Dorothy Nandugga Kabugo v Attorney General (Constitutional Petition No. 39 of 2010) [2014] UGCC 108 (15 December 2014)

## THE REPUBLIC OF UGANDA

IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

## CONSTITUTIONAL PETITION NO. O39 OF 2O1O

DOROTHY NANDUGGA KABUGO..... .... PETITIONER

## VERSUS

ATTORNEY GENERAL RESPONDENT

CORAM:

HON. JUSTICE s. B. K. KAVUMA, Ag. DCJ/JCC HON, JUSTICE RUBBY AWDRI OPIO, JAIJCC IION. JUSTICE SOLOMY BALUNGI BOSSA, JA/JCC IION. JUSTICE GDOFFREY KIRYABWIRD, JA/JCC HON. JUSTICE PROF. LILLIAN EKIRIKUBINZA TIBATEMWA, JA/JCC

## JUDC}]\II}N'I' OF THI' COURT

Ttre Petitioner, an advocate of the High Court of Uganda, brought this petition under Article 137 of the Constitution of the Republic ofUganda,

Ttje Petitioner was represented by Dr. James Akampumuza while thf respondcnt was represented by Mr. Wanyama Kadoli, <sup>a</sup> Prftecipal State Attorney in the Attorney General's office,

The Petitioner sought the followirrg declarations:

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- a) A declaration that Sections 72 (1) and (2) of the Public Health Act in as far as they empower the State and its organs to pull down and/or demolish a private citizen's property without offering him alternatives or providing for prompt and adequate *compensation is inconsistent with and/or in contravention of* Articles 20 (1), (2), 21 (1), 26 (1) (2) (a) (b) (i) (ii), 27 (1) (a) (2), 28 (1), 44(c) and 45 of the Constitution of the Republic of *Uganda, 1995.* - b) A declaration that Section 72 (2) of the Public Health Act infringes a private citizen's right to property in as far as it requires a private citizen deprived of his/her property through *forced demolition to compensate Government for the expenses of* the demolition and the deprivation of his/her own property is inconsistent with and/or in contravention of Articles 20 (1), 20 (2), 28 (1), 43 (1), 43 (2), 44(c) and 45 of the Constitution of the Republic of Uganda, 1995. - c) A declaration that Section 72 (2) of the Public Health Act in as *far as it empowers a local authority to make arbitrary exclusion* orders against a private citizen from his/her private property within twenty eight days of giving him/her notice to do so *without affording him/her a hearing is inconsistent with and/or* in contravention of Articles 20 (1), 20 (2), 21 (1), 28 (1), 44(c) *and 45 of the Constitution of the Republic of Uganda, 1995.*

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- d) A declaration that Section 72 (3) of the Public Health Act in as far as it offers dissimilar and discriminatory treatment to <sup>a</sup> citizen u-tho has acquired propertg for more than tutelue months tuhile condemruing and penalizing a citizen who has similarlg acquired and owned similar property on similar terms for less than twelue months is inconsistent with and/ or in contrauention of Articles 20 (1),20 (2),21 (1),28 (1),44(c) and 45 of the Constttution of the Repttbltc of Uganda, 1995. - e) A declaration that Section 59 of the Public Health Act in as far as it ernpowers a local authority or medical offi.cer of health who are administratiue bodies and/ or persons to make conclusions on eistence of a nuisa nce on a citizen's propertg uithotLt first hearing him/ hcr on tlw accusation and uithout an independent impartial an.alysis of a Professional is incr:nsisfent uith and/ or in contrauention of Articles io 111, 20 (2), 21 (1), 2S (7), 44(c) and 45 of the Constitution of the Republic of Uganda, 1995. - fl A declaration that Section 72 (1) (2) of the Public Health Act uhich giue a local authoity parallel and equal pou)ers to those of a Magistrate's court uhen it empowers it to demolish a piuate citizen' property in disregard of the procedure set out in Section 60 o.f the Public Health Act is 1 inconsistent uith

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and/or in contravention of Articles 128 (1), (2), (3), 126 (1), 20 (1), 20 (2), 21 (1), 26 (1) (2)( $\alpha$ ) (b) (i) (ii), 27 (1) ( $\alpha$ ) (2), 28 (1), 44(c) and 45 of the Constitution of the Republic of Uganda, 1995.

