Omvia & Another v Attorney General (Constitutional Petition 35 of 2019) [2025] UGCA 95 (1 April 2025)

Full Case Text

# THE REPUBLIC OF UGANDA

## IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA

[Coram: Kiryabwire, Mulyagonja, Gashirabake, Luswata & Kihika, JJCC]

# **CONSTITUTIONAL PETITION NO 35 OF 2019**

### **BETWEEN**

#### 1. OMVIA CAROLINE $10$

| 2. ASIIMWE JOTHAM | | |--------------------------|--| |--------------------------|--|

$\mathbf{AND}$

ATTORNEY GENERAL ....................................

#### JUDGMENT OF CHRISTOPHER GASHIRABAKE, JCC. 15

#### **Introduction**

- [1] The petition was brought under Article 137 of the Constitution, 1995, and The Constitutional Court Petitions and References Rules, S. I No.91 of 2005. The Petitioners filed this petition and averred that: - - $\overline{20}$

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1. The Petitioners first and second are adult female and male Ugandans respectively of sound mind with interest in this matter.

- 2. The Respondent is the constitutional legal representative of the *Government of Uganda in all legal and constitutional matters.* - 3. The Petitioners have an interest in the matters herein below which they believe are inconsistent with and/or in contravention of the provisions of the constitution of Uganda 1995, as follows; - a. Section $31(2),(3),(6),(7)$ and (9) of the Land Act Cap 227 ( as amended) now Section $31(2)$ , $(3)$ , $(11)$ & $(12)$ Land Act Cap 236 and Section 32A of the Land Amendment Act 2010 now Section 33 of the Land Act Cap 236 are inconsistent with and in *contravention of Articles* $26(1)$ , (2), and $237(1)$ of the Constitution of the Republic of Uganda 1995, in so far as they deprive the tenants by occupancy of their lawful interests and rights to deal

and transact in property by placing conditions thereon of paying annual nominal fees to the landlord to be considered as tenants on the land and as well as failing to safeguard the tenants by occupancy against unlawful evictions and interference from quiet *possession and enjoyment of the property.*

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b. Section $34(1),(4),(5),(6)(7),(8)$ and (9) of the Land Act Cap 227(as amended) now Section $35(1)$ , $(4)$ , $(5)$ , $(6)$ , $(7)$ , $(8)$ & $(9)$ Land Act Cap 236 and Regulations 43, $57(2)$ , $64(1)$ , (2) and 65 of the Land Regulations 2004 are inconsistent with and are in contravention of Articles $26(1)$ , (2), and $237(1)$ of the Constitution of the Republic of Uganda 1995, in so far as they implore Tenants by Occupancy to compulsory seek the consent of the landlord before carrying out any transactions on the land they occupy including and not limited to selling, leasing, letting inter alia which subjects the tenant by occupancy to interferences with *enjoyment in their right to property as enshrined under Article 26 of the constitution.*

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- c. Section $35(1a)$ of the Land Act as amended by the Land (Amendment Act 2010) now Section 36(2) of the Land Act Cap *236 is discriminatory in as far as it only imposes punishment upon* the tenant and not also against the landlord as well which also makes it inconsistent and in contravention with Article 21 of the *Constitution of the Republic of Uganda 1995.* - d. The implementation of the above provisions under which the *tenants by occupancy are deprived of their constitutionally* granted right constitutes a violation of the property right contrary to Article 26(1), (2), and 237(1) of the Constitution of the *Republic of Uganda 1995.* - e. The Section $31(2),(3),(6),(7)$ and (9) of the Land Act Cap(as amended) now section 31 $(2)$ , $(3)$ , $(60, (7)$ and $(9)$ of the Land Act Cap 236, Section 32A of the Land Amendment Act 2010 now Section 32(2) of Land Act Cap 236, section $34(1)$ $(4), (5), (6), (7), (8)$ and $(9)$ of the Land Act Cap 227 (as amended,

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5 now Section 35 (l), 94),(5),(6,(7),(8)E (9), section 35(la) of the Land Act as amended by the Land ( Amendment ) Act 2010 now Section 36(2) of the Land lct Cap 236 and Regulations 43, 57(2), 64(1),(2), and 65 of the Land Regulations 2004 are discriminatory, inconsislent wilh are in contravention with Article 2l(l) and (3) of the Con.stitution of the Republic of Uganda 1995 in as far a.s lhey only allow the landlords lo deal and transact in the land including but limited to selling, leasing, subletting inter alia os and when they wish but without according the tenants by occupancy the same lreolment as owners in perpetuily of the respective portions of land lhey occupy.

