Uganda: Constitutional Court

This constitutional petition was placed before us under Article 137 of the 1995 Constitution and The Fundamental Rights and Freedoms (Enforcement Procedure) Rules, 1992. Legal Notice No.4 of 1996.

It was filed by judicial officers, Masalu Musene Wilson, Keitirima John Audes, Sekaggya Ronald and Muhiirwa Araari K, hereinafter referred to as the 1^st, 2^nd, 3^rd and 4^th petitioners respectively.



The Petition is based on the following grounds, namely:

“1.       That your 1^st, 2^nd, 3^rd and 4^th Petitioners are male adult Ugandans of sound mind currently employed as Judicial Officers in the capacities of Registrar, Chief Magistrate, Magistrate Grade One and Magistrate Grade Two, of the Courts of Judicature respectively; and all of whom are persons affected by implementation of S.4 (1) of the Income Tax Act (Cap.340).
2.      

That your Petitioners are aggrieved and affected by the following matter being inconsistent with the Constitution where by your Petitioners are aggrieved:-
(a)     

That the application of Section 4 (1) of the Income Tax Act (Cap.340) to the Judicial Officers renders it inconsistent with Article 128 (7) of the Constitution which provides specifically that salaries, allowances, privileges and retirement benefits and other conditions of services of Judicial Officers shall not be varied to their disadvantage
(b)     

That taxation of salaries, allowances, privileges and retirement benefits and other conditions of service of Judicial Officers since 1995, has affected them in that it varied their terms and conditions to their disadvantage.

They sought the following relief:
(i)     

A declaration that the application of the provisions of Section 4 (1) of the Income Tax Act (Cap.340) to Judicial Officers renders it inconsistent with Article 128 (7) of the Constitution.
(ii)    

A declaration that Judicial Officers’ salaries, allowances, privileges and retirement benefits and other conditions of service must not be subjected to any taxation whatsoever.
(iii)   

An order that Judicial Officers are entitled to their full pay without variation to their disadvantage with the coming into effect of the Constitution in 1995.
(iv)    

Costs of the Petition.

It is supported by affidavits deponed by each petitioner. To each affidavit is annexed the deponent’s letter of appointment stating, amongst other things, that the officer’s salary is fixed; also annexed is each officer’s pay slip reflecting the net pay after all tax deductions and various other correspondence from authorities which had a bearing only in relation to the tax exemption granted to and enjoyed by the Justices of the Supreme Court, Court of Appeal and Judges of the High Court.

The petitioners were represented by three learned counsel, M/s Andrew Bashaija, Precious Ngabirano and Evans Tusiime. Ms Robinah Rwakojo, Principal State Attorney and Mr Alfred Oryem, State Attorney appeared for the respondent.

The Respondent filed an answer to the petition denying all the allegations in the petition.
The answer was supported by two affidavits deponed by learned State Attorney Mike Chibita. The main one is dated 17^th June 2004.


Its salient paragraphs are 5 and 6 and state:

“5.       That the variation envisaged and prohibited by Article 128 (7) of the Constitution is a reduction of the income of Judicial Officers and not tax which forms an integral part of the income of Judicial Officers.”
“6.       That the contents of the affidavits of the Petitioners supporting the petition are false in so far as they allege that taxation of their incomes amounts to variation of the same within the meaning of Article 128 (7) of the Constitution.”

The supplementary affidavit is dated 11^th October 2004. It avers that the petitioners and other Judicial Officers are not envisaged under the provisions of Article 128 (7).

Paragraphs 4, 5 and 6 thereof aver:

“4.       That contrary to the depositions of the petitioners, the opinions of the Hon Attorney General and the learned Solicitor General and the annextures hereto relate to incomes of the Hon Judges of the High Court, the Hon Justices of Appeal and the Hon Justices of Supreme Court and not the petitioners or other judicial officers of their rank.

5.       That whereas taxation of the incomes of the Hon Judges of the High Court, the Hon Justices of the Supreme Court would violate the provision of Article 128 (7) of the Constitution, taxation of the incomes of the petitioners and other judicial officers of their rank on the other hand would not.

6.      

That the application of section 4 (1) of the Income Tax Act Cap.340 to the incomes of the petitioners and other judicial officers of their rank does not amount to diminution of their emoluments, rather it is a normal incident on their incomes.”

I would consider it regrettable that this matter has finally found its way before court considering its nature and relation to all members of this court. However, while we are aware that justice must not only be done but must be seen to be done, the court prides itself in its impartiality under the judicial oath. Most importantly, it is a fundamental fact that no other institution, except the judiciary, can better discharge the task of resolving disputes impartially and independently, regardless of their nature. This caution should allay and or dispel any fears or scepticism that might otherwise throw this judgement under a cloud.

