The Lubowa hospital judgement: Uganda’s missed opportunity to affirm public participation in PPPs

Last year, the Constitutional Court of Uganda issued its judgement in Initiative for Social and Economic Rights (ISER) v Attorney General, Constitutional Petition No. 7 of 2019.

The petition challenged the controversial Lubowa International Specialized hospital (ISHU) project – an expansive public-private partnership (PPP) between the government and FINASI/ROKO Construction SPV Ltd, worth approximately Shs 1.4 trillion ($ 379 million).

Although the petition raised serious constitutional issues around transparency, accountability and citizen participation in the use of public resources, the court focused narrowly on procedural aspects, leaving a critical democratic question unanswered: do Ugandans have the right to be consulted before the state commits massive public funds?

The project, initiated in 2019 and financed through a government guarantee, was intended to reduce medical tourism by building a state-ofthe-art facility. The private contractor was tasked with designing, building and operating the hospital.

However, the ISHU project has been riddled with delays, corruption allegations, oversight restrictions, and remains incomplete and non-operational as of 2025. The funds already spent could have significantly improved Uganda’s public healthcare system benefiting millions, especially vulnerable groups like women and children.

ISER argued that the issuance of promissory notes without prior parliamentary approval violated Article 159(2), (5), and (6) of the Constitution, which governs public borrowing. The court ultimately found that the process was regularized when parliament approved the project in March 2019.

However, this interpretation was legalistic and shallow. It ignored the broader question of when and how the public should be engaged in decisionmaking – particularly in opaque PPPs where public accountability is weak.

The court conspicuously sidestepped the broader constitutional issue: the people’s right to participate in decisions that shape public expenditure and development priorities. This omission undermines Article 1 of the 1995 Constitution, which clearly declares that all power belongs to the people and must be exercised in their interest, including through civic participation.

Uganda’s Constitution also places an obligation on the judiciary under Article 126(1) to administer justice in conformity with the people’s values, norms and aspirations. The judiciary is not merely a legal interpreter – it is a constitutional guardian.

In this context, the court had an opportunity to affirm that public participation in PPPs, especially those involving massive public investment, is a constitutional necessity, not a discretionary policy choice.

The Access to Information Act (Cap 95), enacted to give effect to Article 41, promotes transparency and active public oversight of government decisions. By declining to scrutinize these arrangements, the court missed a chance to embed participatory governance within Uganda’s PPP framework.

The UN Committee on Economic, Social and Cultural Rights’ General Comment No. 24 (2017), for instance, underscores that transparency and citizen involvement are essential in public service governance.

The court, in Mabirizi v Attorney General, has emphasized that public participation stems from the sovereignty of the people. Uganda’s judiciary could have taken a bold step toward integrating that doctrine but instead it remained silent.

The contractor’s refusal to allow government officials to conduct spot checks on the ISHU site epitomizes the dangers of opaque PPPs. By blocking oversight, the contractor effectively insulated itself from public scrutiny, eroding trust in both the project and the state’s capacity to manage public resources responsibly.

The ruling failed to tackle the foundational democratic question: Who gets to decide how public resources are used? Without a firm judicial stance on participation, transparency becomes hollow and the sovereignty of the people remains an ideal rather than a lived reality.

Unless public participation is recognized as a constitutional imperative, even in high-value, complex contracts, citizens will remain spectators in decisions that profoundly affect their lives.

The writer is a Law student at Makerere University

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