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IN THE HIGH COURT OF UGANDA AT KAMPALA

CONSTITUTIONAL CASE NO. 1 OF 1986

EDWARD FREDRICK SSEMPEBWA……………………………APPLICANT

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VERSUS

ATTORNEY GENERAL…………………………………………….RESPONDENT
a nd
Before: The Honourable Mr. Justice W.K.M Kityo (P)
The Honourable Mr. Justice A.O.H Oder
The Honourable Mr. Justice C.M. Kato
a

JUDGEMENT
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This matter brought before this constitutional court by way of the notice of motion and as
the result of the constitutional reference made on 26th November 1986 by a constitutional
court in Misc. Appln No. 9-/86, under the provisions of SS.19 and20 of the Judicature
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Act, Article 87 of the constitution, O.XLVIII r.1 of the CPR and S. 101 of the CPA;
whereby, and in particular three specific questions of law are referred to this
constitutional court. They are as follows:-
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1. Whether the Legal Notice No. 6/86 amending proclamation in Legal Notice
No. 1/86 was properly made.
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2. Whether the judgment debt/decree in HCCS No. 435/82 is a property within

the meaning of Articles 8 (2) (c) and13 of the Constitution; and
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3. Whether paragraph 12 (2) of the Legal Notice No. 1/86, as amended by Legal
Notice No. 6/86 is consistent with the constitution of the Republic of Uganda
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having regard to the provisions of Article 8 (2) (c) and 13 of the constitution.

The applicant is thus seeking this court’s declaration or orders in the manner as shown
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below:-

1. That the Legal Notice No. 6/86 is null and void or of no legal effect and/or is
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unconstitutional.

2. That paragraph (d) of the Legal Notice No. 6/86 is unconstitutional, to the extent,
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so far as, it purports to deprive the applicant, of his property without any
compensation contrary to the abovementioned provisions on the Article 8(2) and
13 of the Constitution.

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3. The applicant is furthermore, seeking a consequential orders to grant him the

leave to pursue the order of mandamus under the HCCS No. 135/82 and also to
have the costs of those proceedings be provided for.

RELEVANT FACTS
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The relevant facts of the background of this case, are clearly set out in the Notice
of itself, but more of their details are to be found in the two affidavits filed in
support and annexed to this application i.e. one sworn by Mr. Sempebwa 9the
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applicant/decree holder) and the other by Mr. Katende (the counsel for the decree
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holder).

Briefly, the facts are summarized as follows: -

a
That Prof. Sempebwa the decree holder successfully sued the Attorney General,
in accordance with the provisions in the Government Proceedings, Act, in the suit
HCCS. No. 135/82, which suit was mentioned earlier in this judgment and
On

claimed the following relief; the general the special, as well as, the exemplary
damages, all of which, were resulting from the wrongful search of his house, his
unlawful arrest and detention and the unlawful taking away of his property, all of
which acts, were committed by the security officers in the course of their normal
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duty, on 19th April 1986.

That he successfully obtained the judgment in his favour and it is dated the 23rd
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July 1986. The above said decree there from was extracted and the same is
annexed to this suit; the relevant part of which being in the following terms: -
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“……….. it is ordered and decreed that the defendant (Attorney General) do pay
to the plaintiff (Sempebwa) the sum of shs. 150,000 general and exemplary
damages and the sum of shs. 250,000 special damages with interest on all general,
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exemplary, as well as the special damages, at the court, rate from the date of
judgment. It is furthermore ordered and decreed that the defendant do pay to the
plaintiff the taxed costs of the suit.”
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The plaintiff has thus stated in court that he is, by now, claiming the total sum of
shs. 400,000 to cover the various award of damages, i.e. general, special and
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exemplary plus the interest at the court rate and he further claims a sum of shs.
640,000 being the awarded and the taxed costs.
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Therefore, as a result of the Attorney General’s (Judgment debtor’s) failure or

neglect to pay the above said decretal amount, then the applicant was compelled,
to resort to the extraction of the certificate of the court’s order, against the
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government, as the forms evidence of the order, and the said certificate is dated
the 6th August 1986. It therefore, a certificate relating to the earlier mentioned
HCCS No. 435/82 and verifies to the Treasury officer (accounts) of the
government’s indebtedness to the decree/holder and the requirement of the letter

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to pay the debt. Despite of all the above-mentioned efforts by the judgment
creditor, no stop was taken by the judgment/debtor to satisfy the judgment debt,
though, the indebtedness as stated above is not disputed. Thereafter, the decree
holder having been frustrated by the lack of response, on the part of the judgment
debtor, he then through his counsel and under the provisions of S.34 and S.48 of
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the Judicature Act, particularly under the Rules 1 and 3(2) of the law Reform
(Mis. Prov) Rule of Procedure – See the Statutory Instrument No. 74 – 1 – by the
ex-parte proceedings, he moved the High Court, under HCCS Mis. App. No.
81/86 and he sought leave of the court, to apply for the order of mandamus, which
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was intended to be served upon to the Treasury Officer (accounts), in order to
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compel the latter, to satisfy the judgment debt. The two rules in question provides
as follows: -

“3(1) No application of an order of Mandamus prohibition, or cartioran shall be

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made unless leave therefore has been granted in accordance with this rule.”

