PROCEEDINGS AGAINST GOVERNMENT

By : Kitamirike Pius
SAMPLE QUESTION:
THE OSOTRACO CASE IS THE WORST PRECEDENT IN RELATION TO EXECUTION OF ORDERS AGAINST GOVERNMENT. PER LLB 2 STUDENT. DISCUSS THE VERACITY OF THE STATEMENT IN RELATION  TO THE LAW GOVERNING PROCEEDINGS AGAINST GOVERNMENT AND SUGGEST POSSIBLE REFORMS.

Legal proceedings are often referred to as those proceedings that are authorized by law and instituted in a court or tribunal to acquire a right or enforce a remedy.
The principle of proceedings against was properly enunciated in the case of Osotraco Ltd v Attorney general/ Attorney general V Osotraco Ltd in which Osotraco Ltd sought an action for an order of eviction of the defendants from the suit premises, a permanent injunction, special, general damages, costs and mense profits. Osotraco Ltd claimed to be the registered proprietor of plot 69 Mbuya Hill that was being occupied by Ministry of Information and Broadcasting. The suit interalia challenged considered the applicability of section 15(b)(now section 14(b)) of the Government Proceeding Act prohibits issuance of an eviction order against government. Justice Egonda Ntende found Section 15(b) was found not to be in line with the constitution who stated that courts do not exercise authority on behalf of the successors to the crown or even the state or government of Uganda, judicial authority is exercised in the name of the people and it is derived from the people.
Legal proceedings are often referred to as those proceedings that are authorized by law and instituted in a court or tribunal to acquire a right or enforce a remedy. Some of the arguments were the old age theory stating that ‘a king could do no wrong’ and the other was that the crown could not sit in its own court to answer charges against it. 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 law was substantially adopted in Uganda as seen in the government proceedings act where a person can seek relief against the government. Oluyede states that the needs of East Africans necessitated government’s intervention in the political, social and economic life but in the exercise of such powers it was inevitable that there should be injury to individuals. Oluyede further alludes to the fact that it is desirable that a modern democratic state subject to certain safeguards government should be able to sue and be sued as if it were a private person of full capacity.
The 1995 constitution of Uganda provides for proceedings against government in article 250(1) which states that “where a person has a claim against the government, that claim may be enforced as a right by the proceedings taken against the government for that person.”  These legal proceedings are governed by various Acts of parliaments which include the Government Proceedings act cap 77, the Civil procedure and Limitation(Miscellaneous provisions) Act and  the Law reform(Miscellaneous provisions) Act. These laws give the legal liability to various actions, the limitation to that liability and the procedure to be followed in suits against government.
However there are some preliminary formalities to be met before suing government. Under the Government proceedings Act civil proceedings against the government shall be instituted against the attorney general who represents the government in legal proceedings. Still in the the 1995 Constitution and Government Proceeding Act  andAll documents required to be served on the Government for the purpose of or in connection with any civil proceedings by or against the Government shall be served on the Attorney General.
Previously, a statutory notice of 45 days had  to be be served on the Attorney General before commencement of proceedings.  In the case of Rwakasoro v Attorney General in which the plaintiff filed a suit against Attorney general for damages, Asthana J, held that as per Section 1 of the Civil Procedure and Limitation (Miscellaneous Provisions) Act No. 20 of 1969, 60 days( now 45 days) statutory notice is mandatory in all suits against government.
However following recent court decision in Kabandize and 20 ors v Attorney General a statutory notice is no longer mandatory, it was found to be discriminatory since government did not give notice before suing citizens.
The Osotraco case is the best precedent in as far as execution of orders is concerned because it’s in line with the spirit of the new Constitution especially article 126(1) which provides that
Article “126 (1) Judicial powers 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”.  Therefore the Osotraco case confirmed the fact that judicial power is derived from the people and hence in line with the spirit of the 1995 Constitution.
Since the 1995 Constitution, the rights, powers and immunities of the State are not immutable anymore.  Article 20 (2) enjoins everybody including Government agencies to protect and respect individual fundamental human rights.  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.
As per the Osotraco case, the taking away property was therefore going against the spirit of the constitution that provides for fundamental rights being inherent and not granted by the state as per Article 20(1) of the 1995 Constitution that reflects the voice of the people.
The Attorney General v Silver Springs  which predates the 1995 Constitution by about six years is instead the worst precedent in relation to execution of orders against government.  The decision cannot therefore be said to be in line with the spirit of the new Constitution especially article 126(1) which provides that:-   Judicial powers 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”.   That the law has to be construed in line with the thinking or norms of progressive societies.  Cases from other jurisdictions are also in conformity with suing the government.  An Indian case of N. Nagendra Rao and Co. v State of A.P. AIR  where Sahai J. said inter alia:-  “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”.  In  Byne v Ireland and the Attorney General, where Walsha JSC said:-  “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 favour of citizens as it is to administer the same between private individuals.   The 2 cases were also cited in Dr. James Rwanyarare and ors v A.G(2003) E.A 664.
