Public interest litigation ("PIL") has played a pivotal role in advancing justice and promoting social change worldwide. In Uganda, PIL has been used to protect the environment and safeguard the rights of marginalised groups, including women, children and persons with disabilities.
PIL is initiated by public-spirited individuals or non-governmental organisations, often at personal expense. The now traditional approach is for the PIL litigant to request that no order as to costs. Given the critical role of PIL in amplifying the unheard voices and promoting access to justice, is it not time to rethink the approach to awarding costs? Should we not consider an award of costs to the PIL litigant regardless of the outcome, to foster an environment which better protects constitutional rights?
The high cost of PIL have led to a lot being undertaken by non-governmental organisations relying on donor funding. However, the causes litigated are often determined by the donor's agenda which may have a distorting effect in the quest for justice.
What is PIL?
PIL is litigation that is undertaken to protect or advance the rights and the interests of the public or a section of the public.
Article 50 of the Constitution permits any individual who believes that a fundamental right, as guaranteed under the Constitution, has been infringed or threatened, to apply to a competent court for redress. Article 137 permits any individual who alleges that a law or an action taken under its authority is inconsistent with the Constitution to petition the Constitutional Court for a declaration to that effect, and, where appropriate, seek redress.
In Africa, the concept of PIL relates closely to that of 'Ubuntu' which is that intrinsic and enduring human quality of being good to others, more especially so, the weak, unfortunate and bewildered by circumstances (Kyomuhendo, 2019). Unlike traditional litigation, which typically involves individuals or entities seeking redress for personal grievances, PIL aims to address issues that affect the broader community, such as environmental protection, human rights and social justice. It allows individuals, non-governmental organisations or groups to bring cases to court on behalf of those who may be unable to do so themselves, often seeking judicial intervention to enforce laws and policies that serve the public interest.
Warriors in PIL in Uganda
Several persons and entities in Uganda have used PIL to significantly advance fundamental human rights and freedoms, particularly in areas such as health, environment, and women's rights with some entities and individuals having excelled in bringing these cases to court.
- Greenwatch
Greenwatch Uganda is an environmental rights advocacy Non-Governmental Organisation ("NGO") that has made significant contributions to Public Interest Litigation in Uganda. Their primary objective is to promote public participation in the sustainable use, management and protection of the environment and natural resources. Some key cases include the case for the ban on the manufacture, use, distribution and sale of plastic bags and containers of less than 100 microns. This case highlights Greenwatch' s efforts to address environmental concerns and promote sustainable practices in Uganda. Another case is the access to the power purchase agreement where Greenwatch requested a copy of the agreements between AES Nile Power and the Uganda Electricity Board. Although the court ruled against Greenwatch, citing a lack of evidence of Ugandan citizenship, this case demonstrates their commitment to transparency and accountability in government agreements.
- Centre for Health, Human Rights and Development ("CEHURD")
CEHURD is a non-profit, research and advocacy organisation, pioneering the justifiability of the right to health. Founded in 2010, it provides legal support to victims of rights violations and conducts strategic litigation to redress systematic problems in Uganda's health system. CEHURD won a declaration that the government's omission to adequately provide basic maternal health care services violated the right to health. In an action against the Executive Director of Mulago Hospital, the High Court ordered Mulago Referral Hospital to pay Shs50 million to Ms Fatuma Nakayima for the loss of her newborn baby within the hospital premises. ,
1.3 Uganda Law Society ("ULS")
ULS is established under the Uganda Law Society Act (Cap. 305). Its functions include protecting and assisting the public in Uganda in all matters touching, ancillary or incidental to the law. ULS has brought several PIL cases including a case which strengthened the independence of the judiciary by successfully challenging inter alia the involvement of the Minister responsible for Justice in the budgeting process of the judiciary. ULS also challenged the constitutionality of a section of the Stamp Duty (Amendment) Act (2020) on, amongst other grounds, that it discriminated against them on the grounds of social and economic standing.
- Makerere Law Dons
Prof. Joe Oloka-Onyango, Prof. Sylvia Tamale, Prof. Ben Twinomugisha, Dr. Adrian Jjuuko, Dr. Busingye Kabumba and Dr Daniel Ruhweza, among others, have made good use of PIL. In 2016, the Supreme Court allowed the law dons to join the presidential election petition as friends of court. In 2022, Dr Busingye Kabumba successfully challenged the constitutionality of the appointment of High Court judges in an acting capacity. A petition led by Dr Oloka-Onyango led to the nullification of the Anti-Homosexuality Act, 2014.
