Uganda, High Court of Uganda, 23 July 2021, Miscellaneous Cause No. 194 of 2021
Case overview
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General Summary
The applicant averred that the President of Uganda has no powers to regulate people in the prevention of a contentious/infectious disease by mere oral statements/ speech/ orders/ directives/ decrees; the measures declared were not supported by any Act of Parliament or Statutory Instrument; and the President’s said Directives were illegal, were issued in a procedure which was improper, were unreasonable, irrational and defeated common sense, as well as subjecting Ugandans to unclear and uncertain martial law, and were uncertain and incapable of being complied with or enforced.
The applicant also argued that the Chief Justice had no power to regulate people in the prevention of a contentious/infectious disease; that the Chief Justice had no powers to make decisions with a force of law without any Statutory Instrument; the measures declared were not supported by any Act of Parliament or Statutory Instrument.
The Court found that the measures taken by the President and the Chief Justice of the Republic of Uganda to prevent the spread of Covid-19 were within the law and not Ultra-Vires their powers.
Facts of the case
The applicant sought the following relief:
- A declaration that the several oral statements/ speech orders/ directives/ by the President of Uganda communicated on Friday June 18, 2021 relating to Covid-19 had no force of law, were illegal, procedurally improper and ultra-vires the powers of the President of Uganda.
- A declaration that Circular CJ/C.7 of the Chief Justice dated June 21, 2021 titled “Revised Contingency Measures by the Judiciary to Prevent and Mitigate the Spread of Covid-19” has no force of law, is illegal, procedurally improper and ultra-vires the powers of the Chief Justice of Uganda.
- An order of Certiorari quashing the President’s Directives communicated on Friday June 18, 2021 relating to the Coronavirus and the Chief Justice’s Circular CJ/C.7 dated June 21, 2021.
- An order of Certiorari quashing any action, decision, or step taken in pursuance of the President’s Directives and the Chief Justice’s Circular.
- An order of Prohibition prohibiting any Ugandan Government Official or Agency from implementing the said President’s Directives and any Judicial Officer, Court Staff, or Judiciary Administrator from implementing and complying with the Chief Justice’s Circular.
- A permanent injunction restraining any Uganda Government Official or Agency from implementing the President’s Directives and any Judicial Officer, Court Staff, or Judiciary Administrator from implementing and complying with the Chief Justice’s Circular.
- General damages, exemplary and aggravated damages to be paid to the Applicant by the Respondent for inconveniences caused.
- Costs of the application to be paid by the Respondent.
Type of measure challenged
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Individual / collective enforcement
Nature of the parties
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Private individualDefendant(s)
Public
Type of procedure
Reasoning of the deciding body
The fact that the President communicated Covid-19 prevention directives through a televised address did not and cannot be taken to mean that he had no script upon which the address was premised. What was important was the knowledge that the President had the power to make Orders or Directives that have the force of law. The President’s Directives were not ultra-vires his powers and there was no evidence of either illegality or procedural impropriety in the way the said Directives were made. The said Directives were based on a Statutory Instrument that was made by the President, authenticated by the Minister of Health, and published in the Uganda Gazette on July 1, 2021 with a clear provision for its commencement date being June 18, 2021. In the same way the Chief Justice’s circular aimed at regulating people to prevent a contentious/infectious disease was not an instrument making provision for rules of procedure and practice. It contained guidelines that were within the ambit of the Chief Justice to make as the head of the Judiciary, responsible for the administration and supervision of all courts in Uganda.
Conclusions of the deciding body
The application by the Applicant wholly failed and the application was dismissed accordingly with costs.
Fundamental Right(s) involved
- Freedom of movement of people, goods and capital
- Right to access to justice, to a fair trial and to jury trial
Fundamental Right(s) instruments (constitutional provisions, international conventions and treaties)
- Right to a fair hearing, Art. 28, Art. 44 (c), Constitution of Uganda
- Freedom of movement, Art. 29, Constitution of Uganda
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
- Health v. freedom of movement of persons
- Health v. right to a fair hearing
General principle applied
- Rule of law
- Due process
- Effective (judicial) protection
- State of emergency or necessity
Balancing techniques and principles (proportionality, reasonableness, others)
The Court found that the measures taken by the President and the Chief Justice of the Republic of Uganda to prevent the spread of Covid-19 were within the law and not ultra-vires their powers.