3(2) An application for such leave as aforesaid shall be made ex-parte to a

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Judge in Chambers, and shall be accompanied by etc, etc ……………….”

It, was therefore, during the hearing of that ex-parte application, which indeed by
the abovementioned rules, it ought to be that the Attorney General was
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prematurely allowed to participate and to raise up matters which had not yet been
notified to the other side. Such matter should have been more conveniently raised
later at the time of hearing the substantive application and indeed should have
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only been conveniently raised by way of filing an affidavit in reply. It is at that

stage that the prayer for the postponement of that application and the prayer for
the constitutional reference, was first made known both to the court and the other
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side.

I am of the view, that the applicant was being taken by surprise and the Attorney
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General was unfairly permitted to adduce evidence and to advance arguments in

defence of the Treasury officer (accounts) that the decree which was being relied
upon by the decree/holder, had already been over-taken by the events; in the
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Legal Notice No. 6/86 amending the Legal Notice No. 1/86, containing the
proclamation which introduced the new order of the government had already
nullified the judgment.
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To that argument, both the two counsel for applicant strongly contended, that if
paragraph 12 of the Legal Notice No. 6/86 is regarded as valid and constitutional,
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then its effect will be to take away, the rights of the applicant, which are
contained in Chapter 3 of the Constitution, and the further effect that it will
deprive him of his property in the judgment decree, without any compensation.
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The two counsels categorically submitted that the provisions in that said
paragraph 12 of the Legal Notice No. 6/86 is unconstitutional. Mr. Katende then
rightly made prayer, that his application of the leave to apply for the order of
mandamus be stood over and, the matter be referred to the Constitutional Court

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under Article 87 of the Constitution, and S 19 of the Judicature Act – See

Relevant Proceedings on the record at page 2.

But neither the prayer for the grant of the reference to the constitutional court,
nor the leave to apply for the order of mandamus, was allowed and the application
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was totally dismissed, as is evidenced in the ruling made by Mr. Ekirapa Acting
Judge, on 8th October 1986 the same is exhibited in the proceedings of the
Constitutional Court which varied order and allowed the reference to this court.
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It was, therefore, the result of that above said dismissal, that the decree holder,
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moved the Constitutional court, in another Mis. Appl. No. 80/86, seeking for the
order of that Constitutional court, to vary or reverse the above said dismissal order
of Mr. Ekirapa Acting Judge, and the reference be allowed to be made to
Constitutional court. The application was on that occasion successful and the
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leave to make reference was granted. The legal question to be resolved by the
Constitutional court, were also framed and are in the form as was outlined, at the
commencement of this judgment.
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Before I leave the historical background, it is important that I should mention at

his juncture, the important preliminary matters which were raised and had to be
resolved at the time of hearing and granting of the reference as well as at the time
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of commencement of hearing the merits in the present application, in the present

court. It is important to mention further that the rulings of the court which were
made and copies of the same, are available in the records of these proceedings.
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The most important of them are briefly as below: -

The first is the one where Mr. Kayondo S.C. President of the law Society made an
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oral application seeking the permission of the 1st Constitutional court, at that
preliminary stage, to permit him to participate in the proceedings as a friend of
that court- omious ourioo. The application was considered and the court refrained
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to grant the permission on the reasons which were advanced and are contained in
the ruling dated 18th November 1986 which was made and is on record.
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The second was the one where the Attorney General challenged, the present
application as having been improperly made, relying on the reasons which he
advanced and the prayer which he made, that it should be dismissed. Here again
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the objection was disallowed but instead the court ordered that the matter do
proceed, as previously arranged, giving reasons, which are contained in the ruling
made on 26th November 1986, copies of which is on record.
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Then the third was the oral application by Mr. Kayondo, seeking the consolidation
of another HCCS No. 804/86 in which he was the counsel for the plaintiff
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judgment/creditor and the refusal by this court to entertain an application seeking

consolidation which was made in formerly. Then the forth was the preliminary
matters raised, by the panel itself and addressed to the parties seeking the
clarification from the parties as to whether the name panel of Judges in the

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Constitutional court, which made the references should proceed and dispose the
references themselves. Here again and by the consent of both parties, no objection
was raised to the same panel disposing the matter and the name panel proceeded
to hear the merits of the constitutional matters which had been framed.
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Finally, the application made by the Attorney General seeking the court’s
assistance to direct for the corrections, of the court proceedings, which had been
inaccurately reported in the Newspaper, and the direction which was made that
the correction should be made subject to approval of the correctness by the
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Attorney General before correct i.e. publication is made.
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I now proceed and deal with the submission made by the counsel on both sides,
on each of the three substantial questions of law in the references, as was
reproduced at the commencement of this judgment. The first reference is in the
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following terms: -

“Whether the Legal Notice No. 6/86 amending Leal Notice No. 1/86 was properly
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made”.