The background to this petition dates back to the pre-1995 Constitution period. When Cabinet realised the erosive effect taxation was having on the poor pay of the Justices and Judges, it decided to grant them an exemption from taxation to relieve them of financial worries. This was under Section 12 (2) of the Income Tax Decree, 1974, published under General Notice No.140 of 1997 and backdated to 5.12.1990. The privilege therefore extended for the period of 1990 – 1997. However, it was not extended to other judicial officers including the petitioners.
That notwithstanding, the Income Tax Act of 1997 was silent on the exemption. It never captured it despite the provisions of article 152 (2) of the Constitution. The Income Tax Act 1997 was made under article 152 (1) which states:
“152 (1) No tax shall be imposed except under the authority of an Act of Parliament.”
The exemption should have been captured into the Act to operationalise article 152 (2) which provides that:
“(2) Where a law enacted under clause (1) of the article confers powers on any person or authority to waive or vary a tax imposed by that law, that person or authority shall report to Parliament periodically on the exercise of those powers, as shall be determined by law.”
The impugned Section 4 (1) of the Act made under article 152 (1) reads:
“4 (1) Subject to and in accordance with this Act, a tax to be known as Income Tax shall be charged for each year of income and is imposed on every person who has chargeable income for the year of income.”

As against the above provisions is article 128 (7) of the Constitution which provides:
“128 (7) The, salary, allowances, privileges and retirement benefits and other conditions of service of a judicial officer or other person exercising judicial power, shall not be varied to his or her disadvantage.”

When the Uganda Revenue Authority attempted to levy tax under the 1997 Act, the Justices and Judges protested that withdrawing the privileges previously enjoyed would have the effect of varying their salaries to their disadvantage. This would violate Article 128 (7). The Ministry of Finance eventually opined that Article 128 (7) was intended to preserve the status quo of the class of Judicial Officers that had enjoyed the Cabinet exemption. It did not extend to other judicial officers, including new Judges. Furthermore the words `vary’ in Article 128 (7) was so ambiguous as not to have been intended to mean `exemption’. It was argued that The Constituent Assembly if such was its intention could have used more precise language like it used in Article 254 (2) regarding pensions. This states:

“254.     (2)The pension payable to any person shall be exempted from tax and shall be subject to periodic review to take account of changes in the value of money.”

It is the above scenario that has prompted the petitioners to come to this court.

Submissions by Mr Andrew Bashaija, learned counsel for the petitioners:
Section 4 (1) of the Income Tax Act 1997 is inconsistent with and contradicts Article 128 (7) of the Constitution. Article 128 (7) specifically protects the emoluments of judicial officers from such a taxation because taxation varies their emoluments to their disadvantage. The Constitution is supreme as against other statutory provisions to the contrary. Therefore Article 128 (7) should prevail over Section 4. See – Constitutional Petition No.2 of 2003, Uganda Association of Women Lawyers and Others vs Attorney General; Constitutional Petition No.8 of 2003, Fox Odoi Oywelowo and Another vs Attorney General. In these two petitions this court had occasion to invoke Article 2 (2), upholding the supremacy of the Constitution as against an inconsistent law to the contrary.

Though Article 128 (7) does not define the word `vary’ and nor is it defined anywhere else in the Constitution, it should be given its ordinary English meaning. Black’s Law Dictionary defines it as `to make different’ between two things that ought to agree. Chambers Dictionary, 1^st Revised Edition defines `variation’ as an act or process of varying or changing. This means decreasing, lessening or taking away what the law has offered as fixed salaries to the Petitioners. If a fixed salary is affected by whichever means, it suffers variation. If a judicial officer’s salary which includes other emoluments is taxed then it is being varied. Variation is so fundamental that it constitutes a fundamental change and a disadvantage. Therefore the effect of Section 4 (1) of the Income Tax Act is to diminish the salaries of Judicial Officers. Pray apply the principle of `purpose and effect’ and declare and hold that Section 4 (1) is inconsistent with Article 128 (7) of the Constitution. The `purpose and effect’ of the entire Article 128 is about safeguarding judicial independence – See Evans vs Gorey, Acting Collector of Internal Revenue 253. US. 245 (1920), where a District Judge’s salary was taxed and it was held on appeal that taxing his salary had the effect of diminishing his salary and that this conflicted with the Constitution.