- Centre for Public Interest Law ("CEPIL")
Established in 2009, CEPIL is a non-profit and non-partisan organisation aimed at ensuring every person has equal access to social, economic, and political opportunities without discrimination based on their ethnicity, social standing, religion, political opinion, or membership of a political party or organisation. In 2016, CEPIL sought declarations on the constitutionality of how a tax amendment law was introduced. Although the petition was unsuccessful, it provided much-needed legal clarity on how laws ought to be introduced. In 2019, CEPIL successfully challenged the constitutionality of a section of the Non-Governmental Organisations Act, (Cap. 109) as contravening national interest, equality, non-discrimination, and freedom of expression.
- Law and Advocacy for Women in Uganda (LAW-Uganda)
LAW-Uganda was established in 1997 by female lawyers brought together by their interest in women's rights issues as well as their joint experience during their studies as participants of the Leadership and Advocacy for Women in Africa (LAWA). LAW-Uganda successfully petitioned against the custom and practice of female genital mutilation for violating women's rights to life and dignity among others. LAW-Uganda won a case that nullified the offence of criminal adultery in the Penal Code (Cap. 128) and another case against certain provisions in the Succession Act (Cap. 268).
- Uganda Association of Women Lawyers (FIDA Uganda)
Formed in 1974, FIDA Uganda is a membership-based feminist organisation that provides legal aid services. It would have been impossible to accomplish half of the fight for women's rights without FIDA Uganda. FIDA successfully challenged the constitutionality of several provisions of the Divorce Act (Cap. 249) as discriminatory based on gender. The case is lauded for championing women's rights in marriage.
- Initiative for Social and Economic Rights ("ISER")
ISER is a not-for-profit human rights non-governmental organisation. It was founded and registered in 2012 to ensure full recognition, accountability and realisation of social and economic rights primarily in Uganda but also within the African region. In 2016, ISER successfully petitioned the High Court by seeking declarations that the government policy on public financing of secondary education in Uganda infringed the rights to equality and education. In 2022, ISER challenged the national identity system as an exclusionary barrier that violated women's right to health and older persons' right to social security. ISER is appealing the dismissal of their challenge to the constitutionality of the agreements entered into by the Government for the Lubowa Specialised Hospital Project.
- Muwanga Kivumbi
Muwanga Kivumbi, a Ugandan economist and politician, has made significant contributions to PIL in Uganda. In 2017, he successfully challenged the constitutionality of a provision of the Police Act which violated the right to freedom of assembly and association. The court found that he was entitled to costs even though the case was brought in the public interest. He has been involved in educating and raising awareness about PIL, particularly through his involvement with organisations such as Action4Justice: Uganda. His efforts have helped to promote a deeper understanding of PIL and its importance in protecting public interests and enforcing public duties in Uganda.
- Male Mabirizi
Male Mabirizi, a Kampala lawyer, first came to public notice when he sued the Kabaka of Buganda, challenging the Kingdom's move to register people who occupy its land (Buwembo, 2023). He has lodged suits in local magistrate's courts, the Constitutional Court, and the East African Court of Justice, scoring huge victories that have shaped Uganda's jurisprudence and movement towards social justice. When Members of Uganda's 10th Parliament granted themselves an extra two years in office beyond the five years they had been voted for, he moved the Constitutional Court and quashed the MPs' self-award (Buwembo, 2023). Arguably, the most significant case litigated by Mabirizi is the age limit case which challenged the lifting of the age limit for presidential candidates. While unsuccessful, the case established several legal principles.
- Legal Brains Trust ("LBT")
LBT is an independent non-profit organisation that seeks to establish the rule of law, ensure equal and equitable access to justice and tackle the root causes of exclusion, vulnerability, and poverty in Africa. The Legal Brains Trust won a USD140m award against a businessman, several commercial banks and the central bank relating to an illegal compensation payment by the Government Foundation for Human Rights Initiative.
- Foundation for Human Rights Initiative ("FHRI")
The Foundation for Human Rights Initiative (FHRI) Uganda is an independent, non-governmental organisation dedicated to promoting and protecting human rights in Uganda. FHRI's objective is to enhance the knowledge, respect, and observance of human rights in Uganda, removing obstacles to democratic development. FHRI has used PIL to challenge human rights violations and set precedents in areas such as the death penalty and pre-trial detention.
