Article 126 (1) of the 1995 constitution is to the effect that judicial power is derived from the people and shall be exercised by the courts established under this Constitution in the name of the people and in conformity with law and with the values, norms and aspirations of the people. The rationale behind this provision is that the drafters of the 1995 constitution intended to protect people’s rights from being infringed, for a government to be declared democratic and peaceful, power should be placed in the hands of the people. In support of this, article 20(2) enjoins everybody including Government agencies to protect and respect individual fundamental human rights since these are inherent and not granted by the state. Furthermore, the Constitution has primacy over all other laws and the historic common law doctrines restricting the liability of the state should not be allowed to stand in the way of constitutional protection of fundamental rights.
Musa Ssekaana in Public Law in East Africa agitates that where a person’s right, freedom, interest or legitimate is violated, there should be some remedy or compensation for that violation and administrative law defines such remedies as prerogative remedies and equitable remedies. The former include Certiorari, Prohibition and mandamus whereas the latter consist of Declarations and Injunctions respectively. This essay will specifically restrict its discussion on injunctions for this matter.
According to Bakibinga, 2006, p.48, an injunction is an order by the court directed to a party to the suit to the effect that he/she do or refrain from doing a particular act. In other words it is a coercive remedy which requires a party to proceedings before the court to discontinue or to undertake some specified act as abbreviated by Hawke, Parpworth, 1998, p. 220. This is restated and reaffirmed in section 38(1) of the judicature Act which governs the jurisdiction to grant an injunction in Uganda. Kuloba, 1987, p.01 notes that being a coercive remedy, breach of an injunction attracts severe penalties, and its effect may have profound economic consequences, its issue may result in a great loss to the person restrained or give disproportionate gain to the decree holder. It is an equitable discretionary remedy that lies to restrain a party from pursuing a course of action especially when that course of action involves a breach of the law or unlawfully or ultra vires or to compel the performance of a duty as illustrated by Ssekaana, 2013, p.242.
This essay will therefore majorly asses and examine article 126(1) in relation to the above remedy of discussion (injunction) against government for this matter.
Previously, in the 17th century the crown in the United Kingdom could do no wrong, this therefore meant the crown could not sit in its own court to answer charges against it. The usual remedy was for the complainant to sue the public servant for the responsible injury, such inappropriate immunity to liability was inherited by majority of Britain’s colonies Uganda inclusive as will be discussed later. However in 1947 the crown’s proceedings act was enacted and it subjected the crown to private law with serious reservations and the purpose was to enable the government to be sued as a private person. This position was adopted in Uganda and was vested under section 15 (now 14) of the government proceedings act. Cap. 77 where a person could seek relief against the government. However, subsection (1) b of this same section provided that court shall not make order for recovery of land or property lost by a person to the government which position was relied upon by Counsel for the appellant Mike Chibita in AG V. Osotraco where he continuously referred to the case of Attorney General v. Silver Spring Hotel Ltd and others. In this case, the Supreme Court stated that an injunction whether temporary or permanent, couldn’t lie against government under the laws of Uganda. Court relied on section 15 as then it was (now S.14) of the government proceedings Act which was highlighted as an enactment of special application that majorly dealt with injunctions against the Government and providing safeguards against judicial interference in the Government’s exercise of its prerogatives and privileges in public interest. In this section, it was provided that in any proceedings against the Government for the recovery of land or other property, the court shall not make an order for the recovery of the land or the delivery of the property, but may in lieu of those orders make an order declaring that the plaintiff is entitled as against the Government to the land or property or to possession of the land or property. This case (AG v. Silver Springs) at the time showed that a person would never file an injunction against government for relief and justice as this was feared to cause embarrassment, humiliation and distort to the work of the government machinery, this was therefore intended to protect and maintain the government image.
However, with the 1995 constitution coming into place, this decision can no longer hold its validity as it’s not in line with the spirit of this constitution since it predates the 1995 constitution by six years. This has been justified in the notable case of Osotraco v. AG which scrapped off immunity from the government. The trial judge in this case, Egonda Ntende J stated that an injunctive relief and eviction order could be issued against government. The court noted that section 14 of the government proceedings act provided less appropriate relief and this ran contrary to the common view that justice shall be done to all irrespective of their social or economic status. In this case, Osotraco limited had purchased property from Uganda Times Newspaper on Plot No. 69 Mbuya Hill, Kampala. Ministry of Information and broadcasting and ministry of finance who were occupants of the property at the material time hesitantly refused to vacate as they claimed that the suit property belonged to them relying on a view that they were shareholders of the Uganda times Ltd and therefore the sale of the suit property and subsequent transfer was done without their authority. Relying on this, they contended and found it sufficient to say that this was in fact an illegal contract of sale. The learned judge, Egonda-Ntende held that section 14(1) (b) was acting contrary to Article 273 of the Uganda Constitution as he simply modified it with the existing law. Court also made an order of eviction (Injunction) against the ministry within 30 days of the day of the judgment. This decision was upheld by the court of Appeal. Ssekaana, 2013, p. 243 relates to this by stating that if government is in wrongful occupation of property substantive justice demands that it be ordered to vacate. In addition to this, Sahai J in Nagendra Rao and Co. v State of A.P. AIR stated that “No legal or political system today can place the state above law as it is unjust and unfair for a citizen to be deprived of his property illegally by negligent act of the officers of the state without any remedy. The modern social approach is to do away with archaic state protection and place the state or the Government at par with any other juristic legal entity”. Similarly, in the case of Byne v Ireland and the Attorney General , Walsha JSC noted that “Where the people by the Constitution create rights against the state or impose duties upon the state, a remedy to enforce them must be deemed to be also available. It is as much the duty of the state to render justice against itself in favor of citizens as it is to administer the same between private individuals. There is nothing in the Constitution envisaging the writing into it of a theory of immunity from the suit of the state (a state set up by the people to be governed in accordance with the provisions of the Constitution) stemming from or based upon the immunity of a personal sovereign who was the key stone of a feudal edifice- English Common law practices, doctrines or immunities cannot qualify or dilute the provisions of the Constitution”. This is affirmed by Article 26(1) of the Constitution of Uganda, 1995 which is to the effect that every person has a right to own property either individually or in association with others. A person will only be deprived of his/her property only if the taking and acquisition of such property is necessary for public use or in the interest of defense, public safety, public order, public morality or public health and an adequate compensation will be accorded to the deprived upon this. The Osotraco case was however not one of compulsory acquisition in the public interest and therefore the ministry had no case in this matter. In relation to this, a statutory notice of 60 days (now 45 days) is no longer mandatory in all suits including injunctions against government, this position was laid down by court in Kabandize and 20 others v Attorney General which set aside the ruling in Rwakasoro v Attorney General where it was initially held that a statutory notice of 45 days had to be served on the Attorney General before commencement of proceedings as provided by section 10 of the government proceedings act. Court in Kabandize and 20 others v AG found this discriminatory since government never gave notice to private individuals before suing them.
