CIVILLITIGATION
WORKSHOP2
FIRMA3
BRIEFFACTS.
A.
Mr. Stuart Kintu andhismother Nansikombi Jessica are businesspeople whooperate a large scale retail business.
On the 8/7/2020 at around 10:00pm while Mr. Stuart Kintu set off from work to his parents’ house driving his
mother's motor vehicle a Rav 4 registration number UAN638Qhe noticeda biggroupof people standingin front of
the road dressed in dark clothes and a black vehicle parked across the railways crossing blocking the road .
Sensing danger, he reversed and continued driving on the alternative road. The men also started a Chase in him
usingthe same black car. He later hearda bullet shot that hit the left rear tyre of hismotor vehicle sufferingfrom
a flat tyre till he enteredthe gate of his parent's house. The men followers himandcauseda stampede at the gate
attempting to break into the gate. He was later arrested by the men who his mother later identified as police
officers andthe black vehicle identifiedwith registration number UP1594. They searchedStuart's pockets, retrieved
the ignition keys and arrested him. He was in detention for 3 days without any charges preferred on himtill date.
The Rav 4 vehicle was impounded and remained impounded at the police station and all efforts to retrieve it by
Nansikombi were futile.
ISSUESARISING.
1. What isthe propriety of the police actionsin the circumstances?
2. What remediesare available tothe partiesaffected?
LAWAPPLICABLE.
1. The Constitution of Uganda 1995asamended.
2. The Police Act of Uganda Cap303.
3. The Human Rights(Enforcement) Act 2019.
4. The Judicature (Fundamental andother Human RightsandFreedoms)( Enforcement procedure) RulesSI 31/2019.
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5. The Criminal Procedure Code Act.
RESOLUTIONOFISSUES.
ISSUE1.
In respect of Mr. Kintu Stuart.
Article 20 of the Constitution emphasizes that fundamental rights and Freedoms of individuals are inherent and not granted
by the state. Clause 2 of the same emphasizes that such rights and Freedoms of the individual and groups enshrined in the
Constitution shall be respected, upheldandpromotedby all organsandagenciesof government andby all persons.
Article 50 of the Constitution also confers power to any person who claims that a fundamental or other right or freedom
guaranteed under the Constitution has been infringed or threatened to apply to a competent court for redress which may
include compensation.
According to section 2 of the Human Rights Enforcement Act 2019, a competent court means the High court or a magistrate
court.
Section 6(1) of the same Act, a suit for the enforcement or protection of human rights and Freedoms shall , where possible
be institutedin a court in whose jurisdiction the allegedviolation took place .
Section 4 of the Police Act indicatesthat one of the functionsof the police force establishedunder section 2of the Act isto
protect life, property and other rights of the individual. Police officers under section 1of the Act are defined those that
attest to police force. This is construed to mean that police officers formthe police force and as such a part of those that
execute the functionsof the police force.
In the same ambit, section 21(1) of the Police Act confers a duty to a police officer to apprehend all persons who he or she
legally isauthorizedtoapprehendandfor whose apprehension sufficient groundsexists.
Article 23of the Constitution istothe effect that noperson shall be deprivedof personal liberty except in the circumstances
provided there under. It goes on to provide that a person arrested, restricted or detained shall be informed immediately in a
language that the person understands of the reason for the arrest, restrictions or detention and his or her right to a lawyer
of his or her choice. Fromthe facts above, Mr. Kintu Stuart was arrested by police without just cause as no information as
to the reason for his arrest was given to himtill this date. Therefore fromthe facts the police officers in failed to execute
their duty conferred to police as explained above and infringed on Mr. Kintu’s right to personal liberty as the police officers
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in their arrest didn't conformtothe same.
Also, Article 23 of the Constitution makes it mandatory for a person arrested if not earlier released, be brought to court as
soon as possible but in any case not later than forty-eight hours fromthe time of his or her arrest. However fromthe facts,
Mr. Kintu was kept in police custody for three days without beingreleased and neither beingproduced in court. This further
infringedhisright topersonal liberty asconferredby the Constitution.
Also, Article 24 of the Constitution emphasizes that noperson shall be subjected toany formof torture or cruel inhuman or
degrading treatment or punishment. Fromthe facts, Mr. Kintu was arrested by police and detained in a cell for three days,
for no just cause as the police didn't informhimof the reason for his arrest and also pressed no charges against him. This
wastreatment inhuman ashe underwent punishment without himcommittingany offence.
In regardstoNansikombi.
Article 26 of the Constitution is to the effect that every person has a right to own property either individually or in
association with others, andnoperson shall be compulsory deprivedof hisor her property of any description. Fromthe facts,
the police impounded the Rav 4 which belonged to Nansikombi with no just cause as they didn't mention the reasons for its
impoundment. There was no suspicion that the vehicle was used in any illegal activities. The OC of Lugazi station even
adamantly refusedtohandover the car back toits owner even after all efforts made by Nansikombi. He mentionedthat the
car could not be released due to ongoing investigations and yet at the time of impoundment of the vehicle, no mention of
any suspicion wasmade by the police in reference tothe car.
Task 2
Issue 2: what remediesare available toStuart Kintu andNansikombi Jesca in the circumstances?
Stuart Kintu
The best remedy for himistoseek redressfromcourt against the A
ttorney General for the violation of his right to
protection of personal liberty.
Article 50 (1) and Article 126 (2) (c) of the Constitution of the Republic of Uganda, 1995guarantee redress which may include
adequate compensation for any person or groupwhose human rightsare foundtohave been infringedor threatened.
Declaration that the police violatedStuart’sright toprotection of personal liberty
Article 23 (1) (c) of the Constitution of the Republic of Uganda, 1995, provides that no person shall be deprive of personal
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liberty except for the purpose of bringingthat person before a court in execution of the order of a court or upon reasonable
suspicion that the person hascommittedor isabout tocommit a criminal offence under the lawsof Uganda.
