AS African jurisdictions embrace powerful, forward-looking constitutions and the possibility of litigation to protect rights, one question will inevitably arise: how should a court manage the question of legal costs in such litigation? An important new decision from the constitutional court of Uganda lays down clear guidelines. Carmel Rickard writes that the dispute over legal costs in this case followed a high-profile challenge to parliament’s decision that corruption allegations against leading members of government should be investigated.
UGANDAN advocate Twinobusigye Severino was in parliament the day a row broke out over claims of bribery in the oil sector. He heard hecklers calling government ministers “thieves” and “thugs”, and he listened to an MP saying – to great applause – that if he had Idi Amin’s powers he would publicly execute those accused of corruption. When those same angry hecklers then voted to set up an inquiry into the alleged corruption, Severino went to court with a constitutional petition.
His case, later described by the court as “timely” and of “great national importance”, challenged the establishment of this ad hoc committee to investigate top-ranking officials including the prime minister. He also challenged parliament’s decision to “require” certain officials including the prime minister to “step aside” immediately, pending investigations by the ad hoc committee.
What chance was there that the officials would get a fair hearing in such circumstances, he asked. And in terms of what legal authority were the top officials being instructed effectively to suspend themselves?
In the end, the attorney-general conceded two of the four challenges brought by Severino and contested two others. Five constitutional court judges concluded that the two concessions were properly made, as they had involved unconstitutional procedures. The remaining two petitions, however, did not disclose any unconstitutional action by parliament, according to four judges, while the fifth would have declared that the two remaining actions by parliament were also unconstitutional.
But what about costs? The petition involved matters of great national importance, they said, and even though Severino had not won all the issues, it was appropriate to award him “some costs”: two thirds of the costs, with a certificate for two counsel.
And that is when the case became even more interesting.
A few months later Severino’s legal team filed a bill of costs against the attorney general for Uganda Shs 23 billion (R79 million or USD 6 million ) plus a VAT amount of Uganda Shs 3,602,000,000 (R12 million, or almost USD 1million). The registrar halved the total bill but the attorney general, still dissatisfied, referred it to the constitutional court where the matter was heard by Judge Kenneth Kakuru.
The AG told Judge Kakuru the bill was still “manifestly excessive”, while Severino argued that the Registrar arrived at the compromise figure after careful consideration and that the case involved “highly intricate and tantalizing constitutional issues relating to high personalities in government”.
Certain principles had evolved about costs, the judge responded. For example, they should not be so high that only the rich could get to court.
In this case the petition was brought in the public interest, and the petitioner (Severino) had no special interest beyond that of any other “ordinary Ugandan interested in the rule of law and constitutionalism”.
When petitions were brought in the public interest some of the normal principles of taxation did not strictly apply. For example, courts had previously held that in constitutional appeals, and to encourage constitutional litigation, each party should bear its own costs, even where a case was dismissed. Parties going to court should not be saddled with the opposite party’s costs should they lose. “If potential litigants know they would face prohibitive costs, they would think twice before taking constitutional issues to court,” and this would discourage the development of a constitutional jurisprudence.
The judge also quoted developments on costs in other jurisdictions: while they might differ slightly, they all agreed that the principles involved in awarding costs in public interest matters were different from the principles in other cases. To hold otherwise would create a “chilling effect” on potential litigants, and since public interest litigation was an important tool in the democratization process and in the enforcement of fundamental rights and freedoms, litigants should be encouraged, rather than frightened off.
He said Uganda’s 1929 Civil Procedure Act stipulating that, absent good reason, costs must follow outcome, needed to be reinterpreted in the light of the constitution. Courts were already doing so and, bar a few exceptions, costs were not awarded to or against any party in a public interest case, or the court ordered that if costs were awarded in public interest litigation, “they ought to be nominal”.
What about Severino’s bill of costs? There was nothing extraordinary about the case. It appeared to be a brief matter, not complicated or involving many volumes. The final judgment was only 28 pages, and he failed to understand how such high costs could be justified.
Then he asked what Severino would have done if the Uganda Shs20billion in costs had been awarded against him, giving an example close to home: “The chief justice of this country has just had his monthly salary increased to about 20 million shillings per month. This means the CJ would have to work for 1 000 months which translates to slightly more than 83 years to pay such a bill of costs. … This money is far beyond the means of any ordinary Ugandan.”
He then set aside the amount claimed saying it was unjustified, ridiculous and should “never ever” have been awarded as costs in a constitutional petition. Instead lead counsel should get Shs20million and half that for assisting counsel.
As he read through the other items such as disbursements he found some that were questionable, and said the court could not allow a party to benefit from an illegality. He further slashed what could be claimed as costs and reduced the entire new amount by a third since the court only approved two-thirds of costs.
The total that must now be paid by the state in the matter comes to Shs 21 811 000, a figure he found fair, just and reasonable in the circumstances of the case.
There is much in this judgment on public litigation costs that will be useful for courts in the future. But by the end one figure stands out as a warning to counsel: the allowed legal costs in this sensational case, amounting to a little more than one month’s salary for the chief justice, are just 0.09% or one thousandth of what was originally claimed.
- The key case on legal costs in constitutional litigation by SA's constitutional court can be found here: Biowatch Trust v Registrar Genetic Resources and Others (CCT 80/08)  ZACC 14; 2009 (6) SA 232 (CC) ; 2009 (10) BCLR 1014 (CC) (3 June 2009)
Download Judge Kakuru's judgment:
Saverino Twinobusingye vs Attorney General (Constitutional Petition No. 47 of 2011)  UGCC 1 (20 February 2012);