- *a)* A declaration that Section 60 (5) of the Public Health Act in as far as it empowers a Court to issue a closing order of a private citizen's dwelling and/or home without providing him/her an alternative dwelling and/or accommodation which amounts to *banishment and denial of livelihood is inconsistent with and/or* in contravention of Articles 2 (2), 22 (1), 24, 26 (1) (2) (b) (ii), 27 (2), $44(a)$ (c) and 45 of the Constitution of the Republic of Uganda, 1995. - h) A declaration that the provisions of Section 61 $(I)$ of the Public Health Act requiring a court of competent jurisdiction to follow and implement the $or$ decision of a local authority or medical officer of health erodes the impartiality and independence of court and is inconsistent with and/or in contravention of Articles 20 $(1)$ , 20 $(2)$ , 21 $(1)$ , 26 (2) (b) (ii), 28 (1), 42, 43 (1), 43 (2) (c), 44(c) and 45, Article 128 (1), (2), (3) of the Constitution of the Republic of *Uganda*, 1995.

She also sought for costs of the Petition with a certificate for three counsel.

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For ease of reference, we here below reproduce the Constitutional Articles referred to:

2O. Fundamental and other human rights and freedoms

(1) Fundamental rights and freedoms of the individual are inherent and not granted by the State.

l2l The rights and freedoms of the individual and groups enshrined in this Chapter shall be respected, upheld and promoted by all organs and agencies of Government and by all persons.

21. Equality and frecdom from discrimination

(1) All persons are equal before and under the law in all spheres of political, economic, social and cultural life and in every other respect and shall enjoy equal protection of the law.

26, Protection from deprlvatlon of Property

(1) Every person has a right to own property either individually or in association with others.

l2l No person shall bc compulsorily deprived of property or any interest in or right over property of any dcscription except where the following conditions are satisfied-

> (a) the taking of possession or aequisition is nccessary for public use or in the intercst of


defence, public safety, public order, public morality or public health; and

(b) The compulsory taking of possession or acquisition of property is made under a law which makes provision for-

- (i) prompt payment of fair and adequate comp ensation, prior to taking of possession or acquisition of the property; and - (ii) a right ofaccess to a court of law by any person who has an intercst or right over the property.

27. Right to privacy ofa pcrson, home and other property

- (1) No person shall bc subjected to- - (a) unlawful search of the personr home or other property of that person or; - (b) unlawful entry by others of the premises of that

l2l No person shall be subjected to interference with the privacy of that person's home, correspondencc, communication or othcr propcrty,

28. Right to a fair hearing.

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1. In the determination of civil rights and obligations or any criminal charge, a person shall be entitled to a fair, speedy and public hearing before an independent and impartial court or tribunal established by law.

43. General limitation on fundamental and other human rights and freedoms.

(1) In the enjoyment of the rights and freedoms prescribed ln this Chapter, no person shall prejudice the fundamental or other human rights and frce doms of others or the public interest.

l2l Public interest under this article shall not permit-

(c) any limitation of the enjoyment of the rights and freedoms prescrlbed by this Chapter beyond what is accepted and demonstrably justifiable in a free and democratic society, or what is provided in this Constitution.

44. Prohibition of derogation from particular human rights and freedoms.

Notwithstanding anything in this Constitution, there shall be no derogation from the enjoyment of the follorving rights and freedoms-

(a) freedom from torture and cruel, inhuman or

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- (a) freedom from torture and cruel, inhuman or degrading treatment or punishmentl - [c) the right to fair hearing; - (d) the right to an order of habeas corpus.

45. Human rights and frccdoms additional to other rights The rights, duties, declarations and guarantees relating to the fundamental and other human rights and freedoms especially mentioned in this Chapter shall not bc regarded as excluding others not specially mentioned.

126. Exercise ofjudicial power.

1. Judicial power is derived from the people and shall be cxcised by the courts cstablished under this Constitution in the name of the people and in conformity with the law and values, norms and aspirations of the people.

128. Independence ofthe judiciary

(11 In the exercise ofjudicial power, the courts shall be independent and shall not be subject to the control or direction of any person or authority.

(21 No person or authority shall interfere with the courts or judicial officers in exercise of their judicial functions.

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(3) AII organs and agencies of the State shall accord to the courts such assistance as may be required to ensure the effectiveness of the courts.

fA.t the hearing of this petition both Counsel applied to have their iespective conferencing notes adopted as part of their submissions. llhis application was granted.

