Case Law[2019] UGSC 102Uganda
Male H. Mabirizi v Attorney General & Karuhanga & 5 Others v Attorney General & Uganda Law Society v Attorney General (Constitutional Appeal 2 of 2018; Constitutional Appeal 3 of 2018; Constitutional Appeal 4 of 2018) [2019] UGSC 102 (18 April 2019)
Supreme Court of Uganda
Judgment
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THE REPUBLIC OF UGANDA
IN THE SUPREME COURT OF UGANDA AT KAMPALA
f Coram: Katureebe CJ, Arach-Amoko, Muangusga, Oplo-Auerl,
TY,batemua-Eklrlkublnza, Mugambq JISC; Twmuteslgge, Ag. JSCI
CONSTITUTIONAL APPEALS NO. 02, O3 and
()4
OF 2018
BETWEEN
I.MALE H MABIRIZI K. KIWANUKA
2.HON.GERALD KARUHANGA & OTHERS ::::::::iAPPELLANTS
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3.UGANDA LAW SOCIETY
AND
15 THE ATTORNEY GENERAL: : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : :RESPONDENT
I Appeal
Jrom
the majorltg declsion of the Constitutional Court at Mbale
(Owtng-Dhollo, DCJ, Kasule, Musoke, Barishakl, JrA/ JJCC, ( Kakunt
J$JCC dissentlng) ln Consolidated Constitutlonal Petltlons l\Io. 49 oJ
2077; and No. 03, OS , 70 and 73 of2O78, dated 26th Julg,2O18)
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JUDGMENT OF ARACH.AMOKO, JSC
Introducticn:
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This consolidated Constitutional appeal arises from the decision of
the Constitutional Court that sections 1, 3, 4, and 7 of the
Constitution (Amendment) Act No. 1 of 2O18 which removed the
age limit for the President and the Chairmen Local Council V, to
contest for election to those offices, and for the implementation of the
recommendations of the Supreme Court in Presidential Electlon
Petitlon No. I of 2016: Amama Mbabazi vs. Yoweri Kaguta
Museveni, were passed in full compliance with the Constitution and
5 are valid provisions of Constitutional (AmendmeatfAct No.l of
2O18 (herein referred to as the "Act"). The decision was by majority
of 4 to 1. The appeal raises very important Constitutional issues of
great public importance Constitutionalism in Uganda particularly in
respect of the amending power of Parliament.
10 Background:
Before considering the merits of the appeal, it is necessary to give a
brief background to the appeal.
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The object of the said Bill was to amend the 1995 Constitution of the
Republic of Uganda in accordance with Articles 259 and 262 of the
Constitution:
(i) to provide for the time within which to hold Presidential,
Parliamentary and Local government council elections under
Artlcle 61,
(ii) to provide for eligibility requirements for a person to be
elected as President or District Chairperson under Articles
1O2 (bl and 183 (2) (bl,
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In September 2Ol7
,
Hon. Raphael Maryezi, the Member of Parliament
for Igara West Constituency, in Bushenyi District moved a motion in
Parliament to introduce a private Member's Bill to amend the
Constitution. He was granted leave and he introduced a Bill entitled
the (Constitutional Amendment) (No. 2l ot 2017.
5 (iii) to increase the number of days within which to file
determine a Presidential election petition under Article
(2) and (3f.
and
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(iv) to increase the number of days within which the Electoral
Commission is required to hold a fresh election where a
Presidential election is annulled under Article 1O4 (61; and
(v) For related matters.
During the second reading of the BiIl, when the House was sitting as
the Committee of the whole House, two separate motions were moved
to amend the Bill. The first motion which sought to amend the
Constitution by extending the tenure of Parliament and Local
Government Councils from five to seven years was moved by Hon.
Michael T\rsiime, the MP for Mbarara Municipality. The second
motion which sought to reinstate the Presidential term limits was
moved by Hon. Nandala Mafaabi, the MP for Budadiri West
Constituency. After the third reading, Parliament passed the Bill as
amended. The Bill was thereafter sent to the President for his assent,
and he assented to it on th,e 27th December, 2017. The Bill became
the Constitution (Amendment) Act (No.1f of 2O18.
