Muwema v Attorney General (Constitutional Petition 13 of 2015) [2021] UGCC 47 (22 July 2021)

## THE REPUBLIC OF UGANDA IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA CONSTITUTIONAL PETITION NO. 13 OF 2015

\

FRED MUWE[il[====== = PETITIONER

VERSUS

ATTORNEY GENERl,L RESPONDEhIT

CORAM:

o

o

HON. MR. IUSTICE GEOFFREY KIRYABWIRE, I A / CC HON. LADY IUSTTCE ELTZABETH MUSOKE, JAICC HON. LADY }USTICE HELLEN OBURA, JAICC HON. LADY JUSTTCE MONTCA MUGENYT, JAICC HON. MR. JUSTICE REMMY KASULE, Ag. fAlcc

### IUDGMENT OF HON. MR. JUSTTCE GEOFFREY KTRYABWIRE. JAICC

The facts of this Petition are set out in the f udgrnent of Mustrl<e IA/ICC which I have had the benefit of Perusing in draft. I am in full agreement that the Petition is without merit and should be disnrissed with no Order as to costs for lack of merit.

Since Obura, Mugenyi and Kasule, )IA/IICC, also agree with the Orders proposed by Musoke lA/lCC namely that the Petition should be dismissed with no Orders as to costs, Orders are accordingly hereby made in the terms proposed by Musoke JA in her Judgment.

It is ordered.

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**Dated** at **Kampala** this....................................

halugter) . . . . . . . . . . . . . . . . . . . .

HON. MR. JUSTICE GEOFFREY KIRYABWIRE, JA/JCC

## THE REPUBLIC OF UGANDA

## IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA **CONSTITUTIONAL PETITION NO. 0013 OF 2015**

# FRED MUWEMA::::::::::::::::::::::::::::::::::::

#### VERSUS

## ATTORNEY GENERAL::::::::::::::::::::::::::::::::::::

CORAM: HON. MR. JUSTICE GEOFFREY KIRYABWIRE, JCC HON. LADY JUSTICE ELIZABETH MUSOKE, JCC HON. LADY JUSTICE HELLEN OBURA, JCC HON. LADY JUSTICE MONICA MUGENYI, JCC HON. MR. JUSTICE REMMY KASULE, AG. JCC

## JUDGMENT OF ELIZABETH MUSOKE, JCC

This Petition, brought under Article 137 (1), (2), (3) and (7) of the 1995 Constitution and Rule 3 of the Constitutional Court (Petitions and References) Rules, 2005, seeks the nullification by reason of being unconstitutional, a number of provisions in the Advocates Act, Cap. 267 and in the Advocates Professional Conduct Regulations, S. I 267-2, made thereunder, which prohibit the making of advocate-client "Contingent Fee Agreements" with respect to the advocate's remuneration for legal services rendered. The Petition also seeks the nullification of certain provisions in the said Act which provide for special requirements to be fulfilled before lawful remuneration agreements for legal services rendered, may be enforced.

#### Background

Contingent Fee Agreements (CFAs), or Success Fee Remuneration Agreements, as the petitioner chooses to refer to them, arise in the context of an advocate-client relationship. They are typically made when a client gives instructions to an advocate to handle contentious business on the understanding that the advocate's fees will be paid, only if, the instructions are successfully carried out, resulting in the recovery of property or money.

The fees will consist of a portion of the property or monies recovered. Thus, the advocate's remuneration is contingent upon his/her recovering the property or money as agreed upon.

This Petition focuses mainly on CFAs in the context of contentious business, which should be taken to mean business which involves the filing and prosecution of a matter by an advocate in any Court or tribunal. CFAs in that context are rendered invalid by the Advocates Act, Cap. 267, and the Professional Conduct Regulations made thereunder. The Supreme Court has held that CFAs in the context of contentious business are illegal for contravening the provisions of the Advocates Act, Cap. 267 (See: Shell (U) Ltd and 9 Others vs. Muwema & Mugerwa Advocates & Solicitors and Another, Supreme Court Civil Appeal No. 02 of 2013 (Per Kitumba, JSC)).

The petitioner is an advocate in private practice, and is aggrieved with the prohibition of making of CFAs in the context of contentious business. He alleges that, not only does such prohibition contravene the 1995 Constitution, but also that the provisions setting out the challenged prohibition are based on "blunt and unconstitutional application of antiquated English legal doctrines of maintenance and champerty", and are, "relics of the said doctrines which were fashioned in the medieval era to safeguard against the threats of wanton and officious intermeddling with the administration of justice by persons of wealth and influence to whom doubtful fraudulent claims would have been assigned." The petitioner thus contends that the prohibition of CFAs is unfair and unjustified. With regard, to remuneration agreements in representative suits, the petitioner alleges that the manner of their regulation in the relevant Act, is such that it leaves a route which may be exploited by some beneficiaries of representative suits to refuse to pay legal fees to an advocate, for services rendered to them.

For those reasons, the petitioner seeks the following declarations and orders set out at paragraph 7 of the Petition:

The provisions of S. 55 (1) (b) of the Advocates Act, Cap. 267 $``(i)"$ which invalidates an Advocates remuneration agreement stipulating for payment only in the event of success of a suit or

protect members of the public against exploitation by advocates which in turn serves to ensure a just, peaceful and secure society to all citizens.