Submission in reply by Mr Alfred Oryem, learned State Attorney, for the respondent: The application of Section 4 (1) of the Income Tax Act is not inconsistent with Article 128 (7). The petitioners and other judicial officers of lower rank never enjoyed any privilege before the 1995 Constitution. Their incomes remain the same. They have always paid the tax. Article 128 (7) is to preserve the status quo of the exempted judicial officers. Others have a national duty to pay tax imposed on them under Article 17 (g). Article 152 (1) specifically stipulates this duty to be authorised by law, which is the Income Tax Act 1997. The framers of the Constitution were alive that some citizens could be exempted under Article 152 (2), but there is no such exemption or waiver in respect of the petitioners neither in the Constitution nor under the Income Tax Act. The petitioners’ case is thus false.
The words `vary` and `taxation’ are different. The former does not mean the latter. The tax only reduces the salary. It does not vary it. If the Constituent Assembly had intended that Judicial Officers should not be taxed they should have stated so expressly like they did with the President’s salary under 106. By way of analogy between Article 158 (1) and (2) with Article 128 (7) the word `vary’ could not have meant taxation because in the respondent’s view the Constituent Assembly could not have intended that the entire Public Service, the entire Judiciary and the President could be exempted from taxation which is in itself a duty under the Constitution. See Article 106 where the two words are used regarding the President’s emoluments. If this were the case more than half of the country’s revenue could be lost. Thus `vary' means something else than taxation.
Its meaning does not lie in the ordinary dictionary. It should be looked at in its entire context. The application of Section 4 (1) of the Income Tax Act to the petitioners does not change their incomes. Taxation of Judicial Officers does not compromise their independence, rather a reduction of their incomes would. The authority of Evans vs Gore (supra) a US Supreme Court decision cited by the petitioners is merely persuasive and is not binding. It cannot be applied here as our authorities give safer meaning. The petition lacks merit.
Pray dismiss it with costs.

Submissions in rejoinder by Mr Precious Ngabirano, learned counsel for the petitioners:
Article 128 (7) was never intended to protect the status quo of certain judicial officers as submitted by Mr Oryem. The marginal note to Article 128 indicates that the principle behind the entire Article 128 is about the independence of the Judiciary. The principle could not and does not cover only a section of the Judiciary for a particular period of time as determined by the Ministry of Finance, in the General Notice dated 27.02.1997 authorising exemption and giving it retrospective effect from 1990. At the time such General Notice was issued, Article 128 was already enacted under the 1995 Constitution. There was therefore no way the Constituent Assembly could have intended to protect the alleged status quo envisaged by the exemption signed in 1997. The exemption covered only Justices and Judges. Article 128 (7) came into effect in 1995 covering all Judicial Officers without exception. It took care of the situation wider than the exemption General Notes with only a life span of 7 years and after which it would expire. Article 128 (7) is not a transitional provision to take care of those who enjoyed it until they retire. It was enacted for posterity. Even if the exemption was a privilege, still the salary, allowances and other emoluments cannot be taxed because they are separately protected under Article 128 (7).
The appointment letters specify terms including a salary which is fixed but at the end when it is taxed, then it is varied. Taxation would reduce the salary by 25%. Then the public would then rush in to compromise the Judicial Officers.
Such were all counsel’s submissions.

I turn to the principles of Constitutional interpretation I do consider to be relevant as far as this matter is concerned.
The first is that where words or phrases are clear and unambiguous, they must be given their primary, plain, ordinary or natural meaning. The language used must be construed in its natural and ordinary sense. The sense must be that which the words used ordinarily bore at the time when the statute was passed.
Another important principle of constitutional interpretation to bear in mind is that all provisions of the Constitution concerning an issue should be considered all together. The Constitution must be looked at as a whole. In South Dokota vs North Carolina 192, US 268 (1940) L. Ed.448, the U.S. Supreme Court held at page 465:

“It is an elementary rule of Constitutional construction that no one provision of the Constitution is to be segregated from all the others and considered alone. All provisions bearing upon a particular subject are to be brought into view and are to be so interpreted as to effectuate the great purpose of the Instrument.

The Constitution has to be given a generous rather than a legalistic interpretation, aimed at fulfilling the purpose of the guarantee and securing the individuals the full benefit of the Instrument. Both the purpose and effect of the legislation must be given effect to. This is the generous and purposive construction – R vs Big M Drug Mart Ltd. (1986) LRC 332. Attorney vs Momodon Jobe (1984) AC 689.

Two issues were presented for the court’s determination, namely:
1.      

Whether the application of section 4 (1) of the Income Tax Act (Cap 340) to Judicial Officers is inconsistent with Article 128 (7) of the Constitution.
2.      

Whether the petitioners are entitled to the relief sought.