Before disposing the arguments, on both sides it is important to mention here, that
the Legal Notice No. 1/86 contained the proclamation made by the NRA when it
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overthrew the old order of government and replaced it with the new one. By that
proclamation, some specific parts of the old constitution were suspended and the
remaining parts of the constitution were adopted with modification, i.e. to the
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extent they were consistent with the proclamation otherwise the proclamation
became the supreme law, of the land and superseded the old constitution.
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In brief, it is admitted by both parties that a successful revolution by both parties

that a successful revolution took place on 26th January 1986. The power of the
government which was based, in the then old existing constitution, was taken over
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the NRA and sale powers were then vested in the NRC Thus the old order came to
an end and the new order was set up by the proclamation in the Legal Notice No.
1/86.
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Again according to the paragraph 7 of that proclamation, all the legislative powers
in the constitution, which hitherto, were vested in the Parliament and the President
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– See Article 63, and 58 (2): Article 63

“subject to the provisions of this Constitution Parliament shall have sole power to
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make laws for the peace, order and good government of Uganda with respect to
any matter.”
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Article 58 (2).

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“when a bill passed by the National Assembly and certified, if necessary, as

required by Article 3 is presented to the President for assent, he shall signify that
he assents to the bill.”

Those were the legislative powers which were taken over and vested in the
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National Resistance Council.

Furthermore, the authorized manner or method of exercising those legislative

powers was also prescribed in the same paragraph. The paragraph in question in
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the following terms: -
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“All legislative powers referred to in the constitution are hereby vested in the
National Resistance Council. These shall be exercised by the NRC through the
promulgation of decrees evidenced in writing under the hand of the President and
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the Public Seal.

It is common knowledge that prior to the above revolution, the Parliament and the
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President had the sole powers to make laws, in this country. See Article 63 of the
Constitution above. But that same Article was suspended – Wee paragraph 1 of
the proclamation of the Legal Notice No. 1/86. Therefore, the new supreme
legislative body or authority and the successor to the Parliament, i.e. NRC, has
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now the sole power to legislate for the country through the manner prescribed i.e.
defined in the Oxford concise Dictionary, as meaning “to make known to the
public” to determine or to proclaim”. The decrees so made by the NRC have to be
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evidenced in writing under the name of the President and embossed with the
Public Seal.
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It should also be noted, that the NRC was and still is, the authorized body in the
proclamation, which is given the power to appoint the President. But the
President, so appointed has to be the one as envisaged in the Article 24 of the old
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Constitution which (article) was adopted without any modification i.e. whose
duties are defined to be the head of state, the head of the government and the
Commander in Chief of the Armed Forces. It is a fact that one had already been
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so appointed, at the time of the making the Legal Notice No. 6/86.

Furthermore, the proclamation in the Legal Notice No. 1/86 which is indeed
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agreed upon by both parties in this suit, as being the now supreme legal source of
authority in the country, has transcended the old constitution and now it occupies
the position of being the first supreme source of law. It is also complemented by
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the save parts of the now old constitution with the necessary qualification or
modification. Therefore, the latter i.e. the old constitution has recended to become
or occupy the secondly important source of law, subject to the condition set in the
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proclamation itself. The proclamation further indicates how the inconsistencies

between the two, if any, have to be resolved. See paragraph 13 of the Legal
Notice No. 1/86. It is categorically stated, that the saved parts of the constitution

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and the other existing laws, are to remain, operative but subject to modification or
qualification necessary to bring them in conformity with the proclamation.
The proclamation again expressly declares, that it is deemed to have come into
force, on 26th January 1986 the date on which the two important organs of the
revolution i.e. NRM and NRA which indeed made the proclamation and then
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transferred absolutely all the powers of the government and the supreme powers
of the legislating in the country, to the NRC, without making any reservation. The
NRC was then by that act transformed into the legal successor to the institution
hitherto, known as the Parliament, in the old constitution. From that time, any
a
new legislations which are to be made, in further, are required to be in the form of
nd
a decree made by promulgation and evidence in writing, under the hand or (or
otherwise signed by the President). It has also to be embossed with the Public
Seal. According to Mr. Katende’s argument the proclamation in the Legal Notice
No. 1/86 had then conclusively accomplished both its two purposes i.e. of
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destroying the old order of government and the replacement of it with the new
order of the government. Therefore, all the subsequent or future improvements, on
the machinery of administration in the new order, has to be affected by way of
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either altering or introducing the new improvements, through a legislation made

by the NRC, in the manner and the procedure set out in paragraph 7 of the
proclamation.
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I now turn and examine the Legal Notice No. 6/86 it is labeled as a proclamation,
seeking to amend the earlier proclamation in Legal Notice No. 1/86. this new
proclamation claim in its preamble, that it is being made under the powers,
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conferred upon the NRC, in the earlier proclamation in the legal notice No. 1/86.
The preamble having first made the assertion that on 26th January 1986, the NRA
assumed powers of the government of the Republic of Uganda and vested those
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powers in the NRC and that the Legal Notice No. 1/86 was proclaimed and
therefore, in exercise of those powers, the National Resistance Council asserts to
make the further proclamation, intended to amend Legal Notice NO. 1/86. The
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alterations and improvements were then mentioned.

My understanding of all what is, that the new or additional statement in the latter
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proclamation, was not intended to bring about another new revolution, but only
intended to improve on the new order of government which had been introduced
by the proclamation under Legal Notice No. 1/86. But the question which arises
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and requires to be answered here is, whether or not it was proper to make a
second proclamation without strictly following or in utter disregard, of the
procedure which had been established in the proclamation in Legal Notice No.
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1/86.