#### Representation

At the hearing, Mr. Mulema Mukasa, Mr. Friday Roberts Kagolo and the petitioner himself, all learned counsel, jointly appeared for the petitioner. Mr. Geoffrey Madete, Senior State Attorney in the respondent's chambers appeared for the respondent. Court gave the parties a schedule for filing written submissions, which was only complied with by the petitioner; whose submissions have been considered in this Judgment. No submissions were filed for the respondent.

I have carefully studied the Petition and the accompanying documents, the Respondent's Answer and the accompanying documents; considered the petitioner's submissions and conferencing notes, and the law and authorities relied on. Where necessary, I have considered other relevant law and authorities although not cited.

It must be noted that in his submissions, the petitioner abandoned the challenge to the constitutionality of Sections 48 and 50 of the Advocates Act, Cap. 267 (hereinafter "the Act") because he had "revisited the said provisions and found that a case for their unconstitutionality cannot be made out." He maintained, however, that Section 51 (b), (c) and 51 (2), Section 55 (1) (b) of the Act, as well as Regulation 26 of the Advocates (Professional Conduct) Regulations S. I 267-2 ("the regulations") were inconsistent with and/or in contravention of the 1995 Constitution.

Counsel for the petitioner proposed the following issues to guide in determining the present petition:

- "(i) Whether the Petition raises questions for constitutional interpretation. - (ii) Whether this Petition can arise from the final Judgment of the Supreme Court in Civil Appeal No. 02/2013 Shell (U) Ltd and 9 Others vs. Muwema & Mugerwa Advocates & Anor.

- (iii) Whether Section 51 (1) (b), (c), 51 (2), 55 (2) of the Advocates Act, Cap. 267, are inconsistent with Articles 2, 20, 26, 28, 40 and 44 of the Constitution of the Republic of Uganda. - Whether the provisions of Regulation 26 of the Advocates $(iv)$ (Professional Conduct) Regulations S. I 267-2 is inconsistent with Articles 2, 20, 26, and 40 of the Constitution of the Republic of Uganda. - Whether the provisions of Section 51 (1) (b) and (c) read together $(v)$ with S. 51 (2) of the Advocates Act, Cap. 267 are contrary to and inconsistent with Articles 2, 20, 21, 26, 40, 126 and 128 of the 1995 Constitution of the Republic of Uganda. - (vi) Whether the petitioner is entitled to the remedies sought."

The above stated issues will be dealt with below. But before proceeding to do so, I wish to observe that in determining Constitutional Petitions, this Court will apply well known principles of constitutional interpretation. The said principles, as counsel for the petitioner correctly pointed out were summarized by the Supreme Court in its decision in David Welsey Tusingwire vs. Attorney General, Constitutional Appeal No. 4 of 2016 (per Mwonda, JSC). I do not find it necessary to reproduce all the principles here, but will make reference to the relevant principles whenever it is necessary for the analysis in this Judgment.

#### Issue (i)

$\frac{1}{\sqrt{2}}$

#### Petition raises questions for constitutional Whether the interpretation

The jurisdiction of this Court is provided for in Article 137 of the 1995 Constitution, whose relevant parts, are reproduced below:

#### "The constitutional court.

137. Questions as to the interpretation of the Constitution.

(1) Any question as to the interpretation of this Constitution shall be determined by the Court of Appeal sitting as the constitutional court.

$(2)$ ...

(3) A person who alleges that—

(a) an Act of Parliament or any other law or anything in or done under the authority of any law; or

$(b)$ ...

$\frac{2\pi}{3}$ $\frac{2\pi}{3}$

### is inconsistent with or in contravention of a provision of this Constitution, may petition the constitutional court for a declaration to that effect, and for redress where appropriate."

The above provisions clearly provide that this Court has jurisdiction to entertain only matters, brought by way of Petitions, which set out questions for constitutional interpretation. Where a Petition concerns a challenge to "an Act of Parliament or any other law or anything done under the authority of a law", the Petition will be deemed to be properly before this Court if it is sets out (1) the provisions of the relevant legislation alleged to be inconsistent with the Constitution and 2) the provisions of the Constitution alleged to be contravened by the impugned provisions in the relevant legislation.

The present Petition alleges that the provisions of Section 51 (1) (b), (c), Section 51 (2), 55 (1) (b) of the Advocates Act, Cap. 267 as well as Regulation 26 of the Advocates (Professional Conduct) Regulations, are inconsistent with and/or in contravention of Articles 2, 20, 26, 28, and 40 (2) of the 1995 Constitution. At this stage, the Petitioner's allegations must be presumed to be true. Accordingly, I would find that the Petition sets out questions for constitutional interpretation and is properly before this Court. Issue (i) is therefore, answered in the affirmative.

#### Issue (ii)

## Whether this Petition can arise from the final Judgment of the Supreme Court in Civil Appeal No. 02/2013 Shell (U) Ltd and 9 Others vs. Muwema & Mugerwa Advocates & Anor.

It must be stated that this Court sits to determine questions for constitutional interpretation. The petition in this case concerns the constitutionality of provisions of the Advocates Act, Cap. 267 which prohibit making of CFAs. It will be noted that the Supreme Court in the case of Shell (U) Ltd and 9 Others vs. Muwema & Mugerwa Advocates and Another, Civil

Appeal No. 02 of 2013 (unreported), explained and applied the import of some of the relevant provisions and held that CFAs are rendered illegal by the Advocates Act, Cap. 267. The Petitioner accepts that the impugned provisions have the import ascribed to them in the said decision. Whether or not the Supreme Court erred with respect to any finding of fact or application of the law to the facts of the said decision, is an issue which no Court can be asked to re-examine, given that decisions of the Supreme Court are final. Moreover, the Petition, alleges not that the Supreme Court decision was wrong, but that the legislation which the Supreme Court rightly applied therein is unconstitutional.