I have already pointed out above that there is no law made under article 152 (2) to specifically operationalise and give effect to article 152 (2) nor article 128 (7). The respondent’s case is that taxation only reduces the salary and emoluments. It does not vary them. The petitioners argue to the contrary.
Apart from article 128 (7) the word `vary` features in articles 152 (2); 106 (4) and (6). 152 (2) has already been reproduced above. Article 106 (4) and (6) reads:
“106 (4) The President is exempted from direct personal taxation on allowances and other benefits except on the official salary.”
Whereas (106) (6) reads:
“(6)      The salary, allowances and other benefits granted to a President under this article shall not be varied to the disadvantage of the President.”
The contradiction and inconsistency surrounding the President’s salary in Article 106 is more apt to mislead that to clarify the respondent’s argument regarding the word `vary’. It is a fact that the Presidential salary is not taxed. Article 106 is thus not helpful.
As regards articles 152 (2) and 128 (7) the words `vary’, and `reduction’ when taken in their very natural and ordinary meanings, the word `vary’ means changing from one position to another, to make different while the word `reduce’ means to make smaller, from a larger to a smaller amount, or diminish which would also amount to making `different’. This is according to the ordinary Longman Dictionary of Contemporary English. When the petitioners’ fixed salaries are taxed at the end of the month, such taxation has the effect of reducing, diminishing them and therefore naturally varying them and changing them from what they were indicated to be, in their letters of appointment when they were stated to be fixed, to a reduced or diminished state which is to their detriment or disadvantage. Therefore by taxing the salary or emoluments of a judicial officer the end result cannot amount to anything else other than to a variation and a reduction or a diminution of such income. The end result is the same.
I derive support from the case of Evans vs. Gorey (supra). The issue in that case was whether the compensation or salary of the Judges of the Supreme and inferior Courts of the United States could be subjected to taxation consistently with the Constitution.
This turned on the interpretation of article three which is similar to article 128 (7). Article three reads:

“The judges, both of the Supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.”

The petitioner, a District Judge, insisted that the provision of the law (Section 213) which subjected him to a tax in respect of his compensation as a Judge, by its necessary operation and effect diminished his compensation and therefore that was repugnant to the constitutional limitation referred to above.

The court below held that the compensation was not diminished by the act of taxation. On appeal, the U.S. Supreme Court held that the Constitution expressly forbade diminution of the Judge’s compensation, meaning diminution by taxation as well as otherwise.
Chief Justice Taney wrote to the Secretary of the Treasury protesting the act of taxing the petitioner’s income:

“The act in question, as you interpret it diminishes the compensation of every Judge three per cent and if it can be diminished to that extent by the name of a tax, it may be reduced from time to time at the pleasure of the legislature.”

I see no reason why this decision should not be followed as Mr Oryem sought to argue. It discusses article three of the US Constitution which is similar to our article 128 (7) under the same context.
Mr Oryem perhaps should have endeavoured to distinguish it materially.

a Judge or any person who presides over a court or tribunal howsoever described;
(b)     

the Chief Registrar or a Registrar of a Court;
(c)     

Such other persons holding any office with a court as may be prescribed by law.

Though the net cast by article 151 is far too wide, nonetheless it gives a limitation according to any given context.
I thus do consider that within the context of article 128 (7) `judicial officer’ would mean the Justices of the Supreme Court, Court of Appeal, Judges of the High Court, Registrars and Magistrates.

Regarding Issue No.3, the petitioners would therefore in my view be entitled to the following declarations namely that:

(i)      The application of the provisions of section 4 (1) of the Income Tax Act (cap 340) to Judicial Officers renders it inconsistent with Article 128 (7) of the Constitution.
(ii)    

The Judicial Officers’ salaries, allowances, privileges and retirement benefits and other conditions of service must not be subjected to any taxation whatsoever.
(iii)   

Judicial officers are entitled to their full pay without variation to their disadvantage as from the date of this judgement.
(iv)    

I would make no order as to costs.

Since my Lords Engwau and Twinomujuni JJA both agree, the petition succeeds by a majority of 3 to 2 with orders as herein proposed.

Dated Kampala this 23^rd day of February 2005
A.E.N. MPAGI-BAHIGEINE
JUSTICE OF APPEAL

I have had the benefit of reading in draft the leading judgement of my Lord Mpagi-Bahigeine, JA. I respectfully disagree with it. I would however make some observation.

The petition was filed in this court under Article 137 of the 1995 Constitution of Uganda jointly by the petitioners namely: Masalu Musene Wilson, Keitirima John Audes, Sekagya Ronald and Muhiirwa Araari K. who shall hereafter be referred to as the first, the second, the third and the fourth petitioners respectively and jointly as the petitioners. The petitioners are seeking the following declarations;

(1)     

A declaration that the application of the provisions of Section 4 (1) of the Income Tax Act (Cap 340) to Judicial Officers renders it inconsistent with Article 128 (7) of the Constitution.
(2)     

A declaration that Judicial Officers’ salaries, allowances, privileges and retirement benefits and other conditions of service must not be subjected to any taxation whatsoever.

(3)     

An order that Judicial Officers are entitled to their full pay without variation to their disadvantage with the coming into effect of the Constitution in 1995.

