEDURE RULES)

In the Legal Brains Trust ruling, Ssekaana, J noted that “Rule 7 (2) of the Judicature (Fundamental & Other Human Rights and Freedoms) (Enforcement Procedure) Rules, 2019 provides that a public interest action under Rule 5(1)(d) shall be filed in the Constitutional Court under Article 137 of the Constitution.”

He further stated, “From the applicant’s pleadings, it is very clear that the applicant seeks to enforce public interest actions on behalf of the people of Uganda. This court does not, therefore, have jurisdiction to handle it, and the right forum under Rule 7 (2) for the orders and reliefs sought is the Constitutional Court as stated above.”

However, before reaching this conclusion, it is crucial to examine Rule 7 in conjunction with Rule 5. Rule 7(2) references Rule 5(1)(d), stating that all public interest actions falling under Rule 5(1)(d) should be filed in the Constitutional Court. To determine whether the applicant’s matter fits the category of public interest actions under Rule 5(1)(d), it is necessary to consider its scope. Rule 5(1)(d) states that actions in public interest may be instituted under these rules. Rule 5(2) further expands on this scope by outlining various categories of public interest matters: those involving the infringement or threatened infringement of fundamental or other human rights guaranteed under Chapter Four of the Constitution; matters of public importance promoting human rights, democracy, rule of law, and good governance; and public interest actions requiring constitutional interpretation under Article 137 of the Constitution.[9]

This means that public interest matters can fall into multiple categories, including those outside the realm of constitutional interpretation. However, the High Court's broad categorisation in the Legal Brains Trust ruling that all public interest matters require constitutional interpretation and thus must be filed in the Constitutional Court overlooks this detail.[10]

Rule 7(2) of the Judicature (Enforcement Procedure) Rules must be read in conjunction with Rule 5, which allows for public interest actions to be filed in competent courts depending on the nature of the case. The applicant’s case primarily concerned the enforcement of human rights rather than constitutional interpretation. The applicant was not seeking an abstract interpretation of the Constitution but rather the enforcement of specific rights that they claimed were being infringed by the Respondent's actions.[11] The focus was on holding the government accountable for actions that allegedly violated established rights and principles, including the right to equality, freedom to practice any profession of choice and the right to good governance.

In Satya v. Attorney General,[12] the Constitutional Court noted that not every violation of a right provided for in the Constitution requires constitutional interpretation. Additionally, in the case of Nakacwa v. Attorney General,[13] the Constitutional Court further earlier clarified that it does not always require constitutional interpretation to determine whether a person's constitutional rights have been violated.[14] Similarly, Mulenga, JSC (as he then was) in Serugo v Kampala City Council & Anor[15] noted that:

“It follows that a person who seeks to enforce a right or freedom guaranteed under the Constitution, by claiming redress for its infringement or threatened infringement, but whose claim does not call for an interpretation of the Constitution, has to apply to any other competent Court.”[16]

From the above jurisprudence, it can be discerned that certain rights violations can be straightforwardly addressed through factual determination and judicial inference without invoking the need for constitutional interpretation. One might argue that the High Court's decision to dismiss the case was correct because the matter involved a public interest issue that inherently required constitutional interpretation, which is within the exclusive jurisdiction of the Constitutional Court as per Article 137 of the Constitution.

While it is true that the Constitutional Court has exclusive jurisdiction over constitutional interpretation, not all public interest matters necessarily require such interpretation. Rule 7 of the Judicature (Enforcement Procedure) Rules, which the court invoked to refer the Legal Brains Trust application as a public interest case intended for filing in the Constitutional Court, is broad. It does not mandate that all public interest cases be filed in the Constitutional Court, but only those necessitating constitutional interpretation.

Even if the matter was to be filed before the Constitutional Court, it lacked the elements to competently be instituted before it under Article 137. The Constitutional Court in Satya v. Attorney General[17] [M2] stated that:

“To move this Court under Article 137 supra, the petitioner must allege that the matters put before the Constitutional Court require interpretation of the Constitution and must specify the articles of the Constitution violated or threatened to be violated…”

A party seeking constitutional interpretation by the Constitutional Court must allege that they seek constitutional interpretation and specify the provisions of the Constitution that are allegedly violated which the applicant did not seek in its application. Though it can still be argued that the learned judge may have considered Rule 5(2)(c) of the Judicature (Enforcement Procedure) Rules and determined that the applicant’s matter was a public interest matter which required constitutional interpretation, the omission to explicitly mention or explain this categorisation weakens the argument.

4.1         THE REQUIREMENT TO DISCLOSE AN ALLEGED VIOLATION OF RIGHTS

According to Centre for Law and Peace Uganda and Peace Uganda and 3 Ors v. Bank of Uganda and Anor,[18] Justice Stephen Mubiru held that for public interest matters brought under Article 50, claiming human rights violations and seeking enforcement, a party must demonstrate how their rights, or those of the public, have been violated or are under threat of violation. This further aligns with Rule 8 of the Judicature (Enforcement Procedure) Rules which provides that any action sustained under the rules must specify how the rights in issue were violated, the specific Constitutional provisions violated and the category of affected persons.

In the Legal Brains Trust ruling, the judge noted that the applicant’s affidavit did not show how the alleged provisions, Articles 21(1), 28(1), 38, 40(2), 43, 44(c) and 45 of the Constitution were violated.[19]  On that basis, the judge ruled that the suit was not for enforcement of rights but instead, a public interest litigation or a judicial review matter challenging the actions and decision of the government.[20] To depart from the judge's conclusion, the failure of the applicant to show how the alleged constitutional provisions were violated did not automatically necessitate that the suit be filed for constitutional interpretation under Article 137 by the Constitutional Court.  Instead, the High Court could have sought further clarification or evidence to illustrate the alleged violations within its jurisdiction under Article 50 of the Constitution.

