The unconstitutionality of rule 4 (3) (b) of the Constitutional Court (petitions and references) Rules, 2005
The right of access to justice and to courts is encapsulated in article 28(1) of the 1995 constitution which provides that:
“In the determination of civil rights and obligations or any criminal charge, a person shall be entitled to a fair, speedy and public hearing before an independent and impartial court or tribunal established by law” [Emphasis underlined]
This right at length is known as a right to a fair trial thereof it embeds the right of access to courts. This right of access to justice is also found in both the international instruments and regional instruments whereto article 28 is derived.
Article 3 (4) (b) of the 1995 constitution calls for any citizen to do the following:
“All citizens of Uganda shall have the right and duty at all times to do all in their power to restore this constitution after it has been suspended, overthrown, abrogation or amended contrary to its provisions” [emphasis mine]
In other words, the Rules Committee by enacting the impugned rule 4 (3) (b) of the Constitutional Court (petitions and References) Rules , 2005 amended article 28 (1) of the constitution and violated the right of access to the Constitutional Court in Uganda. The right of access to courts is a derogable right which is limited and part and parcel of the right to a fair trial/hearing . The right of access to courts relates to and/or supports the mother right (herein right to fair trial). It will be unconstitutional, unreasonable and undemocratic for the Rules Committee to amend the right of access to courts hereinunder article 28 (1) of the constitution.
The unconstitutionality of the Rules Committee amending the right of access to courts
Section 41(1) of the judicature Act provides that the Rules Committee may, by statutory instrument, make rules for regulating the practice and procedure of the Supreme Court, the Court of Appeal and High Court and for all other courts in Uganda subordinate to the High court.
From the reading of section 41 (1) of the Act, you recognize that the constitutional court is not among the courts of judicature thereto should I say that it’s a special court on its own. Definitely, right to say so because article 137 (1) of the constitution is to that effect that any question as to the interpretation of this constitution shall be determined by the Court of Appeal sitting as the Constitutional court. In this perspective, the Court of Appeal is also known as the Constitutional Court therefore the Rules Committee was absolutely, right to make rules regulating the practice and procedure of the court in the first instance. However, the Rules Committee acted beyond their powers by enacting rule 4 (3) (b) of the Rules 2005 contravening and/or inconsistent with article 28 (1) of the 1995 constitution. Article 2 (2) of the constitution is to the effect that if any other law or any custom is inconsistent with any of the provisions of this constitution, the constitution shall prevail, and that other law or custom shall to the extent of the inconsistency be void.
Justice Tsekooko JSC in Charles Onyango Obbo & Andrew Mujuni Mwenda vs. Attorney General held that:
“In my view binding authorities from superior courts in the same jurisdiction must be followed unless there exists circumstances which permit departure. Thecourt departing from a binding case should explain why. Persuasive authorities from the same jurisdiction such judges of the court dealing with similar facts or same law ought to be followed so as to maintain consistency. The value to be attached to persuasive authorities from other common law jurisdictions depends on the hierarchy of the court which decided the case. Obviously, a court has no business in wasting time considering irrelevant cases” [emphasis mine]
The doctrine of precedents in our courts system is well settled thereof Chief Justice Samatta of the Court of Appeal of Tanzania had this to say in Ndyanabo vs. Attorney General that
“access to courts is undoubtedly, a cardinal safeguard against violations of one’s rights whether those rights are fundamental or not. Without that right, there can be no rule of law and therefore no democracy. A court of law is “the last resort of the oppressed and the bewildered. Anyone seeking a legal remedy should be able to knock on the doors of justice and be heard” [emphasis mine]
The Rules Committee by enacting the impugned rule 4 (3) (b) of the Rules 2005 violated the right of access to courts thereof it acted unconstitutional and substantively ultra vires to the fundamental law of the country. In doing so, the Rules Committee violated the rule of law and the principles of democracy by blocking the doors of access to justice of the oppressed and bewildered citizens of Uganda including Geofrey Nabikamba who intends to lodge a petition in the Constitutional Court challenging the unconstitutionality of various statutes and the Access to information Act 2005 hereunder part III of the Act for being unconstitutional.
Chief Justice Samatta further held that: “With great respect to the learned judges, we cannot agree that access to justice constitutes merely filing of pleadings and paying the required court fees. The right to have recourse or access to courts means more than that. It includes the right to present one’s case or defence before courts. It cannot therefore be correct to say that once he files his petition a petitioner in an election petition [herein a constitutional petition] has enjoyed the whole of the right of access to justice. Access to justice is not merely knocking on the door of a court. It is more than that”. The points of departure in Ndyanabo’s case are that:
- It was an election petition
- Section 111(2) of the elections Act 1985 implicitly repealed rules exempting security for costs or subject to other securities as considerable by a court of law
- Security for costs in their civil procedure code avails access to court, but security for costs is required when a party is being heard unlike in an election petition whereof Tanzanian shillings 5,000,0000= is a requirement for compliance for the Registrar to fix dates for hearing the petition.
The impugned rule 4 (3) (b) of the Rules 2005 provides that: “The petitioner shall at the time of presenting the petition deposit two hundred thousand shillings as security for costs”
Rule 4 (4) of the Rules 2005 emphasizes that where sub rule (3) is not complied with, the petition shall not be received by the Registrar. This means that aggrieved parties concerning the unconstitutional laws, customs, acts and omissionsof any person and authorities of government majorly the indigent persons are locked out the doors of justice to the constitutional court with no right to even to knock the aforesaid court to be heard.
Rule 4 (3) (a) of the Rules 2005 is strictly, clear that the petitioner shall at the time of presenting the petition pay the appropriate fees. This included court filing fees and so forth. It’s unconstitutional and indeed offending the 1995 constitution for what the Rules Committee did to add on rule 4 (3) (a) of the Rules 2005.
Rule 23 (1) of the Rules 2005 provides that: “Subject to the provisions of these Rules, the practice and procedure in respect of a petition or a reference shall be regulated as nearly as may be in accordance with the Civil procedure Act and the rules under that Act and the Court of Appeal Rules, with modifications as the court may consider necessary in the interest of justice and expedition of the proceedings”.
The Rules Committee had already fore seen the need of compliance of the Civil procedure Rules SI 71-1 saved under rule 23(1) above, there was no need to enact rule 4 (3) (b) yet order 26 of the civil procedure Rules works to that effect.
The Rules Committee indeed was ultra vires by enacting impugned rule 4 (3) (b) of the Rules 2005
The impugned rule is unconstitutional, unreasonable and discriminatory because it violates a fundamental human right which is indeed a derogable right saved under article 44 © of the 1995 constitution. The right to fair hearing in the broad spectrum includes the right to fair trial and accessing the courts for the aggrieved party to be heard. The Rules Committee by passing rule 4 (3) (b) yet still security for costs applies to other courts of judicature as rule 23 (1) saved the civil procedure Rules was unconstitutional.
Order 26 of the Civil procedure Rules provides for tender of security for costs when the defendant requests court that the plaintiff should tender such security.
It was unreasonable, irrational and discriminatory and inconvenient for the rules committee to pass such an impugned rule 4 (3) (b) of the Rules 2005.
It’s reasonable that the court make a declaration that the Rules Committee by enacting impugned rule 4(3) (b) violated the right of access to courts (herein the Constitutional Court). That court should grant an order that Rules Committee acted substantively ultra vires by enacting impugned rule 4(3) (b) of the Rules 2005 contrary to article 28(1) of the 1995 constitution.