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I observe that, in parts of his submissions, the Petitioner veers into a discussion of the relevant Supreme Court decision, even arguing in some parts that it was wrongly decided. It was submitted that this Court may overturn the relevant Supreme Court Decision because Supreme Court decisions in Civil Appeals are not binding on this Court sitting as a Constitutional Court to determine Constitutional Petitions. The Petitioner contends that the jurisdiction of this Court under Article 137 of the 1995 Constitution allows for it to determine questions as to the interpretation of the Constitution even if they arise from decisions of the Supreme Court in civil appeals. The Petitioner further submits that this Court is only bound by decisions of the Supreme Court rendered in constitutional appeals. Counsel referred to the Supreme Court decision in Susan Kigula vs. Attorney General, Supreme Court Civil Appeal No. 03 of 2006, where in his view, the Supreme Court overturned a decision it rendered in a criminal appeal while deciding a constitutional appeal. Counsel for the petitioner therefore prayed this Court to entertain this Petition even if it seeks to overturn the decision of the Supreme Court in the Shell (U) Ltd case (supra).

In my view, issue (ii) does not arise from the Petition. It should be borne in mind that an issue only arises when a material proposition of law or fact is affirmed by the one party and denied by the other. See: Order 25 of the Civil Procedure Rules, S. I 71-1. It goes without saying that material propositions of law or fact may only be raised in pleadings and not

$7$

submissions. In the present case, nowhere in the Petition, does the petitioner claim that he is challenging the Supreme Court decision. It is therefore surprising that the petitioner brings this challenge for the first time in his submissions.

I would therefore find that issue (ii) does not arise from the Petition.

### Issues (iii) and (iv)

These issues go to the substance of the part of the Petition which challenges the constitutionality of the provisions of the Act and regulations made thereunder, that prohibit the making of CFAs, and the issues will be considered jointly. I will go on to first review the relevant legislation.

Under the Advocates Act, Cap. 267, an advocate may make an agreement with his/her client to provide for the quantum of legal fees to be paid to the advocate for handling contentious business for the client. The agreement may make provision that the legal fees will be paid as a gross sum or as salary. Section 50 of the Advocates Act, Cap. 267 provides:

"50. Power to make agreements as to remuneration for contentious business.

(1) Notwithstanding any rules for the time being in force, an advocate may make an agreement with his or her client as to his or her remuneration in respect of any contentlous business done or to be done by him or her providing that he or she shall be remunerated either by a gross sum or by salary."

An agreement for an advocate's remuneration is of a unique kind. It may not be sued upon as any other ordinary agreement can, but may only be implemented on application to a competent Court which may decide whether or not to order for its implementation. This is the import of **Section 50 (3)** of the Advocates Act which stipulates:

"(3) No suit shall be brought upon any such agreement, but the court may, on the application of any person who is a party to, or the representative of a party to, the agreement, or who is, or who is alleged to be liable to pay, or who is or claims to be entitled to be paid, the costs due or alleged to be due in respect of the business to which the

agreement relates, enforce or set aside the agreement and determine every question as to the validity or effect of the agreement."

Under Section 50 (4) of the Advocates Act, when faced with the above mentioned application, the Court is obligated to make a determination as to whether the agreement for remuneration is fair and reasonable, before it can order for its implementation. If the Court determines that the agreement is not fair and reasonable, the Court will declare it void and order for the legal fees to be taxed by a competent Court. Section 50 (4) provides:

"(4) On any such application, the court—

(a) if it is of the opinion that the agreement is in all respects fair and reasonable, may enforce it;

(b) if it is of the opinion that the agreement is in any respect unfair or unreasonable, may declare it void and may order it to be given up to be cancelled and may order the costs covered by it to be taxed as if the agreement had never been made;

(c) in any case, may make such orders as to the costs of the application as it thinks fit."

It must be stated, however, that in the context of contentious business, the agreements for remuneration that may be concluded are those where the advocate will be compensated for the legal services rendered, regardless of whether or not, the carrying out of the business succeeds.

On the other hand, the Advocates Act stipulates that agreements which provide for remuneration only if the contentious business handled by an advocate succeeds, are invalid. In this regard Section 55 (1) (b) of the Act provides:

55. Miscellaneous provisions as to remuneration for contentious business.

(1) Nothing in section 50, 51, 52, 53 or 54 shall give validity to-

$(a)$ ...

(b) any agreement by which an advocate retained or employed to prosecute any suit or other contentious proceeding stipulates for payment only in the event of success of that suit or proceeding; $or$ (c) ..."

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The kind of agreements which are prohibited by Section 55 (1) (b) are those referred to in this Judgment as Contingent Fee Agreements (CFAs). I believe that in enacting Section 55 (1) (b), Parliament was concerned with addressing a specific mischief. However, the Petitioner did not avail this Court with a copy of the Hansard for it to satisfy itself as to the said mischief. He was only content to speculate that the mischief sought to be addressed by Parliament relates to the dangers linked to the outlawing of maintenance and champerty at common law. The petitioner alleges, in the relevant part, at paragraph 6 of the Petition as follows:

$6(1)$ That the above provisions are relics of the outdated English legal doctrines of maintenance and champerty which were fashioned in the medieval era to safeguard against the threats of wanton and officious intermeddling with the administration of justice by persons of wealth and influence to whom doubtful fraudulent claims would have been assigned."

