LEGAL PROCEEDINGS INVOLVING GOVERNMENT

INTRODUCTION
The practice of Government legal proceeding originated from the Crown Proceedings Act (1947) of
United Kingdom, and it was substantially adopted in Uganda under the present Government
Proceedings Act Cap 287. The adoption of Government legal proceeding was compelled by social,
economic and social developments aspects in society. This came after appreciating that
Government;
a) As a regulator of activities, affected rights of citizens and other persons.
b) As owner and or occupier of property owed a duty to other persons who came in contact with
such properties.
c) Being a contractor for goods and services, should be privy to rights and obligations which could
be enforced for or against government.
d) As an employer of persons had responsibility to answer to the actions of its servants and agents.

The practice is governed by various substantive and enabling laws, which provide legal liability to
various actions, limitation to liability and procedure to be followed in suits against government.
They include the following among others;
a) Government Proceedings Act, Cap 287
b) Civil Procedure & Limitation (Miscellaneous Provisions) Act, Cap 283
c) Law Reform (Miscellaneous Provisions) Act, Cap 289
d) Public Enterprise reform and Divesture Act Cap 78
e) The Judicature Act, Cap 16
f) The Penal Code Act, Cap 128
g) The Companies Act, Cap 106
h) The Public Finance Management Act, Cap 171
i) Public Procurement and Disposal of Public Assets Act, Cap 205

DEFINITION
In his book Uganda Law and practice, EKM Njega defines Government Legal proceedings as
proceedings instituted by or against government by way of law suit, claim or dispute involving the
government, its ministries, departments, agencies or officers in their official capacity, in respect of
any act, omission or decision done or made in exercise of their official functions or duties. The
proceedings encompass various legal proceedings which include;
a) Civil claims against the government for damages, compensation or injunctions
b) Constitutional petitions challenging the Government actions or decisions
c) Administrative law disputes regarding government decision or actions
d) Criminal cases involving government officials or employees who fault during performance of
official duties.

Page 1 of 11
It should be noted that such practice was triggered by the factors below;
Government Sovereign immunity; Government enjoys immunity from legal proceedings, except
where waived or excluded by law.
Public interest; The government’s actions are presumed to be in the public interest, unless proven
otherwise.
Accountability; Government officials and employees can be held accountable for their actions and
decisions.
Fairness and justice; Legal proceedings involving the government must uphold fairness, justice,
and the rule of law.

GOVERNMENT LIABILITY
Legal liability of government is found in S.4 of the Government Proceedings Act Cap 287. This
section provides that government may be sued in respect of breach of contracts or statutory duties,
torts, unlawful decisions or actions and failure to perform public functions, among others.
For purposes of legal proceedings, Government is considered a legal entity and is liable as if it were
a private person, and does not have special privileges other than those contained in the Government
Proceedings Act and the Civil Procedure and limitation (Miscellaneous Provisions) Act.

The Act also gives exceptions to liability as will be discussed later. As already explained above,
legal proceedings may include; law suit, claim or dispute involving the government, its ministries
departments, agencies (MDAs) or officers in their official capacity, in respect of any act, omission
or decision made in exercise of their official duties.

The scope of Government liability may include though not limited to;
a) MDAs (Public corporations and Local Government)
b) Breach of legal duties
c) Occupier’s liability
d) Employer’s liability
e) Vicarious liability
f) Torts and
g) Contracts.

a) Ministries Departments and Agencies legal liability

 Public Corporations
Public corporations in Uganda are established under different laws as body corporates (Legal
entities) with perpetual succession, common seals with capacity to sue or be sued in their corporate
names, and may do or suffer all other acts and things as corporate bodies may lawfully do or suffer.
The laws that create these entities include; Public Enterprise Reform and Divesture Act Cap 78,
which establishes the framework for creation, management and regulation of public enterprises

Page 2 of 11
including Government corporations, and The Companies Act Cap 106, which provides for
incorporation of government owned companies, defines and regulates their powers and functions.