Some factions of Ugandans including the appellants, were aggrieved
by the passing of the Act and lodged petitions in the Constitutional
Court pursuant to Article 137(1) and (3) of the Constitution,
challenging the validity of the Act on the ground that the process of
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enactment as well as its provisions had violated the Constitution and
prayed for its nullification.
The respondent hled an answer to the petitions in which he stated
that Act was enacted in accordance with the Constitution and its
provisions were valid and constitutional. The answer to the petition
was supported by affidavits sworn by General David Muhoozi, Mr.
Ahmed Kagoye, Ms Jane Kibirige, Mr. Samuel T\rsubira, Mr. Keith
Muhakanizi, Mr. Asuman Mugenyi, Mr. Mwesiga Frank,Hon. James
Kakooza,Mr. Moses Grace Balyeku, Mr. Twinomugisha Lemmy, Hon.
T\rmusiime Rosemaqr Bikaako, Hon. Ongalo Obote Clement Kenneth
and Mr. Allan Mukama.
Since they raised similar issues, the petitions were consolidated and
heard jointly
by the Constitutional Court.
At hearing of the consolidated petition, the following issues were
agreed upon for determination by the Constitutional Court:
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7. Whether sections 2 and 8 of the Act extendlng or enlargtng
of tle tenn or life otParliamentfrom 5 to 7 gears ls inconsistent
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The appellants' petitions were supported by affidavits sworn by
several people including Mr. Mabirizi; Hon.Gerald Karuhanga, Hon.
Ssemujju Ibrahim, Hon. WinifredKiza, Hon. Ssewanyana Allan, Hon.
Odur Janathan, Hon. Mubarak Munyagwa and Hon. Betty Nambooze
Bakireke for the 2"d appellants; Mr. Francis Gimara, Proffessor
Fredrick Ssempebwa and Hon. Morriss Wodamida ogenga Latigo for
the 3.d appellant.
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2. And iJ so, uhether applglng it retrospectktelg is inconsistent
with
qnd/ or
ln contrqtrention of Articles 7, 8A, 7, 77(3), 77(4),
79(7), 96 and 233 (2)(b) oJthe Constitrttion.
3. Whether sections 6
qnd
1O of the Act ertendtng the current
tife of Locql huerntnent Councils
from
5 to 7 gears ls
inconsistent with and/ or in contrauention of Articles 7, 2, 8A,
776 (3), 181 (4) and 259 (2) (a) of the Constlhttion,
5. ltrlhether the alleged uiolence/ scnffle inside and. outsid,e
Parliament during the enactment of the Act wo,s inconsistent
dnd in contrauention of Articles 7, 2, 3 (2) and 8A oJ the
Constitrttion.
6. Whether the entire process oJ conceptttalizing, consulting,
debating and enqcting the Act wo"s fnconsistent with and/ or
in contra vention oJ Articles oJ the Constittttion
qs
here-und,er:-
(a) Whether the introduction oJ the Priuate Member's Bill
that led to the Act wos inconsistent urtth and/ or in
contrauentlon oJArticle 93 of the Constitrttion.
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urith and/ or in contrquention otArticles 7, 8A, 7, 77 (3), 77
(41, 79 (7), 96, 233 (2) (b), 260 (1) and 2a9 oJ the
Constittttion.
4. If so, whether applying it retroactitnlg is inconsfstent with
and/ or in contrauention of Araicles 7, 2, 8A, 776 (3), 181 (4)
and.259 (2) (q) of the Constihttion.
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(b) Whether the passlng of sections 2, 5, 6, I and 7O of the
Act
qre
inconsistent urith and/ or in contrauention of
Artlcle 93 of the Constitrrtlon.
(c) Whether the
qctions
oJ Ugand.a Peoples Defence ?orces
and Uganda Police in entering Parliannent, allegedlg
c,ssaulting Metnbers in t E channber, an'esting and
allegedtg detalnlng the sqid Members, is inconsistent uith
and/or in contrauention of Articles 24,97, 2O8 (2) and 277
(3) of the Constittttion.