The respondent has similar views, and in the affidavit of Mr. Denis Bireije, deponed in support of the respondent's Answer to the Petition, it is stated in the relevant part, as follows:

- $"(6)$ That the rationale behind such action (prohibition of CFAs) as constituting professional misconduct is that an advocate would become personally involved in the success of the outcome of the case and it would hinder him or her from fulfilling his duty as an officer of the court. - That the taking of contingency fees is a form of maintenance $(7)$ and champerty which have been long prohibited in the common law tradition as an advocate would abdicate his duty to the Court which is paramount, a duty to himself to be true and always abide by his word and never betray that confidence and his duty to the state to enforce laws of the country and ensure that there is justice, peace and security for all citizens regardless of their socio-economic status."

It is however, my view, that it is rather speculative to say that Parliament enacted the provisions prohibiting the making of CFAs solely to prevent the dangers of maintenance and champerty. Had either the petitioner or the respondent adduced the evidence of the relevant hansard, it would have been possible to confidently make a determination of the motives behind enacting the relevant provisions. This Court, may however, safely assume that in enacting the relevant provisions, Parliament was acting in the public interest.

I further note that the Law Council, the body mandated with, among other things, exercising disciplinary control over advocates, and empowered to make regulations for the proper carrying out of that mandate, has made the Advocates (Professional Conduct) Regulations, S. I 267-2, which also prohibit the making of CFAs, by stating that an advocate who makes CFAs commits professional misconduct. Regulation 26 provides:

## "26. Contingent fees.

An advocate shall not enter into any agreement for the sharing of a proportion of the proceeds of a judgment whether by way of percentage or otherwise either as—

(a) part of or the entire amount of his or her professional fees; or

(b) in consideration of advancing to a client funds for disbursements."

I observe that the petitioner seeks this Court to nullify Section 55 (1) (b) of the Act. The jurisprudence of this Court firmly establishes that this Court will only nullify a law, if the law is inconsistent with and/or in contravention of any of the written provisions of the Constitution. The Court moves to do so, in order to assert the Supremacy of the Constitution guaranteed under Article 2 of the 1995 Constitution, which provides:

"2. Supremacy of the Constitution.

(1) This Constitution is the supreme law of Uganda and shall have binding force on all authorities and persons throughout Uganda.

(2) If any other law or any custom is inconsistent with any of the provisions of this Constitution, the Constitution shall prevail, and that other law or custom shall, to the extent of the inconsistency, be void."

In my view, the petitioner's case with regards to issue (iii) and (iv) has three major strands. First, the petitioner claims that the provisions of Section 55 (1) (b) of the Act and Regulation 26 of the Regulations are inconsistent and/or in contravention of Articles 2, 20, 21, 26, 28, 40 and 44 of the 1995 Constitution, in so far as the impugned legislative provisions violate several aspects of the rights enshrined in the relevant constitutional provisions. Secondly, the petitioner asserts that the impugned legislative provisions violate the constitutionally guaranteed rights of advocates of freedom of contract, in so far as the impugned provisions prohibit advocates from making CFAs with their clients in contentious cases. Thirdly, if the foregoing claims are true, the petitioner's case is further that Parliament's prohibition of making CFAs under the impugned provisions is neither permissible nor justified under the 1995 Constitution.

I will first deal with the claims alleging violation of Articles 2, 20, 21, 26, 28, 40 and 44 of the 1995 Constitution. The petitioner alleged that the impugned provisions which prohibit making of CFAs violate the provisions of Article 40 (2). He pleaded at paragraph 5 (i) of the Petition that:

5 (i) The provisions of S. 55 (1) (b) of the Advocates Act, Cap. 267 which invalidates an Advocates Remuneration Agreement ... undermines the Advocates right to practice and earn from his profession and the client' freedom to contract a lawyer of his/her choice under suitable terms..."

Article 40 (2) of the 1995 Constitution states:

"Every person in Uganda has the right to practise his or her profession and to carry on any lawful occupation, trade or business."

On the related subject of right to practice a profession, the petitioner also asserts that prohibition of CFAs contravenes the provisions of Article 40 (3) (a) of the 1995 Constitution, which states:

## "Every worker has a right-

$(a)$ ...

- (b) to collective bargaining and representation - (c) ... "

In respect to alleged violation of Article 40 (3) (b), the petitioner pleaded at paragraph 5 (ii) of the Petition as follows:

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The provisions of Regulation 26 of the Advocates $5(ii)$ (Professional Conduct) Regulations S. I 267-2 which forbids an Advocate from obtaining payment of his professional fees from the proceeds of a judgment in a case he/she has successfully handled, unjustly, unfairly and illegally deprives the advocate of his fees/property in the said judgment and derogates from the Advocates constitutional right to bargain for the remuneration of his labour..."