Being legal entities, Government corporations in Uganda can therefore be held liable for breach of
contract, tortious acts (such as negligence or nuisance), violations of statutory duties, unlawful
decisions or actions or failure to perform public functions among others, and these liabilities can be
established through, Judicial review, Civil suits, Administrative appeals, Constitutional petitions
and public inquiries depending on the nature of the act or omission.
The consequential remedies available to either party may include, damages, injunctions, declaratory
orders, quashing orders, mandatory orders and others.

In the case of Tumwesigye v. Uganda Electricity Board (1997) Civil Suit No. 446 of 1995, HCB 12
The plaintiff, Tumwesigye, was electrocuted by a fallen power line owned by the Uganda
Electricity Board (UEB), he sued UEB for negligence, claiming that the board had failed to
properly maintain the power line.
Applying the principles of tort law, the High Court held UEB liable for Tumwesigye’s injuries due
to their negligence, because UEB had a duty to ensure the safety of the public and had breached that
duty by failing to properly maintain the power line.

 Local Governments
Section 2 of the Local Government Act, Cap 138, Local Government is defined as the system of
governance at the local level through which the people participate in decision making process,
exercise control over local affairs and receive service through elected representatives and other
officials in a transparent, accountable and sustainable manner.
The Act further defines Local government to include; Districts (Plus KCCA), municipalities, towns,
sub-counties, parishes and villages. Local Governments have powers to make laws, collect taxes,
provide social services, manage local resources, and also carry out planning and development of
their respective areas.

Just like any other entity (such as public corporations in a. above), Local Governments are also
liable under government legal proceedings. The scope of liability may include; Tortious acts (e.g.
negligence or nuisance), Contractual obligations (like breach of contract), Human rights violations,
Financial mismanagement (such as breach of financial regulations) and Administrative decisions.

The legal liability of Local Government is provided for under various laws including The
constitution of Uganda 1995, Statutory provisions, case law and other enabling laws;

Sections 2 and 117 of The Local Governments Act (2012) provides that local governments shall
have corporate personality and shall have capacity to sue or be sued in their own names. S.27 of
Civil Procedure Act (2002) also allows Local Governments to be parties to legal proceedings, while

Page 3 of 11
S.54 of The Public Finance and management Act (2015) holds Local Governments accountable for
financial management and authorizes legal action for breaches.

Local governments can be held liable for tortious acts, human rights violations and contractual
obligations as observed in the case of Uganda vs. Kampala City Council (2001), Mukisa vs.
Attorney General & Anor (2007) and Kampala District Land Board vs. Kampala Capital City
Authority (2014) respectively.

b) Contracts
A contract is a legally binding obligation, made between parties on the understanding that it has
legal consequences of performance. As already noted, Governments have legal capacity to enter
into contracts with other Governments, individuals, private companies, international bodies, etc.
Under common law, liability in contract could only be enforced by way of a royal sanction,
however, this position was later found to be unsuitable when governments became increasingly
party to contracts which were of a commercial nature. Such contracts included; supply of goods and
services, construction contracts, employment contracts etc. Such contracts required parties to meet
their respective obligation under contracts made.

Section 2 of Government Proceedings Act Cap 287 provides that government may be sued in
contracts as if it was a private person. This therefore means that government can contract as if it
was a private person and once it contracts, it's bound by the laws of contract. Such contracts may be
enforced under the general law of contract or under the specific laws relating to various contracts.
For example, employment contracts may be enforced under provisions of the Constitution, public
service laws, public service regulations and standing orders.