### T'he Petitioners state that;

- o. The Constitution of Uganda 1995, being the supreme law of the land and having come inlo .force on 08/10/1995, gives the right of land ownership in perpetuity to every lenqncy by occupancy within Uganda although landwas lo be owned in accordance with the tenure systems provided for in the Constilution. - b. After the coming into force of the Constilution of Uganda 1995 on 08/0 I / I 995, and land ownership by citizens of Uganda stipulated to be in accordance with types of tenure under Articles 237(3) of the Constitution and tenonts by occupancy being lawful and bonafide occupants as provided.for under .section 29(1) A(2) of the Land Acl Cap 236 andwhose inlerest and rights of occupancy are determined under Section 3l of the land Act revised edition as derived from the Constitution, lhe law gives rights to lhe tenants by occupancy with one hand and lakes oway with the other which is a contravenlion of their rights to ownership of property. - c. T'he Petitioners ond many olher Ugandans own land by virtue of being tenonts by occupancy in accordance wilh their existing property owner.ship rights protected by Articles 26(l) and (2) of the Constitution.

- 5 d. T'enanls by occupancy are prolecled /i,om deprivation of properly under Article 26(l) and (2) of the Constitution and the concept o/' consent by landlords to T'enonts by Occupancy before dealing and/or transacting on their lond as the lawful and bona/ide occupants oJ'the land is alien and conlravene.s lhe provisions of the Constilulion of Uganda 1995 as above stated. - e. 'l'he Respondent, through its officials and lqndlords across the country constraining lenanl.\ by occupancy rights ofownership of lctnd by placing conditions .for transactions involving property owned by T'enant.s by occupancy either as lawful or bona/ide occupants including but not limited lo purchasing, selling leasing, subleasing, lelling, sublelting therein, acts which consisl compulsory deprivation of property or any interest or right over q properly against the provisions of the Constitution under lrticles 26 (l) and (2). - .f 'l'herefbre in lieu o/'the above and deriving Jiom general practice in land transaction.s across Uganda, tenqnts by Occupancy of land should be allowed to deal and or transacl in their respeclive portions of land including and not limited to selling, leasing, subleasing, lelling and subletting inler alia v,ithoul necessarily Jirstly seeking the consent of the landlord and/ or in the alternative and wilhoul prejudice the tenanls by occupancy should only be required lo notify the land Lord of their intentions to cleal in the land and not to see the landlords consenl. - g. As per the provisions o.f Arlicles 26(l) A @ which vest tenants by Occupancy u'ith ownership rights and which rights connot be compulsorily deprived o/ without Jbllowing the established constilutional procedure, lhen lhe consent by lhe landlords before lenants in occupancy deal and/or transact in the land is not a necessity under the Constilution of Uganda 1995 and the some should be done away with. - h. Il is nol ./bir .fbr the law to give tenants by occupancy the right of ownership in perpetuity with one hand and the some law lo take il away by imposing the condition of seeking consent /iom the landlord

5 before dealing and or transacting in the same lond by lenants in occupancy.

- i. By implication, the same law allowing lhe landlord to deal and/or transact in the land including selling, leasing, and subleasing inter alia without the involvemenl, knowledge, and consenl of the tenonts in occupancy, is a clear indicalion that the suid law is applied discriminatory and should be scrapped o.ffthe law boolcs of Uganda. - j. T'he actions of the Respondent and landlord explained above amount to a contravention ofthe i,995 Constitution specifically Articles 26 (1) and (2) and the laws relating to land ownership, use, and administration qs well as the righls of the lawful and bonafide owners of land in Uganda.