The petitioner's arguments that are based on the provisions of Article 40 must fail. In my view, prohibition of CFAs does not refuse an advocate from practicing his or her profession, but rather, it requires an advocate to practice his or her profession in compliance with the law, as enacted by Parliament. As to violation of the right of an advocate to collective bargaining and representation, I do not see how that arises in the context of prohibition of CFAs. The right to collective bargaining relates to the right of an employee to belong to a labour union for purposes of negotiating the conditions of the employee's employment. The labour unions usually engage in negotiation with employees on said conditions such as wages, working hours et cetera. Thus, in invoking the right to collective bargaining to cover private contractual bargains, the petitioner, grossly misconstrues the provisions of Article 40 (3) (b).

I further observed that the petitioner submitted that the prohibition of CFAs contravenes the provisions of Article 28 of the 1995 Constitution in so far as an advocate is not granted a hearing before a CFA is invalidated. It was also submitted that prohibition of CFAs has the effect of limiting access to justice for citizens, because the majority of citizens cannot afford paying legal fees upfront and would prefer that the fees are charged as a percentage of the decretal sums. In counsel's view, one of the tenets of a fair hearing under Article 28 is the requirement that every citizen has access to Court; which is violated by the prohibition of CFAs.

These submissions, it must be stated, relate to matters that were not explicitly pleaded in the Petition. In the Petition, the petitioner did not attempt to state that access to justice and denial of a hearing before invalidation of CFAs, as elements of the right to a fair hearing, are violated by the prohibition of CFAs. The relevant parts of the Petition are set out at paras 6 (e) to (j), which are reproduced below:

- $6(e)$ That over the years I have rendered legal services to clients by entering into remuneration agreements with them and then get (sic) paid out of the proceeds of the judgment if successful. - That from my experience, many of my clients who opt to $(f)$ enter into success fee remuneration agreements cannot afford to pay upfront the high cost of litigating the matter against usually powerful defendants. - That in other cases, the clients may not be indigent but it $(g)$ may simply be more practical and convenient to institute one representative suit for all of them and then enter into one remunerative agreement with their representative. - That without success fee remuneration agreements many $(h)$ such cases which are founded on just claims would never be prosecuted and the beneficiaries would never access justice. - That many lawyers in Uganda offer legal services by $(i)$ entering into success fee remuneration agreements with their clients and in the process they have helped many clients further their rights in the case in consideration for a reasonable remuneration to them. - That, however, in the past few years, the Courts have struck $(i)$ down success fee remuneration agreements because of the provisions of S. 55 (1) (b) of the Act..."

Whereas, the petitioner mentions that prohibition of CFAs may have the effect of limiting access to justice in para 6 (h) of the Petition, he does not make the necessary connection with Article 28 of the 1995 Constitution. It is, as though, he was oblivious that in constitutional matters, this Court only considers issues requiring interpretation of the Constitution. The failure

to plead those matters means that the petitioner could not submit on them, as he has attempted to do.

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I am unable to accept the petitioner's submissions on this point, anyway. The right to a fair hearing which is enshrined under Article 28 of the 1995 **Constitution**, is understood to extend to the safe guards that must exist when a Court or tribunal undertakes a determination of criminal liability or adjudication upon civil rights and obligation. CFAs are prohibited by the Advocates Act and are resultantly rendered illegal. Since it is now well established that an illegality cannot be entertained in any Court of law, it is surprising that the petitioner invokes a right to be heard based on illegality.

In my view, the real motive for filing this Petition was so that the petitioner could launch a challenge to the wisdom and unfairness and/or unjustness of the legislation that prohibits the making of CFAs. The petitioner states that the prohibition of CFAs stigmatizes lawyers who wish to earn from them. In his view, the prohibition of CFAs is "based on blunt and unconstitutional application of antiquated English legal doctrines of maintenance and champerty". The petitioner's real grievance is expressed in paragraph 5 (ii) of the Petition, where he states that prohibition of CFAs, "unjustly, unfairly and illegally deprives an advocate of fees. Of course, the prohibition is not illegal, since it is provided for by the relevant Act and regulations, but the substance of the Petition is to challenge the unfairness and unjustness of the impugned legislation.

I further observe that the petitioner states that in other jurisdictions such as UK, USA, Australia, South Africa and Nigeria, the relevant laws have been reformed so that making of CFAs is no longer illegal. Those countries have instead put in place strong legislation to "protect the Courts, the rights of litigants and enforce the duties of advocates." It is clear that the petitioner is trying to persuade this Court that reform of the Advocates Act, Cap. 267 is necessary, as some of the provisions therein are outdated.

It must however be stated that the power to reform laws, is, under our constitutional framework, a duty, primarily the preserve, not of the Constitutional Court, but of Parliament. Article 79 (1) of the 1995 Constitution states:

"Functions of Parliament.

(1) Subject to the provisions of this Constitution, Parliament shall have power to make laws on any matter for the peace, order, development and good governance of Uganda."

Parliament also derives from the above provision, the power to make laws to regulate any subject in the country. In my view, if Parliament enacts legislation and that legislation does not contravene any of the provisions of the 1995 Constitution, this Court may not nullify that legislation, for other reasons, such as the alleged unfairness or unjustness of the legislation.

With regard to the claims based on the principle of freedom of contract, it must be stated that the principle has its origins at common law. The principle was articulated in Jessel MR's dictum in the case of Printing and Numerical Registering Co. vs. Sampson (1875) 19 Eq 462, where he stated:

"... if there is one thing which more than another public policy requires it is that men of full age and competent understanding shall have the utmost liberty of contracting, and that their contracts when entered into freely and voluntarily shall be held sacred and shall be enforced by Courts of Justice."