- Other entities/persons
Other entities and individuals that have made significant contributions to PIL include Centre for Domestic Violence Prevention, Human Rights Awareness and Promotion Front (HRAPF), the Health Equity and Policy Initiative (HEAPI) Unwanted Witness, The Environmental Action Network (TEAN), Paulo Kawanga Ssemwogerere, Dr. James Rwanyarare, Hon. Eddie Kwizera, and Ladislaus Rwakafuzi.
- Costs follow the event, but not in PIL
The law is that costs follow the event unless the court or judge for good reason otherwise orders. Costs are an indemnity to compensate the successful litigant for the expenses incurred during the litigation. A successful litigant may be deprived of his costs only in exceptional circumstances. Costs are not intended to be punitive. In Besigye Kiiza v Museveni Yoweri Kaguta, it was observed that in awarding costs, the courts must balance the principle that justice must take its course by compensating the successful litigant against the principle of not discouraging poor litigants from accessing justice through the award of exorbitant costs.
However, PIL litigants often do not pray for costs. This was the initial strategy adopted by PIL litigants to demonstrate their bona fides in bringing the litigation as being only the vindication of legal rights in the public interest and then counter any possibility of an adverse costs order in case of loss of the case.
This approach hasn't always saved the PIL litigants from adverse cost orders. Worse, it has also meant that even when successful, the PIL litigant is unable to recover their costs. This raises important questions about the sustainability of public interest advocacy. Some commentators have argued that this no-cost approach acts as a disincentive to bringing such cases, since they often require significant resources, both directly to hire skilled lawyers, and indirectly to cover the required research and affiliated outlays (Oloka-Onyango, 2015). The concern is that eventually, few lawyers will remain willing to take on what are typically pro bono cases with no monetary reward (Oloka-Onyango, 2015).
Two areas of concern have recently emerged concerning costs in public interest cases. The first occurs when the court awards costs in favour of a petitioner's counsel, but the award is so unreasonably high as to raise serious questions regarding the court's integrity not to mention the motives of the petitioner and counsel in bringing the case (Oloka-Onyango, 2015). The second disturbing issue occurs when an award of costs is made against the PIL petitioners as if to punish them. For example, a Tanzanian court in Dowans Holding SA v Tanzania Electric Supply Company held that the petitioners had failed to show that they had an interest in the matter and ordered them to pay the costs.
The rationale advanced by courts for not awarding costs in PIL cases is that such cases are usually important to the general public, and awarding costs may therefore discourage persons from bringing such claims to court for fear of being slapped with costs. In several cases of a significant political and constitutional nature, courts have ordered each party to bear its costs. For example in Prince Mpuga Rukidi v Prince Solomon Iguru, where succession to the Kingship of the Kingdom of Bunyoro was unsuccessfully challenged. The court observed that the case, having settled the succession to the throne of Bunyoro-Kitara and restored the institution of traditional rulers in the Kingdom, was of great public importance and given the need for reconciliation among the contestants for the Kingdom's well-being, it was ordered that each party should bear its costs.
Similarly, in Attorney General v David Tinyefuza, the Supreme Court ordered that each party bear their costs. The Court's reasons for doing so were to encourage constitutional litigation, parties who go to court should not be saddled with the opposite party's costs if they lose. If potential litigants know that they would face prohibitive costs, they will think twice before taking constitutional issues to court. Such discouragement would have adverse effect on development of exercise of the court's jurisdiction of judicial review of the conduct of authorities or individuals which are unconstitutional. It would also stifle the growth of the country's constitutional jurisprudence. Relying on the case of Attorney General v David Tinyefuza, Justice Oder in Besigye Kiiza v Museveni highlighted that the culture of constitutionalism should be nurtured, not stunted in this country, which prohibitive litigation costs would do if left to grow unchecked. The court adopted the reasoning of the India Supreme Court in Charan Lal Sahu v Singh, that ordering the petitioner to pay costs would amount to nipping in the bud future well-founded petitions.
Of course, a denial of costs can be made to punish counsel for unprofessional conduct. In Gerald Karuhanga v Attorney General, the respondent was directed to pay the costs of the application. Justice Remmy Kasule expressed his disapproval of the conduct of the Petitioner and the team of his lawyers who walked away from the Court because they did not agree with the decision of the Court. Conversely, it follows that courts have the discretion to award costs in recognition of exemplary conduct.