(d) Whether the consrlltatlons carried out uere maried
with restrictions and uiolence uthich uere inconsistent
with
qnd/
or in contrauention oJ Articles 29 (1) (a), (d),(e)
and 29(2) (a) oJthe Constittttion.
(e) Whether the alleged.
Jailure
to consult on sections 2, 5,
6, 8 and 7O is inconsistent with and/ or in contranrcntion
of Articles 7
qnd
8/l of the Constitrttion.
ff)
Whether the alleged
tailure
to conduct a reJerendum
beJore assentlng to the Bill containing sectTons 2, 5, 6, 8
and 70 oJ the Act wcrs inconsistent with, and in
contrauention of Articles 7,97 (7) and 259 (21, 26O and 263
(2)(b) of the Constihttion.
(g) Whether the Amendment Act ln.as against the spirit and
stt:rtchtre of the 7995 Constitution.
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7. Whether the allegedfailure bg Parliannent to obseroe its own
Rules of Procedure during the enactment of the Act wqs
inconsistent with and in contravention of Articles 28, 42, 44,
90 (2), 90 (3) (c) and 94 (1) of the Constittttion.
(b) Whether the act of tabling Constitrttional Blll No. 2 of
2077, in the
qbsence
of the l*qder oJ Opposition, Chlef
whip and other opposition Members of Parliament wo"s in
contrantention of and/ or inconsisf,ent with Articles 7, 8A,
69 (1), 69 (2) (b), 77, 74, 75, 79, 82A, and TOBA oJ the
Constittttion.
(c) Whether the alleged actions of the Speaker in
pennitting Ruling Pariy Members oJ Partiament to sit on
the opposltion side of Parliament wss inconsistent urith
Artlcles 7,8A,69 (7),69 (2)(b),77,74,75,79, a2A, a3 (7)(fl,
83 (3) and 7O8A oJ the Constihttion.
(d) Whether the alleged act oJthe l*gal and Pqrliamentary
AfJairs Committee oJ Parlidment in allowing some
Committee Memhers to sign tlle Repora atter the public
hearings on Constittttional Amendment Bill No. 2 oJ 2O77,
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(a) Whether the octions of Po:rliament preuenting somc
Metnbers of the public
from
accessing Parliamento;ry
chambers during the presentation of the Constittttional
Atnendrnent Bill No. 2 of 2O77 was inconsistent with and
in contrauention of the provisions of Articles 7, 8A, 79, 2O8
(2),2O9,277 (3),272 of the Constittttion.
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(e) Whether the alleged act of the Speaker of Parliannent
ln dllowing the Chairperson of the l*gal AJfairs
Committee, on 7&h December 2077, ln the absence of the
I*ader oJ Oppositton, Opposltton Chief Whip,
qnd
other
Oppositlon Members of Parliament, was in contranrcntion
oJ and inconsistent urith Articles 7, 8A, 69 (7), 69 (2) (h), 77,
74, 75, 79, 82A and 7O8A of the Constittttion.
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Whether the o,ctions of the Speaker in suspending the
6 (six) Members oJ Parliament uds in contranpntion of
Articles 2 8, 42, 44, 79, 9 7, 94 and. 2 59 oJ the Constitrttion.
b)
WrutEr the o,ction of Parliament in:-
(i) waiuing the requirement of
q.
minimum of three
sittings
fromthe
tabling otthe Report get it wos not
secondedl
(ii) closing the debqte on Constitrttional Amendment
Bill No. 2 of 2077 before etery Member of Parllament
could debate on the said Bill;
(iv)
Jalltng
to separate the second o;nd third reading
bg at leastJourteen sltting dags; are lnconslstent
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wrrs in contranrcntion of Articles 44 (c), 9O (7) and 90 (2) of
the Constittrtion.
(tit)
fatltng to
close a,ll doors durlng uoting;
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with and/ or in contrauention of Articles 7, 84, 44 (c),
79, 94 and 263 of the Constihttion.
9. Whether the Presldentiql qssentto the Bill altegedlg in the
absence of a ualld CerttJlcate of compliance
Jrom
the Speaker
and Certificate of the Electprsl Commission that the
amendment was approued at a reJerendurn was inconsistent
with c;nd in contrauentlon of Article 263 (2) (Q and (b) of the
Constihttion.