In the instant facts, it’s shown that the police chased Stuart up to his parent’s place and at that particular time in point
demanded for his arrest, which they did without informinghimof the reason for his arrest. He was then taken tothe police
cells where he spent three (3) days and three (3) nights. Thus exceeded the 48 hours allowed for are person to be in the
police custody, which in turn violatedhisconstitutional right toprotection fromdeprivation of liberty.
General damages
In Kifampa Siraje &Anor v Attorney General HCMCNO. 154/ 2017, Ssekaana Musa. J statedthat the value that court attaches
to the different rights will guide the amount of damages…. Therefore, damages ought to be awarded according to the
severity of the violation as well as the losses suffered will capably promote the recognition of human rights. In awarding
damages in human rights cases the court shouldadopt a vindicatory approach, modeledon those rules andprinciples applied
in tort caseswhen the basic rightsare violated.
In the instant facts, Stuart can claimgeneral damages for the inconvenience causedwhen he was unlawfully arrestedby the
police.
Punitive damages
These are deterringthe continuation of the violation.
In the instant facts, the police’s actions of chasing, shooting, attemptingto break the mother’s gate and the unlawful arrest
of Stuart can be regardedasactionsfor which court can awardpunitive damages.
Nansikombi Jesca
Article 42 of the Constitution of the Republic of Uganda, any person appearingbefore any administrative official or body has
a right to be treated justly and fairly and that person has the right to apply to a court of law in resperct of any
administrative decision taken against himor her.
Jesca applied for unconditional release of her vehicle by the OCPolice – Lugazi tonoavail. She may nowapply tocourt for
redressandseek the followingremedies
1. Prerogative order of mandamus
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Under section 33 of the Judicature Act, the High Court is clothed with unlimited jurisdiction togrant any remedies toensure
the end of justice is met. In this case Jesca may apply tothe High Court for an order of mandamus under section 36 of the
Judicature Act, whereby the police authority may be orderedtorelease the saidvehicle toher.
2. Damages
Jessica may claimboth general and exemplary damages. In James Fredrick Nsubuga V Attorney General HCCS No. 13/1993,
court held that the award of general damages is in the discretion of court and will be presumed to be the natural and
probable consequencesof the defendant’sact or omission.
3. Injunction
Under Section 38of the Judicature Act, Jseca may apply for permanent injunction against the Attorney General, his agent or
any person action on hisbehalf, restrainingsuch person fromany further detention of her car.
Task 3
What are the procedures, forumanddocumentsnecessary in effectingthe suggestedremedies?
Article 20of the 1995constitution of the Republic of Uganda provides for protection andprotection of fundamental andother
human rightsandfreedoms
Article 20(2) states that the rights and freedoms of individuals and groups enshrined in this chapter shall be respected,
upheldandpromotedby all organsandagenciesof the Government.
Article 24 states that no person shall be subjected to any form of torture or cruel, inhuman or degrading treatment or
punishment.
Article 28providesfor the right toa fair, speedy andpublic hearing.
Article 50of the 1995constitution of Uganda asamendedprovidesfor enforcement of rightsandfreedomsby courts.
Article 50 (1) states that any person 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
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compensation.
PROCEDURE
 Sue for enforcement of human rightsandfreedomsby the police officers
Thiscan be done by fillingan application tocourt under section 3(1) of the Human Rights(Enforcement) Act 2019.
The Application shall be by Notice of motion supportedby an affidavit.
Under Rule 7 (1) of the Judicature (Fundamental and other Human Rights and Freedoms enforcement procedure) Rules SI No.
312019, Every application under these Rules shall unless specifically provided for to the contrary, be made by motion on
notice supportedby an affidavit asprescribedin the schedule tothese Rules.
 Pay the prescribedfees
 Service of the Application.
Under section 17 of the Human Rights (Enforcement) Act and Rule 9of the Judicature (Fundamental and other Human Rights
and freedoms enforcement Procedure) Rules S.I No. 31are to the effect that where the rules do not sufficiently provide for
any service of process procedure or other related matter in an action brought under the rules, the Civil Procedure Act and
Rulesshall apply with necessary modifications. There for the mode of service will be asprovidedfor in order 5of the CPR.
 Hearingof the suit
Forum
Chief magistrates court of Lugazi. Section 5 of the human Rights (enforcement) Act 2019 provides that a magistrate court
shall hear and determine applications relating to enforcement or violation of human Rights and freedoms granted in chapter
4 of the constitution in any of the circumstancesreferredtoin subsection (1) of section 4
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Documents
 Notice of motion
 Affidavit in support
 Summary of Evidence
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Task 4
THEREPUBLICOFUGANDA
INTHEHIGHCOURTOFUGANDAATMUKONO
MISCELLANEOUSCAUSENO0045OF2020
STUARTKINTU
APPLICANT
VERSUS
ATTORNEYGENERAL
RESPONDENT
NOTICEOFMOTION
(Pursuant toArticle.50of the Constitution of the Republic of Uganda asamended, S.3(1), S.4 (1) (a), S.4 (2), S.9(1), S.9(2) (b), (c)
(ii), (iii), (iv), (v) , (vi) of the Human RightsEnforcement Act, Rule 7(1) of the Judicature (Fundamental andother Human Rights
andFreedoms(Enforcement Procedure) Rules, 2019)
TAKENOTICEthat thisHonorable Court will be movedon the ……………. Day of ……………. 20……. or assoon ascounsel for
the Applicant can be heardon the Applicant’sbehalf for an order of court for the followingrelief(s):
a) Adeclaration that the Applicant’srightstoprotection of personal liberty (Article 23(3), Article 23(4) (b), Article 23
(5) (c) ), the right torespect for human dignity andprotection frominhuman treatment (Article 24, Article 44 (a))
andthe right toprivacy of person, home andother property (Article 27) of the Constitution of the Republic of
Uganda were infringedby the actionsof the police actingon behalf of the respondent.
b) Adeclaration that the conductsof the respondent’sagents(the police force) tothe applicant on the 18th July,2019
were inconsistent with the Constitution of Uganda
c) An order tostopany future disturbancesandannoyance of the Applicant by the respondent without just cause
d) Compensation
e) General damages
f) Any other relief asCourt may deemfit
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ANDTAKEFURHERNOTICEthat the groundsof thisapplication are containedin the affidavit of Mr. Stuart Kintu, the Applicant,
but briefly are that:
1.
