Consistency needed in Ugandan courts on the duty to consult

The duty to consult is a fundamental principle of administrative justice and democratic governance. It mandates public bodies to engage with stakeholders before making significant decisions. This principle ensures transparency, inclusivity, and well-informed decision-making.

The courts in Uganda have been inconsistent in the application of the duty to consult. While some judgments have upheld the fundamental duty to consult the public on administrative matters, other decisions undermine this very important obligation. The duty should not be perceived to impede decision-making but as a constitutional matter of good governance.

What is the Duty to Consult?

The obligation to consult requires public authorities to seek input from affected parties before making significant decisions. This process involves engaging stakeholders, considering their views, and ensuring decisions are transparent and informed. The objective is to prevent arbitrary or unfair decisions and to enhance the legitimacy and accountability of public decision-making.

Article 8A(1) of the Constitution provides that Uganda shall be governed based on principles of national interest and the common good enshrined in the national objectives and directive principles of state policy. Principle X enjoins the Government to involve the people in the formulation and implementation of development plans and programmes which affect them. Article 38 of the Constitution grants every citizen the right to participate in government affairs, individually or through representatives, in accordance with the law.

This principle underpins the general duty of public bodies to consult.

In CFAO Motors Uganda Limited v The Public Procurement and Disposal of Public Assets Authority (PPDA), PPDA issued a Circular introducing changes to the Standard Bidding Document (SBD) for procurement in Uganda. This allowed for the use of a Manufacturer/Supplier/Distributor's Authorisation Form as an alternative to the Manufacturer's Authorisation Form. The Circular alters the wording of the existing Standard Bidding Document to include a Manufacturer/Supplier/Distributor’s Authorisation Form as an alternative to a Manufacturer’s Authorisation Form.

CFAO Motors and 7 other motor vehicle dealers challenged PPDA’s issuance of the Circular without public consultation of the stakeholders affected by the Circular violating the duty to consult. They contended that the lack of consultation undermines the fairness and transparency of the procurement process, potentially compromising the quality of supplies and negating the value-for-money principle.

PPDA submitted that there was no legal requirement to consult the applicants.

The court ruled that the PPDA acted within its legal mandate and the law does not impose a duty on the PPDA to consult every potential service provider or stakeholder before updating procurement documents. The judge held that requiring the PPDA to consult all affected parties would be impractical and could hinder procurement efficiency. The court further stated that the PPDA's actions aimed at promoting competition and ensuring value for money, central to public procurement principles in Uganda.

The PPDA law does not provide for issuance of circulars and the legal basis of the circular is questionable. Unfortunately, it is likely that a supplier or individual who does not comply with the circular will be prejudiced.

The decision is a departure from the same court’s decision in Centre for Public Interest Law (“CEPIL”) v Attorney General. The case challenged the process of enacting the Electricity (Establishment and Management of the Rural Electrification Fund) Instrument (“the Instrument”) without public participation. The court ruled that the Instrument was invalid due to the Minister's failure to properly consult with key stakeholders. The court emphasised that effective consultation is a mandatory procedural requirement for the validity of delegated legislation. The judgment underscored that consultation ensures that regulations are made with comprehensive input and knowledge from affected parties, safeguarding against improper exercise of power.

The court in CFAO Motors did not refer to the CEPIL case at all. It is arguable that the CEPIL case involved regulations concerning the Rural Electrification Strategy, which required adherence to specific legislative procedures, including stakeholder consultation. In contrast, CFAO Motors dealt with a circular issued by the PPDA, which is not legally binding and does not require the same procedural consultation as regulations. However, considering the weight and significance of the Circular in public procurements, public consultation should have been necessary.

In Hon. Fox Odoi Oywelowo v Attorney General, the petitioners challenged the enactment of the Anti-Homosexuality Act, 2023 on various grounds including that it was passed without extensive consultation of the public. The Constitutional Court ruled that there was no legal requirement for public consultation before enactment of the law because of the doctrine of representative democracy implying that members of the legislature act for and in the interests of their constituents.

The Hon. Fox Odoi case is distinguishable from the CFAO Motors as the Act had been passed by Parliament after the mandatory three readings where the provisions of the Act were debated by Parliament. The Constitutional Court however failed to condemn Parliament’s curtailing of the duty to consult from a period of 45 to only 9 consultation days during the Committee Stage.

In Uganda National Diary Traders Association v The Diary Development Authority, the applicant challenged the enactment of the Dairy (Marketing and Processing of Milk Products) Regulations, without adequate consultation with key stakeholders. The court ruled that consultation is required if there is the existence of a promise, express or implied that a right enjoyed by the applicant would not be adversely affected by a decision of an authority or official. Consultation of persons who may be adversely affected by a given measure before it is adopted is recognised as part of the duty cast upon a public authority to act fairly.

The duty to consult by a public body whether under an express statutory obligation or not is significant for good governance, transparency, fairness and accountability and is implied by the Constitution.

The English courts have upheld the duty for public bodies to consult the public in critical matters in what has been termed as the “Gunning Principles”. The principles provide a test of whether the public duty to consult has been complied with. The public body should have done the following:

Shared the proposals at a formative stage.
Provided sufficient information to give ‘intelligent consideration’.
Given adequate time for consideration and response and
Given ‘conscientious consideration’ to the consultation responses before a decision is made.

Conclusion

The duty to consult is crucial in public decision-making, to ensure transparency and proper stakeholder consideration. The courts should consider that it is a constitutional requirement and a matter of good governance for public entities to consult. While it seems an onerous obligation, it is necessary to promote good governance and accountability of public bodies. It is likely that this will remain a contentious matter until it is further considered by the superior courts. The courts must be firm and consistent on the need for public consultation in decision making as a measure for the “democratisation of administration and the rule-making process”.

Patrick Turinawe

Executive | Uganda

pturinawe@ENSafrica.com

Patience Birungi

Clerkship | Uganda

pbirungi@ENSafrica.com