All this has been achieved as a result of Article 126(1) which clearly provides that that judicial power is derived from the people and not the State or the government in power, therefore such power shall be exercised by courts in the name of the people and in conformity with law and with values, norms and aspirations of the people. Article 1(1) of the same constitution vests all power in the Ugandan people and such power includes judicial power. The same constitution empowers and authorizes courts to provide remedies that are appropriate in case a person’s right and freedom has been subjected to infringement. This is seen in article 50 which is to the effect that any person who claims that a fundamental right or freedom guaranteed under this constitution has been infringed or threatened is entitled to apply to a competent court for redress, which may include compensation. However, if a party feels that compensation cannot pose as a satisfactory remedy after a rights infringement, they can rely on the equitable remedy of injunction which is directed to show they were victimized by the accused and hence deserve to be restored.
In Matalinga v AG, the general principle of law as regards to injunctions was raised; court noted that no injunction can be issued against the government. However, various courts have come up to willfully abandon this position of the law and have therefore declared that it can actually be granted in judicial review proceedings against the officials of the crown/ government, this has been evident in various cases. Injunctions are considered by court in scenarios where damages are not an adequate remedy to the aggrieved party which literally means that they are only given when a wrong can’t be remedied by monetary damages. The rationale behind this is that an injunction is an equitable remedy which originated from the English courts of equity and is therefore intended to restore the person who’s rights have been violated by another. As already stated earlier, it is a court order requiring the party to whom it is addressed to refrain from doing or occasionally as a mandatory injunction to do a particular act, in other words, its principle use as a private law remedy is to restrain a wrongful act such as commission of a tort or breach of contract. Much as this is the case, it should be emphasized that injunctions are discretionary in nature which means that the aggrieved party is not automatically entitled to them since court has the power to make decisions according to their discretion in consideration of the facts of a particular given case. Examples of injunctions include, a Prohibitory injunction which is directed to a person or body to stop the doing or refrain them from a doing an act. A mandatory injunction which commands a person to do a positive act or to end an already existing wrongful act. It also orders the defendant to take positive steps to undo what he has already done or fulfill an obligation. Quia timet injunction which is directed towards prevention of possible harm which has only threatened but has not completely happened or occurred. A Perpetual injunction is one that is ordered at the time of the judgment (final relief) in other words disposing the injunction suit. It’s a court order prohibiting a party from a particular course of action. An Exparte injunction which is granted at the instance and for the benefit of one party only without notice to or contestation by, any person adversely interested.
Ssekaana, 2013, p.245 provides that despite court having inherent jurisdiction to grant an injunction against government, an injunction against it would be denied if it’s going to affect its running thereby creating confusion and distortion, this is because government’s institutional and constitutional position attracts limitation. Secondly, Ssekaana notes that an injunction against a statutory order directed to a public body shall be restrained unless in circumstances where a public official has exceeded their authority or powers. He however alludes that a draft subordinate legislation tabled before parliament by a minister for approval can actually be restrained by court if it is deemed to be acting contrary to the constitution of Uganda or the parent act in that line.
In conclusion, injunctions against government should be upheld as this will protect human rights from being infringed by the state or a private person thereby observing the relevance of Article 126 of the Constitution unless when such injunction is going extremely going to affect the progress of the government for this matter.
Bibliography :
Richard Kuloba, Principles of injunctions, Nairobi: Oxford University press, 1987
Ssekaana Musa, Public Law in East Africa, Nairobi: LawAfrica, 2013
Neil Hawke, Neil Parpworth, Introduction to administrative Law, London: Cavendish Publishing limited, 1998
Christopher Forsyth, William Wade, Administrative Law. London: Oxford University press, 2009
References:
The Constitution of Uganda, 1995
Government proceedings Act, Cap. 77
Black’s Law Dictionary, by Henry Campbell Black
By: Abdallah sekibembe
sabdallahkhan.ak@gmail.com
The writer is a student of Law at Uganda Christian University School of Law.
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