The background to the petition is that all the four petitioners were appointed to their offices as judicial officers after the promulgation of the 1995 Constitution. They receive their monthly salaries after taxation. They contend that this is inconsistent with Article 128 (7) of the Constitution, hence their joint petition to this court which alleges, inter alia, as follows:

1.      

That your 1^st, 2^nd , 3^rd , and 4^th Petitioners are male adult Ugandans of sound mind currently employed as Judicial Officers in the capacities of Registrar, Chief Magistrate, Magistrate Grade One and Magistrate Grade Two, of the Courts of Judicature respectively, and all of whom are persons affected by the implementation of S. 4(1) of the Income Tax Act (Cap 340).

2.      

That your Petitioners are aggrieved and affected by the following matter being inconsistent with the Constitution whereby your Petitioners are aggrieved:
(a)     

That the application of Section 4(1) of the Income Tax Act (Cap 340) to the Judicial Officers renders it inconsistent with Article 128 (7) of the Constitution which provides specifically that salaries, allowances, privileges and retirement benefits and other conditions of service of Judicial Officers shall not be varied to their disadvantage

.
(b)     

That taxation of salaries, allowances, privileges and retirement benefits and other conditions of service of Judicial Officers since 1995, has affected them in that it varied their terms and conditions to their disadvantage.

The petition is supported by affidavits of all the petitioners sworn on 7^th June 2004. The petitioners’ affidavits are similar. They all aver that they serve as judicial officers in the Judiciary and specify the capacities in which they serve. The 1^st petitioner depones that he is a Registrar, the second petitioner depones that he is a Chief Magistrate, the third petitioner swears that he is a Magistrate Grade I and the fourth petitioner avers that he is a Magistrate Grade II. Each one of the petitioners has attached on his affidavit as annextures, a letter of appointment and a copy of his recent pay slip showing tax deductions. All the petitioners plead the following in their affidavits.

“That I am advised by my lawyers from M/s Pearl Advocates & Solicitors whom I verily believe to be truthful, that as a Judicial Officer, my salary, allowance and other conditions of service should not be taxed by virtue of Article 128 (7) of the Constitution of the Republic of Uganda 1995.
That I am further advised by my aforesaid lawyers that Section 4(1) of the Income Tax Act (Cap 340) which makes my salary, allowance and other conditions of service liable to taxation is inconsistent with Article 128(7) of the Constitution which protects the salary, allowances and other conditions of a Judicial Officer from being varied to his or her disadvantage.

That I verily believe to be true what my lawyers have advised me, that taxation of my salary, allowances and other conditions of services is variation to my disadvantage, which is unconstitutional.

That my salary, allowances and other conditions of service have been unconstitutionally taxed since my appointment as a Judicial Officer.

That from the above, I verily believe that the Section 4(1) of Income Tax Act is unconstitutional to the extent to which it breaches Article 128 (7) of the Constitution.”

On the first petitioner’s affidavits are Annextures “B” and “C” which are letters from the learned Attorney General and the Solicitor General respectively in which they express their opinion about the taxation of salaries and allowance of Judicial Officers.

In answer to the petition the respondent denied all averments in the petition. The respondent contended that the provisions of section 4(1) of the Income Tax Act (Cap 340) do not in any way vary the salaries, allowances, privileges and retirement benefits and other conditions of service of the petitioners and other judicial officers within the meaning of Article 128(7) of the Constitution.

The answer to the petition is supported by the affidavit of Mike Chibita, a Principal State Attorney in the respondent’s chambers, sworn on 17-6-2004. He states that taxation of the incomes of the petitioners and other judicial officers of their rank does not amount to diminution of their emoluments. On 11^th October 2004 the same deponent swore a supplementary affidavit in support of the answer to the petition. In that affidavit he averred that the opinion of the learned Solicitor General and the Attorney General referred to the taxation of the salaries of the Judges of the High Court and Justices of the Court of Appeal and the Supreme Court. That taxation of the incomes of the petitioners and other judicial officers would not violate the provisions of Article 128(7) of the Constitution. That the application of section 4(1) of the Income Tax Act (Cap 340) to the petitioners is not inconsistent with the Constitution. He attached to his affidavit the following Annextures. “C”, a letter dated 15^th June 2004 to the Solicitor General from the Permanent Secretary/Secretary to the Treasury. “L” a letter dated 2^nd September 1999 to the Deputy Commissioner Legal Uganda Revenue Authority from the Solicitor General. “M” a letter dated 25^th August 1999 from the Attorney General to the Hon. Minister of Finance Planning and Economic Development. “N” a letter dated 19^th August 1999 from the Chairman Judicial Service Commission to the Hon. Minister of Finance Planning and Economic Development. “O” a letter dated 20^th July 1999 from the Hon. The Chief Justice to the Minister of Finance and “P” General Notice No. 140 of 1997 made under section 12(2) of the now repealed Income Tax Decree (Decree No. 1 of 1974) signed by the Minister of Finance on 27^th January 1997 and deemed to have come into force on the 30/6/1990.

