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Constitutional Court Dismisses Petition Against Govt’s Agreement with BIDCO

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.
08 Mar 2021 15:48
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 in Uganda.

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 Kalangala District.

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.

 

The then 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 Remmy Kasule. 

 

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 above others.

“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.

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