10. Whetlur section 5 of the Act which reintroduces tertn
limits
qnd
entrenches thern as subject to referendum is
inconsistent with and/ or in contrauention of Article 260 (2)(a)
oJthe Constifrttlon.
77. Whether section 9 of the Act, which seeks to hartnonise the
seten gear term of Parliam,ent with Presidential term is
inconsistent with and/ or in contrauention of Articles lOS (1)
and 26O (2) of the Constittttion.
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A. Whether tle passage of the Act without observing the 74
sitting dags of Parllament between the 2"d anld 3'd reading wrrs
inconsistent with and/ or in contrauention of Articles 262
qnd.
263 (1) of the Constittttion.
12. Whether sectlons 3 and 7 of the Act, lifting the age limit
ttithout consulting the population are inconsistent utth and/
or in controlr.ntion of Articles 27 (3) o;nd. 21 (5) of the
Constltrttion.
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74. What remedies are o;uailo,ble to the pdrtles?
After hearing the petition, the Constitutional Court, by a majority of y'
4 to 1, with one member of the Court, Kakuru JCC, dissenting,
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granted the petition in respect of the extension of the tenure of
Parliament and Local Governments by two years and re-instatement
of term limits. The Court however, dismissed the petition in respect
of the removal of term limits and implementation of the
recommendations of the Supreme Court in. As a result, the
Constitutional Court made the following declarations Presidentiol
Electlon Petltion l[o. I of 2O76; Amams. Mbabazi as. Yowet'l
Museuenl.
7. Bg unanimous decision, that sections 2, 5, 6, 8, 9 and. 7O of
the Constitrttion (Atnendment) Act 2O78, which prouid.e
for
the
extensions of the tcnure oJ Parliannent and Local Government
CounciLs bg two gears, and
for
the reinstatement of the
Presidential tenn-limits . unconstittttional
for
contranrcning
proaislons of the Constitrttlon.
2. That accordlnglg, sections 2, 5, 6, 8, 9 and 7O oJ the
Constlttttlon (Amendmcnt) Act 2078, be sttttck out otthe Act.
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13. Whether the continuance in Oflice by the President electcd
in 2016 and retnqins in otfice upon attaining the age of 75
geqrs contranrenes Articles 83 (1) (b) and 1O2 (c) of the
Constitrttion oJ the Republic of Uganda.
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3. BU majority decislon that sections 7, 3, 4, and 7, of the
Constlf;.ttlon (Amcndnent) Act No. 7 of 2O78, whlch remolte age
Iimits
for
the hesident, and Chalrpersort Locql Council V, to
contest
for
election to the respectiue offices, and
tor
the
implementation oJ the recommcndations of the Supremc Coutt
ln Presidential Elcctlon Petltion No. 7; Alnoma Mbsbazl us
Yowerl Museueni, haue, eo,ch, been passed. in
full
compliance
with the Constlttttion; and therefore remo;in the lauful and
valtd proulslons of ConstlttttTon (Amendment) Act No. 7 oJ 2078.
The Constitutional Court awarded professional fees of 20,OOO,0O0
shillings (Twenty million only) for each Petition. The Court clarified
that this award did not apply to Petltion No. 3 of 2O18 since the
Petitioner had prayed for disbursements only, and Petition No. 49
of 2OL7 by Mr. Mabirizi where the Petitioner had appeared in person.
The Court further awarded two-thirds disbursements to all the
Petitioners; to be taxed by the Taxing Master.
As indicated earlier in this judgment,
the appellants were aggrieved
by the above decision, specifically the one in respect of the removal
of term limits for Presidents and Local Council V Chairpersons and
hled the instant appeals in this Court.
Grounds ofAppeal
The grounds of appeal by Mr.Mabirizi were as follows:
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PART A: CROUI,DS REI.A TING TO DEROGATION O F THE RIGHT TO FatR AND
SPEEDY HEARII,TG BEDORE AN IIIIPARTIAL COT'RT
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1. All the learned.ftrstices of the Constitrttional CourA etred
in law and
Jact
when tleg
failed to
hear and deterrnine
the Constlttttionql petition expeditlouslg.