The car the Applicant wasdrivingwasunlawfully damagedby the respondentswhen they shot at himin a bid
tostophimfromgettingaway hence damagingthe left rare tire of the vehicle.
2. The applicant wasunlawfully searchedby the respondent’sagentsat hishome, hismother’svehicle was
unlawfully impoundedandhe wasarrestedwithout just cause.
3. That upon detention, the applicant sufferedcruel andinhuman treatment in the police cellsby other inmates
4. The applicant wasunlawfully detainedfor three dayswithout any chargespreferredagainst himandreleased
without police bonduptodate.
5. That it isin the interest of justice that thissuit be heardandthe costsof the suit providedfor.
Datedat …………………………….. this…………….. day of …………………….. 20………….
APPLICANT
Given under my handandseal of thishonorable court this………..day of …………………. 20……………
REGISTRAR
Drawn andFiledby:
M/SFMandCo. Advocates
P.OBOX334 Mukono
Kampala – Jinja Highway
THEREPUBLICOFUGANDA
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INTHEHIGHCOURTOFUGANDAATMUKONO
MISCELLANEOUSCAUSENO0045OF2020
STUARTKINTU
APPLICANT
VERSUS
ATTORNEYGENERAL
RESPONDENT
AFFIDAVITINSUPPORTOFNOTICEOFMOTION
I,Stuart Kintu of M/SFMandCo. AdvocateslocatedalongKampala – Jinja Highway P.OBOX334, Mukonodomake oath and
state asfollows:
1. That I ama male adult Ugandan of soundmind, the applicant in thismatter andwell versedwith the relevant facts
andswear thisaffidavit in that capacity.
2. That on the 18th day of July, 2019at about 10:00p.m, I set off toreturn tomy parents’ home in NamengoKiteredde
cell in Lugazi fromwork
3. That I wasdrivinga car that belongedtomy mother a RAV4 Reg. No. UAN638Q(see car logbook attachedand
markedannexture “A”)
4. That upon bypassingLugazi Community School stretch, just about tocrossthe railway line; I noticeda biggroupof
people standingin front of the roadin dark clotheswith a black vehicle parkedacrossthe rail crossingpoint
blockingthe road.
5. Fearingfor my life, I reversedandtook on the alternative road. I hearda commandfromthe grouptellingme to
stopbut I didn’t heedtotheir command.
6. They startedtorace behindme in the saidmotor vehicle, they shot in my direction in a bidtostopme but the shot
damagedthe left rear tire of the motor vehicle.
7. Thisdidn’t stopme; I continuedtodrive even with the flat tire until I reachedmy parent’shome andenteredthe
gate. The groupof people came tothe gate andcauseda stampedin an attempt tobreak the gate.
8. My mother concernedwent tothe gate toconfirmwhat washappening. When she arrivedandopened, she
identifiedmen dressedin uniformthat lookedlike police attire anda police vehicle RegNo. UP1594.
9. The men didn’t introduce themselvesbut demandedtoarrest me. I wassearched, the ignition car wasremoved
frommy pocketsandI wasthrown ontothe police motor vehicle.
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10. We set off andthe man with the ignition car drove behindustoLugazi CPSwhere I wasthen put in the police cells.
11. In the police cells, I wasalmost strangledtodeath by a fellowinmate andmenaces. I developeda swollen neck but
hadtoendure the pain andtorture in the cellsfor another 2daysandnights. (see attachedphotosof neck injuries
markedannexture “B”)
12. Upon intervention by my father, the police releasedme on the thirdday without police bondandnochargeshave
been preferredtodate.
13. Upon narratingthese factstomy advocates, I wasadvisedtoseek redressfor breach of fundamental human rights
protectedunder the constitution asstatedin the application.
14. It isin the interest of justice that thisapplication be granted
15. Whatever I have statedherein istrue tothe best of my knowledge andbelief.
Sworn at ………………………… by the saidStuart Kintu this…………….day of ……
DEPONENT
BEFOREME
ADVOCATEANDCOMMISSIONERFOROATHS
Drawn andFiledby:
M/SFMandCo. Advocates
P.OBOX334 Mukono
Kampala – Jinja Highway
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Task 5
What are the ethical considerationsin the circumstances?
Unlawful arrangementswith public officerscontrary toregulation 13
Coachingof witnessescontrary toregulation 18
Personal involvement in a client’scase contrary toregulation 9
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PARTB
Brief facts
B. Mr. Jingo Mukasa while carrying fresh vegetables on his truck Reg. No. UAP 611A a long Jinja-Kampala High way
was stopped by a traffic police officer at Namagunga traffic check point. Upon which his vehicle was impounded
because of having defaulted on payment of an express penalty receipt of 100,000/=which accumulated sur-charge
of UGX.500,000/=, issued against a one Suleiman Kamoga (former owner) for driving without a valid driving permit
at Mityana way back in February 2018. He was ordered to park the motor vehicle at Mbalala Police until payment
said penalty, despites his plea that he was not responsible for what happened. He was told that the law allows
police officer to recover fromany person found driving the relevant motor vehicle notwithstanding the fact that
the penalty wasn’t made against hisor her name.
Legal issues
1. Whether JingoMukasa hasany rightsandremediesin the circumstances.
2. What are the Legal procedures, Forum, documentsandconditionsjingoMukasa May take for the appropriate filing.
3. What are the principlesapplicable tosuch actions, the nature of evidence andthe powersof court in the circumstances.
Lawapplicable
1. The 1995constitution of Uganda
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2.Traffic andRoadsafety Act, 1998
3. The Traffic andRoadsafety (Expresspenalty scheme for RoadTraffic offenders) Regulation SI No. 34/2004.
4. The judicature (Constitutional Petition andReference Rules) 2005
6. Case law
Resolution of issues.