In the same case, Jessel MR acknowledged that the principle of freedom of contract was not absolute, and that some contracts although entered into freely and voluntarily may be declared void. He recognized that contracts to give a reward to another to commit a crime or those for committing an immoral offence would not be enforced. It must be stated that since the delivery of the above referred to decision, other inroads have been made into the principle of freedom of contract. For instance, a contract will not be enforced in case of illegality or frustration, et cetera.

It must also be pointed out that the 1995 Constitution, like some of the Constitutions in other jurisdictions, does not enshrine an absolute right to freedom of contract. This point was made, with respect to the US

Constitution, in the US Supreme Court decision in West Coast Hotel Co. v. Parrish, 300 U. S. 379 (1937). In that case, the West Coast Hotel, the appellant, conducted a hotel business in the State of Washington. The State legislature enacted a law providing for a minimum wage to be paid to women employed by the hotels. Mrs. Parrish, the respondent, was one such woman. For some years, the appellant paid the respondent below minimum wage, pursuant to a contract concluded by the two parties. When the respondent discovered that the contractual wage was below the State Minimum wage, she sued the appellant to recover the difference between the minimum wage and the contractual wage she had been receiving. The appellant moved to challenge the constitutionality of the minimum wage legislation, arguing that it was inconsistent with the principle of freedom of contract as enshrined under the due process clause enshrined in the 14<sup>th</sup> amendment of the US Constitution. The US Supreme Court upheld the validity of the legislation and rejected the arguments by the appellant. Mr. Chief Justice Hughes who wrote the judgment of the Court stated:

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"The constitutional provision invoked is the due process clause of the Fourteenth Amendment, governing the States, as the due process clause invoked in the Adkins case governed Congress. In each case, the violation alleged by those attacking minimum wage regulation for women is deprivation of freedom of contract. What is this freedom? The Constitution does not speak of freedom of contract. It speaks of liberty and prohibits the deprivation of liberty without due process of law. In prohibiting that deprivation, the Constitution does not recognize an absolute and uncontrollable liberty. Liberty in each of its phases has its history and connotation. But the liberty safeguarded is liberty in a social organization which requires the protection of law against the evils which menace the health, safety, morals and welfare of the people. Liberty under the Constitution is thus necessarily subject to the restraints of due process, and regulation which is reasonable in relation to its subject and is adopted in the interests of the community is due process. (Emphasis added)

I respectfully agree and adopt the above highlighted principles. In my view, the 1995 Uganda Constitution, too does not, mention the right to freedom of contract as asserted by the petitioner. None of the provisions of Articles

2, 20, 21, 26, 28, 40, 44, 126, 128 relied on by the Petitioner are related to the right to freedom of contract. It is necessary to state that the US Constitution, in, the fourteenth amendment recognizes a broader concept of liberty, than does our 1995 Constitution. The U. S Constitution provides, in relevant part:

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

The Uganda 1995 Constitution recognizes the right to liberty strictly in the context of arrest and detention of citizens done in pursuance of any of the circumstances recognized in Article 23 (1) (a) to (h). Therefore, in my view, none of the provisions in the 1995 Constitution recognize a right of freedom of contract, let alone, an absolute one as asserted by the petitioner. In any case, parliament has the power to make laws to regulate any aspect of the legal profession, including one that prohibits CFAs, as it did in the impugned legislation.

I note that the petitioner also attacked the impugned legislation on grounds that it contravenes the equality provision enshrined in Article 21 of the 1995 Constitution. Article 21 provides:

Equality and freedom 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.

(2) Without prejudice to clause (1) of this article, a person shall not be discriminated against on the ground of sex, race, colour, ethnic origin, tribe, birth, creed or religion, social or economic standing, political opinion or disability.

(3) For the purposes of this article, "discriminate" means to give different treatment to different persons attributable only or mainly to their respective descriptions by sex, race, colour, ethnic origin, tribe,

birth, creed or religion, social or economic standing, political opinion or disability.

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(4) Nothing in this article shall prevent Parliament from enacting laws that are necessary for-

(a) implementing policies and programmes aimed at redressing social, economic, educational or other imbalance in society; or

(b) making such provision as is required or authorised to be made under this Constitution: or

(c) providing for any matter acceptable and demonstrably justified in a free and democratic society.

## (5) Nothing shall be taken to be inconsistent with this article which is allowed to be done under any provision of this Constitution." (emphasis added)

As stated earlier, Article 79 (1) of the 1995 Constitution authorizes Parliament to make laws on any matter for the "peace, order, development and good governance of Uganda". Legislation prohibiting the making of CFAs is such legislation that may be stated to have been made for the purposes identified in Article 79 (1). Thus, in view of Article 21 (5), because the legislation is allowed under another provision of the 1995 Constitution, it cannot be taken to be inconsistent with the equality provision in Article 21.

