Court name
Commercial Court of Uganda
Judgment date
25 April 2013

United Reflexologists of Uganda Ltd & Anor v Malinga Minister of Healthy & Anor (HCT-00-CC-MC-2011/12) [2013] UGCommC 72 (25 April 2013);

Cite this case
[2013] UGCommC 72

THE REPUBLIC OF UGANDA

AT THE HIGH COURT OF UGANDA KAMPALA

COMMERCIAL DIVISION

HCT - 00 - CC - MC - 12 - 2011

 

  1. UNITED REFLEXOLOGISTS OF UGANDA LTD
  2. ALLELUIA REFLEXOLOGY HEALTH SOLUTION

& NUTRITION CENTRE LTD…………………PPLICANTS    

                        

VERSUS

 

  1. HON. STEPHEN MALINGA  MINISTER OF HEALTH
  2. ATTORNEY GENERAL………………… .RESPONDENTS

 

BEFORE HON JUSTICE GEOFFREY KIRYABWIRE

 

RULING

This an application by way of Notice of Motion for Judicial review [under the Judicature (Judicial Review) Rules 2009] and for judicial relief that

 

  1. That the arbitrary closure of reflexology centres and banning of advertisement, promotions, operations and other activities of reflexology centres in Uganda by the Respondents be declared null and void.
  2. That an order of certiorari be issued to call for and quash the findings and report of a survey unilaterally undertaken by the Respondents concerning the activities and operations of reflexology centres in Uganda.

 

  1. That an order of certiorari be issued to quash the arbitrary closure of reflexology centres and banning of advertisement, promotions, operations and other  activities of reflexology centres in Uganda which was communicated through a press release made by the First Respondent on the 24th March 2011 at Uganda Media Centre.

 

  1. That an order of prohibition be issued to prohibit  the Respondents, their agents or servants or any other them from enforcing the impugned closure of reflexology centres and banning of advertisements, promotions, operations and other activities of reflexology centres in Uganda by the Respondents; and

 

  1. That an injunction be issued to restrain the Respondents, their agents or servants and any other public bodies,  institutions and personalities from enforcing the  impugned closure of reflexology centres and banning of advertisements, promotions, operations, and other activities of reflexology centres in Uganda or otherwise disrupting and interfering with the operations and other activities of reflexology centres in Uganda until further orders of this Court.

 

The grounds are quite many and are listed in the Notice of Motion. However the main ground (No 1) is that

“On the 24th March 2011 at the Uganda Media Centre  in Kampala the first Respondent, acting as an agent   and officer of the Second Respondent, unilaterally and arbitrarily announced, declared and called for the instant closure of reflexology centres in Uganda and banning of their advertisements, promotions, operations, services and other activities in flagrant violation of the Applicants’ right to a fair hearing”

 

The respondents do not deny the ban but state that it was  done in the public interest to protect and promote the health of the peoples of Uganda.

Mr. D. Sembuya and Mr I. Kimanzi appeared for the applicants while Mr K. Wanyama (Principal State Attorney) appeared for the respondents

 

PARTIES TO THIS APPLICATION FOR JUDICIAL REVIEW.

Before I address myself to the Motion as filed I find it necessary to deal with the parties to the Motion and in particular the first respondent referred therein as “Hon. Dr Stephen Malinga, Minister of Health” (RIP). An action such as this which is for judicial review of administrative action, is about the Courts exercising supervisory jurisdiction to ensure that public powers are exercised in accordance with the basic standards of legality, fairness and rationality (as per Lord Diplock in Council of Civil Service Unions V Minister for the Civil Service [1985] AC 374). This means that judicial review operates on the public law side (see Judicial Review Handbook by Michael Fordham 2ed p. 314). In the Council of Civil service Unions case (Supra) Lord Diplock addressed his mind to who may be parties in an action for judicial review (see 408F-409C) and held