Issue one
Whether JingoMukasa hasany rightsandremediesin the circumstances.
Rights
Article 137(3) of the 1995constitution gives a right to any person in his individual capacity alleging that an Act of parliament
or any other or anythingdone under the Authority of the lawor any Act or omission by any person isinconsistent with or in
contravention of a provision of the constitution may petition the constitutional court for a declaration tothat effect, andfor
redresswhere appropriate.
In the case of Ismael Serugo Vs KCCA and Attorney General Cons Appeal No. 02/1998, Justice Mulenga stated a cause of
action arises the petitioner to petition court for constitutional interpretation, he/she must show Court the act/omission
complainedof andthe provisionsit contravenesandpray for a declaration tothat effect.
Also in Bonny Cheborion Barishaki v A.GConst.Petition No. 4/2006; Pursuant to Article 137(3) of the 1995 Constitution and
Rule 3 of the constitutional court (Petitions and References) Rules; states that the petitioner ought to allege that an Act of
parliament or any other law or anything done under the Authority of any law is inconsistent with or in contravention of a
provision of the constitution or that any Act or omission by any person or Authority is inconsistent or in contravention with
a provision of the constitution.
Therefore Jingo Mukasa has a right to petition the constitutional court claiming that the Traffic and Road safety under
section 165 and the Regulations thereof are in contravention of the constitution and the actions of the police officers are
alsoinconsistent with the constitution.
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Remedies
Jingo Mukasa has a remedy of petitioning the constitutional court for a declaration to the effect that Section 165 of the
Traffic Act isinconsistent with the constitution
Article 137(4) of the Constitution provides that where upon determination of a petition under clause (3) of the Article the
Constitutional Court considers that there is need for redress in addition to the declaration sought, The Constitutional Court
may grant an order of redressor refer the matter tothe high court toinvestigate anddetermine the appropriate redress.
In relation to the facts, Jingo Mukasa is complaining that section 165of the trafficked road safety Act and the Regulations
thereof which refers to punishment without prosecution is inconsistent and in contravention with Article 28 of the
Constitution which providesfor the Right tofair hearing.
Accordingly, the Traffic androadsafety Act beingan existinglawmust be interpretedin conformity with the constitution .
Ismail serugovsKcca &AGSCCANo. 2/1998
The constitutional court must be petitioned todetermine the meaningof any part of the constitution in addition towhatever
remedies are sought fromit in the same petition. It therefore erroneous for any petition to rely solely on the provisions of
Article 50 or any other Article of the constitution without reference to the provisions of Article 137 which is the sole Article
that breathes life in the jurisdiction of the court of Appeal as a constitutional court. Applications for redress for infringed
rights or freedoms can be made to the constitutional court only in the context of a petition under Article 137 for the
interpretation of any matter.
Task 1(b)
What are the legal procedures, forum, documentsandconditionsjingoMukasa May take for appropriate filing.
Procedure for petitionsunder Article 137(3)
Lawapplicable; The Judicature (Constitutional Petition andReference Rules) 2005
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Rule 3(1) The petition under Article 137(3) isin the formspecifiedin the schedule tothe Rules(Form1)
Rule 3(2) The petition shall allege that the Act of parliament or any other law or anything done under the authority of any
law is inconsistent with or in contravention of a provision of the constitution or that any act omission by any person or
authority isinconsistent with or in contravention of a provision of the constitution.
 Rule 3(7) the petition is accompanied by an affidavit setting out the matters and where appropriate the redress
prayedfor.
 Rule 3(8) the petition isalsoaccompaniedby a list of any documentson which the petitioner intendstorely.
 Rule 4(1) the petitioner lodgesthe petition at the registry of the court.
 Rule4(2) The petitioner shall lodge with the Registrar the petition together with 8 copies of the petition for use by
the court andfor service on the Attorney General, of the Attorney General isnot party.
 Rule 4(3) the petitioner shall at the time of presentingthe petition pay the appropriate fees and deposit 200,000 as
security for costs
 Rule 4(4) where subrule (3) isnot compliedwith, the petition shall not be receivedby the Registrar.
 Rule 5(2) upon presentation of the petition, the petitioner shall serve a copy of the petition on the Respondent.
 Further where the A.Gisnot a Respondent tothe petition. The Registrar shall serve a copy of the petition tothe A.G.
 Rule 5(3) service of a document on the Respondent shall be personal, except as provided under sub rule 4, that is
where the respondent cannot be found within 5days for effecting personal service. The petitioner or the advocate
shall immediately make an application tothe Registrar supported by an affidavit statingthat all reasonable efforts
have been made toeffect personal service on the respondent but without success
 Rule 5(5) of the Registrar on an application under Rule 5(4) is satisfied that all reasonable efforts have been made
toeffect personal service. Order v
 Rule 5(6) The Registrar shall in any case post on the courtsnotice boarda copy of the petition.
 Rule 6(1) the respondent shall within 3days after service of the petition on him/her furnish to the Registrar in
writingan addresstowhich any document may be sent relatingtothe proceedingson the petition andintendedfor
the respondent.
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 Rule 6(2) where the respondent doesn’t comply with rule 6(1) , the Registrar shall post up every such document on
the court notice boardandthe postingshall be sufficient notice of it tothe respondent.
 Rule 6(3) and(4) the respondent shall within 7daysafter service of the petition lodge with the registrar 8copiesof
an answer tothe petition.
 The answer to the petition shall be accompanied by an affidavit statingthe facts upon which the respondent relies
in support of hisor her answer (Rule 6(5) )
 The respondent shall immediately serve a copy of the answer tothe petitioner/ advocate rule 6(6)
 Where the respondent requires further particulars of the petition he or she shall apply for the particulars together
with the answer. The petitioner shall supply any such particulars requested within 14 days after service on the
petitioner of a request for the particularsby the respondentsAsper ( Rule 6(7)(8).