Mr. Katende has contended, that in the first place, the Legal Notice No. 6/86 was
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not properly made, because it did not comply with the procedure laid for effecting
new legislation in new order of the government. It did not observe the conditions
which were set, and which are in his view mandatory for making any subsequent
legislation. In the first place, it was not labeled or headed as a decree promulgated

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by the NRC. It was required to be signed in the names of the President of the
Republic of Uganda and not in the names of the Chairman of the NRC and the
NRM as it was done. Mr. Katende continued and contended that although the
office of the President of the Republic of Uganda is presently and legally
occupied by Mr. Yoweri Kaguta Museveni, who at the same time is the Chairman
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of the NRM and the NRC but, he can only sign to validate a new legislation in his
capacity as the President of Republic of Uganda and the new legislation has to be
in form of a decree, otherwise, in compliance with the mandatory requirements set
in proclamation in Legal Notice No. 1/86.
a nd
My perusal of the Legal Notice No. 6/86 reveals, vividly to me that it was signed
by Mr. Yoweri Kaguta Museveni as the Chairman of the two important
organizations NRM and NRC but the only one of which is indicated to be
competent to legislate but both of which do not comply, with the proclamation i.e.
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the Legal Notice No. 1/86.

It is manifestly indicated that he signed in his rightful two capacities as the Joint
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Chairman of the two but, nowhere in the proclamation has the power to validate
the new legislation, ever been vested, in the Chairman of either of those two
bodies, or both. The duties of the chairman, of either of the two bodies are totally
different, from those duties of the President of the Republic of Uganda. For
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example those of the Chairman of the NRC, are prescribed in paragraph 2 of the
proclamation, in legal notice No. 1/86. i.e. of the proclamation 1 to act as the
Chairman of NRC and in his absence the Vice Chairman is authorized to deputize.
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But, the President who is spoken about in the same proclamation see para. 6. and
who is also given the powers to sign the decrees, has his duties as prescribed in
Article 24 of the Constitution, of the Republic of Uganda, and they are spelt out to
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be as I mentioned earlier, the head of the state, the head of the government and the
Commander in Chief of the Armed Forces. Again according to the new
established order, he had to be appointed not elected as was in the old
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constitution. Again according to the new established order, he has to be appointed

by the National Resistance Council.

It is therefore, important to note at this juncture that on 23rd August 1986, which
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is the actual date of publication of the Legal Notice No. 6/86, there was a
President of the Republic of Uganda, who should have signed the decree in that
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required capacity, and the legislation should have been promulgated by him.
There is an indication or any other suggestions and indeed the Legal Notice No.
6/86 itself, makes it clear that the sale intentions in making it was to amend the
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proclamation contained in the Legal Notice No. 1/86. It will therefore, be absurd,
to say that it was intended to insert the minor omissions in the Legal Notice No.
1/86 but which omission had been inadvertently omitted. The intention is
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therefore as gather from what was stated in it, that of introducing a fundamental
change or an improvement on the provisions contained in the Legal Notice No.
1/86. It is not being suggested that such fundamental changes or improvements
cannot be done, far from it, all what is being said is that the desired fundamental

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changes or improvements can be done, provided the established machinery and

the procedure, laid in Legal Notice No. 1/86 is strictly followed and the
conditions set therein are complied with i.e. by a decree promulgated by the NRC,
signed by the President and embossed with the public scale.
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However, as a response to the above arguments, Mr. Mulenga the learned
Attorney General started off by making the fulfillment of what he had earlier on
promised to do i.e. to given the information to the court, that the proclamation of
Legal Notice No. 6/86 was issued, after being debated by the NRC in details and
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then adopted by the same council in the form it is appearing. This information, he
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stated, was based upon his own knowledge, because he had been summoned, to be
present during the discussions and attended the same. He categorically stated that
the proclamation in the Legal Notice No. 6/86 does not purport to have been made
under the provisions of the paragraph 7 of the Legal Notice No. 1/86. It was only
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intended to add something to its predecessor or the earlier proclamation.

He further contended, that what the court has to enquire into to its satisfaction, is
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as to when the body which seized the power and vested it into another body to
have the power to legislate by proclamation.

In his opinion there is no definite length of time or as to when the revolution is

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said to have been accomplished. It may take a very short time or a much longer
time. He went on to emphasise that the displacement of the old order may be done
at one time and the replacement of it may take place at another time, as was the
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case in the Pakistan case the State –vs Bosco and others, to which I will refer in
more details later.
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In the present case, he argued, it cannot be said that the revolution ended on 26th
January 1986 or even on 14th February 1986 when the proclamation No. 1/86 was
published. Here both sides were in agreement with each other as to what is
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necessary to establish the removal of old order, and the replacement of it by the
new order, as expounded by Prof. Kelsen of the positivist school of Jurisprudence
on the Theory of state, in his authorities works, in the book titled as the General
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Theory of Law and State. The Theory has been discussed at length in the earlier
case before this court i.e. the case of Uganda –vs- Commissioner of Prisons ex –
parte Matovu 1966 Ear 514 at page 535.
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According to the proclamation in Legal Notice No. 1/86 which is the basis of the
new order, the NRC is the supreme authority to legislate see – para 7 of the Legal
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Notice No. 6/86 was debated and passed by the NRC. The Attorney General has
volunteered to give some information; My assessment of the wish of both parties
in this case, is that there was no serious dispute or not debated nor is there any
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serious dispute as to whether the NRM has or has no, capacity to pass that law. I
have reached that assessment because both sides expressed their agreement that
no ruling was desired to be made on those two issues. Therefore, the only

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outstanding issue is; whether or not the Legal Notice No. 6/86 was properly
passed.