“…To qualify for judicial review the decision must have consequences which affect some person (or body of persons) other than the decision maker, although it may affect him too…”

 

On the other hand the learned Judge held

“…for a decision to be susceptible to judicial review the decision maker must be empowered by public law to make the decision, that if validly made, will lead to administrative action or abstention from action by an authority endowed by law with executive powers…”

 

Since judicial review then is about the exercise of public power, the Hon Stephen Malinga who is a private person cannot be personally sued in an action though he is the Minister of Health at the time. That is a misnomer.  The decision made in this case in the exercise of a public power was that of the Minister of Health the office and that is the correct party in an action for judicial review. This actually is the correct method of pleading when one looks at other similar cases. The name of the Hon. Stephen Malinga as the first respondent is according struck out leaving only the office of the Minister of Health as the party.

 

Counsel for the respondent in his written submissions also alleged that the first applicant was no existent. He however did not raise this as a preliminary objection nor show Court any evidence to back this assertion.  To my mind this was a belated but not well developed objection. That being the case the allegation remains unsubstantiated.

 

GROUND No 1 That the first respondent acted ultra vires

It is the case for the applicants that the Minister of Health  acted ultra vires his powers when he banned the practice of reflexology in Uganda without citing any known law which had been violated by the applicants.

 

It is also the case for the applicants that the practice of reflexology is self regulated and is not at this point in time regulated by the first respondent.

 

It the further case of the applicants that the Minister in making his decision relied on a survey in which he did not neither participate nor give the applicants an opportunity to participate. It is the case of the applicants that the said survey about malpractice in the reflexology industry was also  malicious and biased.

 

Counsel for the applicant submitted that the Hon. Minister of Health had acted arbitrarily, illegally, and in excess of his authority when he closed all reflexology centres in Uganda and banned their promotional activities without citing any known law which had been violated. He further submitted that when Ministers act outside their authority, then their decisions/actions can be quashed for illegality. In this regard he referred me to the case of Kuluo Joseph Andrew & 2 Ors. v. Attorney General & 6 Ors, High Court. Misc. Cause No. 106 of 2010, where the Justice Bamwine, faulted the Minister of Tourism, Trade and Industry for failing to follow the requirements of the law in appointing a Board of Trustees for Uganda Wildlife Authority.

 

        Counsel for the applicants submitted that prior to the said ban  it was not unlawful to promote or practice Reflexology in Uganda. Furthermore the applicants and others under their trade had been licensed under The Trade (Licensing) Act, (i.e., by the respective town clerks of Kampala Capital City Authority and other urban authorities) in accordance with Sections 10, 11 and 12(c) of the Trade (Licensing) Act.

 

Counsel for the applicants submitted that the applicants were properly registered companies which could operate and carry out the practice of reflexology.

          He also noted that the Ministers ban extended to advertising  in the print and electronic media. Counsel for the applicants submitted that before the impugned ban, it was not unlawful  to carry advertisements and other promotional programmes of Reflexologists and reflexology centres in the print and electronic media in Uganda. He submitted that the competent regulatory authorities in this regard would be under the Press and Journalist Act, Cap 105 and the Electronic Media Act, Cap. 104. In this regard these would be the Media Council and the Broadcasting Council which had not taken action against the applicants.

 

        Counsel for the applicants submitted that the Minister’s powers are restricted to health matters from the 4 parent statutes, namely, the Medical and Dental Practitioners’ Act, (Cap. 272); the Nurses and Midwives Act, (Cap. 274); the Allied Health Professionals Act, (Cap. 268); and the Pharmacy and Drugs Act, (Cap. 280). However none of these acts apply to Reflexologists and reflexology centres. The Minister has specific powers under these Acts to make subsidiary  legislation but there was none on the subject of reflexology. Counsel for the applicants submitted that there was a lacuna in the law regarding the regulation of reflexology and this was a matter for parliament to resolve.