T'he Petitioners ore seeking the following orders and declaralions:

- a. Grant a declaration that Section 3l(2),(3),(6),(7), and (9) of the l.and Act Cap 227(as amended), now Section 3l(2),(3),(i,0),(11)A(12) I'and Act Cap 236 and Section 32A of the Land Amendment Act 2010 now Section 32(2) Land Act Cap 236 in sofar as they deprive the tenants by occupancy of their lawful interest and rights to deal and/or transact in property without lhe consent of the landlord as well as failure to .safeguard the tenant by occupancy against unlawful evictions and interferencesfrom quiet possession and enjoyment of land by the landlord are inconsistent with and in contravention of Articles 26(l ), ond 2 37 (l ) of the Constitution of the Republic of Uganda 1995. - b. Grant a declaration that section 34(1), (4), (5), (6), (7), (8), and (9) of the Land Act Cap 227 (as amended), now Section 35(1),(4),(5),(6),(7),@Ae) Land Act Cap 236 and Regulations 43, 57 (2), 64(l), (2) and 65 of the Land Regulalions 2004, in so far as they implore T'enants in Occupancy to compulsorily seek the consent of the landlord before caruying out ony transactions on their land which subjecls lhe tenant by inconsistent and in contravention of Article 26(l), (2) and 237(l) of the Constitution of republic of Uganda 1995.

- 5 c. A declaration thot section 3l(2),(3),(6),(7) and (9) o/ rhe Land Act Cap 227 (as amended) now Section 3l (2),(3),(10),(l 1)(12) Lond Act Cap 236, Section 321of the Land Amendment Act 2010 now Section 32(2) of the Land Act Cap 236, Section 34(l),(4),(5),(6),(7),(8) and (9) of the Land Act Cap 227 (as amended now Section (35(l),(4),(5),(6),(7),(8)&(9) Lqnd Act Cap 236, Section 35(la) of the Land lct as amended by the Land ( amendment) Act 2010 now Section 36(2) of the Land Act Cap 236 and Regulations 43, 57(2), 64(1),(2) and 65 ofthe Land Regulations 2004, are disuiminatory, null and void to the extent of their inconsislency and contravenlion of the Conslitution of the Republic of Uganda 1995. 10 - d. Grant a declaration that Section 35(la) oJ'the Land Acl as amended by the Land (lmendment) Act 2010 now Section 36(2) of the Land Act Cap 236 is discriminatory to the extenl that il only imposes a penalty upon lhe tenanl and not also againsl the landlord as well which also makes il inconsistent and conlravenlion with Articles 2l o/'the Constitution o/'the Republic o/ Uganda 1 995. 15 20 - e. Costs o/'the petition - f Any other remedies as this courl moy deem it.fair lo grant to the Petitioners. - [2] The petition is supported by affidavits sworn by the Petitioners. - [3]'I'he Rcspondent filed an answer opposing thc petition on grounds that it was bad in law, frivolous, and prolix and raised no issues or questions for interpretation for this court. The answer was supported by an affidavit of Jimmy Oburu Odoi, Principal State Attorncy in the Chambers of the Itespondent. - Representation 30

[4]At the hearing of thc pctition, Mr. Robcrt Irumba and Mr. Isaac Aisu represented the Petitioners. Mr. Hilary Nathan Ebila, State Attorney, represented the Respondent. During thc hcaring, counsel were given the schedule for filing their submissions. I lowevcr, Counsel for the Respondcnt

5 had not filed the response to the Petitioners' submissions at the time of writing this judgment. I shall therefore proceed to address the issues raised by the Petitioners in the absence of the Respondent's submissions. I shall however consider the affidavit in reply to the petition deposed by Jimmy Oburu Odoi, Principal State Attorney, in the Department of Civil Litigation of the Respondent.

[5] This petition was filed before the laws were revised. This judgment shall therefore cite the relevant sections of the Land Act Cap 236 (formerly 227) and related constitutional provisions that are alleged to be contravened.

## Issues for Consideration by Court

- [6]The Petitioners formulated six issues for determination by this Court, as follows: 15 - 1. Llrhether the petition is properlyfiled in this Ilonorctble Courl. - 2. Whether Section 31(2), (3), (10), (l l) A (12), Section 33 of the Land lct Cap 236, Section 35(2),(4),(5),(6),(7),(8)Ag I'and lct Cap 236 Section 36(2) of the Land Acl Cap 236 are inconsistent and contravene lrticles 2, 21, 26 of the Constitution of the Republic of Uganda 1995 (as amended). - 3. Vf/hether Regulations 43, 57(2), 64(l ), (2), and 65 o/' the Land Regulations 2004 contravene and qre inconsistent with Arlicles 2(1) & (2), 2I , and 26(1) A @ of the Constitution of the Republic of Uganda 1995 (as amended) - 4. Whether the impugned lows are discriminalory and inconsistent with Article 2l of the Constitution of the Republic o.f Uganda 1995 (as amended). - 5. Whether the impugned laws infringe upon the right to properly of tenancy by occupancy cts guaranteed under Articles 26 ( I ) and (2) of the Conslitution. - 6. Whether the Petitioners ore entilled lo the declarotions and orders sought in the petition.