 Rule 8(2) the court shall set a date to hold a scheduling conference to sort out the points of agreement and
disagreementswhere the petition andthe answer tothe petition have been duly served.
 Rule 8(3) After the schedulingconference court shall set a date for trial of the petition which shall be within 7days
after the date of the scheduling conference shall be given as soon as possible by the Registrar by posting up a
notice on the court notice board and by serving a copy of the notice on each party to the proceedings and on the
A.G
Constitutional References
Article 137(5)
Re sheikh Abdul sentamu vsANOR
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It’s is the duty of the trial court to refer a question on the request of a party to the constitutional court where there is a
question of interpretation of the constitution arisingout of the proceedingsin a court below.
Procedure for constitutional References
The aggrievedparty makesan application tothe trial court or the court on itsown motion.
Beloware the relevant rulesfor constitutional reference asper the judicature ( constitutional petitionsandreferencesRules)
2005
Rule 18(1), Rule 18(2) , Rule 19(1), Rule 21(1) , Rule 21(2) ,Rule 21(3) , Rule 22
Forum
Constitutional court
Documents
Constitutional petition
Affidavit in support of the petition
Answer tothe petition
Affidavit in support.
Task 1©
What are the principlesapplicable tosuch actions, the nature of evidence andthe powersof court in the circumstances.
The principles applicable in such such actions are principles of constitutional interpretation and where laid down in the case
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of DavidWesley Tusingwire v. Attorney General Constitutional Appeal No.4 of 2016.
 The constitution shouldbe interpretedasa whole
It was settled by the Supreme court of the U.S“that no single provision of the constitution is to be segregated fromthe
othersandtobe consideredalone but that all provisionsbearingupon a particular subject are tobe brought intoviewandto
be sointerpretedastoeffect the greater purpose of the instrument.”
In the case of Maj. Gen .David Tinyefuza v A.G, court held that the entire constitution has to be read as an integrated whole
and no one particular provision destroying the other but each sustaining the other. This is the rule of harmony, rule of
completeness andexhaustiveness andthe rule of supremacy of the written constitution. ManyindoD.C.J observedthat of the
principle asfollows
“The entire constitution hastobe readasan integratedwhole andnoone particular provision destroyingthe other but each
sustaining the other. This is the rule of harmony completeness and exhaustiveness and the rule of paramouncy of the
constitution.
On appeal Oder J.S.C expressed the same view in this way. Another important principle governing interpretation of the
Constitution concerningan issue shouldbe consideredall together. The constitution must be lookedat asa whole. Therefore”
…the constitution beinga logical whole, each of the provisions is an integral part thereof andit is therefore logically proper
andindeedimperative, toconstrue one part in the light of the provisionsof the other part”
Indeed all the provisions of the constitution concerning an issue should be considered together. In doing so, sight must not
be lost of the spirit of our constitution which isthe establishment andpromotion of a just andfree society.
Therefore in law, the constitution as a wholesome legal document and all provisions must be regarded as constitutingit. The
normal logic in this canon is that in order to ascertain the true meaning and intention of the legislators, all relevant
provisions must be considered. It’s thus dangerous to consider any particular article in isolation of all others and any court
which tries to do this is bound to get an inconsistent conclusion. [14]. Thus decisions are to be based on analysis of the
structures the law constituted and how they are apparently intended to function as a coherent, harmonious systemfor no
one can properly understand a part until he has read the whole. It would seem this canon embodies practically all the
theoretical temperaments.
 The preamble andthe national objectivesanddirectivesof the state must when necessary be taken intoaccount to
supply the intention of the framers.
Critically, this must be done without violatingthe meanings of the words used. The simple rationale tothis canon is that the
rightsgrantedby the constitution donot exist in a vacuum, andare not an endin themselves. They are grantedupon a given
background and it would be lethal for any court to interpret the provisions in total segregation of the preamble and the
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directive principles. In Uganda, the basic importance of this was stated by Egonda Ntende J. in Tinyenfuza v. AGwherein he
statedthat;
“The binding values in this constitutional dispensation are clearly set forth in the preamble. These are unity, peace, equality,
democracy, freedom, social justice and progress. In order to ensure that all citizens, organs and agencies of the state never
lose sight of those values and are firmly guided by these values in all our actions, a statement of National objectives and
Directives and state policy was set forth. The first paragraph states, the following objectives and principles shall hide all
organs of the state...and persons applying or interpreting this constitution or any other law...for the establishment and
promotion of a just, free and democratic society. That ought to be our first canon of construction of this constitution. It
providesan immediate break or departure with past rulesof constitutional construction.”
This is further given life by Article 126 which recognises that judicial power is recognised by the courts in accordance with
the constitution and in conformity with the law and with values, norms and aspirations of the people It was held by
Kanyeihamba JSC, in AGv. Major Gen DavidTinyefunza that;
“It is therefore important to know and appreciate the historical and constitutional background to the Uganda constitution
andthe manner in which it carefully demarcatedresponsibilities andfunctions amongthe various institutions of the state to
given setsof factsandcircumstances.”
Oder JSC, alsoshareda similar viewandaddedthat the preamble andthe directives must always be born in mindandnoted
that the preamble refers to the struggle of the people of Uganda against the forces of tyranny, oppression and exploitation.
The same wasdone by the Supreme Court of South Africa in De Clerk ansSuct v. Du PlessisandAnother
 Where wordsare clear andunambiguous, they must be given their plain, ordinary andnatural meaning.
Such language must be given its common and ordinary sense which means that they must be given the natural sense which
they bore before the Constitution came into force. In Carnies book on Statute Law (6th Ed) 66, wherein the learned author
stated that the cardinal rule of construction of Acts of Parliament is that it should be construed according to the situation
expressedin the Actsthemselves.
The tribunal that has to construe an Act of the Legislature or indeed any other document has to determine the intention as
expressed by the words. If the words of the statute are themselves precise and unambiguous, then more can be necessary
than to expound those words in their ordinary and natural sense. The words themselves do in such a case best declare the
intention of the lawgiver. Where the language of the Act isclear andexplicit, we must give effect toit whatever may be the
consequence for in that case the wordsof the statute speak the intention of the Legislature.