{t their joint scheduling conference held before the Assistant Registrar of this Court on l8tt July 2011, Counsel for both parties Cet out 9 agreed issues. A perusai of all the agreed issues shows that they are a replica of the grounds of the petition already set out albove in this Judgment. We Ilnd it therefore unnecessary to rdproduce them.

At the hearing, Dr Akampumuza, learned counsel for the Petitioner, rdduced all the issues to onc which he orally framed, and could be pd.ra-phrased as follows:

> Whether the impugned prouisions of the Public Health Act set out iru the petition are inconsistent u.t[th or in contraue.ntion of the spcctfic anlicles of the Constitution also set out herein and if so what are the remedies auailable to the Petitioner.

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Counsel's entire submissions were in answer to the above issue and it is to the above issue that the reply was made by ttre respondent's counsel.

It was the submission of learned counsel for the Petitioner that the impugncd provisions of the Public Health Act (Chtrpler 281 of the Laws of Uganda), herein referred to as the PHA, have a cumulative effect of denying a person affected by them a right to property or shelter or livelihood and subjects that person to conditions which may lead to death.

He submitted that the impugned section 72 (l) and (2) of the PHA empower the state and f or its organs to pull down and/or demolish a private citizen's property without offering him or her alternative accommodation or providing for prompt and adequate compensation in contravention of Articles 20 (1), l2l,2L (1) 26 (1), 2(a), (b|, (i), (ii), 27 lll,lal, l2l, 2a (1), 44(c) and 45(c| of Constihrtion-

That -Section 60 (5) of PHA is unconstitutional in so far as it empowers a local authority to make arbitrary exclusion orders against a private citizen from his property without affording him or her, a hearing. This, he submitted, amounts to banishment and he cited the decision in the case Attorney General versus Salvatori Abuki (Supreme Court Constitutional Appeal No. OOI of 1998) as authority lor his proposition.

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That Section 72 (1) and (2) of PHA give a local authority powers parallel and eqr-ral to those of a Magistrate's Court when it empowers it to demolish property in disregard of the Magistrate's jurisdiction.

fhat Section 72 (3) of the PHA is discriminatory in so far as it pccords different treatment to persons who have owned property for fnore than 12 (twelve) months from those who have not.

That Section .59 of the PFIA empowers a local authority or a medical officer to act in disregard ofthe rules of natural justice.

that section 61(1) of PHA is unconstitutionai in so far as it erodes tfre independence of the . Judiciary by requiring courts of law to idrpiement decisions of a local authority or its officers.

Oounsel further argued that Section 72 of the PHA is ufrconstitutional as it violates the constitutional rule against double jeopardy,

In response, Mr. Wanyama, learned counsel for thc Respondent srlbmitted that the petition was misconceived and is an abuse of court process.

Mr Wanyama supportcd his case with Article 39 of t Constitution which provides that: "Every Ugandan has a right to <sup>a</sup> clecn and healthy cnvlronment," He contended that the PHA is

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an Act to preserve public health. That the provisions of the PHA cited by the Petitioner are not inconsistent with any provision of the Constitution.

He distinguished the case of Attorneg General as Abuki (Supra) and submitted that the facts in the said case were not the same as those providecl for in the PHA.

He submitted that there was nothing to indicate that section 72 of PHA is discriminatory, That the mere fact that different developers are treated differently under the Act, does not constitute discrimination, He generally rejected all the submissions of the Petitioner's counsel and called upon this Court to apply the principles of constitutional interpretation and clismiss the pcLition with costs.

## Resolution of the Court

The principles of constitutional interpretation are now well settled. They have been expounded upon by this Court and the Supreme Court in a number of decisions spanning a period of almost twenty years.

They are not in issue in this petition. For emphasis however, find it necessary to reproduce them as they were set out by this courL in the case of Advocates Coalition for Development and

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Environment and 40 others versus Attorney (Constitutional Petition No. 4 of 2O11) (Unreported). General

In that petition this Court set out the said principles as follows:

- (i) The widest construction possible in its context should be given according to the ordinary meaning of the words used and each general word should be held to extend to all auxiliary and subsidiary matters. In certain contexts, a liberal interpretation of the Constitution may be called for. - (South Da LED 4481 kota Vs, North Carolina 192, US 26a194 (i0 A constitutional provision containing <sup>a</sup> fundamental right is a permanent provision intended to cater for all times to come and therefore should be given a dynamic progresslve and Iiberal flexible interpretation keeping In mlnd the ideals of the people and their social economic and political cultural values so as to extend fully the benelit of the right to those it is intended for: - (iii) The entlre Constitution has to be read together as an integrated whole and with no onc Particular

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provision destroying the other but rather each sustaining the other. This is the rule of harmony, completeness and exhaustiveness, the rule of paramouncy of the written Constitution (Paul K, Semwogerere & 2 others Vs. Attorney General Supreme Court Constitutional Appeal Number 1 of 2OO2l.