 

          Finally counsel for the applicants submitted that the under Articles 40(2), 37, 29(1) (b) (c) (e) and 28(7) of the Constitution the applicants have a right to earn a living through their practice of reflexology and the ban had violated this right.

 

It is the case for the respondent that the Ministry of Health is mandated to protect the health of the peoples of Uganda and that this is a matter which the Court should take judicial notice. Furthermore the suspension of the applicant’s business was done in the public interest.

 

It is also the case for the respondents that the right to practice a lawful trade is not absolute but is it is qualified. Furthermore in order for the applicants to practice reflexology they had to have been issued with a Practicing License from the Ministry of Health, which the applicants did not possess.

 

It is the case for the respondents that reflexology practitioners were advertising themselves as doctors and professors and claimed that they could treat complicated ailments like cancer which was not true.

 

Counsel for the respondents submitted that those things which the legislature authorises ought not (unless expressly prohibited) to be held by judicial construction to be ultra vires. In this regard I was referred to the case of AG V Crayfound Urban District Council [1962] CH 246. Counsel for the respondents submitted that the Minister’s decisions and actions were under a legal mandate and cannot be held by judicial construction to be ultra vires.

I have considered the pleadings the evidence before me and the submissions of both counsel for which I am grateful.

 

The decision in question is part of a Ministerial Press Statement made by Hon Stephen Malinga as Minister of Health at the Government Media Centre on the 24th March 2011. The statement was quite long but included four decisions at the  end which are the basis of this application namely that

“…1.All existing reflexology centres in the country be closed forthwith pending further review.

     2. All adverts/programmes in the print and electronic media involving quack practice including reflexology be suspended immediately until further notice

  1. KCC and other urban councils should stop licensing reflexology clinics forthwith
  2. All qualified Health Practitioners; Medical doctors, Dental Surgeons, Nurses, Midwives and Allied Health Professionals must have valid Annual Practicing Licences.
  3. The law enforcement agencies are hereby directed to take appropriate action where anybody breaches this directive.

Signed

Hon S. Mallinga

Minister of Health….”

This ministerial statement and the decisions/directive does not state what the legal basis is for it. What is clear in the Minister in his affidavit (para 7) states that

“…my actions were pursuant to the findings of an inspection report on reflexology centres in Kampala conducted on the 25th and 26th March 2010 and in greater public interest…”

 

The evidence on record shows that the Uganda Medical and Dental Surgeons Council (UMPDSC), the Uganda Nurses and Midwives Council (UNMC), the Allied Health Professional Council (AHPC) and the Pharmacy Council (herein after referred to as the “Joint Councils of the Ministry of Health”) conducted an inspection of the said reflexology centres in Kampala and came up with a not so favourable report of their findings on which the Minister acted in the public interest.

 

The definition and regulation of reflexology

My review of the law is in line with the submissions of counsel for the applicant in that it appears that there is no specific law in Uganda to regulate the practice of reflexology.

 

It would appear to me that all that the reflexology centres get  is a trading licence from the City Authority or from Urban Councils. This would put Reflexologists in the category of traders which to my mind is not the most appropriate classification for these centres.

During the pre-trial stage of this application Court was made aware of a Draft National Policy on Public Private Partnership in Health of October 2009. Even though this policy paper covers Traditional and Complementary Practitioners there is still no specific mention of Reflexologists in that paper. This paper there may not without amendment properly cover the regulation of Reflexologists. A proposed settlement position too between the applicants and respondents for the self regulation of Reflexologists under the wider supervision of Government also came to nothing.