In the context of PIL, this discretionary power of the courts can be leveraged to foster a legal environment conducive to the pursuit of justice in the public good. By awarding costs to petitioners who engage in PIL with integrity, courts can incentivise litigation on significant societal issues.
Costs in any event: Calls for a new approach
Access to justice is a fundamental right. However financial constraints can hinder it, especially among the marginalised and vulnerable groups. To promote access to justice, a novel approach to awarding costs in PIL is necessary. This approach should consider the unique nature of PIL, where the litigants often seek to advance the public good rather than personal gain.
While as demonstrated above, the PIL litigants' approach has been not to pray for costs, our courts have recognised the need to reimburse the PIL litigant for their costs as part of encouragement of access to justice.
In Muwanga Kivumbi v Attorney General, the court remarked that a successful PI litigant deserves to be reimbursed for his or her direct costs provided these costs were prayed for. The court observed that society owes a litigant, who averts such a breakdown in the constitutional order through a constitutional petition pointing out areas of contravention of the Constitution, a duty to reimburse him or her for the direct costs he or she incurred filing and prosecuting the petition and/or appeal. Such a litigant should not bear the economic burden of maintaining the constitutional order for the rest of Ugandans. Awarding of costs alleviates financial burdens associated with public interest litigation ensuring that the doors of justice remain open to those who might otherwise be excluded. This democratises the legal process, ensuring that issues affecting public welfare are addressed.
In Advocates for Natural Resources Governance and Development v Attorney General, the Constitutional Court held that the rationale for not awarding costs in PIL is that no one should be seen to be profiting from a matter in which he or she has no interest beyond that of other members of the public. Secondly, in every constitutional petition or reference, the Attorney General is a statutory respondent, representing a government elected by the people. Whenever costs are awarded against the Attorney General, the costs are paid out of public funds. The court concluded that where in public interest petitions cases, costs are awarded, the actual amounts taxed and allowed should be nominal in respect of professional fees, and the rest should simply be awarded only in respect of disbursements. As such, courts should consider awarding costs to successful PIL petitioners, or those whose petitions at least raise some merit to encourage lawyers and organisations to take on such cases. This could help cover the significant resources required for research, legal representation, and associated expenses, ensuring that financial constraints do not deter public interest advocacy. The Supreme Court, relying on Oshlack v Richmond River Council, rejected the respondent's argument that there was an absolute rule that a party that seeks to enforce PIL should never seek to recover legal costs and held that where costs are awarded in PIL cases, the award should be nominal, and a court should exercise this discretion infrequently.
As observed in Kwizera v Attorney General, filing a public interest petition involves filing fees, research costs made before the case, and the advocate's fees for drafting, consulting and arguing the petition. However, in this case, the court ordered that each party should bear its costs, meaning neither the petitioner nor the respondent was required to cover the other's legal expenses
Developing structured guidelines for awarding costs in PIL can provide clarity and predictability. These guidelines should consider factors such as the case's significance, the conduct of the parties, and the potential impact on public interest. Allocation of costs should be guided by the law and the principle of equal protection under the law. This means costs should not hinge on litigants' motives, whether personal or societal (Nechesa, 2024). This position calls for a more nuanced approach that accounts for the interplay between public interest advocacy and equitable treatment for all litigants whether for public interest or non-public litigation (Nechesa, 2024). For instance, awarding costs could be standard in cases where the petitioners demonstrate exemplary conduct and bring forward issues of significant societal importance.
Lessons from other Countries
- Kenya
In the 2023 landmark case of Okiya Omtatah Okoiti v. Attorney General, the Supreme Court of Kenya made significant observations regarding costs in PIL. The petitioner sought a review and reversal of a costs order against them. The contentious issue was the award of costs to respondents who chose not to actively participate in the case, which seemingly violated the costs follow the event principle. The court's decision not to award costs to the petitioner highlighted the importance of not discouraging constitutional litigation. The court emphasised that PIL should appear genuine in its commitment to public interest rather than self-interest. By not imposing costs on the petitioner, the court reinforced the notion that PIL is essential for holding public officials accountable.
However, despite the court's stance, there exists a counterargument that cost allocation should be guided by the law and the principle of equal protection. This perspective argues that costs should not hinge on litigants' motives but should follow the established legal principles, ensuring equitable treatment for all litigants, whether in public or private interest cases.
