Centre for Arbitration & Dispute Resolution & Jimmy Muyanja v Attorney General, Constitutional Petition No. 11/2019, Judgment delivered on March 2, 2023. Lead judgment by Monica K. Mugenyi, JCC
Background to the case
A petition was lodged by the Petitioners; challenging the failure to recognize CADER as a constitutionally established subordinate Court, the decisions of which are not subject to appeal, its relegation as an administrative body, the decisions of which are subject to Judicial Review and the Respondent’s failure to lay the Judicature (Judicial Review) Rules, 2009 before Parliament or advise Parliament and the office of the Chief Justice to enact enabling laws for subordinate Courts. In opposing the Appeal, the Respondents submitted that the Petitioner is not a subordinate Court and its functions are administrative in nature. Five issues were put to the Constitutional Court for determination:
- Whether the Petition raises any questions for Constitutional Interpretation
- Whether CADER, while performing Section 68(a) ACA functions, is a subordinate court established pursuant to Articles 126, 129(1)(d), 139(2) 150(1), 257(1)(p), 257(1)(cc) of the Constitution or an administrative body under Article 42
- of the Constitution.
- Whether the Second Petitioner whilst performing Section 68(a) ACA functions as a Judicial Officer of the subordinate court is not liable to action or suit pursuant to Article 128(4) of the Constitution.
- Whether the Chief Justice and the Rules Committee in enacting S.I. No. 11 of 2009 and S.I No. 32 of 2019 subjecting subordinate court CADER to Judicial Review proceedings violates Articles 79(2), 128(2), 129(d), 133(1), 139(2), 150(1), 257(1)(p) and (cc) of the Constitution.
- Whether the Petitioners are entitled to the orders and declarations sought.
Judgment of the Court
The Constitutional Court in dismissing the Petition in its entirety, held inter alia as follows:
- a) CADER is not a subordinate Court but rather an administrative body established as such under the Arbitration and Conciliation Act Cap 4, whose core objective is to provide technical and administrative support to arbitration practice in Uganda as provided for under Section 68(f) of the Arbitration and Conciliation Act, Cap 4.
- b) Any decisions made by CADER or their (in this case the 2nd Petitioner), are made in the capacity of an administrative body and such decisions are therefore subject to judicial review.
- c) The Executive Director of CADER is not a Judicial Officer because they are not appointed in the manner provided for the appointment of Judicial Officers under the law
Effect of the Court’s judgment
Pertinent to note, although Section 11(5) of the Arbitration and Conciliation Act prohibits appeals against the decisions by CADER, one may seek Judicial Review to challenge such decisions pursuant to Article 42 of the Constitution. This is because CADER is an administrative body and thus can be subjected to judicial review which is envisaged under Article 42.
Concluding Observations.
A party that is aggrieved by the decisions of CADER may seek redress under Judicial Review. This is enabled by virtue of it being an administrative body with corporate personality of suing and being sued and hence, is subjected to provisions of Article 42 of the Constitution, Sections 36, 41 and 42 of the Judicature Act which are the basis for Judicial Review.