The following issues were agreed upon for determination by this court.


(1)     

Whether the application of section 4(1) of the Income Tax Act (Cap 340) to Judicial officer is inconsistent with Article 128 (7) of the Constitution.

(2)     

Whether the petitioners are entitled to reliefs sought.

They refer to salaries and other emoluments of Judicial officers not any category that has been exempted.
(b)     

That no tax obligation in law exists against judicial officers.
(c)     

That even exemption by a Minister through a Statutory Instrument is unnecessary.
(d)     

The Constitution which expressly provides the exemption of judicial officers salaries and emoluments is supreme.

Counsel invited this court to follow its previous decisions in Uganda Association of Women Lawyers and 5 Others vs Attorney General Constitutional Petition No. 2 of 2000 and Fox Odoi Oywelowo and Another vs Attorney General Constitutional Petition No. 8 of 2003 in which this court confirmed the supremacy of the constitution against any other statutory provisions or administrative action that may be to the contrary.

Counsel attacked paragraph 5 of Mike Chibita’s supplementary affidavit in which he deponed that taxation of Justices of the Supreme Court and of the Court of Appeal and of the judges of the High Court would violate the provisions of Article 128(7) of the Constitution. On the other hand taxation of the petitioners and other judicial officers of their rank would not. He submitted that the deponent had no basis to say so. The Constitution is in clear terms and where it was intended to categorise judicial officers the words Justices and Judges were used. He, therefore, concluded that Article 128 (7) applied to all judicial officers.

Counsel further contended that taxation is a variation of the petitioners’ salaries and allowances. Counsel argued that the Constitution does not define the word variation. He referred to Black’s Law Dictionary 6^th Edition for the definition of the word “variance” or “variation” which is defined as “A deference or disparity between two statements or documents that ought to agree.” He also referred to Chambers 21^st Century Dictionary, Unique Focus on language as it is used today Revised Edition p. 1570 which defines “variation” as the act or process of varying or changing to something that varies from a standard.”

Counsel contended that the petitioners were by their letters of appointment given fixed salaries. He argued that the petitioners’ salaries were varied to their disadvantage by taxation of about 25%. He further contended that the purpose of Section 4(1) of the Income Tax Act is to tax the salaries of judicial officers and the effect is to diminish their fixed salaries. He implored this court to apply the principle of purpose and effect in determining the unconstitutionality of the impugned section as was done in the constitutional petition of Fox Odoi Oywelowo vs Attorney General (supra)

Counsel contended that by enacting Article 128 (7) of the Constitution the Constituent Assembly intended to ensure independence of the Judiciary. The framers of the Constitution wished the judicial officers to be economically independent and did not want them to be subjected to the whims of tax officials. He argued further that, that is the reason why by Article 155 (3) of the Constitution the Judiciary has a self-accounting status. In support of his submission he referred to the authority from the U.S. Supreme Court Evans vs Gore Acting Collector of Internal Revenue 253 U.S. 245 (1920). In that case the petitioner was a district judge of the Western District of Kentucky. He was appointed according to the Constitution. The third article of the U.S. Constitution stated:

“The judges, both of the Supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.”

The salary he received as a judge was subjected to taxation according to an Act of Congress. He petitioned the court for a declaration that the Act of Congress was unconstitutional. The issue was whether the taxation of the judges’ salary amounted to dimunition of his salary. The Supreme Court held that compensation, which was received by the judge, suffered dimunition to the extent it was taxed. Learned counsel implored this court to follow the above decision. He prayed court to answer the first issue in the affirmative.

He submitted that Evans vs Gore Acting Collector of Internal Revenue 253 U.S. 245 (1920), was not binding on this court. The above authority dealt with judges in the United States who have never paid taxes before. Relying on The Attorney General vs P.K. Ssemogerere and Another Constitutional Appeal No. 1 of 2004, he prayed court to use discretion and dismiss the petition with costs to the respondent.

Exercising his right of reply, Mr. Ngabirano argued that the Legal Notice No. 140 of 1990 was signed after the promulgation of the Constitution. It cannot, therefore, not be said that the judges of the high bench were exempted from paying tax because of the said Legal Notice. He contended that Article 128 (7) of the Constitution was not a transitional provision and applied to all judicial officers. He further submitted that Articles 158 and 128 of the Constitution are different in that the former refers to salaries only whereas the latter includes other matters. He argued that even if judicial officers do not pay taxes, they contribute to the well being of the nation as their decisions enhance the rule of law. He prayed court to allow the petition.