Mr. Mulenga has relied upon the well known legal fixition to the effect that
proclamation is a will of the sovereign and that if that will, is obeyed then it is
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law. He has advanced and argued that in the present case the sovereign authority
to legislate was conferred upon the NRC in Legal Notice No. 1/86 – see the
preamble and para 2 and he has wondered; as to how there can be a restriction to
prevent that sovereign body to expand its unlimited powers to legislate unless, it
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is no longer obeyed.
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In his final arguments he has argued that the removal of the old order and the
replacement of it with the new order, should ideally take place at the same time.
But it may also not take place at the same time, as it is shown in the Pakistan case
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The State v Desse and others where the replacement of the new order, was still
being formulated after three days of the placement of the old order and much
formulation was held to be valid. I entirely agreed with Mr. Mulenga’s
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submission that in this present case, the removal of the old order took place on
26th January 1986 but the replacement was officially made by proclamation on
16th February 1986 and was given retrospective effect from the date of the
removal.
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The pertinent question to be asked and which requires to be answered is: who
decides the precise time when the formulation of the new order is completed? In
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my view, it would be the one who has introduced the new order and he has to do
so in clear certain terms to that effect. Although the court may be asked to decide
as it is being indirectly asked now, but it can only be in position to decide, if the
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matter is expressly set down in a document or a number of documents clearly

showing that the formulation of the new institutions has been completed.
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I say so, because in the new establishment order, what would have appeared to be
improperly or unlawfully done, in the old order, now becomes lawfully and
validly done in the new order; so longer as the sovereign will of the new supreme
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authority is being obeyed. It is therefore, for that reason, that the proclamation
immediately assumes a position, which overrides, the other saved or existing
sources of law, including the old constitution and then it becomes the supreme
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source of law in the state.

Therefore, until the new organ which has the supreme power to exercise the
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legislative powers has come out with the clear terms in a document or several
documents stating expressly the extent of power given away, the limitation of the
exercise of that power if any or the prohibition, if any curtaining the use of that
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power; it is difficult to ascertain the point in time of the conclusion of the

revolution. It is therefore, the duty of the new order to declare that the process of
establishing the new order has been completed. The other pertinent question is,
whether the para 7 of the proclamation of the Legal Notice No. 1/86, is restrictive

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or prohibitive. The perusal of the provisions in question, reveal clearly that there
is no express restrictive provisions as for example is the case in the old
constitution see Article 58 (3) where it is expressly laid down, that in order a bill
to become law, it must be debated, passed, by the Parliament and assented to by
the President. Therefore, unless the bill goes through those three steps it cannot
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become an Act, of Parliament. Mr. Mulenga submitted that even after the
Proclamation in the Legal Notice No. 1/86 had come into force, the NRM,
retained the power of continuing the process of the revolution in improving the
new legal order by expressing its will through the proclamation. Otherwise, all
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what is being said is that the source of that power is the revolution which gives
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the legality of the acts by the new order.

In alternative Mr. Mulenga has argued that the Legal Notice No. 6/86 cannot be
held to be null and void because the matters which are complained of, as having
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not been complied with, are the matter of form or not of substance. Here Mr.
Mulenga has in my view, rightly stated that he validity of a legislation or law is
rooted in the competency of its maker, and not in the form in which it is
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published.

In brief, the law is valid, if it is made by a competent authority.

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The conditions which are alleged to have been breached according to para. 7 of
the Legal Notice No. 1/86, is the absence of evidence of being in writing, in the
hand of the President. Here Mr. Mulenga contends that the deficiency amounts to
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the absence evidence authentication which is not a part of passing that law.
Similarly the requirements of the Public Seal fulfils the same purpose. The
naming of the new law as a proclamation and not a decree would be again a minor
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irregularity which does not go to the root of validity I entirely agree with the
learned Attorney General regarding the same aspect, which affect the validity of
the legislation, namely the extent of power to legislate, which if prescribed, the
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area of jurisdiction given and once the legislation is made out- side the perimeter
of that jurisdiction, then automatically the attempt to make that law, will be void
ab initio and the law so made must be declared to be null and void. The question
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to be answered in the present case is: was the NRC given a limited or restricted
legislative powers? The answer is No. because all the unlimited legislative power
in the constitution was given to it. In fact, here both parties are in agreement that
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NRC has an absolute authority to make law, and also that the law becomes law, as
soon as it is passed by a competent authority.
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In conclusion it is my view, that Legal Notice No. 6/86 may have been made in a
better form, but the established branches or omission did not destroy the main
root, i.e. the existence of the power to make a law by the body which made the
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law. That body should have and indeed had, the power to make a law of that kind,
in order to formulate or improve on the new arrangement based on the principles
of the new order. Therefore, the law so made, can only be declared be null and

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void, if what was purported to be done in law, was not done and could not have
been done.