- (iv) No one provision of the Constitution is to be segregated from the others and be considered alone but all provisions bearing upon a particular subject are to be brought into view and be interpreted as to effectuate the greater purpose of the instrument. - (u) Judicial power is derived from the people and shall be exercised by thc courts established under the Constitution in the name of the people and in conformity with the law and with the values, norms and aspirations of the people and courts shall-administer substantive justice without undue regard to technicalities (Article 126 ( 1) and (2) (el of the Constitution ofUganda 1995), - (vi) The Constitution is the Supreme law of the lan and forms the standard upon which all other laws are judged. Any Iaw that is inconsistent or in

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contravention of the Constitution is null and void to the extent of that inconsistency (Article 2 ( 1l and (2) of the Uganda Constitution 1995).

(vii) Fundamental rights and freedoms guaranteed under the Constitution are to be interpreted having general regard to evolying standards of human dignity. See the case of Uganda Law Society Vs. Attorncy General Constitutional Petition Number 18 of2OO5

{his petition therefore shall be determined takirrg into account the dbove principles.

The Petitioner seeks a declaration that Sections 72 (ll and (2) of the PHA in as far as they empower thc State and its organs to put down and or demolish a private citizen's property without offering him an alternative or providing for prompt and adequate compensation is inconsistent with and or in contravention of Articles 20 lll,20 l2l, 2L lll,26 lLl,26 l2l lal lil liil27 ltl lal27 l2l,2a (1), 44(c) and 45 of the Constitution.

Ttie complaint as set out in this first ground and as we understand it is in respect of protection of rh.e right to property. The relevanL constitutional Articles are 26 ard.27.

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Article 26 protects the right of citizens to property and protects that property from being co\*pul"officquired by the state except under the conditions set out in that Articlc.

This court explaining the background to Article 26 in the case of Advocates for Natural Resource Governance and Development and 20 others -vs- Attorney General and Another Constitutional Petition No. 4O of 2O13 had this to say at Page 17-19 of the Judgment:

> The history of this country was characterized by compulsory acquisition of property without prior payment of compensation. Most notably compulsory acquisition by government of propcrties belonging to the Kabaka of Buganda and the government of Buganda in 1965 to L966, the nationalization of foreign companies in L969 in what came to be known as The Nakivubo Pronouncements and the expropriation of Asians' (citizens and non citizens) properties in 1972 to L973 by the military government at the time, We are inclined to think that in Article 26 l2l, the Constitution intended to put that history to rest and to firmly assert the people's rights to property.

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The 1995 Constitution first and foremost limits the instances in which property can be compulsorily acquired by government, to the following;

- a) Public use, - b) In the interest of defence, - c) Public safety, - d) Public order, - e) Public morality, - f) Public health,

fn every such instance where government acquires or takes possession of any persons property such an act has to be made under a law which provides for, "Prompt payment of fair and adequate compensation; prior to the taking of possession or acquisition of property," (sic)

For a violation of Article 26 to occur thcrefore, there must exist certain specific conditions, namely:

- (1) A person must have been cornpulsory deprived of property or interest in property of aly description by the State, - (2) The tnking of possession of that property or acquisition was not for public use or in the interest of defence, public safely, public order, public morally or public heaith.

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(3) The taking of possession or acquisition of the property was

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**not** made under a law that provides for:

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- $i.$ Prompt payment of fair adequate compensation prior to taking of possessions or acquisition of the property. - ii. A right of access to a court of law by any person who has an interest or right over the property.

We have found nothing in the Petition or the affidavit in support thereof that suggests that the power granted to a local authority under section 72 (1) and 72 (2) of the PHA to pull down or demolish property that has been constructed or occupied or whose construction plan have been altered in contravention of the law relating to the construction of buildings amounts to compulsory acquisition of that property.