I must state that all the points touching on issues (iii) and (iv), as raised by the petitioner, are more suited to be raised with Parliament, with a view to effecting an amendment of the Advocates Act, Cap. 267, and not in this Court. It is recognized that the role of a court tasked with interpretation of the Constitution is not to advise Parliament about the wisdom of legislation, but to determine whether or not any such legislation contravenes the Constitution. In Bacon v. Saskatchewan Crop Insurance Corp., 1997 CanLII 10902 (SK QB), the Court quoting from the Canada Supreme Court decision of Amax Potash Ltd et al vs. The Government of Saskatchewan [1977] 2 S. C. R. 576, stated:

"A state, it is said, is sovereign and it is not for the Courts to pass upon the policy or wisdom of legislative will. As a broad statement of principle that is undoubtedly correct, but the general principle must yield to the requisites of the constitution in a federal state. By it the bounds of sovereignty are defined and supremacy circumscribed. The Courts will not question the wisdom of enactments which, by the terms of the Canadian Constitution are within the competence of the Legislatures, but it is the high duty of this Court to insure that the Legislatures do not transgress the limits of their constitutional mandate and engage in the illegal exercise of power. (emphasis added)"

I agree with the above stated principles. I would add that allegations that legislation is unfair or unjustified, go to the wisdom of legislation and not its constitutionality. In my view, the principle of constitutional supremacy enshrined under Article 2 of the 1995 Constitution guides that Parliament alone has the power to decide on the content of legislation. Whether or not any legislation is unfair or unjustified or outdated, is a matter to be raised with Parliament, and not the Constitutional Court. If the legislation does not violate any provision of the 1995 Constitution, this Court cannot be called on to nullify the legislation, merely because a person, like the petitioner in this case, finds the legislation unfair or unjustified or unwise.

For these reasons, I would answer issues (iii) and (iv) in the negative.

#### Issue (v)

$\mathcal{H}^{\text{max}}_{\text{max}}$

## Whether the provisions of Section 51 (1) (b) and (c) read together with S. 51 (2) of the Advocates Act, Cap. 267 are contrary to and inconsistent with Articles 2, 20, 21, 26, 40, 126 and 128 of the 1995 Constitution of the Republic of Uganda.

The petitioner alleges that the import of the provisions of Section 51 $(1)$ (b) and (c) read together with Section 51 (2) of the Act is inconsistent with and in contravention of Articles 2, 20, 21, 26, 40, 126 and 128 of the 1995 Constitution. The petitioner pointed out that the impugned provisions have been held to convey the import that a representative order made under Order 1 Rule 8 of the Civil Procedure Rules, S. I 71-1 on behalf of or for the benefit of specified persons (the represented) authorizing their representative to sue on their behalf does not authorize the representative to make a remuneration agreement with an advocate without the

represented expressly consenting to the terms of said agreement. If made in those circumstances, the remuneration agreement will not bind the represented.

The petitioner states at paragraph 5 (iii) of the Petition that the effect of the impugned provision is that if the represented are said not to be bound by the remuneration agreement, they may "elude payment of the advocates fees". He also claimed that the application of the provisions challenged under this issue "interferes with the exercise of judicial function by the Court". All this, he alleges, is inconsistent with and/or in contravention of the provisions of Articles 2, 20, 21, 28, 40, 126 and 128 of the 1995 Constitution.

In the submissions on this issue, the petitioner argues that application of Section 51 (1), (b) and (c) and Section 51 (2) of the Advocates Act, Cap. 267 gives rise to constitutional violations. The Petitioner recounted his experience in the Shell (U) Ltd case (supra), where upon being instructed by his client Rock Petroleum (U) Ltd, he went on to obtain a representative order and successfully prosecuted a representative suit involving other companies in the petroleum business industry (the represented). The petitioner narrates that he had made an agreement with Rock Petroleum (U) Ltd (the representative) to be paid a certain proportion of the amount recovered as the decretal sum in the representative suit. When he moved to enforce the agreement, the other represented companies, resisted on the grounds that they were not party to it. In the end, the Supreme Court, agreed with the other represented companies, basing its decision on the impugned provisions.

The petitioner submitted that the impugned provisions encourage some people to reap where they have not sown, which is contrary to Objective IX of the National Objectives and Directive Principles of State Policy, which states:

"IX. The right to development.

In order to facilitate rapid and equitable development, the State shall encourage private initiative and self-reliance."

It was also submitted that the impugned provisions under this issue are unconstitutional because they discriminate against the representative party, by condemning the said party, alone, to pay the advocate's fees. In addition, that the represented parties are given preferential treatment in that they will enjoy the fruits of a successful representative suit but will not be required to foot the advocate's fees.

Further, it was submitted that the impugned provisions interfere with the powers of the court which granted the representative order which violates Articles 126 and 128 of the 1995 Constitution. For those reasons, the Petitioner prays this Court to declare that the provisions of **Section 51 (1)** (b) and (c), and those of Section 51 (2) of the Advocates Act, Cap. 267 are unconstitutional.

**Section 51** of the relevant Act provides:

"51. Special requirements of agreements under sections 48 and 50.

An agreement under section 48 or 50 shall—

(a) be in writing;

(b) be signed by the person to be bound by it; and

(c) contain a certificate signed by a notary public (other than a notary public who is a party to the agreement) to the effect that the person bound by the agreement had explained to him or her the nature of the agreement and appeared to understand the agreement. A copy of the certificate shall be sent to the secretary of the Law Council by prepaid registered post.

(2) An agreement under section 48 or 50 shall not be enforceable if any of the requirements of subsection (1) have not been satisfied in relation to the agreement, and any advocate who obtains or seeks to obtain any benefit under any agreement which is unenforceable by virtue of the provisions of this section shall be guilty of professional misconduct."