 The Sui GenerisRule;
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The word‘sui generis’ means‘in a classof itsown’. The Constitution standson a very different footingfromother legislation
even though in fact the principles which govern other legislation for the most part (but not always) also govern the
interpretation of the constitution. It is the only reason why all other laws are subjected to it and why they are declared null
and void to the extent that they are inconsistent with it. Ref. Article 2(2) of the Constitution. It is also the reason why the
language used is much broader and encompassing than that used by all other statutes. It is intended to cover rights and
freedomsfor all people without discrimination andbecause it ismade for present generationsandthose unborn.
 The Constitution must be interpretedasa livingdocument;
This canon enjoins the courts tointerpret the constitution havingin mindpresent day circumstances. It alsomeans that it is
meant tocater for both the present generation andthose unborn. In Unity Dowv. AGit wasremarkedthat;
“The Constitution is the supreme lawof the land and is meant to serve not only this generation but generations yet unborn.
It cannot allowto be a lifeless museumpiece. On the other hand the courts must breathe life into it as occasion may arise
to assure the healthy growth of the state through it. We must not shy away fromthe basic fact that while a particular
construction of a constitutional provision may be able to meet the designs of the society of a certain age...it is the primary
duty of judges to make the constitution grow and develop in order to meet the just demands and aspirations of an ever
developingsociety which ispart of the wider society governedby acceptable conceptsof human dignity.”
This is meant to imply that the Constitution should be able to serve for a long time while accommodating the newchanges
the world has to offer without derogating from the original framers intent. This can further be witnessed in Hunter v.
Southern Inc where Dickson said;
“Aconstitution isdraftedwith an eye tothe future.”
AConstitution must be capable of growth and development over time to meet social, political and historical realities often
unimagined by its framers. However, it must be noted that the constitution should move with times steadily and not to be
destroyedby times.
 Fundamental rightsare inherent andnot grantedby the state;
Fundamental human rights are not gifts fromthe state. As Egonda Ntende J explained that this provision by stating that
these rights are inherent , the constitution is recognizingtheir inherent existence to that extent they must be looked at in a
different light fromother rights createdthe law.[29]They inhere in a person by reason of his birth andtherefore prior tothe
[29] Tinyefuza v A.Gsupra pp.15of hisstatement
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state and law. This means that these rights are not gifts fromthe state.[30]Courts have taken cognizance of principle in the
interpretation of the constitution.
 Where the rules of practice are rigidly applied will defeat the process of giving effect to guaranteed rights they
must be reasonably relaxed;
This is perhaps best supported by Article 126 (2)(e) which requires courts of lawto dispense substantive justice without any
undue technicalities. Accordingly, it isthe meritsor substance of the petition andnot the procedural technicalitiesthat count.
In Tinyenfuza v. AGManyindoDCJ, statedthat;
“The case before us relates to the fundamental rights and freedoms of the individual, which are enshrined and protected by
the constitution. It would be highly improper to deny hima hearing on technical or procedural grounds. I would even go
further and say that even where the respondent objects tothe petition as in this case, the matter should proceed totrial on
the meritsunlessit doesnot disclose a cause of action at all. Thiscourt shouldreadily apply the provision of Article 126(2)(e)
of the constitution of a case like thisandadminister substantive justice without undue regardtotechnicalities.”
This means that the constitution is there not to condemn but to reconcile. This can also be illustrated in AGv. Susan Kigula
and417Others.
 International Human RightsConvention andtreatiesmay be usedin interpretation;
This canon was well summarised in Unity Dow v. AG wherein the court remarked that although it is common view that
conventions do not confer rights on individuals within the state until Parliament has legislated themand incorporated within
common law, those conventions may be referred toas an aid toconstruction of the constitution and that it would be wrong
for the courtstointerpret itslegislation in a manner which conflictswith international obligations.
The rationale is that whether ratified or not, these conventions contain universally recognised human rights too which no
civilisednation can derogate from.
Even when they are yet to be ratified, it is the clear duty of court to speed up this process by using themin interpretation
of thisconstitution.
 The harmonisation of conflict principle;
This means that where two constructions are possible and one is very restrictive of the guaranteed rights and the other
permissive then the latter is to be preferred of the two. In Mtikila v. AG of Tanzania the court was encountered with
[30] Thiswasannunciatedby Lugakingta Jin Rev.Christopher Mtikila v A.Gof Tanzania Civil Case No. 5of 1993
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conflicting constitutional provisions. The Tanzanian constitution granted every citizen the right to participate in the
governance of the country and the right not to be compelled to belong to or subscribe to a political party. However, an
amendment waspassedwhich barredany citizen fromrunningany political office unlessthey were membersandrecognised
parties. In holdingth these twoprovisionsreadtogether couldnot bar independent candidatesfromstandingheldthat;
“When a provision of the constitution enacting a fundamental right appears to be in conflict with another provision of the
constitution...the principle of harmonisation has to be called in aid. The principle holds that the entire constitution has to be
read as an integrated whole and no one provision destroying the other but each sustaining the other...if the balancing Act
should succeed, the Court is enjoined to give effect toll the contending provisions. Otherwise the court is enjoined to incline
tothe realisation of fundamental rightsandmay for that purpose disregardthe clear wordsof a provision if their application
wouldresult in grossinjustice...These propositionsrest above all on the realisation that it isthe fundamental rightswhich are
fundamental andnot the restrictions.”
In conclusion therefore, the principles of constitutional interpretation were summarisedin the case of Charles OnyangoObbo
andAndrewMujuni Mwenda v. AGConst. Pet. 151997/21/07/2000. Twinomujuni JA[pp.7-10] enumeratedthe variousprinciples
of constitutional interpretation referring to a number of cases; Maj. Gen. David Tinyefuza (supra), Zachar Olumand Anor. V.
