KIRABO ONESMUS CS19B11-284

UGANDA CHRISTIAN UNIVERISTY, MAIN CAMPUS

FACULTY OF LAW

NAME: KIRABO ONESMUS

REG/NO: CS19B11-284

YEAR: 2

STREAM: C

COURSE UNIT: COMMISSIONS OF INQUIRY

LECTURER: ME

TUTOR: MYSELF
KIRABO ONESMUS CS19B11-284

The case of Byaruha v AG1 deliberates extensively on the constitution of the commissions of
inquiry in Uganda as one of the most popular commissions of inquiry chaired by Bamugemereire,
was dragged to court in an action for judicial review, and on the counts of mismanagement, abuse
of office, irrationality by the Bamugemereire land commission among others. In resolving the issue
as to whether the Members of the Commission and in particular the Chairperson of the
Commission were biased towards the Applicant. My following submission elucidates on the
c0ommissions of inquiry in light of the contextual case and other cases.

Firstly, the commissions of inquiries can be defined as temporary and flexible tribunals which are
instituted by appointment at a presidential or ministerial discretion and not by any Act of
parliament. Notably, Musa Ssekaana, in his book Public Law in East Africa 2, defined a
commission of inquiry to mean a fact-finding body. It is key to capture the definition of a
Commission as per the Black’s law dictionary3, which is a body of persons acting under lawful
authority to perform certain public services.

From the above definitions, a commission of inquiry is a body, which serves the purpose of
investigating a set of issue(s), gather information about those issue(s), and submit the report to the
appointing authority. Thus, in the case of Kabugo v The Commission of Inquiry4, court noted
that the underlying purpose in appointing a Commission of Inquiry is to ascertain facts for the
information of the government as well as public so that if any problems are disclosed as a result
of the inquiry, corrective legislative or administrative measures may be undertaken by the
government. It is key to note that the government is under no legal or statutory obligation to appoint
a commission to inquire into any definite matter of public importance.

Pertaining the jurisdiction of the Commissions of Inquiry, court, in the case of Byaruha v AG5,
noted that The High Court has no jurisdiction to adjudicate on any factual questions which were
committed to the Commissioners for inquiry and report as this is not an appeal against the decisions
reached-there is no right of appeal against reports of Commissions of Inquiry; Commissions may

1
Byaruha v AG [2019] UGHCCD 67.
2
Musa Ssekaana, Public Law in East Africa at P.154.
3
B.A. Garner, Black’s Law Dictionary (10th edn, West Publishing Company) 327.
4
Kabugo v The Commission of Inquiry & Anor [2020] UGCCD 62.
5
Ibid (n,1).
KIRABO ONESMUS CS19B11-284

greatly influence public and government opinion and have devastating effect on personal
reputations; that is why in appropriate proceedings the courts must be ready if necessary in relation
to Commissions of Inquiry just as to public bodies and officials to ensure that they keep within the
limits of their lawful powers and comply with any applicable rules of natural justice

It is also important to note that, a commission of inquiry may be appointed to inquire into a matter
pending before the court, or a criminal court. The case of Shammbhu Nath Jha v Kedar Prasad6
notes that a commission commits no contempt of court by enquiring into a matter pending before
a court, nor does it amount to usurping judicial functions because the commission’s report is not
enforceable proprio vigore; in making the, enquiry, the commission performs only a statutory duty.
But a government cannot appoint a commission for a matter in respect of which legal proceedings
have already been taken and disposed of as such a matter remains no longer a matter of public
importance.

In Uganda, the commissions of inquiry are established under Section 1 of the Commissions of
Inquiry Act7 which is to the effect that the minister may issue a commission authorizing its
members the conduct of the conduct of any public officer, chief, conduct or management of any
department of the public service, among other matters in which it would be for public welfare8.

The most famous commission of inquiry is the former Land Inquiry Commission chaired by
Justice Catherine Bamugemereire (the Bamugemereire Land Commission) and constituted of
7 other members, which had been instituted to inquire into the effectiveness of law, policies, and
processes of land acquisition, land administration, land management and land registration in
Uganda. In reaction to the report, the president said that the report is going to be a nucleus for
the current understanding of land use for wealth creation 9. This emphasizes the role of
commissions in informing policy decisions through their recommendations.