In my view, Parliament enacted the above provisions to regulate the making of agreements for remuneration of advocates for legal services rendered to their clients. The regulation was aimed at protecting clients and the integrity of the legal system. The provisions require that the client signifies his/her

consent to the terms of the agreement, by signing on the agreement. The provisions also require that the terms of the relevant agreement are explained to the client by a notary public. Otherwise, the agreement may not be enforced.

For the reasons given while answering issues (ii) and (iii), I would find that since it is within Parliament's powers to enact such legislation, and no finding has been made that the impugned provisions thereof contravene the provisions of the 1995 Constitution, the petitioner's case must fail. I reiterate that any issues as to unfairness or unjustness of the impugned provisions must be raised with Parliament and not this Court. Moreover, contrary to the petitioner's assertions, the special requirements under Section 51 of the Act, do not apply only to representative suits, but apply to remuneration agreements for every legal service that may be rendered.

I would therefore answer issue (v) in the negative.

As issues (ii), (iii), (iv) and (v) have been answered in the negative, I would find that the petitioner's challenges to the constitutionality of the provisions of Section 51 (1) and (b) and Section 51 (2); Section 55 (1) (b), each of the Advocates Act, Cap. 267; and Regulation 26 of the Advocates (Professional Conduct) Regulations S. I 267-2, must fail. Therefore, I would dismiss this petition for lacking merit.

I would make no order as to costs as the petition was brought in the public interest.

#### I would so order.

Dated at Kampala this ....................................

Elizabeth Musoke

Justice of the Constitutional Court

# THE REPUBLIC OF UGANDA IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA **CONSTITUTIONAL PETITION NO. 0013 OF 2015**

(Coram: Kiryabwire, Musoke, Obura, Mugenyi, JJA/JCC & Kasule, Ag. JA/JCC)

FRED MUWEMA::::::::::::::::::::::::::::::::::::

#### **VERSUS**

ATTORNEY GENERAL::::::::::::::::::::::::::::::RESPONDENT

# JUDGMENT OF HELLEN OBURA, JA/JCC

I have read in draft the judgment of my learned sister Elizabeth Musoke, JA/JCC in the above Constitutional Petition. I concur with her findings and conclusion that the petition be dismissed with no order as to costs for lack of merit.

Dated at Kampala this... $22^{\frac{2}{3}}$ day of <u>Substitute</u> 2021.

Hellen Obura

JUSTICE OF APPEAL/CONSTITUTIONAL COURT


THE REPUALIC OF UGAXDA

### THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA

o CORAM: KIRYABWIRE; MUSOIiE, OBURA & MUGENYI, JJCC AND KASULE, AG. JcC

#### CONSTITU''IONAL PETITION NO. 13 OF 2015

FRED MUWEMA PETITIONER

VERSUS

ATTORNEY GENERAL RESPONDENT

I

o

l

#### JUDGMENT OF MONICA K. MUGENYI JCC

I have had the benefit of reading in draft the judgment of my sister, Lady Justice Elizabeth Musoke in this Constitutional Petition.

I agree with the decision arrived at and the orders therein, and have nothing more useful to add.

.<:l oav ot .... -(.#!. Dated and delivered at Kampala this .............., 2021. )>

o

O

Hon. Lady Justice Monica K. Mugenyi JUSTICE OF THE CONSTITUTIONAL COURT

#### THE REPUBLIC OF UGANDA

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## IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA

#### CONSTITUTIONAL PETITION NO. 0013 OF 2015 10

<table>

Fred Muwema :::::::::::::::::::::::::::::::::::: Versus Attorney General :::::::::::::::::::::::::::::::::::: Coram: Hon. Mr. Justice Geoffrey Kiryabwire, JCC Hon. Lady Justice Elizabeth Musoke, JCC Hon. Lady Justice Hellen Obura, JCC Hon. Lady Justice Monica Mugenyi, JCC Hon. Mr. Justice Remmy Kasule, Ag. JCC

# Judgment of Remmy Kasule, Ag. JA

I have had the benefit of reading through the lead Judgment of Hon. Lady Justice Elizabeth Musoke, JCC.

I too emphasize the fact that the jurisdiction of the Constitutional Court set out in Article 137 $(1)(3)(a)$ and $(b)$ has its foundation in **Article 2** of the same Constitution that makes the Constitution to be the supreme law of Uganda with binding force on all authorities and persons in Uganda, and:

"(2) If any other law or any custom is inconsistent with any of the provisions of this Constitution, the Constitution shall prevail, and that other law or custom shall, to the extent of the inconsistency, be void".

- The Constitutional Court thus resolves issues calling for 35 interpretation of the Constitution only. It is not the jurisdiction of this Court to interpret a law and/or act for the purpose of, even when that particular law or act is constitutional, reforming that law or act. That is the constitutional duty of Parliament under - Article 79(1) of the Constitution. The Constitutional Court must 40 not be substituted for the Parliament of Uganda when it comes to carrying out that role.

All that the Petitioner sought in this Petition is in reality a call for reform of the Advocates Act, Cap. 267 and the Advocates

(Professional Conduct) Regulations made under the said Act as 45 relate to Contingent Fee Agreements, and other related matters. That did not require interpretation of the Constitution.

I support the decision of the Hon. Lady Justice Elizabeth Musoke, JCC, that the Petition be dismissed for lacking merit, with no order as to costs as it was brought in the public interest.

Dated at Kampala this 2.2. day of ...................................

Remmy Kasule

Ag. Justice of Constitutional Court

50