KAMPALA – The High Court in Kampala has dismissed with costs a case challenging the government’s decision to award exclusive rights to a company to import fuel using barges over Lake Victoria.
In November last year, Legal Brains Trust – LBT -a local non-profit organisation went to court seeking a declaration that the presidential directive, authorising an Indian company – Mahathi Infra Services Private Limited, and its local subsidiary – Mahathi Infra –Uganda-Limited to operate as a monopoly for the business of transporting petroleum products by barges over Lake Victoria, and from Uganda was illegal as it violated or threatened to violate a number of fundamental rights protected in the Bill of rights.
In an affidavit sworn in by Anthony Jjumba – the head of Investigations, LBT wanted the High Court to issue an injunction restraining the government from implementing the presidential directive. The affidavit said that the directive was a blatant violation of the government’s obligations to respect, uphold and promote fundamental rights to good governance, fairness, and equality of economic opportunity.
It added that the directive also went beyond the permissible exercise of state power by the president in regulating business; it was discriminatory, unlawful and unacceptable, and demonstrably unjustifiable in a free and democratic society. LBT also argued that the presidential directive also kept out other potential operators and that this would worsen corruption and abuse of power by those holding political and other public offices and that it was detrimental to public good or welfare for good governance.
The application was opposed by the Attorney General who through an affidavit sworn in by Rev. Justas Frank Tukwasibwe contended that the application was bad in law, speculative, moot, misconceived, and should be dismissed with costs. He added that the agreement signed between the government and Mahati Infra Services Private Ltd does not in any way threaten the rights of Ugandans protected in the constitution.
He said even if this were to be the matter, the High Court would be the wrong place to run to adding that matters relating to human rights are determined by the Constitutional Court.
In his ruling, Justice Musa Ssekaana agreed with the reasoning of the Attorney General that LBT’s application does not show how any of the articles of the Constitution are being violated. He said that the application was not for enforcement of rights as contended but rather public interest litigation or a judicial review matter challenging the actions and decisions of the government.
“This court will not allow the applicant to devise an alternative procedure in order to circumvent the set procedure. The applicant is only trying to access court through the ‘window’ instead of the door that has been prescribed by the Constitution. Justice is to be rendered in accordance with the law and set principles and procedures. The Constitution is silent as to the procedure to be followed or how to access courts to seek redress outside constitutional interpretation and enforcement of human rights. The necessary procedure must be followed from the existing legislation like the Judicature Act or Civil Procedure Act and not invent any procedure the applicant finds convenient or comes to his imagination.
The applicant is trying to convert any alleged transgressions into a human rights issue for the enforcement of rights. This unacceptable and courts will guard jealously their constitutional mandate from being abused by busy bodies or meddlesome intermeddles like the applicant,” the ruling reads in parts.
It adds that the application did not involve any violation of rights and it had no basis to be baptized as an enforcement of rights application. “From the applicant’s pleadings, it is very clear that the applicant seems to seek to enforce public interest actions on behalf of the people of Uganda. This court does not, therefore, have jurisdiction to handle it and as the right forum under Rule 7 (2) for the orders and reliefs sought is the Constitutional Court as stated,” held Ssekaana.
He added that even in the Constitutional Court where such an application would be filed, public interest litigation must also be scrutinized in order to limit abuse of the court process. He said that litigation does not become public interest merely because questions of law of general public importance arise but rather must be concrete on what rights of the public have been abused. “Litigation cannot provide an avenue for substituted governance nor can the Court, in a democratic set-up governed by separation of powers assume to itself the task of governance which the Constitution leaves to elected representatives or to Executive members through expert bodies who are accountable to the collective wisdom of the Legislature or Executive.
His application would still have failed to satisfy the test of substantial public interest and there is no genuine public harm or public injury. This application was for a private motive or oblique motive or ulterior motive. For the reasons above, this application fails and is dismissed with costs,” said Ssekaana.
Additional reporting by URN