- South Africa
In Tebeila Institute of Leadership Education, Governance, and Training v Limpopo College of Nursing, despite the applicant's victory, the High Court initially ordered that each party bear its costs, citing the constitutional nature of the case as the reason. This decision was contrary to the principle laid out in Biowatch Trust v Registrar Genetic Resources, which established that successful private litigants in constitutional matters, particularly when opposing the state, should ordinarily have their costs covered by the state unless exceptional reasons are provided for deviation.
The Constitutional Court found that the High Court had erred in applying the Biowatch principle. It clarified that the rule in constitutional litigation is designed to ensure access to justice and protect individuals or organisations from being discouraged from vindicating constitutional rights due to the fear of financial burden. The Court emphasised that costs should not be denied to successful litigants unless the court articulates clear and convincing reasons for departing from this general rule. In this case, the Court concluded that the applicant was entitled to its costs in both the High Court and on appeal. The ruling reaffirmed the importance of protecting constitutional litigants from undue financial risks and reiterated the judiciary's role in ensuring that access to justice remains open to those seeking to enforce constitutional rights, especially against state institutions.
By setting aside the High Court's costs order, the Constitutional Court reinforced the Biowatch principle, highlighting that cost orders in constitutional litigation serve not only the interests of individual litigants but also the broader public interest in promoting the development of constitutional jurisprudence. This case is significant because it underscores the Constitutional Court's commitment to ensuring that public interest litigation remains a viable and accessible tool for addressing societal injustices, particularly for disadvantaged or marginalised groups.
- Australia
Before the High Court's decision in Oshlack v Richmond River Council (1998), Australian courts followed the traditional principle that costs follow the event, meaning the unsuccessful party would typically be ordered to pay the costs of the successful party. However, there was a growing recognition of the need to consider the public interest in PIL cases. (Bradbury, 2009). Oshlack v Richmond River Council, where a majority of the High Court upheld the discretion to refuse to make an order for costs in appropriate cases and upheld the trial judge's decision to take into account that the unsuccessful party's motivation in bringing the proceedings had been to enforce compliance with the law. The court held that the fact that proceedings involve some public interest aspect does not, of itself, warrant departure from the general rule that costs follow the event.
A similar approach was taken in The Wilderness Society Inc v Turnbull, Minister for Environment and Water Resources where the Court ordered the PIL applicant to pay only 70% of the Minister's costs of the appeal and 40% of the costs incurred by Gunns Limited. The court reasoned that while the case involved matters of public interest, this alone was insufficient to exempt The Wilderness Society from the usual rule that the losing party pays the costs. Justice Marshall emphasised that costs generally follow the event, meaning the successful party in this case, both the Minister and Gunns Limited should not be financially burdened by defending the litigation. The court acknowledged TWS's public interest motivations but found that these did not constitute "special circumstances" warranting a full exemption from costs, as TWS had pursued the litigation as part of a broader campaign to stop the pulp mill development, targeting Gunns' commercial interests. Although the public interest nature of the case was considered, it did not outweigh the respondents' legitimate expectation to recover costs. However, recognising the public interest aspects, the court moderated the costs awarded, ordering TWS to pay 70% of the Minister's costs and 40% of Gunns' costs, rather than the full amounts.
- Conclusion
PIL is growing at a significant pace and has a transformative role in promoting justice, equity and accountability. It encourages individuals and organisations to address issues that affect the public however the financial burdens associated with PIL can be a detriment to potential litigants. The absence of cost awards in PIL discourages litigants due to the financial burden and the risk of financial ruin. Awarding of costs mitigates the financial barriers, incentivises legal representation and encourages genuine PIL cases. Awarding of costs in PIL is a fundamental component of a fair and just legal system. Drawing on the experiences of other countries, it is clear that the approach to awarding costs in PIL varies widely, reflecting different legal traditions and priorities. Kenya's approach emphasises not discouraging constitutional litigation, South Africa highlights judicial discretion tailored to context and Australia upholds the traditional costs follow the event rule while recognizing exceptions in public interest cases. These diverse approaches highlight the need to balance promoting PIL with ensuring fairness and equity in cost allocation. Courts should take note of these experiences and increasingly award costs to the PIL litigant to support the significant role PIL plays in promoting the public good.
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