According to Madrama, the law is very clear when something done by the government of Uganda is inconsistent with article 154 which talks about the withdrawals on consolidated fund. Madrama says one can apply to the High Court for judicial review or file a suit in the public interest to enforce the said article but cannot petition the Constitutional Court.
Justices Mike Chibita (Supreme Court), Kenneth Kakuru (Constitutional Court) and Stellah Arach (Supreme Court)
The Constitutional Court has dismissed a petition that
was filed 15 years ago challenging the agreement entered by the government of Uganda
with BIDCO Oil Refineries Limited for the development of the Oil Palm Industry
A panel of five Constitutional Court Justices led by
Kenneth Kakuru has unanimously dismissed the petition filed by former Kyadondo
South MP Issa Kikungwe who passed on in 2017 and former Lubaga South MP John Ken Lukyamuzi.
This is on grounds that the petition lacked merit and that there was nothing constitutional
for them to interpret.
Kikungwe and Lukyamuzi filed the case in 2006 challenging
a decision to grant BIDCO Oil Refineries Limited a superior status over other
oil producers. It followed the April 4th
2003 agreement entered by government with BIDCO to process palm oil in
However, the petitioners argued that BIDCO
was exempted from import and stamp duty taxes and Value Added Tax for a period
of 25 years which decision they said was discriminatory and unconstitutional.
legislators also faulted government for engaging BIDCO alone and committing an
investment of over 100,000,000 Dollars (365.9billion shillings) in one project
which they said was money being drawn from the consolidated fund.
Court also heard that the Uganda Oilseed Producers and Processors were not consulted or given an opportunity to be involved in the bids under the International
Fund for Agricultural Development –IFAD loan, which was contrary to the
claims of advertised competitive bids in the contentious agreement.
As such, the petitioners said other producers had been sidelined
by the agreement and their right to participate in lawful trade was violated as
they were locked out in the lawful trade under the IFAD loan in the edible
sector which was handed over to BIDCO as a monopoly.
They asked court to make several declarations such as
the government's decision to pay the duties, levies, fees and VAT are
unconstitutional; and they therefore required financial and value for money
audit by the Auditor General in projects involving the use of public funds.
But in response, the Attorney General through State Attorney Hillary
Nathan Ebila asked court to dismiss the petition on grounds that it did not disclose any question for interpretation of the constitution and
therefore it's incompetent.
However, in their Judgement dated March 4 2021 and
written by Justice Christopher Izama Madrama, the five-member panel that was
led by Justice Kenneth Kakuru has dismissed the case.
Other Justices are; Hellen Obura, Stephen Musota and
The Justices note that after a careful perusal of the
petition, they have found that it only shows that certain matters are inconsistent
with the Constitution. But it does not go as far as whether there is any
question as to the interpretation of the constitution.
According to Madrama, the law is very clear when
something done by the government of Uganda is inconsistent with article 154
which talks about the withdrawals on consolidated fund. Madrama says one can
apply to the High Court for judicial review or file a suit in the public
interest to enforce the said article but cannot petition the Constitutional Court.
According to the Justices, therefore there was no
question as to interpretation of the constitution.
"As earlier noted, article 154 deals with
withdrawals from the consolidated fund and no question as to the interpretation
of those articles arises in this petition or even in the submissions of counsel.
I find that the above averments are incompetent before this court. What the
Petitioner has presented are grounds for challenging the agreement in a competent
court but not questions as to interpretation of the constitution" reads
the lead judgement.
The Judges add that the constitution clearly declares
the right of every person in Uganda to practice his or her profession, and to
carry out any lawful occupation, trade or business, but the same constitutional
article cannot prevent the government from promoting one sector of the economy
“He failed to produce the IFAD loan terms under which
the project had been initiated. There are simply no facts by which the court can
conclude that the support for a large scale oil palm plantation violated the
right of persons in the edible oil sector to practice their profession or
business”, the Judgement adds.
The Justices have now dismissed the petition but declined
to make an order as to costs arguing that this was a public interest matter.