2. All the leo;rned .Itrstices of the Constitrttlonql Court erred
in laut and,
fdct
uhen theg evlcted the petttloner
from
coura
seats occupied bg representatfutes oJ other petitioners,
pultlng hlm in the dock throughout the hearing and
decision of the petltion.
3. All the learned. Jttstices oJ the Constittttional Court erred
in lqw andtact when theg caused a miscorrlage of justlce
bg not giaing the petittoner ample tlme to present his case
and extremelg and unnecessarilg tn@rJered ulth hls
submisstons.
4. All the leorned Justices of the Constitrrtional Coura erred
in law and
fact
uhen theg derogated the petitioner's right
to Jalr
hearing bg preuenting the petitioner
from
substantiallg responding to the respondent's submisstons
bg uag of rejolnder.
PART B: GROUJVDS REf,ATING TO OIfTSSIO IS A ND FNLING IN THE COURT'S
DUTY IN DETERIWII,IATION OF THE DISPUTE.
5. All the ledrned .ftrstices of the Constittttional Court en'ed
in laut and
fact
uhen theg did not give reasons
Jor their
decision not to summ'on the speaker of Parliament.
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in law andJact whentheg did. not at
qng
one point mentlon
the existence of or eten relg on the petitiotter's tuto
supplementary affidavtts in support of the petition,
rejoinder to the ansu)er to the petition qnd
the supporting
aJfidanttt thereto as uell as affi.d.avits in rejoind.er to
aJftdavtts of Jane Kibirige, Keith Muhakqnizi and Gen,
Davtd Muhoozi, which were on coura record.
7. The majoritg .Iustdces of the Constltrttlonal Court ened. in
law c;nd
fact
uhen theg did not determlne the legalitg oJ
the sttbstantiol contents in the affid,atnt oJ Gen. David
Muhoozi, the chief of Defence
Jorces,
uthich uere put in
tssze as hearsag.
B. The majortty &stdces of the Constittttlonsl Court erred. ln
laut and
fact
uhen theg did not d.etermlne the legaltfu of
the substqntiql contents in the afftdavit of Keith
Muhakc;nizi, TrE Secretary to The Tyeasttry, whlch unre
putln issze cs hearsay.
9. All the leo;rned.ftrstdces of the Constlttttlonal Court erred
in law and
fact
uthen theg did not mcke a cleq,r and
speciftc detcrminqtion oJ Issue 6(a) and. cII submissfons
mqde in that regard relating to restrictlons on prirnte
members' Bilts Tmposed bg Atticle 93 of the Constitrttion.
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5 10. All the leanted Jtrstices oJ the Constlttttlonal Court
en'ed ln law andJoct when theg did not make afinding on
the prlnclpte of ConstlttttTonal Replacement 6ts ablg
submitted before them bg the Petitioner.
1 1. All the learned &stices of the Constitrttionql Coura
erred in law and
fact
when tley did. not determine the
point thqt the Speaker uas stopped
from
presidlng ouer
actions and presenting them as lautful uthlch she hdd
earller
tound
o;nd Ruled to be unlawJul.
12. All the learned.ftrstfces of the Constlttttlonal Court
en'ed in laut and
Jact
when theg dtd not declare
unconstittttlonal Section 1(b) of the impugned Act allowing
the Electoral Comrnlsslon to hold
q
Presidentldl election
on a dag d{ferent
from
that of a Parliamentary election.
13. All the leanted.f,rstices oJ the Constittttiondl Court
en'ed in lqw andfact when theg did. not moke ofindlng on
the constittttionalitg oJ the presence oJ anned.
forces
outside Parliament and in the entire country.
15. All the leo'rned.ftrstices ol the Constlttttional Coura
etred 7n laut and
Jact uhen
theg dtd not m.ake afinding on
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14. All the leanted.ftrstices of the Constihttional Court
erred in lqw andfact when theg did not mqke aftnding on
constittttionality of detaining and an'esting of Members of
Pqrllqment
from
Parliqmcntary chambers.
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a
constiattionalitg and legalitg of the action of
ejection/euiction of Members of Parliam.ent purportedlg on
orders of the Speaker when the Speaker wos out of her
chair.