In conclusion, further, it is my view, that as regards, this reference the current

preparations of the new order, in which this country is finding itself engaged, is
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not yet completed. The formulation of the best new order is still in process. For
that reason I am unable to declare Legal Notice No. 6/86 to be null and void. I
now advance and deal with the second reference which is the question of law of
“whether the judgment/decree in the HCCS No. 435/82 is a property within the
a
measuring of Article 8 9c) and 14 of the Constitution.
nd
Before any answer to the above enquiry is attempted, it is necessary to examine
the background facts which led to the above said judgment/decree. The relevant
facts were adequately summarized in the earlier part in these judgment See pages
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3 to 8 therefore, I need not reproduce them. But it will surface only to mention
that Prof. Sempebwa the applicant/decree holder, was in the process of making a
way to enforce or execute the above said judgment/decree validly in his
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possession see Mis. Appl; 81/86 when he was confronted with the claim on the
part of the judgment debtor, that the judgment/decree in question had been
nullified by the proclamation in the Legal Notice No. 6/86. He, therefore, relying
upon the authority in the HCCS No. 2 Shah v Attorney General 1970 EAR 523
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and through his counsel, sought the permission the court to postpone that
proceedings, so as to enable him to move the constitution court, to resolve the
very questions in this reference.
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Before I deal with the arguments which were made on both sides and mainly for
the purposes of clarity, the relevant portions of the tow Articles of the
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Constitution in issue are reproduced as below: -

1. Article 8(2) (c) provides as follows: -

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“Every person in Uganda shall enjoy the Fundamental right and freedom
of the individual, that to say the right of each of all of the following
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namely,

a) …………………..
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b) …………………..
c) Production of the privity of his home and other property and their
deprivation of property without compensation
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Then with regard to Article 13, the marginal notes are as follows: -
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“Protection from deprivation of property.”

And then the relevant operative provisions in Article 13 (1) is in the following
terms: -

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“No property of any description shall be taken

possession of and any interest or right over property of any description be

acquired, except where the following conditions are satisfied that is to say: -
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(a) …………………..
(b) …………………..
(c) Provisions is made by a law applicable to that taking, possession or
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acquisition.
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(i) For payment of compensation and;

(ii) Securing any person’s interest in or a right over the property, a right or
a
access to the High Court whether directly or on appeal from any other
authority for determination of his interest or right, the legality of taking of
possession or acquisition of the property interest or right and the amount
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of any compensation to which he is entitled for the purpose of obtaining

(prompt) payment of that compensation.” Mr. Katende has argued, that for
a long time in this country, particularly following the decision in Shah’s
case, the judgment debt has always been held by this court to be property
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which entitles, any one in possession of it, to compensation where there is

compulsory acquisition. He has advanced to argue that Mr. Sempebwa
was being deprived of that right, if the judgment decree in his possession
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was to be nullified without any compensation.

He has further referred to the Rule 50 of 0 xxx of the CPR, which had
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been in existence for long time before the Shah’s case, but where the same
rule refer to a decree or judgment as being one of the kinds of property
which can be a subject of attachment in the execution of the judgment of
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the court. The said rule has in its marginal notes the following caption.

“Attachment of Decree”, showing thereby what it is all about; and –

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then it commence in the following manner;

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“when the property to be attached in a decree whether for payment of

money or for sale, in enforcement of mortgage or change, attachment shall
be made etc, etc ….”
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Manifestly, the decree here is distinctly referred to as an item of property

which can be the subject of attachment.
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It should also be noted, that the two relevant Articles of the Constitution
i.e. 8 and 13 are both under Chapter 3 of the Constitution, which Chapter,
deal with fundamental rights and freedoms of individual – Again where in

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that chapter it was considered desirable to give a special meaning to any of

the expressions used therein, then a special Article governing the
interpretation was specifically provided and laid down the intended
meaning See Article 23 of the Constitution. But although it is a fact that
the term property was used in both Articles i.e. 8 and 13, yet it (the term)
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was not given any special meaning nor does it appear in Article 23 at all.
Therefore, the term must have been intended to carry its usual or normal
and ordinary meaning. If it had been the wish of the framers of the
Constitution, to give a special meaning to the term property and thereby
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limit or confine the term to a limited perimeter then they would have
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certainly done so, as they did with the other terms in Article 23.

Mr. Katende has finally, argued that the issue which is now before this
court in this reference, was resolved by this court, in the case, Shah –vs-
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Attorney General (No. 2) 1970 ETA 523, where it was expressly held by
the majority of 2 to 1, that judgment debt is a property as envisaged in
Article 8(2) (0) of the Constitution. Therefore, this court is bound to abide
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by that decision and can only depart from that decision, on the persuasive
principles expounded by the court of appeal of England in the case Young
v Bringhton Aeroplane Company Limited 194 KB 718 Those principles
are set out as follows: -
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“The court is bound to follow its decisions and those of courts of co-
ordinate jurisdiction except in the following cases: -
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a) where the court, is faced with two conflicting decisions of its own.
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b) Where there is a higher conflicting decision – decisions by the

higher court.
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c) Where the court is satisfied that the decision was made per
incuriam e.g. where there was another decision which was not
cited before the court.
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To his knowledge, Mr. Katende submitted, that none of those

exceptional circumstances are available to justify this court to
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depart from the decision in the Sha’s cases. In emphasizing his

arguments he submitted that there is no good reason for changing
law, which view is no good reason for changing law, which view is
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also supported in the authoritive Halsbury’s Law of England Vol

26 page 302, 303 para. 584: -
Where it states: -
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“Unless it is satisfied that the previous decision is wrong, a

decision in existence for a long time, would generally be
upheld even by the court higher even though that court

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might have given a different decision of the matter had

given to its original.”