 

The definition and regulation of reflexology appears to be problematic not just to Uganda. I failed to find a specific law on the subject in our region of East Africa. It also appears that there is no law or regulation on the practice in the United Kingdom but there is an organisation known as the Reflexology Forum which is an attempt at self regulation (see www.Reflexology-uk.net accessed 16th April 2013)

 

In the USA there appears to be no Federal regulation of the practice of reflexology either. However at the State level a few States like North Dakota have the North Dakota State Reflexology Law (Chapter 43-49-01) which defines reflexology as

“…Reflexology is the application of specific pressure by the use of the practitioner’s hands, thumb, and fingers to reflex points in the client’s hands, feet, or ears using alternating pressure, and such techniques as thumb walking, finger walking, hook and back up, and rotation on a reflex…”

However the regulation of reflexology in other parts of the USA has been controversial with many States regulating reflexology under massage laws which have drawn a lot of resistance in  this regard from reflexology practitioners (see Journal of the Reflexology Research Project, Barbara & Kevin Kunz at www.foot-reflexologist.com accessed 16th April 2013). Reflexology as a result was then distinguished from massage in the States of Tennessee and New Mexico among others.

 

In Uganda the Ministerial Statement which is the subject of this review defines reflexology as

“…Reflexology is an ancient physical technique of applying pressure to reflex points of the feet and hands with specific thumb, finger and hand techniques without the use of oil or lotion but the exact mechanism is not known…”

 

Although reflexology is said to an ancient art its regulation has only become topical in the recent past. Reflexology cannot however from these definitions, in the strict sense of the subject, be said to be the practice of medicine. Clearly it is difficult to find an exact legal precedent on this subject.

 

 

Whether the Minister’s decision was Ultra Vires?

It is the position of administrative law that the decision maker must be empowered by public law to make the decision that he or she makes. In this case there is no specific Statue to apply.   

 

Counsel for the applicant on the subject of public interest referred me to Article 43 (2) of the constitution which provides that

“... Public interest under this article shall not permit —

 

(a)   …………………………..

(b)   …………………………..

(c)    any limitation of the enjoyment of the rights and freedoms prescribed by this Chapter beyond what is acceptable and demonstrably justifiable in a free and democratic society, or what is provided in this Constitution….”

 

This is the correct position of the law. I find that in the absence of a specific Statue on the subject, the Minister can still make decision on a critical subject in the public interest as public law would allow such an action as seen from the provisions of the Constitution. 

A decision in the public interest however must still meet the tests in the Constitution or put differently must be reasonable not to be ultra vires.

 

To the extent therefore that the Minister premised his decision in the public interest then such a decision I find is not ultra  vires because if validly made, can lead to administrative action.

 

GROUND No 2 That the Applicants were not given an opportunity to be heard.

 

It is the case for the applicants that the Minister in making his decision did not afford them an opportunity to be heard.

 

It also the case of the applicants that the Minister made a blanket ban affecting the applicants and all other reflexology centres in Uganda without specifically pointing out  those centres that were acting in manner that was of concern to the Minister which was unfair.

 

It is the further case of the applicants that the report made against reflexology centres was tainted with bias as the practice was viewed as competition for the main stream medical practice.

 

Counsel for the applicants submitted that the failure by the Minister to afford the applicants a right to be heard amounted to procedural impropriety.  He submitted that the respondents had failed to produce minutes of consultative meetings on this dispute or any summons to show that the applicants had been afforded an opportunity to be heard.

 

         He submitted that a decision reached in violation of the right to a fair hearing or the rules of natural justice is no decision at all and for that proposition he referred me to the case of General Medical Council v. Spackman [1943] A.C. 627 .

 

         Counsel for the applicants further submitted that even where a decision is purportedly made in the public interest that would not trump the principle of natural justice. In this regard he referred me to the decision of Justice Fred Egonda Ntende (as he then was) in the case of Kaggwa Andrew & 5 Others v. Hon. Minister of Internal Affairs, HCMC No. 105/2002.

 

         Counsel for the applicants pointed out that it was not true that because the second applicant had its facility inspected by the Joint Councils of the Ministry of Health team that in itself meant that the applicants had been afforded an opportunity to be heard.