Section 72 $(1)$ of PHA stipulates as follows:

(1) If any work to which any rules referred to in section 71 are applicable contravenes any of those rules, the local *authority, without prejudice to its right to take proceedings* for a fine in respect of the contravention, may by notice require the owner either to pull down or remove the work or, if he or she so elects, to effect the alterations in the work as may be necessary to make it comply with the rules (Emphasis added)

usarenus This section empowers a local authority by notice to "require the owner to pull down or remove the work" carried out in contravention with the law.

It appears clearly to us that the removal, pulling down or demolition referred to in the above section is only in respect of the super structure or "the works" of whatever name or description and does not refer to the land or the ownership thereof.

The removal, demolition or pulling down of the works does not affect the proprietary interest of the land, the subject of the demolition. Upon such demolition, the Local Government does not take possession or compulsorily acquire any interest in that property.

That property remains the property of the 'owner' referred to in Section 72 (1) of the PHA set out above, who is free to re-develop or re-occupy the same in conformity with the law.

Black's Law Dictionary defines acquisition as follows: "The act of becoming the owner of a certain property; the act by which one acquires or procures the property in anything"

Whereas demolition of property may be construed as damage to property, it is our finding that demolition of property in the circumstances of the instant case cannot be equated to or in any way construed to mean compulsory acquisition or deprivation of

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property or interest in or right over property within the meaning of Article 26 of the Constitution. The owner is not deprived of his/her property and the local authority does not acquire any proprietary interest in that property.

We do not accept the contention of counsel for the Petitioner that Section 72 (2) empowers the Local Authority or any of its officers to banish a private citizen from his or her property.

The power of removal set out in Section 72 (21 is in respect of 'dqCal works' and does not extend to the removal of the property owner.

The pertinent part of the Section 72 (2) states as follows: "The Local Authority may plfll\_doryn\_e11\_e41gve t be\_rvp rk in question or effect such alternations in the work as it decms necessary."

From a reading of the above section, it is clear that the question of banishing the property owner does not arise.

We are fortified in our opinion by the holding of Wambuzi, CJ (as he then was) in Salvatori Abuki (Supra) where he stated that conrp:ulsery dcpriva tio n of property under claus e 26121 of the Constitution rrrust mean emphasis) total or complete depriuation. (Our

Counsel for the provisions of the Petitioner PHA have also contends that thc cumulative effect the impugned of denying a

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person affected by them a right to property or shelter or livelihood and subjects that person to conditions which may lead to death.

To support his argument, counsel again relied on the case of \$alvatori Abuki (Supra). In the said case, the accused had been qonvicted on a charge of practicing witchcraft. Part of his sentence was an order under Section 7 of the Witchcraft Act that he be banished from his home for 10 years after completion of lrts 22 rqonths prison sentence.

The Supreme Court observed that in determining the constitutionality of legislation, its purpose and effect must be taken irlto consideration. The effect of the order was that the accused wpuld be prevented from using his property (land) for 10 years.

The Court by majority held that Section 7 of the Witchcraft Act was void to the extent that it authorizes courts to make banishment orders which bar a convicted person from his/her home or land wlth the cffect that a person woulcl be del.rrivecl of shclter and mparrs of subsistence, means of earning a living from his land. The section was unconstitutional for its violation of the right to prbperty, life and right not to be subjected to cruel, inhuman and degrading treatmcnt or punishme nt.

It was within this context that Article 22 of t}:e Constitution found relevant. Consequently we find that the case of Salvatori

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Abuki (and the law relevant to it) is clcarly distinguishable from the provisions of the PHA.

Grounds 2 (a) and 2 (b) of this petition therefore must faii.

The Petitioner contends in ground 2 (c) of the petition that section 72 12) of PHA is unconstitutional in so far as it empowers a Local Authority to make arbitrary exclusion orders against a private citizen for his or her private property within 28 days of giving notice to do so, without affording him a hearing. Article 28 of the Constitution provides for the right to fair hearing in proceedings where a person's civil rights and obligations are being determined.

It is noted that Section 72 requires that before the illegal works are removed, demolished or altered, a notice of 28 days must be given to the property owner. In our view, the 28 ctays notice is to cnable the owner either to complv with the notice or to challenge it. Thc notice therefore grants the property owner an opportunity to be heard.

We do not accept the submissions of learned counsel for the Petitioner that the said law does not alford a property owner a hearing. What the law does it to afford him/her 28 days within which he or she could be heard, should he or she so desire.