However, to be legally binding, it’s a requirement that Government contracts are subjected to
conditions that; they must be executed by senior government officers like Ministers or Permanent
Secretaries and as well comply with standard terms and conditions of contract, especially the
mandatory ones. For example, Approval of contracts by the Attorney General (art 119), approval
based on availability of funds, and avoidance of personal conflict of interest (S.10 of the Leadership
Code Act, among others.

c) Torts
A tort is a civil wrong or injury that one person or entity (the tortfeasor) causes to another person or
entity, resulting in harm or damage. Torts can lead to legal claims and law suits, seeking
compensation or remedies for the harm or damage suffered by the plaintiff. The major goal for tort
law is to provide justice and protection for individuals or entities harmed by wrongful actions or
omissions of others. Examples of tort may include; Nuisance, intentional torts, strict liability torts,
negligence, and trespass among others.

Page 4 of 11
Section 3 of the Government Proceedings Act Cap 287, and section 4 of the Law Reform
(Miscellaneous Provisions) Act, both have provisions to the effect that the Government shall be
subject to all those liabilities in torts committed by its servants or agents, or in respect of any breach
of those duties which a person owes to his or her servants or agents at common law by reason of
being their employer, and in respect of any breach of duties at common law related to the
ownership, occupation, possession or control of property.

Section 3 (2) of the Act, further provides that, where the Government is bound by a statutory duty
which is also binding upon persons other than the Government and its officers, the Government
shall, in respect of a failure to comply with that duty, be subject to all those liabilities in tort.
Section 4 of the Law Reform (Miscellaneous Provisions) Act Cap 289 also has complementing
provisions to this effect.
Section 3 (3) of the same Act goes ahead to state that where any functions are conferred or imposed
upon an officer of the Government, either by any rule of the common law or by any statute, and that
officer commits a tort while performing those functions, the Government shall be liable under
vicarious responsibility and principles of delegation.

d) Vicarious Liability
Section 106 of the Employment Act Cap 226, provides for liability of an employer for acts of
employees. Therefore, Government being an employer is liable for the torts its employees which are
committed in the course of employment. This however can only be applicable where the person
who committed the tort was an employee of government at the material time, doing his formal or
routine official duties, and with no immunity against liability at the time of commission or
omission. From the above, we observe that government as an employer can be sued for damages or
any other remedy for actions of its employees.

In Muwonge Vs Attorney General (2013) UGSC 17, Government policemen were sent to Nakulabye
to suppress a riot and in the process shot ten men dead, and the Attorney General was held liable on
the opinion that an employer remains accountable even when the employee acts negligently, erred
in judgement and actions, or acts maliciously or deliberately provided the employee was doing what
he was employed to do and instructed to do at the material time.

The above highlighted position is clarified in Namwandu V AG [1972] EA, where court held that at
the time of the accident, the soldiers were acting on frolic of their own and not doing anything for
their masters as such, therefore, government could not be held vicariously liable for the torts
committed by them.
In the case of Mukwege Vs Attorney General (2007) UGSC 3, the plaintiff claimed damages for
personal injuries sustained as a result of an accident involving a Ministry of Works vehicle by
claiming that the person driving was negligent. Government however established that the person
who was driving was a plumber (not a driver), and therefore was not within the scope of his duties.
The court held that government could not be vicariously liable.
Page 5 of 11
e) Employers Liability
Section 3 Government Proceedings Act states that “where any functions are conferred or imposed
upon an officer of the government as such, either by any rule of common law or by enactment, and
that officer commits a tort while performing or purporting to perform those functions, the liabilities
of government in respect of the tort shall be such as they were committed by Government.

In other words, the Government is held liable for breach of duties which a person owes his servant
or agents at common law by reason of being their employer. Such duty of care may include;
employing competent staff to avoid risks and loses, provision of appropriate, safe and suitable place
and tools of work and effective supervision and system of work.

f) Occupiers and Landlord Liability

law imposes a duty of care on occupiers of premises to ensure the safety of routine users and
visitors. Therefore, Government as an occupier of premises is under a legal obligation to ensure
safety of those premises. The requirements include to ensure the premises are safe and secure,
provide adequate warnings for hazards, take reasonable steps to avoid accidents, etc.