 

         Counsel for the applicants submitted that the Minister of Health, as a decision-maker, had a duty to give the each of the Applicants and every other Reflexologist or reflexology centre an opportunity to defend themselves against the scathing allegations contained in the impugned inspection report before taking the drastic action to close all their centres and prohibit their promotional activities. However by failing to do so, the Hon. Minister breached the well natural justice principle of “giving the other side an opportunity to be heard” which he cannot justify the label of “public interest”. (See Kaggwa Andrew & 5 Others  Supra)

 

It is the case for the respondents that the applicants were afforded an opportunity to be heard as indicated in the affidavit of the Hon Minister’s affidavit.

 

Counsel for the respondents submitted that the affidavit of the Hon Minister demonstrated that the applicants had been afforded a right to be heard. He further submits that it is not denied by the applicants that they participated in the said survey by the joint  Councils of the Ministry of Health, which is further evidence of the applicants being a afforded a right to a hearing before the impugned decision was made.

 

I have considered the pleadings the evidence before me and the submissions of both counsel for which I am grateful.

 

         The position of the law regarding the right to be heard has been well articulated by Counsels for the applicants. In this regard the common law position on the subject is properly spelt out in the decision of Justice Fred Egonda Ntende (as he then was) in the case of Kaggwa Andrew & 5 Others v. Hon. Minister of Internal Affairs (Supra). Even the application of public interest in a situation such as this one under review that involves the livelihood of people must be demonstrably justifiable in a free and democratic society. This I agree with Justice Egonda means that the Public Interest does not trample the right to be heard.

 

          It is the case for the respondent that the second applicant was  part of the reflexology centres that were inspected by the joint Councils of the Ministry of Health and so they had a right to be heard.

 

         I have had an opportunity to read the “Report on Mushrooming Reflexology Centres” by the Joint Councils of  the Ministry of Health of the Government of Uganda dated 25th and 26th March 2010. Paragraph 7 of the Report on Methodology in part (relevant to this case) provides

“…Pre-inspection preparatory meetings were held mapping the reflexology centres in Kampala and development of a tool for the inspection exercise…A total of 10 reflexology centres were target for inspection over two (2) working days. The teams conducted simultaneous visits to the reflexology centres across the city without prior notification.

                Centre inspection

  • To establish rapport and trust we introduced ourselves to the in charge, then introduced the purpose of our visit….
  • We were guided around the clinic by the in charge before having a meeting with the clinic staff…
  • At the meeting were given information regarding the clinic the staff and services provided at the clinic…

Free dialogue was encouraged during the interviews and wrong practices unless grossly life threatening was not interfered with so as to enhance the free environment of dialogue…”

Part XI of the report then provides some conclusions and states in part

“a. Since the group is not governed and regulated by      any formal authority, their activities are illegal and suspect…

b. calling themselves doctors whereas they are not, possessing medical diagnostic tools and carrying out medical procedures, a preserve of medical practitioners belonging to the honourable profession of medicine tantamount to contempt and an insult to the profession…”

 

Part Xii then provides for recommendations the most  important one of which is No 2 which reads

 

“…Since the policy on the establishment of Public       Private Partnership for Health is still in process, the activities of the Reflexologist should be suspended forthwith pending the position of Government on traditional and complementary Medicine practitioners the domain to which the Reflexologist belong…”

 

There is a shorter version of the same report attached to the affidavit of the Hon Minister for the inspection carried out on the 25th and 26th March 2010 which lists the Medical Councils which participated and the names of the inspection team. The observations and finding of this shorter report are not in substance very different from the detailed report.

 

It is clear from the reports that the inspection team engaged personnel of the reflexology centres that they visited. This was a good methodology. However it is also apparent that the inspection team did not share their findings with the reflexology centres to get their comments before banning them all. This is where the methodology goes wrong because it is at that point that the right to be heard is crystallised; but was not given to the applicants. This was an error.