He then referred to another part in the same authoritive series of

Halsbury’s Law of England 3rd Edition, Vol. 36 at pages 383
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paragraph 57 This paragraph deal with the reluctance of the court
to upset the outstanding interpretation and it is therein state in the
following terms: -
a
“Where there is an ambiguity and the particular interpretation on
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which certain rights are provided has been followed for a long
time, the court will be reluctant in holding supposed rights as not a
right.
a
See also the: -

In his final submission Mr. Katende claimed that Shah’s case in a

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good law and has been standing for a long time therefore, Mr.
Sempebwa’s judgment debt is a property within the meaning fo the
stated Articles of the Constitution in the reference. On the other
hand, Mr. Mulonga made a submission to the effect that the
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majority decision in the Shah’s case was not correct. While

agreeing with the arguments that the court should follow its own
previous decisions and that it should be reluctant to depart from it,
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he has also argued and cautioned the danger of rigidly in sticking

on precedent which may deter the development of the law. He had
cited the case Ntungweri and 4 others v Mrs. Charity Kakukindire
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HCCS No. 604/80 (unreported) where the judge of the High Court
refused to follow his own earlier decision, on the sole ground that
he had changed the view which he had earlier held. He had also
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cited another persuasive practice direction of the House of Lords of

England, where the rigidity which deter the developments of law is
discouraged.
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In his contention against the Shah’s the Shah’s case he submitted

that the property in judgment debt came in Shah’s case as a side
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issue. It never came as a major issue as to whether the judgment

debt was or is protected under the constitution nor did he agree that
the decision has been followed for a long time or that the departure
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will upset the general conduct of the affairs.

Having listed tot arguments in both sides I am impressed by the

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established rule of interpretation in Bares Pimple of interpretation

3rd Edition. Page 443 to the effect;

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“Statutes interfering with individual property rights must be strictly

interpreted against the party or authority taking away the rights and
liberty in favour of the individual whose rights is being taken.

I am therefore, inclined to agree with Mr. Katende’s arguments, I

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cannot see why judgment/decree already validly in possession of
Mr. Sempebwa or any one else similarly situated, should not be
treated as property which cannot be taken away unless reasonable
compensation has been given to him. I cannot find any justification
a
in departing from the decision in the Shah’s case. To be more
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specific the answer to the Reference No. 2 is in affirmative.

Reference No. 3 is in the following terms: -

a
“Whether para. 12(2) of the Legal Notice No. 1/86 as amended by
Legal Notice No. 6/86 is consistent with the constitution of
Uganda. Having regard to the provisions of Article 8(2) © and 13
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of the Constitution.

The amended relevant portion of the para. 12 (2) (ii) reads as

follows: -
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“Any suit, motion or proceedings against the government of Local

Administration arising out of the sets or omission referred to in
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para. 2 (i) of this paragraph, pending before any court before the
23rd day of August 1986, shall forthwith lapse and any judgment,
decree or order arising out of such suit, action or proceedings
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which is not fully executed or satisfied immediately before that

date is hereby nullified.”
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As regard the text of Article (2) © and 13 of the Constitution, there

is no need to reproduce them here, for the same were reproduced in
the earlier parts of this same judgment.
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Mr. Katende has contended that there are some in consistencies in

the amended para. 12(2) with the fundamental right of the
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individual, as contained in the provisions of Articles 8(2) (c) and

13 of the Constitution. In his view, the effect of the amendment is
to take away or abolish some of the fundamental rights of the
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individual in the constitution. But, he does not believe that to have

been the intention of the government and his reason for that
opinion was that the whole of the Chapter 3 of the constitution,
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containing the fundamental rights of the individual, was preserved

or saved and not suspended, as was the case with some other
provisions in other Chapters of the same constitution.

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He has further urged that because the Legal Notice No. 6/86 is a
proclamation who is distinguishable from the first proclamation, in
the Legal Notice No. 1/86 it does not therefore fall in the same
category with the former proclamation which is admitted to be
valid as having been established by the revolution.
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In his opinion, it cannot therefore, assume the authority to amend
the constitution. He has concluded that the said para. 12 (2) of the
Legal Notice No. 6/86 is void to the extent of its inconsistence,
a
with the provisions in the constitution.
nd
He has finally, made prayers that the matter now before this court,
should be referred back to the High Court, with the direction that
Mr. Sempebwa proceeds with his application seeking the leave of
a
that court, to apply for the prerogative order of mandam and that
he also be awarded the cost of this application.
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Mr. Mulenga has in his reply started with the statement to the
effect that there is no dispute between the two parties as to what
constitutes the new constitution. In his view, he new constitution
consists of first and fore most the proclamation in Legal Notice
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No. 1/86 and in the second place, the save or adopted provisions of
the new old constitution of 1967. He has added that in his view he
would also add on the proclamation in the Legal Notice No. 6/86.
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But, that latter addition is being contested by the applicant in the