Likewise, where premises are occupied by any person or entity under tenancy which puts on the
land lord an obligation to for the maintenance or repair of the premises, the landlord shall owe to all
persons who or whose goods may from time to time be lawfully on the premises, the same duty in
respect of dangers arising out his acts or omissions. This duty is applicable on Government under
Government owned premises.

In the case of Kampala City Council (KCC) V. Kibuuka CA NO.10 of 2000, the defendant Kibuka
slipped and fell on a pothole on a road in Kampala injuring himself, and KCC was responsible for
maintaining the road. The Court of appeal agreeing with the earlier ruling of the High Court held
that KCC as the occupier of the road owed a duty of care to users, including Kibuuka. Therefore,
KCC failure to repair the pothole constituted a breach of this duty leading to Kibuukas injuries.

In summary, Government liable for breach of those duties which under common law are attached to
ownership, occupation, possession or control of property and generally these duties relate to safety
of the property to invitees (people who are legally there) or neighbours (persons likely to be
affected by that).

g) Breach of legal duties

The sixth schedule to the Constitution of Uganda 1995, provides functions and services for which
government is responsible, these include, defense and security, law and order, citizenship and
immigration related services, national plans and public services among others. Government can
therefore be sued for breach of constitutional and statutory duties, or failure to carry out a public

Page 6 of 11
duty that is contained in any Act of Parliament. Such government liability may result into
declarations or compensation by way of damages and other related remedies.

In the case of Uganda Association of Women Lawyers V. Attorney General (2004) Constitutional
Appeal No. 2 of 2003. Uganda Association of Women Lawyers, sued the Attorney General for the
government’s failure to implement the Domestic Violence Act (2003) and provide adequate
protection to victims of domestic violence, they further argued that the Government’s inaction
breached its constitutional duty to protect citizens’ rights to life, dignity, and equality.
While applying Articles 20 (equality), 22 (protection of life), and 33 (protection of women’s rights)
of the Constitution of the Republic of Uganda (1995), The Court held that the government had
failed to fulfill its constitutional duty to protect citizens’ rights by not implementing the Domestic
Violence Act, and ordered the government to take immediate action to implement the it and provide
necessary support services to victims.

EXCEPTIONS TO GOVERNMENT LIABILITY

Although S.3 Government Proceeding Act provides that government is liable in torts under,
Contracts, torts, vicarious liability, employer's liability and occupier's liability among others, there
are some statutory provisions which limit or exempt government liability in legal proceedings.
These include; Immunity of Public Officers, Judicial immunity, act of State doctrine, armed forces,
procedural matters and statutory notice, act of God, Force majeure among others.

a) Judicial immunity
Article 128 of the Constitution of Uganda (1995) provides for independence of the judiciary. Article
128 (4) in particular states that; “a person exercising judicial power shall not be liable to any
action or suit for any act or omission by that person in the exercise of judicial power” in other
words, no liability arises where a judicial officer does any act or omission in the exercise of judicial
power. The immunity is necessary to ensure judicial independence and prevent harassment of
judges through frivolous lawsuits.

A landmark case in Uganda that established judicial officers’ immunity for acts or omissions during
the exercise of judicial powers is for Dr. James Rwanyarare vs. Attorney General & Anor (2002). In
this case, Dr. Rwanyarare, a former Minister, sued Justice James Ogoola, a High Court Judge
(then), for allegedly making defamatory statements during a court proceeding. The Court of Appeal
held that; Judicial officers have absolute immunity for acts done or words spoken in the course of
their judicial duties, and that the immunity extends to acts or omissions done in good faith, even if
they are erroneous or exceed their jurisdiction. The Court holding relied on Article 128(4) of the
Constitution 1995 and The Judges Act (1967), S.12, which grants judges immunity for acts done in
their judicial capacity.
Judicial immunity is also cited in other Common law English cases;
In Anderson Vs Gorrie (1895) the judges of the Supreme Court of Trinidad and Tobago maliciously
committed the plaintiff for contempt of court. When he applied for bail, they demanded excessive
Page 7 of 11
bail conditions. The plaintiff sued in order to recover damages. It was held that although the judges
acted in bad faith, no action would lie in respect of their judicial decisions.