 

 From the evidence on record I find that the applicants were not given a right to be heard before the decision to ban them was taken which was procedurally wrong.

 

 

 

GROUND No 3 Irrationality

 

It is the case for the applicants that the decision of the Hon Minister was irrational because it was premised on misconceptions in the Report of the joint Councils of the Ministry of Health that are not true.

 

Furthermore whereas the inspection only took place in Kampala the effects of the Ministerial decision affected the practice of reflexology country wide where no inspection had been undertaken.

 

Counsel for the applicants submitted that there were several falsehoods in the inspection report.

 

The first was that reflexology is a quack practice which is not true because it is an ancient and well known complementary and natural healthcare therapy.

 

Secondly that Reflexologists lacked essential training which was incorrect because the applicants had shown the inspectors certificates of their personnel with qualification.

 

Thirdly that it was not true that there were no training centres for reflexology within or near Uganda because there are examples of such training centres like Kampala Reflexology Training Centre, TASO’s Training Institute, Ms. Betsy Keating’s frequent and regular reflexology training missions/tours to Uganda sponsored by Reflexology Outreach International and the Nairobi-based Timeless Professional College (an agent for UK-based International Therapeutic Examination Council) among others.

 

Fourth it is not true that the centres lacked operational licences when it was known that there was no regulatory authority which covered the centres and could give such an operational licence.

 

Fifth it is alleged that the Reflexologists did not subscribe to any standard policy guidelines which was not true because they have self regulation under the first applicant association.

 

Sixth the allegation that there is no formal regulation is not  true because the first applicant actually does regulate the Reflexologist on a voluntary basis.

 

Lastly the inspection report cannot be relied on because among other things it was not signed.

 

On the other hand it is the case for the respondent that the Minister’s decision was not irrational and it was based on an inspection report that was well informed.

 

Counsel for the respondent submitted that he who comes in equity must come with clean hands which the applicants lack. Furthermore it is a legal principal that equity will not assist volunteers which the first applicants are. Lastly equity will follow the law and the Hon. Minister was exercising a constitutional mandate to protect the health of Ugandans.

 

I have considered the pleadings, the evidence before me and the submissions of both counsel for which I am grateful.

 

The issue of irrationality of a decision was dealt with in the case of COUNCIL OF CIVIL SERVICE UNIONS vs. MINISTER FOR THE CIVIL SERVICE [1984] 3 ALL ER 935, where Lord Diplock held page 950

“…By ‘irrationality” I mean what can be now succinctly referred to as “wednesbury unreasonableness” (See ASSOCIATED PROVINICAL PICTURE LTD vs
WEDNESBURY CORP
[1947] 2 All ER 680. It applies to a decision which
is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system…”

This authority was followed with approval by Justice Remmy Kasule (as he then was) in the case of Fr. Francis Bahikirwe Muntu & 15 others versus Kyambogo University, High Court Miscellaneous Application No.643 of 2005.

 

A look at the Report that lead to the Ministerial Statement in addition to the Statement itself suggests that the inspection of about 8 reflexology centres in the Kampala area (including the second applicant) showed that some of them were purporting to practice medicine. The affidavit of Dr Tom Mwambu who was part of the inspection team has attached to it pictures of personnel at such centres using medical diagnostic equipment like blood pressure machines and stethoscopes. He stated that some of the treatment rooms had the label “Doctor’s RM …” There is also attached to Dr Mwambu’s affidavit a Patients “medical form” from M/s Help Life Reflexology with a diagnosis written therein of inter alia Diabetes and a prescription to take a dose of oranges and salads a certain number of times a day. This in itself can be problematic and dangerous because it looks like medical practice or some type of hybrid of it.