Another one of the famous one of the commissions in Uganda is the Uganda Constitutional
Commission commonly known as The Odoki Commission. This aforesaid commission of

6
Shammbhu Nath Jha v Kedar Prasad [1972] AIR SC 1515.
7
The Commission of Inquiry Act Cap.166.
8
The Commissions of Inquiry Act Cap.166.
9
Vision Reporter, ‘Bamugemereire Hands Over Land Probe Report to Museveni’ New Vision (Kampala, 29 July
2020).
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inquiry was established by president Yoweri Museveni after seizure of power in 1986 to address
human rights violations, with mandate to investigate human rights violations by all the past
governments since independence. It noteworthy that the Odoki Commission successfully informed
human rights violations the findings laid a smooth ground for the protection of human rights by
the 1995 Constitution of Uganda under chapter 4.

The other commission in the Judicial Commission of Inquiry which addressed allegations of
corruption in the Uganda National Roads Authority which constituted of the members of the
Judicial Service Commission which was a 5-member commission chaired by the Uganda High
Court’s Lady Justice Catherine Bamugemereire10. It is pertinent to note that this probe was also
headed by Catherine Bamugemereire.

The other commission is the Kampala City Council Authority Tribunal which in 2013, cleared
the process of removing the Lord Mayor Elias Lukwago on grounds of incompetence, abuse of
office and misbehavior11.

Critical analysis has it that many people find it difficult to draw a distinction between commissions
of inquiries and tribunals, hence my averment hereunder throws an extensive light on the
commissions of inquiries;

court noted that the law governing the proceedings before the Commission is well stated in Section
6 of the Commission of Inquiry Act Cap 166 which mandates the Commissioners inter alia to make
a full, faithful and impartial inquiry into the matters specified in the Commission. The said section
is to be read in conjunction with Article 21 the Constitution which provides entitlement to equality
and equal protection of the law in favour of all persons.

The Byaruha v AG case noted that the law governing the proceedings before the Commission is
well stated in Section 6 of the Commission of Inquiry Act12 which mandates the Commissioners
inter alia to make a full, faithful and impartial inquiry into the matters specified in the Commission,
the said section of which is to be read in conjunction with Article 21 the Constitution13 which

10
New Vision Reporter, ‘Museveni Receives UNRA Commission Report’ New Vision (Kampala, 9 Oct 2015).
11
New Vision Reporter, ‘KCCA Tribunal Report in Full’ New Vision (Kampala, 15 Nov 2013).
12
The Commission of Inquiry Act Cap.166.
13
The Constitution of the Republic of Uganda, 1995 (as amended).
KIRABO ONESMUS CS19B11-284

according to Dott Services & Anor v Attorney General14 provides for entitlement to equality
and equal protection of the law in favour of all persons.

It follows that in the proceedings before the commission, there are no accused, no accusers, no
specific charges for trial, nor is the government, under the law, required to pronounce one way or
(the other on the commission’s findings. The rationale is that these commissions of inquiry are
different from administrative tribunals and other public inquiries that seek to give a fair hearing.15
Therefore, the role of commissions on inquiry is largely investigative than judicial.

It is noteworthy that the report of the commission is merely of a recommendatory nature. It is a

provision under Rule 8(2) that the Commission shall submit a final report of its findings and
recommendation to the President.

It is not in any way binding on the government. It is not enforceable proprio vigore and in Kehar
Singh v Delhi Administration16, court noted that the report of a commission of inquiry has no
evidentiary value in the trial of a criminal case. Basically, an inquiry under the Commissions of
Inquiry Act is usually mounted by the government for the information of its own mind and the
case of Shamkant v State of Maharashtra17 noted that the findings of a commission of inquiry
are not binding on court and therefore, the court has to arrive at its own conclusions after an
independent assessment of the evidence tendered before it.

The Commissions of Inquiry Act makes no provision for giving effect to the commission’s
findings. The commission is merely a fact-finding body having no power to pronounce a binding
or definitive judgment or orders. It collects facts through the evidence laid before it, and after
considering the same, it submits its report which the appointing authority may or may not accept.
This is supported by the position in Frances Namara & 61 Others v Attorney General18 and
Attorney General v Walugembe Daniel19 CACiv Misc. App No. 290 of 2018 that a Commission

14
Dott Services & Another v Attorney General Misc. Cause No.137 of 2016.
15
Musa Ssekaana, Public Law in East Africa at P.154.
16
Kehar Singh v Delhi Administration [1988] 3 SCC 609.
17
Shamkant v State of Maharashtra [1992] AIR 1879.
18
Frances Namara & Ors v AG Misc. Cause No.86 of 2019.
19
AG v Walugembe Daniel Misc. App No.290 of 2018.
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of inquiry is not a court but it is merely clothed with certain powers of a civil court but it does not
have the status of court.