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I t We, therefore, find that the right to be heard is sufiiciently embedded in the 28 days notice provided for in Section 72 ol the PHA.

prounds 2(c) and 2(el of the petition therefore are misconceived and have no merit. We accordingly dismiss them.

The Petitioner contends further in ground 2(d) of the Petition that Section 72 (3) of the PHA is unconstitutional in so far as it is I {iscriminatory in t}re treatment of property owners, exonerating those whose non compliance with the law has gone on for more t[an 12 months while cor-rclcraning and penalizing those violations of less than 12 morrths.

Section 72 (3) of PHA states as follows:

No such ruotice as is mentioned in subsection (1) shall be giuen afier the expiration of tutelue months from the date of the completion of the utork iru question, and, tn anA case uhere plans uere deposited, it shall not be open to the local authority to gtue such a notice on the ground that the work contrauenes ang building rule, if either the plans were passed by the local authoritg, or notice of their re.jection u)ds not giuen within the prescribed peiod from the deposit of the plans, and if the utork has

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been exestted in accordance tuith the plans and of anA requirement made by the local authoitA as a condition of passing the plans.

It appears from the reading of the above sub-section that the law in fact protects land owners from delayed actions of loca1 authorities. This protection is afforded to ail land owners withorrt discrimination.

Black's Law Dictionary 6th Edition defines discrimination as follows atP,466'.

> Unfair treatment or denial of normal piuileges to persons because of their race, age, sex, nationality or religion, A failure to treat all persons equallg where rlo reasonable distinction can be fotLnd between those fauoured and those not fauoured.

Article 2t of the Constitution protects all person from discrimination on the following grounds: "sex, race, colour, ethnic, origin, tribe, creed, religion social or economic standing, political opinion or disability."

Therc is nothing in Section 72 (3) that remotely contradicts Article <sup>2</sup>1 of the Constitution set out above. This ground 2 (d) is misconceived and is without merit. It accordingly fails. also

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The Petitioner contends that Section 72 (1) (2) of PHA is unconstitutional as it gives a Local Authority parallel and equal power to those of a Magistrate's Court in disregard of the procedure set out in Section 60 of that Act.

[Ve find this argr-rment untenable. There is nothing unconstitutional gbout a law that grants Judicial, quasi judicial or administrative <sup>f</sup>o\*.." to two distinct boclies. (See for example, Article 51 and \$e1f) of the Constitution that established tine tlganda Human fiight" Co^ ission, The Non Performtng Assets Recouery Trust Act lC"p 9Q and the Tax appeals TYibunal Act (Cap 345), The Aduocates A,ct (Cap 267) Sections 19 and 22).

Be that as it may, Section 60 of the PHA specifically relates to notice to remove a nuisance provided for under section 59 of that Act. Where a pe rson fails to comply with a notice issued under Section 59: "the loccd authoity may cause a complaint relating to a nwisance to be made before a court ... the cotLrt mag issue summor

Od the other hand, SecLion 72 relatcs to notices issued in respect of non compliance ."vith the Rules nrade trnder Sections 70 and 7L. Thlose rules relatc to construction of buildings, factories, trade premises, sanitary worl<s and drainage. In the case where a person fails to comply with the notice "the local authoity may pull dou.tn or

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remaue the work tn question". The issue of parallel jurisdiction does not arise.

Learned counsel's argument that Section 72 is unconstitutional therefore has no merit. In any event, that section provides an allected person with an opportunity, to seek rcdress in courts oflaw within the 28 days period of notice.

This ground too is misconceived and without merit. It therefore fails.

Under ground 2(g) of the Petition, the Petitioner contends that Section 60(5) of the PHA is unconstitutional as it empowers a court to issue a closing order of a person's dwelling or home without providing him with an alternative place. This, the Petitioner contends, amounts to banishment and denial of livelihood.

We have already pronounced ourselves earlier on the issue of banishment, The long title to the PHA states as follorvs: "An. Act to consolidate the lau.t regarding the preseruation of public health."

In this regard, Section 5 thereof sets out genererl duties of iocal ar-rthorities that are charged with the implementation of the Act. It stipulates as follows:

5. General duties of local authorities

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Euery local authaitlJ shall take cdl latufiLl, necessarg and reasonablg practicable measures .for preuenting the occurrence of, or for dealing u.tith ang outbreak or preualence of, any infectious, communicable or preuentable disease; to safeguard and promote the publie health and to exercise the potuers and perform the duties in respect of the public health conferred or imposed by this Act or bg ang other law.