b) Immunity of Public Officers

Articles 173 and 247(3) of the constitution 1995 provides that, a public officer shall not be
victimized or discriminated against for having performed his or her duties faithfully in accordance
with this law. A similar provision is provided for under Public Officers Act cap 254 Sections 4-6
which limits their individual liability where they act in accordance with the law, hence, vicarious
liability on behalf of government cannot arise.

In the case of Mukisa v Attorney General (2007), court held that public officers are immune from
liability for acts done in good faith during official duties. This immunity was also affirmed in
Kifamutwe V. AG (2014) and UNRA V. Katalima (2015)

c) Sovereign immunity (Act of State doctrine)

Sovereign Immunity doctrine is a legal principle which holds that a government cannot be held
responsible for actions taken by its officials or agents in exercise of sovereign authority, such as
transactions between states, making laws, conducting foreign policy, or engaging in military
operations.

The Act of State Doctrine Is intended to protect the government’s ability to exercise its sovereign
authority without fear of legal liability, and to prevent courts from interfering with sensitive policy
decisions. However, it has been criticized for potentially allowing governments to act with impunity
and violating human rights in some instances.

This doctrine is applied in various laws and court decisions including;

Article 244 of the Constitution of Uganda of Uganda (1995) and S.12 of State Proceedings Act cap
79, grants immunity to the state and provides that Government shall not be liable for acts done in
exercise of sovereign authority.

Foreign sovereign immunities Act (2019) also provides for immunity to foreign states and their
officials for acts done in exercise of sovereign authority.

The doctrine has also been applied and emphasized in several court decisions. In the case of
Uganda vs. Kampala District Land Board (2001). The Court of Appeal held that the government’s
decision to compulsorily acquire land was an act of state, and therefore not challengeable in court.

Similarly, in Attorney General vs. Mifumi (2010). The Constitutional Court held that the
government’s decision to ban same-sex marriages was an act of state, and therefore not subject to
judicial review.

Page 8 of 11
It was also applied in the Kenyan case of Olile Njogo Vs Attorney General, where the Masai sued
the British government for violation of the Masai Agreement, which was in respect of annexation of
Masai lands. The British government successfully placed an act of state doctrine and the court held
that the British government could not be sued by individuals since it had contracted with a
sovereign power.

d) Armed Forces
Section 34 of Uganda Peoples Defence Forces Act (2005), provides that members of the armed
forces assume the risk of injury or death as part of their service, especially occurring during military
operations or training exercises.

Section 11 of Government Proceedings Act, provides immunity to the government for injuries or
deaths resulting from acts of soldiers or military operations, commonly referred to collateral
damages.

Similarly, both the Common Law Principle of "Combat Immunity and the Doctrine of "Act of War,
provides that the government is not liable for injuries or deaths resulting from combat/military
operations or conflicts.

However, Section 6 of the Law Reform (Miscellaneous Provisions) Act, provides for abolition of
immunity of Government and public officials, by setting exceptions and limitations to these laws
and principles, such as; Gross negligence or willful misconduct by government officials or military
personnel, Violations of human rights or international humanitarian law, and Injuries or deaths
occurring outside military operations or training exercises.

In essence, it removes immunity from suit for the Government and public officials for acts done in
the exercise of public duties or functions, with an ultimate aims of promoting accountability and
limit immunity for government and public officials, except in specified circumstances.