Such a problem did present itself some time back in New York in a case involving massage therapists. The New York State Educational Law, (Title 8, Article 131, Item 7, Note 8, p. 357) stated

"A licensed New York City massage operator may    practice medicine only to extent of massaging the body    by manual or mechanical means, and is guilty of   ‘practicing medicine without a license' in using     treatments other than manual or mechanical massages or making representation of therapeutic value of his massages. (See The People v Dennis, 1946, 271 App.      Div. 526, 66N.Y.S.2d 912)…”

In other words if massage therapists crossed the line and entered the practice of medicine then they would be guilty of practicing medicine without a licence.

The basis of the Ministerial ban is that the applicants and other relexologists are holding out as medical practitioners and are treating their clients as such which is not in the public interest because it is dangerous.

In Uganda the practice of medicine is regulated. Section 27 of the Medical and Dental Practitioners Act (Cap 272 here in after referred to as the MDP Act) provides that no one shall engage in private practice without holding a valid licence under the  Act. Section 1 of the MDP Act provides that “Private Practice” means the practice of medicine or dentistry by a registered practitioner either alone or in partnership in a registered premise on his or her own account or that of the partnership. Section 26 (2) of the MDP Act provides that a person who engages in private practice without a licence is guilty of an offence and on conviction is liable to a fine between Shs 200,000 to 3,000,000/= or a term of imprisonment of not less than 3 months and not more to 3 years or to both.  Furthermore section 47 of the MDP Act provides that

“…any person who

  1. Wilfully and falsely uses any name or title implying a qualification to practice medicine surgery dentistry ;
  2. Not being registered or authorised under this Act practices whether openly or impliedly as a medical or dental practitioner
  3. ….
  4. ….
  5.  Contravenes any other provision of this Act

Commits an offence and is liable on conviction to a fine of not less than three hundred thousand shillings and not more than three million shillings or to imprisonment for not less than three months and not more than one year or to both…”

 

This means that those who hold out as medical practitioners (i.e. doctors) whereas not are covered under the above Act and commit criminal offences.

 

There are similar provisions under the Nurses and Midwives Act (Cap274), and the Pharmacy and Drugs Act (Cap 280) for those who are not registered under the said Acts but cross the line.

It would appear to me that these laws on persons who cross the line of medical practice were always available to the respondents to apply to Reflexologists as well.

 

The Report of the Joint Councils of the Ministry of Health lists 8 reflexology centres that were inspected in Kampala (including the second applicant) but does not state which of the centres in particular were carrying out reflexology as though it was the practice of medicine. Such statements were only made in general terms. If specific centres and persons had been identified then criminal charges under the MDP Act could have been preferred against them but this was not the case. Only a country wide ban was announced by the Hon. Minister based on the Kampala inspection report.

 

This in Lord Diplock’s words would be “wednesbury unreasonable” (or irrational). This was procedurally an error. In my view each reflexology centre should have been assessed individually and appropriate action taken rather than issue a blanket ban.

 

All in all I find that whereas the Hon Minister can act in the public interest that does not mean that those affected by his decision do not have a right to be heard and should be grouped together with those who abuse the law. That is sufficient for me to grant and I accordingly do an order of certiorari quashing the Minister’s decision.

As to the prayers for the Orders of Prohibition and Injunction I will only grant them in limited scope and that is in respect of enforcing the blanket closing of all reflexology centres in Uganda. The respondents are still free to take action against specific reflexology centres that have been found to breach the law.

 

The respondents and Government are however urged to accelerate the creation of a legal framework for the regulation of reflexology practice in Uganda to avoid further disputes of a similar kind.

 

I grant the applicants the costs of this application.

 

……………………………

Geoffrey Kiryabwire

JUDGE

 

Date: 25/04/13

 

 

 

 

 

 

 

25/04/13

9:41 a.m.

 

Ruling read and signed in open court in the presence of;

  • D. Sembuya plus Kimanze for Applicants

In court

  • Mr. G. Muteguya for Applicants
  • Rose Emeru – Court Clerk

 

 

……………………………

Geoffrey Kiryabwire

JUDGE

 

Date: 25/04/13