Ifr order to carry out its mandate as set out in Section 5 above, a lQcal authority is empowered to carry out or under take practical tf"ur" which includc, but are not limited to pulling down and/or to rti:moving a nuisance under Section 59. Section 60 sets out the piocedure to be followed by a loca-l authority in the event that an otfender upon whom notice has L.reen given Iails to comply with the nQtice. Section 61 cor:rplained of undcr paraglaph 2(g) of this e{Lition sets out tire penalties for non compliancc. Section 61 stipulates as ltr'llows:

## "61 . Penalties in relatiort to nuisances

(1) Ang person tuho fails to obeg an order bg a court of competent jurlsdiction to complg utith the requirements of a local authority or medical oJficer of health or otherwise to remoue the nuisance shall, unless he or she satisfes the court that he I or she has used all diligence to carry out the order, be liable to

fl.. 1,'c.rr a>d'-' , ilrk a fi.ne not exceeding eightg shillings for euery day durtng u.thich the default continues.

- (2) Any person willfuUg acting in contrauention of a closing order fssued under section 60 is liable to a fi.ne not exceeding eightg shillings for euery day duing which the contrauention continues. - (3) The local authorttg mag in a case under subsection (1) or (2) enter the premises to u.thich the order relates and remoue the nuisance and do whateuer mag be necessary in the execution of the order and recouer in anrg contpetent court the expenses incurred from the person on whom the order is made."

principle remains that no one ought to benefit from his own illegal acts. We have found nothing in the Constitution that suggests that <sup>a</sup> person who is in violation of the law is entitled to any benefits as a resulL. Indeed it is trite law that rro one our{llt to bc.nefit from his /hcr own wrong. The nature of the benefit does not matter, The

In the case of Amooti Godfrey Nyakana vs National Environment Management Authority and 6 Others, Constitutional Petition No. 03 of 2OO5, this Court hcld that proprietary rights are not infringed where a property owner is required to deal with the property in accordance with law. In her lead Judgment C. I(. Byamugisha JA (as she then was) said:

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I am not persuaded that the pctitioner's proprietary rights were infringed by the Acts of the first respondent (NEMA) what was taken away for him was misuse of the land and this was donc to protect the environment,

pimilarly in this case the PHA authorizes local authorities to fegulate the use, occupation, construction and rnaintenance of puildinSs or other structures or works in order to protect and freserve public health.

JVe find that the actions authorized uncler Section 61 of the dHA u." not unconstitutional.

{e find no merit whatsoever in ground 2(hl of the petition as the sfme is clearly misconceived for the reasons already statfd above. It t6o fails.

This whole Petition appears to be based on the premises that a pfoprietor of land has absolute right to use and abuse the land he o{ she owns. That such proprietor has a right to carry out whatever aitivities, he/she desires on that land. That any law that interferes with the right to use or abuse land amounts to deprivation of prloprietary rights, compulsory acquisition and denial of other col-rstitutional rights. 'lhe above proposition has, in our considcre vi(w, no legal basis.

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Article 237 l7l states as foliows: " Parliament shull make laws to enable urban authoities to enforce and to implement planning and deuelopment"

In 1998, Parliament did make such a 1aw - the Land Act, now Chapter 227 of the Laws of Uganda, which came into force on 2nd July 1998.

Section 43 of that Act provides:

43. Utilisation of land according to various laws.

A person tuho ou.tns or occupies land shall manage and utilise the land in accordance witll the Foresls Act, the Mining Act, the National Enuironment Act, the Water Act, the Uganda" Wildlik Act and ang other laut.

Section 45 of the same Act stipulates lhat: "Ang use of the land shall conform to the prouisions of the Town and Country Planning Act and any other lauJ'

"Any otJ'rer iaw" includes the PHA which was saved under Article 274 of tho Constitution

Section 104 and thc 9th schcduled oI the Registration of 'l'itles Act Cap 230 of Lhe Laws of Ugtrnda, set,s restrictiorrs on activities of any person holding a lease under that act as follows:

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*The lessee, his or her executors, administrators or transferees* will not at any time during the term, use exercise or carry on or permit or suffer to be used, exercised or carried on, in or upon the premises or any part of the premises any noxious, noisome or offensive art, trade, business, occupation or calling, and no act, matter or thing shall at any time during the term be done in or upon the premises or any part of the premise which shall or may be or grow to the annoyance, nuisance, grievance, damage or disturbance of the occupiers or owners of the adjoining lands and properties.