#### 5 Issue one

# Whether the petition is propcrly liled in this honourable Court. Submissions by Counsel for the Pctitioncrs

- [7]'Ihe Petitioners' counsel submitted that they arc cnjoincd to evoke the jurisdiction of this Court undcr Articlc 137 to scek declarations and redrcss wherc there is a contravention of the Constitution. Counsel for the Petitioners relied on the position of the law stated in Ismail Serugo Vs. Kampala City Council, Constitutional Appeal (199812); [ 19991 UGSC 23, whcre the Court held that all that the Petitioncrs have to show is that thc provisions of sections complained of violated a right guaranteed by the Constitution. Court further hcld that a constitutional causc of action is sufficiently disclosed if it dcscribes the act or omission complained of and shows thc provision of the Constitution with which the act or omission is allcged to be inconsistent or which is allegcd to havc bccn contravencd. - [8] Counscl submitted that in this specific petition, thc impugned provisions arc Section 31(2)(3X10) &(12) of the Land Act Cap 236, Section 33 of the Land Act Cap 236, Section 35 (1),(4),(5),(6),(7),(8) and (9), Section 36 (2) of the Land Act Cap 236 and Rcgulations 43, 57(2),64(l),(2) and 65 of the I-and Regulations 2004, contravene Article 21, 26(l)(2) and 137(l) of the Constitution, in as far as the tenants by occupancy are required to compulsorily seek thc consent of thc landlord beforc carrying out any transactions on thc land and also requiring thcm to pay annual nominal ground rent to the landlord to be considered tenants.

### Averments by the Respondcnt

[9]It was averred by Mr. Oburu Jimmy Odoi of the Attomey General's Chambers, that thc petition was bad in law, frivolous, prolix, and raises no issues or questions for interpretation by this l-lonourable Court

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5 [10] To date, the ltespondent has not filcd thcir submissions.

Issue two

Whether Section 31(2), (3), (10), (11) & (12), Section 33 of the Land Act Cap 236, Section 35(2), (4), (5), (6), (7), (8) & (9) Land Act Cap 236 Section 36(2) of thc Land Act Cap 236 are inconsistent and contravene Articles 2,21,26 of the Constitution of the Republic of Uganda 1995 (as amended).

Issue three.

Whether Regulations 43, 57(2),64(1), (2), and 65 of the Land Regulations 2004 contravene and are inconsistent with Articles 2(1) & (2),21, and 26(l) & (2) of the Constitution of the Republic of Uganda 1995 (as amended)

## Submissions by Counsel for the Petitioners.

- [11] [Jndcr these grounds, the Petitioners arc sccking the dcclarations that the sections stated in issue 2 and the Regulations in issuc three arc unconstitutional as they contravene Anicles 2,21,26 of the Constitution. - U2l Counsel submittcd that Anicle 2l of the Constitution promotes equal treatmcnt and protcction of thc pcoplc of Uganda. Counsel argued that the impugned sections discriminate against tenants by occupancy and award special treatment to landlords which is unconstitutional. - [3] Counsel asscrted that scctions 3l(3), (6), and (7) of the Land Act Cap 227 (as amcndcd) violate the right to property guaranteed under Article 26. Counsel argued that the fact of making a tenancy by occupancy pay ground rent and failurc of which lcads to tcrmination of the tenancy amounts to compulsory deprivation of the propcrty right. 25 - [4] Furthermore, counsel submitted that sections 34(I), (4), (5), and (6) of the Land Act Cap 227 (as amendcd) rcquirc the conscnt of the landlord by a 30

- 5 tenant before making any transactions on the land which in itself is a violation of Article 26. - [15] Counsel submitted that Uganda has ratified a widc range of intemational and Regional human rights treaties, which guarantee the protection of the right to cquality and property rights. Counsel noted that the property right is provided for under Articlc l7 of the Universal Declaration of I{uman Rights and Article l4 of 'l'he African Chartcr on I-Iuman and People's Rights. - [ 6] Counsel argued that by maintaining the impugned sections the State is violating the rights to peaceful and quiet enjoyment of the property right as wcll as cxclusivc possession guaranteed under Article 26(2) of the Constitution.