AG(supra), and Dr. James Rwanyarare and Anor. V. AG(supra). He asserted that the principles of constitutional interpretation
can be summarisedas follows; principles of interpretation applicable tostatutory construction alsoapply tothe construction
of constitutional instruments, words must be given their natural and ordinary meaning where they are not ambiguous, the
instrument being considered must be treated as a whole and all provisions having bearing on the subject matter in dispute
must be considered together s an integrated whole, provisions relating to the fundamental human rights and freedoms
should be given purposive and generous interpretation in such a way as to secure maximum enjoyment of rights and
freedomsguaranteedandwhere the state or any person or authority seekstodoan act or passany lawwhich derogateson
the enjoyment of fundamental rights andfreedoms guaranteedunder Cap4 of the constitution, the burden is on that person
or authority seeking the derogation to showthat the act or lawis acceptable within the derogations permitted under Article
43of the Constitution.
Nature of evidence
The nature of evidence isaffidavit evidence asprovidedfor under Rule 12of the Judicature (Constitutional Petition Reference)
Rules2005
Powersof Court
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The powersof Constitutional Court isenshrinedin Article 134(4) of the Constitution.
Task (2)
Draft Documents
1. Petition
2. Affidavit in support of the Petition
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THEREPUBLICOFUGANDA
INTHECONSTITUTIONALCOURTHOLDENATKAMPALA
CONSTITUTIONALPETITIONNO 01 OF2020
MR. JINGOMUKASA……….………………………PETITIONER
VERSUS
ATTORNEYGENERAL……………………………………...RESPONDENT
PETITION
Under Article 137(3) (a) Constitution of Uganda &R.3Constitutional Court (PetitionsReferences) RulesSI 91/05
1. Your humble petitioner isa male adult Ugandan andfor purposesof thispetition hisaddressof service shall be C/O
M/SD6&AdvocatesP. OBOX7117.
2. Your humble petitioner complains that the followingis inconsistent with the Constitution of the Republic of Uganda
andseeksthe same tobe declaredunconstitutional, voidandof noeffect: 3. That section 165(7) and 165 (8) of the Traffic and Road Act which permits the police officers to recover penalties
fromthe driver or person in charge of the motor vehicle violatesthe constitution asfollows; a.
The subsection is so vague that it empowers the police to arbitrarily recover fromany person found driving a
motor vehicle notwithstanding the fact that the penalty wasn’t made against his or her name thus derogating
fromthe provisions of Art. 21(1) of the Constitution that guarantees equality under and before the law and
equal protection of lawandArticle 28(3)(a) which guaranteesthe right tobe presumedinnocent.
b. The subsection also violates Article 21 (2) in as far as it criminalizes individuals who are found to be in
possession of motor vehicles
4. That the act of the traffic officer impounding the motor vehicle violated the petitioner’s right to freedom of
movement guaranteedin Article .29(2)(a)
5. Your humble petitioner'scomplaint issupportedby the affidavit of the petitioner.
6. Your humble petitioner prays that the impugned provisions of the Traffic and Road Safety Act be declared
unconstitutional by thishonourable court.
7. Your humble petitioner praysthat thishonorable court awardscostsincidental tothispetition tothe petitioner.
Datedat Kampala this………………. day of …………………2020
……………………………….
Counsel for the Petitioner
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Lodgedin the registry this............ day of .............................. , 2020
………………………..
Deputy Registrar
Drawn andfiledby
D6andAdvocates
P.OBox 7117
Affidavit in support of the petition
THEREPUBLICOFUGANDA
lNTHECONSTITUTIONALCOURTOFUGANDAHOLDENATKAMPALA
CONSTITUTIONALPETITIONNO 01 OF2020
MR. JINGOMUKASA……….………………………PETITIONER
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VERSUS
ATTORNEYGENERAL……………………………………...RESPONDENT
AFFIDAVITINSUPPORTOFPETITION
1. I JingoMukasa of FirmD6andAdvocatesP.OBox 7117dohereby take oath andstate asfollows,
2. I ama male adult Ugandan of soundmindandthe petitioner herein andI swear thisaffidavit thiscapacity.
3. That on the 23/5/2020while drivingmy FusoTruck I wasstoppedby a traffic officer whoinformedme that he was
impoundingmy motor vehicle for default payment of outstandingexpresspenalty.
4. That the officer informed me that the express receipt was issued against Suleiman Kamoga at Mityana while
drivingthe track with a validdrivingpermit.
5. That I was orderedtopark the saidmotor vehicle until I hadproducedfull andfinal satisfaction of the outstanding
liability.
6. That the police officer informedme that the lawallowedthemtorecover fromany person founddrivingthe motor
vehicle nothwistandingthe fact that the penalty wasmade against hisor her name.
7. That I effectedpayment of the penalty at a Bank in Mukonotown. (See annexure markedA)
8. That I have been informed by my lawyers whose information I believe tobe true that the acts of the police officer
were a violation of my right tofair hearingasgrantedunder Article 28(3) of the constitution.
9. That whatever I have stated herein, is true to my knowledge and or information whose source is disclosed and
belief save for paragraph 8whose source isdisclosed.
SWORNat Kampala this…………. day of ……………… 2020by
the saidJINGOMUKASA
………………………
Deponent
BEFOREME
…………………..
COMMISSIONERFOROATHS
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Drawn andfiledby
FirmD6andAdvocates
P.OBox 7117
Task 3
Would you have given a similar advice on the procedure and documents to use if you were right now in a traffic Court,
where Jingohasbeen chargedfor failure topay thistraffic finesimposedagainst Sulemain Kamoga
Procedure wouldbe different asfollows;
 Draft a notice of motion
 Pay relevant Court fees.
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 File the notice of motion
 Serve it on the intendedrespondent.
Document: Notice of motion. See Rule 6of the Judicature Judicial ReviewRules2009.
AlsoreadRule 3of Judicature Judicial ReviewRules2009on remediesin Judicial Review caseseven if not requiredfor your
task; Certiorari, mandamus, prohibition.