present proceedings as being invalid. A part from that latter part,
the general view of what consists of the new constitution, after the
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new order has been established, was supported by the decision in

the case of Andrew Kayira and another v Rugumayo and others
constitution case No. 1/79 un reported. In that case, the
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proclamation No. 1/79 was held to be valid as establishing the new

order but he subsequent legal notice No. 2/79, made after the
power to legislate had been given away, to be exercised by another
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authority or body was held to be invalid. Again in the second

persuasive case cited as Nigeria of Journalists and another v
Attorney General, quoted in 1986 Law report of the Common
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Wealth.

A similar view was held. Therefore, although it is agreed that what

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is meant by the term constitution has not been made an issue in the
present proceedings, but on cannot resolve the legal question in
this particular reference without making a reference to the clear
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definition of the term Constitution in the connection with the

reference. That is so, because speaking about the constitution after
the revolution, would cannot the basic principles, of the
government of the state which are to be gathered first and fore

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most from the proclamation, which has brought about the change
of new order of the government and in the second place, from the
saved provisions of the now old constitution ie. The constitution of
Uganda of the year 1967, and the other saved existing sources of
law.
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Having adopted the meaning of constitution as expounded above,
where the old constitution is in the 2nd place therefore, the
provisions of the law in the constitution have to be read with such
a
modification qualification and adoption as prescribed in para 13
nd
(ii) of the proclamation in the Legal Notice 1/86. There is
therefore, no need to make any ruling, and I have not made one.
But what requires to be ascertained is, how far should the
retrospective effect of the now law to be carried? Particularly with
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regard to the already decided cases where judgment or decree
extracted from such judgment were made, before the created
prohibitions as is envisaged in para. (d) of the Legal Notice No.
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6/86.

While I agree that the legislative power of NRC is unlimited to

effect any new changes for the good government of this country,
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from the time it took over the sovereign power, but my view is that
it should not resurrect the deadly to come back and answer the new
created charges, which were not in existence, at the time when they
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lived or take way the rights of those now living which were
accrued in the lawful or legal manner, at the time when they were
acquired. Therefore, the retrospective nullification effect should
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not be extended to apply to the already completed cases, like that

of Mr. Sempebwa or any others who may similarly be situated, but
in such cases the living successful litigants should be allowed to
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enforce their judgments.

I accordingly hereby order that the applicant be allowed to pursue

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his original application before Mr. Ekirapa Ag. Judge, for leave to
apply for the order of mandamus.
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In summary the following are my findings; -

On issue No. 1 the Legal Notice No. 6/86 was not properly made
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but is not so bad in law as to deserve declaring it null and void.

On the issue No. 2 the judgment/decree in the HCCS No. 535/82 is

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a property within the meaning of Article 3(2) (c) and 13 of the

Constitution.

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On the issue No. 3 no declaration is necessary because para. 13(ii)

of Legal Notice No. 1/86 resolved the issue but although eh NRC
has an unlimited extent of power to legislate, including giving
those new laws retrospective effect but the retrospective effect
should not be extended to cases like that of the applicant in this
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matter and other who are similarly situated, where the decision
were made long before the change of the law and in the lawful
manner at the time of making them. The total effect of the above is
that the appellant is allowed to enforce his judgment in the manner
a
he was pursuing before the question of interpreting the
nd
Constitution arose.

As regards the award of costs, I have noted that the learned

Attorney General claims that each party should bear its own costs
a
on the ground that this case was in the interest of the development
of law. It is my view, that the state is in a much better position to
bar such necessary and available expenses for the development of
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the law. On the other hand, the successful party is entitled to

recover his costs from his opponent, but, as each party, was, in a
way, successful to a certain extent I would consider the successful
applicant should recover from the respondent only two thirds of his
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taxed costs.

………………………………….
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W. K. M. Kityo
JUDGE
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FINAL RESULTS:
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As regard to the final results based on the majority decisions, from

the three judgments on this panel they are as follows: -
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1. On the issue No. 1: The legal notice in question was not

properly made, (unanimous) and it is hereby declared to be null
and void majority of 2/1.
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2. On issue No. 2: The judgment debt/decree in the HCCS NO.

435/82 is property within the meaning of Article 8 and 13 of
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the constitution. (unanimous).

3. On issue No. 3: The para. 12 9ii) of the legal notice No. 1/86
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as amended by the legal notice No. 6/86, is inconsistent with

the Constitution of Uganda. (majority of 2/1).

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Finally, the consequential order is hereby made, referring the

applicant book to the (unanimous) High Court to pursue this
application in Misc. App. No. 81/86, by Mr. Ekirapa Ag. Judge
to enforce his judgment. The costs of these proceedings to the
successful applicant.
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We are grateful to the counsel on both sides, who conducted their
respective cases with utmost diligence and thereby rendering us a
great assistance in trying this case.
a nd

W.K. M Kityo
a
JUDGE

27/3/86
On
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