The above provision of the law emphasises the point made earlier in this Judgment that proprietary interests in land are subject to restrictions in the use of the land.

In our view, under the law, the right to own land and or hold an interest in land is separate and distinct from the right to use that land. The right to own property including land is protected under Article 26 of the Constitution. It includes protection against compulsory deprivation of property except in specific instances set out in that article.

On the other hand, the right to use the land is restricted. Land may only be used in accordance with laws made by Parliament which include laws that enable local authorities to planning and achieve development. They also include, we must add, laws that

protect public health, public safely, public order, public morality and the environment.

The right to own land by an individual must be balanced with the public right to a clean and healthy environment enshrined in Article 39 of the Constitution. The Constitution must be construed as a whole. The limitation imposed on land use by the PHA set out above does not in any way deprive the land owner of his or her proprietary interest in the land. Such a law constitutes justifiable limitation to the individual's rights as provided for under Article 43 of the Constitution.

That articles states as follows:

## 43 (2) General limitation on fundamental and other human rights

- In the enjoyment of the rights and $(1)$ freedoms prescribed in this Chapter, no person shall prejudice the fundamental or other human rights and freedoms of others or the public interest. (Emphasis added) - $(2)$ Public interest under this article shall not permit - (a) political persecution;

- (b) detention without trial; - (c) any limitation of the enjoyment of the rights and freedoms prescribed by this Chapter beyond what is acceptable and demonstrably justifiable in a free and democratic society, or what is provided in this Constitution."

We find that the limitations to proprietary rights set out in the PHA **do not** go beyond what is acceptable and justifiable in a free and democratic society.

In the Nyakana vs NEMA case (Supra) this court found, and correctly so, that the restriction to the use of land are not unconstitutional. Court found that such are in fact justifiable.

In that case, Mr. Amooti Nyakana, the Petitioner was a registered proprietor of a leasehold property, in Kampala. He held building plans approved by the Kampala City Council authorizing him to construct a residential house on the property. He proceeded to erect a double storied residential house on the property. The structure was almost complete - it had been roofed - when NEMA intervened. NEMA issued an environmental restoration order requiring Mr. Nyakana to remove the structure as it had been constructed in a wetland in contravention of the National Environment Act (Cap 153) and the Wetlands Regulations made under that Act. He refused to do so. NEMA demolished the structure. Mr. Nyakana petitioned this court for a declaration that his right to property enshrined


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under Article 26 of the Constitution had been violated and that he had been denied a right to be heard.

, The petition was dismissed, because the right to own land does not confer upon the proprietor a right to abuse it. Land must be developed in accordance with the law. No compensation was ordered in that petition. This court held that an environment restoration order served upon the petitioner had provided him with an opportunity to be heard.

In a similar case, Sheer Property Limited versus NEMA Misc. Cause No. 232 of 2OO8, the High Court hcld that NEMA had a right to stop a registered proprietor from erecting structures on the part of his land that was within a protected zone of a lake shore.

Although Sheer Property Ltd had a valid titlc and approved plans, the National Environment Act prohibited construction of structures with the protected zone of a lake shore. The structures were within the protected zone. its application for judicial review of NEMA's decision was rejected by the High Court.

We agree with the decision in that case as it affirms the legal principle already set out in this Jr-rdgment that land use is subject to law.

This Petition therefore fails and is hereby dismissed.

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We have stated in this court that in Public Interest Litigation cases each party should bear its own costs. See (Advocates for Natural Resources Governance and Development and 20 other vs Attorney General Constitutional Petition No. 40 of 2013). We still stand by that position.

We therefore order that each party should bear its own costs.

.....day of December 2014. Dated at Kampala this HON. MR. JUSTICE S. B. K. KAVUMA, JA/JCC HON. JUSTICE RUBBY AWERI OPIO JA/JCC $10155$ HON. JUSTICE SOLOMY BALUNGI BOSSA, JA/JCC HON. JUSTICE GEOFFREY KIRYABWIRE, JA/JCC Tusalenue. HON. JUSTICE PROF. LILLIAN EKIRIKUBINZA TIBATEMWA, $JA/JCC$