16. All the leqnred.ftrsttces of the Constittrtional Court,
erred in lqw andfact when theg did not make aftnding on
the uoliditg of the Certiftcate of compliance bg the Speo,ker
of Parliannent la.hich uas in issue.
17. All the learned.ftrstices of the Constitrttional Coutt
etredinlaut andfact uhentheg resohted most of the issnes
without refen'ing to tlw euidence and submissions of the
petltioner.
18. All the leanred.[rstices of the Constitrrtional Court
erred in law and
fact
when theg did not consider the
uariety of authorltles
from
within and outside the
jurisdiction which were reJen'ed to them, supplied and
summarized to thembg the petltioner.
PART C: CROUIIDS RELATING TO CONTRADIC"IOilS AND MIS-APPLICATION
OF LEGAL PRINCIPLES A.ND FAC?S.
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19. The leqrned maJoritg &sttces of the Constittttional
Coura erted in lqw and
fact
uhen theg
failed
to properlg
euslaate the pleadings, euidence
qnd.
sabmissions hence
re aching wrong conclusions.
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21. The najoritg Jrtstices of the Constittttionql Court
erred in laut and
fact
when theg applied stadfiory
substqntiql effect/quqntitqtive principles appllcable to
electlon petltTons uthich d.o not applu to principles of
detertnination of ualiditg oJa Constittttion Amendment Act
of Parllannent.
22. The maJortty Jrtstices of the Constlttttlonal Court
erred ln lo,w and
fact
when they held thqt the location ot
crn entrenchment proaision ln the constlttttlon does not
matter.
23. The majoritg Jttstices of the Constlttttional Court
erred in lau and
fact
uhen theg upheld part, oJ the Act in
total deJiance oJ the binding Supreme Court, decision(s)
that a law is null
qnd
void upon a
finding
that the
procedure of enacting
qnd
sssenting to it utas incttrablg
defectiue and
JTouted.
24. The majoritg Jrtstices of the Constitrttional Court
erred. in law and
fact
uhen theg upheld para of the Act in
total departure
from
Constihttional Coutt decision(s) to tlrc
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20. The maJority Justices oJ the Constittttlonq.l Court
erred ln ldut and
fact
when theg htghlg contradicted
thenselues on legal principles and
facts of
the cqse
qnd
hence reached utong conclusions aot connected. to the
stated principles andfacts on record.
5 efJect that the enactntent oJ the lqut is a process, and if
ang of the stages therein is
flawed,
that vitlotes the entire
process qnd
the lqw thqt 7s enqcted as a result of it.
PART D: GROUIIDS RELAITING TO WOLATION AND MISAPPLICATION OF
EWDENCE AT'D r?S PRINCIPLES.
25. All the learned.ftistices of the Constitrrtlonal Court
en'ed in law and.fact when theg suggested a;nsrllers to Gen.
Dauid MuhoozT, The Chief oJ Defence Forces, a wltness who
uta.s under cross-examination on oath, preuented himJrom
answertng questlons and with threats, ord.ered the
petltioner not to ask ang
further
questions.
26. All the learned.ftrsf,ices of the Constlttttional Court
erred in law and
fact
uhen theg ouer-protected Mr. Ketth
Muhcko;nizi, The Secreto;ry to The Treasury,
q
ultness
under cross-exqmlnqtion
qnd preuented him
from
answering questTons put to hlm as wells as preuenting the
petltloner
Jrom asking
pertlnent questions.
27. The maJority Jttstices of the Constittttionq.l Court
erred in
fact
when theg lrcld there uras no other euidence
to prote that the petitioner urcs denled @ccess to
Parllannent's gallery.
28. The maJoritg Jnstices of the ConstittttTonq.l Court
erred in laut uthen theg held that there utas need.
for
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corroboration oI the petitioner's euidence of being denied
access to the gallery of Parlio,tnent.
29. The majoritg Jrtstices of the Constittttlonal Court
erred in
fdct
in holding that there was no evldence that
the speaker allowed members to cross
frorn
one sid.e of the
fToor
to another, in absence of a uideo.