#### Averments by the Respondent

- [ 7] 'fhe Respondent averred in the answer to the petition, that the impugned sections arc not inconsistent and in contravcntion of Articles 2(1), (2),21(l), - (3),26(l), (2),237(l) of thc Constitution of thc Republic of lJganda 1995. - [ 8] 'fhe Respondent did not file any submissions.

Issue 4

# Whether the impugned laws are discriminatory and inconsistent with Articlc 2l of the Constitution of the Republic of Uganda 1995

- [ 19] Counsel for thc Petitioners cited Article 2l of cquality. Counscl argued that section 3l(3) of the I.and Act requires a tenancy by occupancy to pay annual nominal rent to the registered and this was discriminatory because the charge is only upon thc tenant by occupancy. 25 - l20l Counsel l'urther argued that sections 34( l), (4), (5), and (6) of the [,and Act Cap 227 are discriminatory because they require the tcnant by occupancy to seek the consent of the registercd owner whilc carrying out any transaction on land, however the samc is not cxpccted of the registcred owner.

- 5 l2ll Counsel submittcd that on the basis of Articlc 2l of the 1995 Constitution, Article 2 of the Universal Declaration of Fluman Rights Article 18 of The International Covenant on Civil and Political Rights, and Article 8 of the African Charter on Human and Peoplcs Rights, the concept of discrimination implies a distinct, exclusion, restriction or preference based on race, colour, sex, language, religion, political or othcr opinion or effect of nullifying or impairing the recognition enjoyment or exercise by all persons on an equal footing, of all rights and frecdoms. - l22l Counsel argucd that the impugned sections discriminate the tenant by occupancy based on social and economic standing. Counscl argued that such laws promote social and economic imbalances within thc society. - 123) It was submitted fumher by counsel that the 1995 Constitution is very restrictive regarding the property right, it specifically provides for prior payment of compensation before acquisition or taking passion. Counscl argued that the landlord depriving a tenant by occupancy of possession would only suffice if properly made in the law which provides for proper payment of fair and adequate compensation bcforc thc taking of posscssion or acquisition of the propcrty.

#### Averments by the Respondent

l24l The Respondent averred that thc Petitioners' rights shall not be prejudiced by the dismissal of thc petition.

#### Issue 5

Whether the impugncd laws infringed upon thc right to property of the tenant by occupancy as guarantccd undcr Articles 26(l) & (2) of the Constitution.

Submissions by counscl for the Petitioners

5 1251 Counsel submittcd that the Petitioners on sevcral occasions discovered that thc rights of tcnancy by occupancy werc violated. The lawful and bonafide occupants arc crcatures of thc statutc as stated earlier, that Article 26(l) & (2) accords protection to any person who is lawfully recognized by law. Counsel argucd that the Respondcnt and its agents, the landlords, have used the impugned laws as a tool to violate the rights of tcnants by occupants. 10

# Averments by thc Respondent

126) 'Ihe Respondent averred that the expungcd sections do not violate the rights of thc Petitioncrs.

Issue Six

- Whether the I'etitioncrs are entitled to the declarations and orders sought in thc petition. 15 - l27l Counsel submitted that the Petitioners arc cntitlcd to the declarations sought in the petition.

### Averments by thc Respondent

[28] The Respondent averred that the Petitioncrs were not entitled to any of the declarations sought.

### ANALYSIS

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see: Rtcl Dr. Col. Kiiza Besigte vs. Y. K. Museveni. [200U UGSC 24 (ii). In delermining the conslilutionality of legislation, its purpo.se and e./fecl musl be laken inlo consideration. Both purpose and elfect are

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5 130] The burden of proof lies upon the Petitioncrs to raise aprimafacie case that a particular allegation is in contravention of a fundamental right or freedom and has becn proved. Once the party bearing thc legal burden of proof has established that allegation or claim on a prima facie basis, the burden shifts to the state or Respondent to rebut or justify thc limitation. This was the position in Charles Onyango Obbo and Anor vs Attorney General120041 UGSC 81. 10