5.0         CONCLUSION

The High Court was not entirely wrong in its ruling as public interest matters can be heard by the Constitutional Court. However, the High Court missed an opportunity to distinguish between public interest matters that may require constitutional interpretation and thus be filed in the Constitutional Court from those claiming rights violations and requiring human rights enforcement which may be filed in other competent courts such as the High Court or Magistrate Courts.

Recognising the specific elements that differentiate matters for constitutional interpretation from human rights enforcement matters is essential for ensuring that cases are appropriately directed to the competent courts, thereby safeguarding the avenues for justice and upholding the integrity of the Ugandan legal system. Moving forward, a more streamlined approach is necessary to prevent similar misinterpretations and to better serve the cause of human rights enforcement and constitutional interpretation.

Bibliography

Legislation

Constitution of the Republic of Uganda, 1995 (as amended)

Judicature (Fundamental and Other Human Rights and Freedoms) (Enforcement Procedure) Rules, Statutory Instrument 31 of 2019 (‘Judicature Enforcement Procedure Rules’).

Case Law

Baku Raphael Obudra and Ors v Attorney General, Constitutional Appeal No. 1 of 2005 [2006] UGSC 5 (15 March 2006)

Centre for Law and Peace Uganda and Peace Uganda and 3 Others v Bank of Uganda and another (Civil Suit 370 of 2017) [2022] UGCommC 157 (16 May 2022).

Friends in Need SACCO Limited v Lulume Nambi Norah (Civil Appeal No 89 of 2019) 2021 UGHCCD 20 (28 January 2021).

Legal Brain Trust (LBT) Ltd v Attorney General Miscellaneous Cause No. 314 of 2021

National Medical Stores v Penjuines Ltd (HCT-00-CC-CA 29 of 2010) [2012] UGCommC 39 (3 May 2012).

Serugo v Kampala City Council & Another [1999] UGSC 23 (11 June 1999).

Satya v. Attorney General (Constitutional Petition No. 36 of 2012) [2016] UGCC 5 (9 February 2016)

Others

Black's Law Dictionary (9th edn, Thomson Reuters 2009).

Karugaba P, ‘Public Interest Litigation in Uganda: Practice & Procedure’ (Paper presented at the Judicial Symposium on Environmental Law for the Judges of the Supreme Court and Court of Appeal, Imperial Botanical Beach Hotel, Entebbe, 11-13 September 2005) https://greenwatch.or.ug/sites/default/files/documents-uploads/SHIPWRECKS_AND_SEAMARKS.pdf (accessed on 30/07/2024).

*           Law graduate from the Islamic University in Uganda (IUIU) with an honors degree in Bachelor of Laws (LLB). Currently volunteering as a Legal Compliance and Content Manager at Justice Chatbot Limited. Kityo specialises in monitoring organisational compliance with laws and regulations, legal research, and data protection. For any queries, kindly reach out to the author via kityomartins@gmail.com.

[1]              Miscellaneous Cause No. 314 of 2021 (‘Legal Brains Trust’).

[2]              Constitution of the Republic of Uganda, 1995 (as amended) (‘Constitution’).

[3]           Black's Law Dictionary (9th edn, Thomson Reuters 2009) at page 1350. Public interest is defined as the general welfare of the public that warrants recognition and protection or something in which the public as a whole has a stake especially an interest that justifies governmental regulation; Legal Brains Trust at pages 4, 7.

[4]              Legal Brains Trust at pages 4, 7.

[5]              Statutory Instrument 31 of 2019 (‘Judicature (Enforcement Procedure) Rules’).

[6]               Miscellaneous Cause No. 314 of 2021 (‘Legal Brains Trust’).

[7]           Baku Raphael Obudra and Ors v Attorney General, Constitutional Appeal No. 1 of 2005 [2006] UGSC           5 (15 March 2006); National Medical Stores v Penjuines Ltd (HCT-00-CC-CA 29 of 2010) [2012] UGCommC 39 (3 May 2012).

[8]           Friends in Need SACCO Limited v Lulume Nambi Norah (Civil Appeal No 89 of 2019) 2021 UGHCCD          20 (28 January 2021).

[9]              Judicature (Enforcement Procedure) Rules, Rule 5(2)(c).

[10]             Legal Brains Trust ruling at page 8.

[11]              See Legal Brains Trust ruling at pages 1-4 for the applicant’s prayers and reliefs sought.

[12]             (Constitutional Petition No. 36 of 2012) [2016] UGCC 5 (9 February 2016) (‘Satya’).

[13]             Constitutional Petition No. 2 of 2001.

[14]         The Constitutional Court used an example to further explain this statement by noting that ‘if it is established that the person was arrested without cause and detained for more than 24 hours without being taken to court. It is a matter of drawing an inference which can be done by any competent court. In that case, an application for redress would be better entertained under article 50 of the Constitution.’

[15]             [1999] UGSC 23 (11 June 1999).

[16]         See also Karugaba P, 'Public Interest Litigation in Uganda: Practice & Procedure' (Paper presented at               the Judicial Symposium on Environmental Law for the Judges of the Supreme Court and Court of Appeal, Imperial Botanical Beach Hotel, Entebbe, 11-13 September 2005) at page 15. Retrieved from  <https://greenwatch.or.ug/sites/default/> (‘Karugaba’) (accessed 9 July 2024).

[17]             [2016] UGCC 5.

[18]             [2022] UGCommC 157

[19]             Legal Brains Trust ruling at page 5.

[20]             Legal Brains Trust ruling at page 5.

 [M1]Is it the submission of the one commenting, that the High Court is the competent court for redress?

 [M2]Provide page number is possible