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Execution against the Government

The Rule of Law in the Enforcement of Court Decisions against the Government

In Uganda, law suits can be instituted against the government, a local government, a municipal council or a scheduled corporation. Such suits, save for actions for the enforcement of fundamental human rights and freedoms, are governed by the Civil Procedure Act Cap. 71 and its Rules S.I 71-1, the Civil Procedure and Limitation (Miscellaneous Provisions) Act Cap. 72, and the Government Proceedings Act Cap. 77 and its Rules S.I 77-1.

This Article specifically addresses 3 key statutory provisions in the above legislations, namely: a) Section 2(1) of the Civil Procedure and Limitation (Miscellaneous Provisions) Act which provides that no suit should be instituted against the government, a local authority, a municipal council or a scheduled corporation unless and until 45 days have expired from the date the statutory notice (more like a notice of intention to sue) is served onto the Attorney General in case of government, a Chief Administrative Officer in case of a Local Government, a Town Clerk in case of a Municipal Council and a Corporation Secretary in case of a scheduled corporation. b) Rule 11 of the Government Proceedings (Civil Procedure) Rules which permits the Government to file a defence within 30 days from the date of receipt of the suit, yet other litigants who are defendants are given only 15 days under Order 8 rule 1(1) of the Civil Procedure Rules. c) Section 19(4) of the Government Proceedings Act which prohibits executions against government by way of attachment of money held in the Consolidated Fund.

Section 2(1) of the Civil Procedure and Limitation (Miscellaneous Provisions) Act is not mandatory but rather directory and failure to issue and serve a statutory notice does not vitiate a suit – that the said subsection is only unconstitutional when it is construed as mandatory. This is the position as per the Constitutional Court’s decision in Nampogo Robert & Anor v. Attorney General [2021] UGCC 37.

As for Rule 11 of the Government Proceedings (Civil Procedure) Rules, the Constitutional Court of Uganda in the case of Nampogo Robert & Anor v. Attorney General (Supra), held by majority decision that it is inconsistent with Article 21(1) of the 1995 Constitution of the Republic of Uganda which provides for equality of all persons before and under the law. The same Court also unanimously held in the said case that Section 19(4) of the Government Proceedings Act is not inconsistent with Articles 139 (jurisdiction of the High Court), 128 (independence of the Judiciary), 28 (right to a fair hearing), and 126 (exercise of judicial power) of the Constitution.

The Justices’ reasoning behind their upholding of Section 19(4) of the Government Proceedings Act was that payments in satisfaction of court decisions must be in compliance with Articles 153 and 154 of the Constitution, which provide that all revenues of government are to be paid to the Consolidated Fund except where the Legislature dictates otherwise, and that any funds withdrawn from the Consolidated Fund must be authorised by the Legislature through Appropriation Acts of Parliament. Interestingly, withdrawals from the Petroleum Fund also require the authorisation of Parliament through an Appropriation Act (see Section 58 of the Public Finance Management Act, 2015).

The terms “appropriation” and “Appropriation Act” are defined in the Public Finance Management Act. Appropriation means an authorisation made under an Appropriation Act permitting payment out of the Consolidated Fund or the Petroleum Fund under specified conditions or a specified purpose. An Appropriation Act, on the other hand, means an Act passed in accordance with Article 156 of the Constitution, which authorises expenditure for a financial year.   

Therefore, in order for payments to be made by the Government in satisfaction of Court decisions, two things have to be in place namely; - 1) provisions for satisfaction of such debts/decisions must be covered under the budget i.e. the Government plan of revenue and expenditure for a financial year; and 2) the Parliament should have passed an Appropriation Act permitting/authorising payment of those monies out of the Consolidated Fund or Petroleum Fund to the litigants/judgment creditors listed in the budgetary provisions.

It is worthy of note, however, that in practice, the authorisation of such payments often takes a significant amount of time. The prolonged delay in authorising payments in satisfaction of Court decisions has not only undermined the powers of the Judiciary but has also made many ordinary litigants lose faith in Uganda's judicial system. Yes the constitutional regime of Uganda upholds the Separation of Powers but it equally recognises the Rule of Law. The latter must be respected by all 3 arms of Government and that is why Article 128(3) of the Constitution requires all organs and agencies of the State to accord assistance to the Courts to ensure the effectiveness of the Courts. Unfortunately, when there is no pro-active stance on the part of the Executive or the Legislature to enforce court awards against the Government, the said two arms of Government cannot be questioned by the Judiciary due to the constitutional principle of Separation of Powers. This situation, much as it puts into effect the Separation of Powers principle, undermines the Rule of Law which is also a cardinal constitutional doctrine in any democratic society.

The Rule of Law emphasizes that decisions of the Courts are to be respected and effectively enforced not only on ordinary citizens but also on the Government hence providing a sense of justice and fairness to all citizens. Whenever the Executive or the Legislature sluggishly comply with Court decisions or completely fail to do so, it erodes public confidence in the Judiciary and fosters a perception that the Rule of Law is being disregarded, something that may have far-reaching consequences on the stability and legitimacy of the entire legal and political regime.

As such, it is crucial for the Executive and the Legislature to treat Article 128(3) of the Constitution with the utmost seriousness it deserves by taking prompt and decisive action in the procedures pertaining to the enforcement/satisfaction of Court decisions against the Government of Uganda.

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