- [31] The Constitutional Court's mandate is providcd for under Article 137 of thc Constitution. 'Ihe relevant parts of Article 137 of the Constitution state that: - (l) Any question as to lhe interpretalion o/'this Constitution shall be determined by the Court of Appeal sitting as the Constitutional Court. - (2) When sitting as a Conslilutional Courl, the Court oJ Appeal shall consist ofJive members o/'that Courl. - (3) A person u,ho alleges lhat- - (a) An lct oJ'l'orliamenl or ony olher lau, or unything in or done under the authorily o/'any law; or

O) Any acl or omission by any person or authority, thal is inconsistent v,ith or in conlravenlion oJ' a provision of this Conslitution, may petilion lhe constitutional court /br a declaration lo that effecl, andfor redress where oppropriale.

[32] 'l'his Court defined what amounts to jurisdiction in Ntare Adens Rutaro vs. Joel Sscnyonyi and 3 Others r 202l UGCC 3, where the Court relied on the decision in Attorney General vs Major David Tinyefuza, (supra), where the court held that;

> with regarul to lhe lerm 'jurisdiclion,' l4/ambuzi C,J once again re/brred to Mulla on Civil I'rocedure on pqge 225 where it stoled thal:

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5 'by jurisdiclion is meanl lhe authorily which a courl has decided matters thal are litigated before it or to take cognizance of motters presentecl in a .formal way /br ils decision. 1'he limits of this authority are imposed by the slatule, charler, or commission under which the court is constituted and may be extended or restricled by like means. If no restriction or limit is imposed, the jurisdiction is unlimited. "

[33] In Attorney General vs Major Gencral David Tinycfuza, Constitutional Appeal, No. I of 1997, (supra) the Court held;

> " in my view, the jurisdiction of the Constilutional Court is limiled in Article 137(l) oJ' the Conslitution to lhe interprelalion of the Constitution. Put in a dffirenl way no olher jurisdiction aparl .from inlerpretation of the Constitution is given. In lhese circumslances. I would hold that unless the question beJbre lhe Constitutional Court depends for ils determination on the interpretotion or construction of a provision of the Constitution, the Constilutional Court has no jurisdiclion. "

[34] Considering the above analysis, the petition raises issues for interpretation by this court.

[35] Turning to thc crux of this pctition as laid down in grounds two, three, four, five, and six, I have carefully considered the petition, the supporting submissions, and the responses thereof, and I have noted that the impugned sections were exhaustively addrcsscd by this Court in Dr. Zahara Nampewo & Brian Kibirango Vs. Attorney General, 2024 UGCC 20. This petition which is almost on all fours with the current petition was premised on the following grounds;

a) Section 35 (la) of the Land lct, as amended in 2010 nov,Seclion 36(2) of the Land Acl Cap 236, is inconsistent u,ith and in contravenlion of lrticle 2l (1) and (2) of the Constitution of the Republic o/'Uganda, in as .far as it criminalises and punishes the acls of'a tenanl by occupancy who assigns his or her tenancy without firsl giving the ./irst oplion of taking up lhe assignment of the tenancy to lhe owner of the land, without providing a

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5 similar or equivalent penalty./br the landowner who sells his or her inlerest wilhout giving lhe firsl option to purchase the regislered interest to lhe tenant by occupancy.

rl a

- b) Section 35 (la) of the Land Act, as amended in 2010 now Section 36(2) of the Land Act Cap 236, is inconsistent with and in contravenlion of lrticles 22 (l), 26 (l), and (2) and 45 o/'the Constitution of the Republic of Uganda in soJhr as it deprives tenants by occuponcy o/'their tenancy. - c) Section 35 (la) o/'the LandAct, as amended in 2010 now Section36(2) of the Land Act Cap 236 contravenes Articles 237 (8) and (9) (a) and 79 of the Constitulion of the Republic of Uganda in so .far as it extinguishes or lerminales lenancies on registered land. - [36] In that casc, Counsel for thc Petitioners raised 4 issues for determination by the court in the petition, which were as follows; - l. Whether Seclion 35 (1a) of the Land lct, as amended in 2010 now Section 36(2) o/'the Land Act Cap 236 is inconsistent with and in contravention of Article 2l (1) and (2) of the Constitution o/'the Republic of Uganda. - 2. l4thether section 35 (la) oJ the Lond Act, as amended in 2010 now Section 36(2) of Lond Act Cap 236 is inconsistent with and in contravention of Articles 22 (l), 26 (1), and (2) and 45 o/'the Constitution of the Republic of Uganda. - 3. Whether seclion 35 (la) o.f the Land lct, as amended in 2010, now Section 36(2) o/' Land Act Cap 236 is inconsistent wilh and in controvention of Articles 237 (8) ond (9) (o) and 79 (1) of rhe Constitution dthe Republic of Uganda.