In Sengendo v. AG (2002), Government was held liable for malicious, unlawful and unjustified" acts
of soldiers who attacked the plaintiff. In this case, Mr Ssengendo a retired military officer was
injured during a military operation after the attempted assassination of President Obote in 1969. He
later sued the Attorney General for damages. The significance of this case is that, the Government is
not absolutely immune from suit and can be held for its actions.

e) Legal Procedural Matters

This refers to the rules, processes, steps, and actions that govern how legal proceedings are
conducted or under taken by government agencies, courts or other authorities. These may include
pleading and motions, trial procedures, appeals and reviews, service and process, and enforcement
of judgement among others.

Page 9 of 11
Section .7 Government Proceedings Act Cap 287, provides that all civil proceedings by or against
the Government in the High Court shall be instituted and proceeded with in accordance with rules
of court and not otherwise. There are however, a few exceptions which are mainly contained in
Civil Procedure and Limitation Act (miscellaneous provision), aimed to protect public interest.

Some of the important procedural matters include; specific procedures which ONLY apply to
government not other entities and its aimed at protecting the government’s ability to perform its
functions effectively, while also ensuring accountability and transparency.

Exceptions may include among others;

Sovereign immunity; According to the Government Proceedings Act, Cap 287. Government cannot
be sued without its consent.
Crown privilege; The Evidence Act, Cap 8 and Judicature Act, Cap 13, both give Government
privilege to withhold documents or evidence if their disclosure would harm public interest.
National security exemptions; The National Security Council Act, Cap 322, provides that
Government can withhold information or evidence related to national security.
Procedural bars; Civil Procedure Act, Cap 282, provides that Government can raise technical
procedural defenses to dismiss cases.
Government contractor immunity; Government contractors may share immunity from liability, as
provided under Public Procurement and Disposal of Public Assets Act, Cap 205.

f) Statutory notice
This refers to a formal notification required by law to be served on a person, entity or authority
before taking a specific action or making a decision. This notice is normally prescribed by law and
must be served in accordance with the relevant legal provisions. The main purpose is to inform the
affected party the impending action or decision, providing an opportunity for the party to respond or
object, ensuring compliance with legal requirements, and facilitating transparency and
accountability among others.

Section 10 of the Government Proceedings Act, provides that Civil proceedings by or against the
Government shall be instituted by or against the Attorney General. Section 11 thereof requires that
all documents required to be served on the Government for the purpose of or in connection with any
civil proceedings by or against the Government shall be served on the Attorney General.

Limitation periods therefore relate to periods in which an action must be brought against a party.
Under S.2 of Civil Procedure and Limitation Act, no action founded on tort can be brought against
government, local authority or scheduled corporation after the expiry of 2 years from the date of
which the action was done. The section also provides that no action founded on contract shall be
brought after expiry of 3 years from the date on which the action arose.

Page 10 of 11
However, the exemption comes in that limitation periods against government in torts and contracts
are reduced; In torts, actions against government must be brought within two years as compared to
three years in other claims, while in contracts it is three years as against six years for other claims.

In addition, there some remedies which are not available against government as provided under
section 14 of the Government Proceedings Act. These include; injunctions, specific performance,
remedy of attachment, exparte judgement and finally, public officers cannot be compelled to give
evidence relating to confidential government. These exemptions are provided for in Attorney
General V Osotraco, S.14 Civil Proceeding and Limitation Act, Section 19 (4) of the Government
Proceedings Act, in Sengendo vs Attorney General [1972] EA 140, and Article 41 of the
Constitution 1995 respectively.

CONCLUSION
Government proceedings in Uganda are guided by the Government Proceedings Act, which outlines
the scope and exceptions of government liability. Government can therefore be sued for contracts
and torts, just like any private person, and is liable for the actions of its servants and or agents, as
well as for breach of statutory duties.

However, there are exceptions where the government liability is limited, and for that matter,
Government or its agents cannot be successfully sued for acts done under statutory powers, on areas
where it has sovereign immunity from proceedings and for acts done in good faith under any
written law.

Page 11 of 11