It is noteworthy that commissions of inquiries are complementary to the ordinary court system
thereby performing duties that are legal in nature, which in the alternative would be performed by
court. However, it is key to note that even though Section 9 of the Commission of Inquiry Act
clothes the commission with certain powers of a civil court, it does not generally confer the status
of a court on it. Section 9(4) imparts to its proceedings the character of a judicial proceeding, for
certain purposes and these provisions only create a legal fiction for certain purposes which cannot
be extended beyond the purposes for which they are created.

The procedure of commissions of inquiry is that they report to the person who appointed them,
and that is why the Bamugemereire land Commission handed their report to president Museveni
at the end of its tenure because that commission had been established by him in 2007.

It follows that in a commission of inquiry, the president appoints a chairperson who probes a
specific matter to the root and in the end, the chairperson adduces a comprehensive report on the
central matter and at that point, the commission is relinquished of its duties since the report is the
last one of the whole process.

The reports established by the commissions of inquiry guide government in policy decisions, guide
courts through informing the adjudication process since they tend to address a specific matter to
its root and back.

It is pertinent to acknowledge that whereas tribunals are permanent, the commissions of inquiry
are timely and short lived, hence operate in specific time perimeters after which the commissions
duties are disbanded. A case in point is the Bamugemereire land commission whose tasks were
stipulated for thirty (30) months after which it was relived of its duties. This means that the
commissions of inquiry differ from time to time.

The key difference on record between tribunals and commissions of inquiries and tribunals is that
tribunals are established by law through an Act of Parliament while the commissions of inquiries
are merely appointed by the president where need for them arises. A case in point is the
Bamugemereire land commission which was appointed by the president.
KIRABO ONESMUS CS19B11-284

It is noteworthy that the functions of a commissions of inquiry are closely similar to the functions
of tribunals only that they occur on a very temporary basis for very specific matter where they
cease to operate after addressing the specified matter.

It follows that unlike the decisions of tribunals which are appealable to the high court, the
commissions of inquiries are conclusive within themselves and their only role is to adduce a report
on the specific matter in context and then have their duties and the commission itself disbanded
there and then.

In conclusion, it is key to note that there are negative consequences affiliated with Commissions
of Inquiry. Therefore, Court, in the case of George vs McIntyre AG20, noted that the exceptional
inquisitorial powers conferred upon a Commission necessarily exposes the ordinary citizen to the
risk of having aspects of his private life uncovered which would otherwise remain private, and to
the risk of baseless allegations made against him, causing distress and injury to reputation. In the
contextual case of Byaruha v AG, court answered the first issue as to bias by the commission in
the affirmative.

20
George v McIntyre AG 2003 HC 10.
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BIBLIOGRAPHY

The Constitution of the Republic of Uganda, 1995 (as amended).

The Commissions of Inquiry Act Cap.166.

CASE LAW

AG v Walugembe Daniel Misc. App No.290 of 2018.

Byaruha v AG [2019] UGHCCD 67.

Dott Services & Another v Attorney General Misc. Cause No.137 of 2016.

Frances Namara & Ors v AG Misc. Cause No.86 of 2019.

Kabugo v The Commission of Inquiry & Anor [2020] UGCCD 62.

Kehar Singh v Delhi Administration [1988] 3 SCC 609.

Shamkant v State of Maharashtra [1992] AIR 1879.

Shammbhu Nath Jha v Kedar Prasad [1972] AIR SC 1515.

TEXT BOOKS

Musa Ssekaana, Public Law in East Africa at P.154.

B.A. Garner, Black’s Law Dictionary (10th edn, West Publishing Company) 327.

NEWSPAPERS

Vision Reporter, ‘Bamugemereire Hands Over Land Probe Report to Museveni’ New Vision
(Kampala, 29 July 2020).

New Vision Reporter, ‘Museveni Receives UNRA Commission Report’ New Vision (Kampala, 9
Oct 2015).

New Vision Reporter, ‘KCCA Tribunal Report in Full’ New Vision (Kampala, 15 Nov 2013).