4. Ll/helher the I'etitioners qre entilled lo the reliefs sought.

l37l In addressing the petition, the Court noted that it was a cardinal principle of constitutional intcrpretation that thc cntirc Constitution has to be read together as an integral whole, with no particular provision destroying the 35 other but each sustaining the other. It also held that the Section should not be

5 interpreted in isolation noting that the relationship between the tenant by occupancy and the land owner, who is a landlord, is not regulated by Section 35(1a) of the Land Act (now scction 36(2)) alone. Instcad, it is regulated by Sections 31 and 34 of the Land Act as arncnded (now Section 35 of the Land Act Cap 236). The Court found that thc Parliament did not contravene Article 237(8) and (9) of the Constitution when enacting Section 36(2) of the Land Act Cap 236. Court held that the impugned provision was enacted pursuant to the said provisions ofthe Constitution and it falls within the regulatory scheme of the rights of landlords and tenants.

- [38] f'he court declared that section36(2) of the I-and Act Cap 236 was not inconsistent with and in contravcntion of Articles 2l(l) & (2), in as far as it criminalises and punishes the acts of a tenant by occupancy who assigns his or her tenancy without giving the first option of taking up the assignment of tenancy to the owner of the land. It further dcclared that the same Section was not in contravention or inconsistent with 22(l),26(l) & (2),45. h was also declared by Court that Section 36(a) was not inconsistent with and in contravention of Articles and 237 (8), (9)(a) and 79(l) of thc Constitution in as far as it extinguishes or terminates tenancies by occupancy on registered land for failure to comply with it. - 1.39] [n so doing, the court was able to address all thc issues concerning this current petition. With that in mind, this court finds no rcason to pronounce itself on the matters that have already been addressed by this Court. - [40] Additionally, it is my observation that thc Petitioners did not address this Court on the other sections allegedly in contravention of Articles 2(l ) & (2),21, and 26. Specifically, the Petitioners did not demonstrate to this court how sections 3l(2) & l2 of the Land Act Cap 236, Section 33 of thc Land Act Cap236, Section 35(2), (l), (4), (5), (6), (7), (8), & (9), Section 36(2) of the

5 Land Act Cap 236, contravene and are inconsistent with Anicles 2,21 and26 of the Constitution.

- [4I ] The same applies to regulations 43, 57(2),64(l), (2), and 65 of the Land Regulations 2004. The Petitioners did not demonstrate how these Regulations contravene and are inconsistent with Anicles 2(l) and 2,21, and 26 of the Constitution. - l42l It has been decided by this court before that it is not enough for the Petitioners to merely allege that the constitutional provisions have been offended. l'he Petitioners must demonstrate to the court how the constitutional provision has been offended. Male Mabirizi and other vs. Attorney General, Constitutional Court, 2018 UGCC 4, is very instructive on this. For this reason, this court will not address itself on those particular provisions. - [43] I would find that the Petitioncrs are not entitled to the declarations sought from this court. - l44l For the above reasons, this petition should be dismissed. - [45] I would in the circumstances not make an order as to costs since the petition was brought in the public interest. 20

Dated, siF or.hhl ned and delivered at Kampala this .2025. 'i9-1 {v day

aaaaaaaaa I, \ , aaaaaa

## CHRISTOPH ER GASHI IL{BAKE

### JUSTICE OF APPE,AL/ JUSTICE OF CONSTITUTIONAL COURT

## IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA

## **CONSTITUTIONAL PETITION NO. 35 OF 2019**

## 1. OMVIA CAROLINE

2. ASIIMWE JOTHAM

## ============================== PETITIONERS

## **VERSUS**

ATTORNEY GENERAL ===================================RESPONDENT

CORAM: Hon. Mr. Justice Geoffrey Kiryabwire, IA/JCC

Hon. Lady. Justice Irene Mulyagonja, JA/JCC

Hon. Mr. Justice Christopher Gashirabake, JA/JCC

Hon. Lady. Justice Eva Luswata, JA/JCC

Hon. Mr. Justice Oscar Kihika, JA/JCC

## JUDGMENT OF MR. JUSTICE GEOFFREY KIRYABWIRE, JA/JCC

I have had the opportunity of reading the lead Judgment of the Hon. Mr. Justice Christopher Gashirabake, JA in draft.