Courtshave been reluctant togrant damagesin Judicial reviewcases.
Rule 7Afor Judicial reviewamendment rules of 2019Provide for factors tobe considered in judicial reviewapplications. This
isnot in your workshopbut relevant.
JUDICIALREVIEW
The principles governing Judicial Review are well settled. Judicial Review is concerned with Prerogative Orders which are
basically remedies for the control of the exercise of power by those in public offices. They are not aimed at providing final
determination of private rightswhich isdone in normal civil suits.
The saidordersare discretionary in nature andcourt isat liberty torefuse togrant any of themif it thinksfit todosoeven
dependingon the circumstancesof the case where there hadbeen clear violation of the principle of natural justice; John Jet
Mwebaze VsMakerere University Council &2othersMisc. Cause No. 353of 2005.
Factors that ought to be considered include; whether the application has merit or whether there is reasonableness, vigilance
without any waiver of the rights of the applicant. Court has to give consideration to all relevant matter of the cause before
arriving at a decision in exercise of its discretion. It was held in the case of Koluo Joseph Andres & 2 others Va Attorney
General Misc. Cause No. 106 of 2010andI agree that:
“It is trite lawthat Judicial Reviewis not concerned with the decision in issue per se but with the decision makingprocess.
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Essentially Judicial Reviewinvolves the assessment of the manner in which the decision is made. It is not an appeal and the
jurisdiction exercisedin a supervisory manner, not tovindicate rightsassuch but toensure that public powersare exercised
in accordance with the basic standardsof legality, fairnessandrationality”.
The purpose of Judicial Reviewwas summed up in Lord HailshamSt Marylebone in Chief Constable of North Wales Police Vs
Heavens[1982] Vol. 3All ERasfollows:“The purpose of Judicial Reviewistoensure that the individual receivesfair treatment not toensure that the authority after
according a fair treatment reaches on a matter it is authorized or enjoined by lawto decide fromitself a conclusion which
iscorrect in the eyesof the court.”
There are three broad grounds for judicial review which court must consider. That is illegality, irrationality and procedural
impropriety.
Proof of any of the grounds is sufficient for the application to succeed. See Justice Musota in David Balondemu V Law
Development Centre.
Therefore just one groundissufficient if successfully proved.
In Pastoli Vs Kabale District Local Government Council an d others [2008]2 EAwhere it was held while citingCouncil of Civil
UnionsVsMinister for the Civil Service [1985] AC374andAn Application by Bukoba Gymkhana Club [1963] EA478at 479that:
“in order tosucceedin an application for Judicial Review, the applicant hastoshowthat the decision or act complainedof is
taintedwith illegality, irrationality or procedural impropriety.
 Illegality
This is when the decision-making authority commits an error of lawin the process of taking or making the act, the subject
of the complaint. Acting without jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are
instancesof illegality.
Relatingtothe instant facts, it isillegal for Jingopay a fine for the offence committedby Suleiman Kamoga.
 Irrationality
Thisiswhen there issuch grossunreasonablenessin the decision taken or act done, that noreasonable authority, addressing
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itself tothe facts andthe lawbefore it, wouldhave made such a decision. Such a decision is usually in defiance of logic and
acceptable moral standards.
In relation to the instant facts, it is unreasonable for Jingo to be penalized for the actions of Suleiman Kamoga. Therefore
thisisa possible groundfor judicial review.
 Procedural impropriety
This is when there is a failure to act fairly on the part of the decision making authority in the process of taking a decision.
The unfairness maybe in non-observance of the Rules of Natural Justice or toact with procedural unfairness towards one to
be affectedby the decision.
It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative instrument
by which such authority exercisesjurisdiction tomake a decision”.
Task 4
Ethical Considerations
1. Falsification of evidence. Thiscan be through falsifyingof affidavitsin a bidtoprove one’scase in court at
whatever cost. Asan officer of court, an advocate isrequiredtotake corrective action not tomisleadthe court by
givingfalse evidence. Thisduty trumpsthe advocate-client privilege tothe extent that breachingsuch privilege is
necessary toadequately informthe court
2. Chargingof exorbitant legal feesby Advocates. Money-hungry lawyersencourage their clientstoundergoexpensive
but unnecessary legal procedures. These lawyersfail toact in the best interestsof their clients. Such behavior is
both unethical andshortsighted.The fee an advocate isentitledtocharge isregulatedby the Advocates
(Remuneration andTaxation of Costs) Rules, SI 367-4.1
3. Untimely work by an Advocate. Procrastination isone of the great banesof legal practice. Fewtraitswill cause
more problemsfor an advocate andthe advocate’sclientsthan a tendency toprocrastinate. Regulation 2(2) of the
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Advocates(Professional Conduct) Regulationsprovidesin part that “an advocate shall not unreasonably delay the
carryingout of instructionsreceivedfromhisor her clients.” Thisprovision isstraightforwardenough. Nonetheless
unreasonable delaysin legal practice remain commonplace.
4. Court Appearances. Once an advocate hasbecome engagedin a contentiousmatter that advocate hasa duty to
appear in court or toinstruct a partner or associate todosoin caseswhere the advocate isunable toappear.
Failure toappear amountstoprofessional negligence.
5. Incompetent Representation. Advocateshave a duty tohandle their client’saffairsin a competent manner. In order
tobe competent an advocate neednot display the highest skill or produce excellent results. However, a competent
advocate must meet certain baseline standardsof proficiency andcapacity.
6. Abusesof disclosure. Some advocatesprefer toindulge in gossipandstorytellingregardlessof their ethical
obligations. Moreover, in the current context some advocateshave expandedtheir ethical violationstothe Internet.
It isnot unusual toreadill-advisedpostsandstatusupdatesfromadvocatesthat discusscasesandclients.
Gratuitous“tweeting” about a client isboth unprofessional andunethical.
7. Conflictsof interest. Thiscan be on the side of the judicial officer or the advocate. Thiscloudsjudgment and
makesthe person facingit voidof reasoningbasedon significant data.
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