Before considering the issues for determination we must, for the sake of clarity reproduce the impugned sections of the Income Tax Act and the Constitutional provision it is alleged to be inconsistent with.

Section 4 (1) of the Income Tax Act (Cap 340) provides:

         “4.       Income Tax imposed.

(1) Subject and in accordance with this Act, a tax to be known as income tax shall be charged for each year of income and is imposed on every person who has chargeable income for the year of income.”

“128. (7) The salary, allowances, privileges and retirement

benefits and other conditions of service of a judicial officer

or other person exercising judicial power, shall not be varied to his or her disadvantage.”

In determining whether the impugned section is inconsistent or not with the Constitution we must bear in mind and follow the principles of constitutional interpretation, which this court and the Supreme Court has applied. One of such principles, which counsel for the petitioners has drawn our attention to is that the effect and purpose of the statute must be considered in determining its constitutionality. In the Supreme Court of Canada in the case of The Queen vs Big M. Drug Mart Ltd (1986) LRC, 332 it was stated thus:

“Both purpose and effect are relevant in determining constitutionality either an unconstitutional purpose or an unconstitutional effect can invalidate legislation. All legislation is animated by an object the legislature intends to achieve. This object is realised through impact produced by the operation and application of the legislation. Purpose and effect respectively, in the sense of the legislation’s object and its ultimate impact are clearly linked, if not indivisible. Intended and achieved effects have been looked to for guidance in assessing the legislation’s object and thus the validity.”

The Supreme Court relied on the above case in Attorney General vs Salvator Abuki, Constitutional Appeal No. 1 of 1998, Paul Kawanga Ssemogerere and 2 Others vs Attorney General Constitutional Appeal No. 1 of 2002. This Court has cited the same authority in a number of cases among which are Fox Odoi Oywelowo and Others vs Attorney General (supra) Dimanche Sharon and 2 Others vs Makerere Univertity Constitutional Petition No. 1 of 2003. Another principle of constitutional interpretation which counsel for the respondent has drawn our attention to is that the Constitution should be interpreted as a whole and we agree. As stated by Manyindo, DCJ, as he then was, at p.17 of his judgement in Major General David Tinyefuza vs Attorney General Constitutional Petition No. 1 of 1996.

“The entire Constitution has to be read as an integrated whole, and no one particular provision destroying the other but each sustaining the other. This is the rule of harmony, rule of completeness and exhaustiveness and the rule of paramountcy of the written Constitution.”

I also bear in mind that the Constitution is the supreme law of the land. This supremacy is provided for in Article 2 of the Constitution thus:

“(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.”

I now consider the first issue that consists of two points for determination. Firstly, whether taxation of judicial officers’ salaries amounts to a variation of their salaries to their disadvantage. Secondly, whether the petitioners are judicial officers who are exempted from payment of taxes on their salaries by the provisions of Article 128 (7) of the Constitution.

I now consider the first point whether taxation of the salaries of the petitioners is variation of those salaries to the petitioners’ disadvantage within the meaning of Article 128(7) of the Constitution. Counsel for both parties agree that the meaning of the word variation is not defined in the Constitution. They also agree that the word should be given its ordinary meaning. Counsel for the petitioners contends that when salaries of the petitioners are taxed it is to their disadvantage as they get less money than their fixed salaries. The State Attorney, for the respondent, disagrees. He maintains that the fixed salary means after taxation. He argues that the petitioners have a constitutional duty to pay tax.
Article 17 (g) of the Constitution imposes a duty on citizens to pay tax.
Article 152 of the Constitution provides on taxation as follows:

“Article 152

1. No tax shall be imposed except under the

        authority of an act of Parliament.

“(2) The pension payable to any person shall be exempt from tax and shall be subject to periodic review to take account of changes in the value of money.” (Underlining mine)

In the case of the President where Article 106 (4) of the Constitution provides:

“The President is exempted from direct personal taxation on allowances and other benefits except on the official salary.”

Counsel for the petitioners’ strong contention was that Article 128(7) was enacted to ensure the independence of the judiciary. It prohibits variation of judicial officers’ salaries and taxation is such variation. In fact the whole of Article 128 of the Constitution is on independence of the judiciary. I am of the considered view that taxation of a judicial official’s salary is not variation of salary. It is a compliance with a constitutional duty. Taxation per se does not and would not take away the independence of judiciary. It would not amount to subjecting that taxpayer to the whims of the of the tax officials, as argued by counsel for the petitioners. The duty is upon the employer to withhold the tax from the employment income. (See section 116 of the Income Tax Act). It is the accounting officer of the Judiciary to effect the taxation and remit the tax to the Uganda Revenue Authority. It is my humble view that there is no likelihood of the judicial officer and the tax officials of coming into contact and thereby exposing the judicial officer to the dangers of being compromised. Even if the two parties had to come face to face it must be presumed that at least one of them, if not both, would have integrity. The laws also provide for the rate of taxation and there is no room for manipulation of the tax one has to pay.

a Judge or any person who presides over a court or tribunal howsoever described;

(b)     

the Chief Registrar or a Registrar of a court;

(c)     

such other person holding any office connected

with a court as may be prescribed by law.”