I agree with it and I have nothing more useful to add.

Since Justice Irene Mulyagonja, Justice Eva Luswata, Justice John Kihika also agree with the Judgment of Justice Christopher Gashirabake, we now dismiss the Petition.

**Final Orders**

- 1. The petition is hereby dismissed. - 2. No order as to costs since the Petition was brought in the public interest. - $\mathbf{1}$

Daved at Kampala this....................................

halfughy **........................**

HON. MR. JUSTICE GEOFFREY KIRYABWIRE JUSTICE OF THE CONSTITUTIONAL COURT

### IN THE CONSTITUTIONAL COURT OF UGANDA AT I(AMPALA

[Coram: Kiryabwire, Mulgagonja, Goshirabake, Luswata & Kihika, JJCC]

## CONSTITUTIONAL PETITION NO 35 OF 2OI9

#### BETWEEN

#### 1. OMVIA CAROLINE

2. ASIIMWE JOTHAM ::::::::::::::::::::::::::::::::::::::::::::::PETITIONERS

#### AND

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

#### JUDGMENT OF IRENE MULYAGONJA, JCC

I have had the benefit of reading in draft the judgment of my brother, "htfdpher Gashirabake, JCC. I agree that the petition should be dismissed for the reasons that he had given and with the orders that he proposed.

| Dated at Kampala this | sr (>1 day of | 5. | |-----------------------|---------------------|----| | | | |

\ \

Irene Mulyagonja JUSTICE OF THE CONSTITUTIONAL COURT

### THE REPUBLIC OF UGANDA IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA [*Coram : Kiryabwire, Mulyagonja, Gashirabake, Luswata & Kihika JJCC*]

#### **CONSTITUTIONAL PETITION NO.35 0F 2019**

#### **BETWEEN**

1. OMVIA CAROLINE 2. ASIIMWE JOTHAM $\rightarrow$ PETITIONERS

#### **AND**

ATTORNEY GENERAL $==$ ===========RESPONDENT

## JUDGMENT OF EVA LUSWATA, JA

I have had the benefit of reading in draft the judgment of my brother, Christopher Gashirabake, JCC. I agree that the petition be dismissed for the reasons he has given, and have nothing useful to add.

Dated, signed and delivered at Kampala this $\mathcal{O}_{\text{day of}}^{\mathcal{V}}$ 2025

EVA KLUSWATA **Justice of the Constitutional Court**

## IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA

[Coram: Kiryabwire, Mulyagonja, Goshiraboke, Luswata & Kihika, JJCCJ

#### CONSTITUTIONAL PETITION NO 35 OF 2OI9

#### BETWEEN

#### 1. OMVIA CAROLINE 10

2. ASIINTWE JOTHAM....... ......... PETITIONERS

AND

ATTORNEY GENERAL RESPONDENT

#### JUDGMENT OF OSCAR JOHN KIHIKA. JCC. 15

I have had the benefit of reading in draft the judgment of my learned brother Justice Christopher Gashirabake. I agree with the analysis, reasoning and conclusion that the Petition ought to be dismissed. I have nothing useful to add.

<r zo Signed and( delivered at Kampala this of. ...2025. gl day a

V OSCAR OHN KIHIKA t a a

#### JUSTICE OF APPEAL/ JUSTICE OF CONSTITUTIONAL COURT

## IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA

[Coram: Kiryabwire, Mulyagonja, Gashirobake, Luswata & Kihika, JJCCJ

### CONSTITUTIONAL PETITION NO 35 OF 2019

#### BETWEEN

#### 1. OMVIA CAROLINE 10

2. ASIIMWE JOTHAM..... ..... PETITIONERS

AND

ATTORNEY GENERAL RESPONDENT

#### JUDGMENT OF OSCAR JOHN KIHIKA. JCC. 15

sr-20 Signed and , delivered at Kampala this ( 2025. day w

a OSC KIHIKA ( V

### JUSTICE OF APPEAL/ JUSTICE OF CONSTITUTIONAL COURT