Government is liable to legal proceedings under contracts. A contract is an agreement that has intention of leading to binding legal obligations and is made by the parties on the understanding that it has legal consequences of performance. Government has a legal capacity to enter into contracts with individuals, private companies and therefore it is liable as if it was a private person of full age and capacity. These contracts are enforceable in ordinary courts and it can therefore be sued for breach of contract. Section 2(a) of the Government Proceeding Act provides that government may be sued in contracts as if it was a private person.  Government can also be held liable in torts. Government shall be subject to liabilities in tort as if it were a  private person of full age and capacity it would be subject to in respect to torts committed by its servants or agents or employer. Section 4 of the Law Reform (Miscellaneous Provisions) Act, the Government shall, in respect of a failure to comply with that duty, be subject to all those liabilities in tort, if any, to which it would be so subject if it were a private person of full age and capacity.In Muwonge v A.G in which Appellant’s father was killed during a riot, the deceased was shot by a policeman. Newbold P stated held that “ an act may be done in the course of a servant’s employment so as to make his master liable even though it was done contrary to the orders of the master even ids servant is acting deliberately, negligently or criminally for his own benefit” In the case of Namwandu Nanfuka v Attorney General an exception was explained, Saldanha J stated that the government was not vicariously liable for the actions of the soldiers.The soldiers were not doing anything to maintain public order, the soldiers were acting for their own purpose and not in the exercise of their duties.
Salmond on Torts, a master is responsible not only for what he authorizes but also for the way in which he does it.If the servant does it negligently,fraudulently,or mistakenly that which he was authorized to do honestly, correctly, the master will answer for that negligence, fraud or mistake.
The government is accorded immunity by law from liabilities in tort, contract in some cases.
For example the president enjoys immunity from legal proceedings but if he ceases to be president he will be liable for contracts and torts he committed.
Government is exempted from proceedings in respect to anything done in exercising Judicial functions. In Attorney General v Oluoch, a magistrate was sued together with the Attorney general and police officers for wrongful arrest and detention. It was challenged that  suit was misconceived because it was brought against magistrate who had judicial immunity. Court held that a suit could not be maintained against a public officer who had judicial immunity.
Another situation government can sued is if it pleads it’s an Act of State doctrine. An Act of State arises out of transactions between states.  It is generally agreed that agreements and contracts between states do not give individuals rights which can form a basis of legal actions.  In the Kenyan case of Olile Njogo Vs Attorney General, the Masai sued the British government for violation of the Masai Agreement.  The agreement was in respect of annexation of Masai lands.  When sued, the British government successfully placed an act of state doctrine and the court held that the British government could not be sued by individuals since it had contracted with a sovereign power.
Similarly, in the case of Katikiro of Buganda Vs Attorney General of Uganda, the Attorney General was sued in respect of 1995 Agreement between Buganda.  The Attorney General successfully pleaded Act of State Doctrine.
Some of the possible reforms that will improve the law relating to proceeding against government include:
Section 14 of the government Proceeding Act require courts to modify, qualify it to suit the existing as per Article 273 of the Constitution requires existing law to be construed with such modifications, adoptions, qualifications and exceptions as may be necessary to bring it into conformity with the Constitution.
  This provision enables the court to expedite justice by construing unjust and archaic laws and bringing them in conformity with the Constitution, so that they do not exist and are void. This article does not oust the jurisdiction of the Constitutional court under article 137 where it can later declare these laws unconstitutional.  This Court has applied article 273 in a number of cases.  In Pyarali Abdu Ismail v Adrian SiboConstitutional Petition No. 9 of 1997, this court directed the trial Judge to construe and modify section 11(4) (b) of the Expropriated Properties Act No. 9 of 1982 which was prescribing unfair and inadequate compensation for compulsorily acquired property.  Section 11(4) (b) was adapted and qualified so as to conform to article 26(2)(b)(1) of the Constitution providing for prompt payment of fair and adequate compensation for the property.  The matter had been referred to the Constitutional Court under article 137(5).  This course of action was found not to have been necessary.  The judge should have moved under article 273, without wasting anytime and applied the constitutional provisions.
A statutory notice of 45 days must be serviced on the Attorney General before commencement of proceedings This is a lot of time that needs to be revised, much as the reasons given  for the prior notice is to give government time to prepare, it is rather too much time that needs reduction.

Conclusively, the current law in Uganda on proceedings against government is good law as its in line with the spirit of the constitution that provides for judicial power belonging to the people and fundamental rights being inherent not granted by the state. To say that government should not be sued when in error is taking away those two important factors.

BIBLIOGRAPHY:
Administrative Law in East Africa
The Government Proceedings Act Cap 77
The Civil Procedure Act Cap 71
Civil Procedure and Limitation (Miscellaneous Provisions) Act
Salmond on Torts