         “GENERAL NOTICE NO. ………………………. 1997
                           THE INCOME TAX DECREE
                                    (DECREE 1 OF 1974)

        

Annexture “O” which is a letter dated 20^th July 1999 written by the Chief Justice to the Minister of Finance. The Chief Justice was responding to the direction by the Commissioner of the Internal Revenue to the Secretary to the Judiciary to deduct P.A.Y.E. from the judges. Part of the letter reads: -

“In his letter to the Secretary to the Judiciary Ref.EC.8353 dated 12^th February 1991, the Permanent Secretary, Ministry of Public Service referred to the decision by the Cabinet spelling out the Terms and Conditions of Service for judges. For ease of reference I attach a copy. The relevant part reads:
         “Cabinet,
4.      

Agreed that salaries and allowances for judges

should not be taxed.”

Ever since the salaries and allowances of judges have not been taxed. Article 128 of the Constitution provides in clause (7) as follows:

“The salary, allowances, privileges and retirement benefits and other conditions of service of a judicial officer or other person exercising judicial power shall not be varied to his or her disadvantage.”

        

Imposition of tax on a judge now would violate constitutional provision, in that, not only would the salary be reduced but the privilege of tax exemption would be abolished. This privilege, or if you prefer condition of service, has been enjoyed for over eight years.” (Underlining mine)

Annexture “N”. The then chairman of the Judicial Service Commission on 19^th August 1999 wrote to the Hon. Minister of Finance and Economic Planning supporting the view expressed by the Chief Justice. The relevant part of his letter reads:-

“The Judicial Service Commission as the institution responsible for advising the Government on the terms and conditions of service of judicial officers as mandated by article 147 (1) (b) of the Constitution, supports the views of the Hon. Chief Justice that to levy tax on judges salaries and allowances would be unconstitutional since the judges have been enjoying the privilege of income tax exemption by virtue your General Notice No. 140 of 1997 which is deemed to have come into force on 5 December 1990, before the new Constitution was promulgated. (Underlining mine)

The Attorney General by Annexture “M” on 24^th August 1999 wrote to the Minister of Finance Planning and Economic Development concurring with the views of the Chief Justice and of the Chairman Judicial Service Commission.

The part of text of the letter is:

“I refer to the correspondence on the above subject from both the Chief Justice and the Chairman of the Judicial Service Commission.

I concur with the views expressed by both the Chief Justice and the Chairman Judicial Service Commission that terms of service of judges cannot be varied to their disadvantage. Since Government had already conferred this tax exemption privilege, it cannot be withdrawn without violating the constitution. The same should continue to apply even to new judges.” (Underlining mine)

Annexture ‘B’ to the affidavit of the first petitioner is a letter from the Attorney General to the Minister of Finance dated 10^th April 2002 again the Attorney General expressed the opinion that the judges’ salaries were not subjected to taxation. Paragraph 2 of the letter reads:-

‘The provisions of the Constitution which protect the status quo of the salaries, allowances, privileges, retirement benefits and other conditions of service for judicial officers is unequivocal (Article 128 (7) of the Constitution). Whatever any statutory provision says in contradiction with these constitutional provisions, the protection remains unequivocal and in terms of Article 2 (2) of the Constitution, such provisions must to the extent of the inconsistence be void. This is the case with the contradiction created by Section 5 (1) of the Income Tax Act 1997.

The truth of the matter is that factually the judges have enjoyed these benefits of almost 10 years now, and even when the new Constitution came into force in 1995, those same benefits were being enjoyed. The Permanent Secretary, Secretary to the Treasury’s request for resources to clear outstanding tax obligations in respect of the specified officers is unnecessary, as no such tax obligations in law exist.’ (Underlining mine)

In Annexture “L” a letter dated 2^nd September 1999 by the Solicitor General to the Deputy Commissioner Legal – Uganda Revenue Authority reads:

         “TAXATION OF JUDICIAL OFFICERS EMOLUMENTS

Reference is made to your letter URA/HLS/110-99 DATED 4 May 1999 on the above subject.

The delay in replying your letter was inadvertent. It is very much regretted.

Our considered opinion is that Article 128 (7) does not exempt judicial officers from tax.

However the said provision does cover tax exemptions currently being enjoyed by the Chief Justice, Deputy Chief Justice, Principal Judge, a Justice of the Supreme Court, a Judge of Appeal and a Judge of the High Court.”

Dated at Kampala this ……23^rd ……day of …February……….2005.