30. The majority Jttsttces of the Constlttttlonal Court,
etred intact in holding thqt the motion bg Hon. Mwesigwa
Rulcrrtr:na, to suspend the Rules oJ Procedure requiring
skipptng oJ at least 3 sitting dags afier tabllng of the
Comrnittee ReporA wq.s
qt
Parliament Committee stage and
not, in a nonnal plenary sitting.
31. The majoritg Jttstices of the Constitrttlonal Courl
etted in
Jact
ln holding thot members of Parllament
obtained o report of the Commlltee three dags prlor to 78n
December 2077.
32. The najoritg Jrtstices oJ the Constittttional Court
erred lnfact tn holding that enough mcmbers and all those
who utanted to debate ho,d debated the Bill before voting
on the second reading.
PART E: GROUNDS RELATING TO THD CONCEPTUALIZATION AND
PROCESSIIVG OF THE ACT BY WAY OF A PRIVATE MEMBER'S BILL.
33. Wthout preJudice to the abotre, all the ledrned.
.Ifustices oJ the Constitrttionql Court erred in lqw and
fact
18
in holding that the Motion to lntroduce the priuate
members Bill, the Bill Ttself and the entire process dld not
contralrlr,e Article 93 of The Constittttion.
34. The majoritg Jrtstices of the Constitrttlonql Court
erred in lqut and
fact
in holding that the initlo'l m.otion
and Bill bg Hon. Rapheal Maggezi did not make provision
for
and/or had etfect of a charge on the consolidqtedfund.
35. Tlw majortty Jnstices of the Constittttlonal Coutt
erred in lqw
qnd
Jact
in hotding that there uras a
requlrernent
for a
Ceriificate of ?inancial implications
instead of gouentment presenting the inpugned Blll ttse$.
36. The majoritg Jttstices of the Constittttional Couta
erted. in law tn relglng on the prouisions of SectTon 76 of
The hftlic Finqnce Management Act, 2075, to deviate
from
the clear prouisions of Article 93 of the Constittrtion.
PART F: CROUA,DS RELATING TO FAILVRA OF PWt tC PARTICIPATION IN
PROCESsIIIG OF THE ACT.
37. The maJoritg Jttstices of the Constittttional Coura
en'ed in lqw and
fact in
upholding preuention of the
petitioner
Jrom
attending Parliamentdry gallery during
the proceedlngs to
qmend
the Constittttion.
38. The majorttg ,htstices of the Constlttttlonal CourA
erted. in laut andtact ln holding that preuenting members
,
o
o
10
15
20
25
19
5
,
o
5
10
20
25
of Parliam.ent
from
debating on the Bill was not
Jatol
in
the constittttlonal amendment process.
39. The majoritg Jttstices of the Constitrttional Court
en'ed in lqw andfact ln no,king aJinding thqt in absence
of regulations
for
publtc partlclpation, Parllo;mcnt was not
bound to cang out ltublic
parttctpation qnd/or
thqt what
it dtd was sufficient.
40. The majoritg Jttstices oJ the Constltrttionql Court
ert'ed in lqw and,
tact
when theg, afier
finding that
the
constitrttlon prohlbtt"s gouendng people against thelr will,
did not nullifg the entlre Act to which people were not
constlted and which ura,s processed in d tnnse, chootic and
lmilitary mo,nn.er.
PART G: CROUITDS RELATING TO PARTICIPATION OF ARMED FORCES,
WOLEI,ICE AND RES?RIC?IOAIS ON FUNI'AIIIENTAL HUIIIAN RIGT'TS
'II
PROCEsSING THE ACT,
41. All the lerrnr,ed.ftrsf,ices oJ the Constihttional Court,
erred in law and
fact
when theg condoned aiolatlon of non
derogable rights agalnst torture, inhum,an and degrading
treatment and ualidated the resultant outcorne which wq.s
tainted.
o
20
42. All the leqrned.ftistices of the Constitrttlonal Coura
erred in laut andfact ln holding that since the mcmbers of
Parliament called violence
Jor
themseltr,s, tle torture,
lnhumtzn degrading treqtment ago;inst them cannot be
15
5 held to be unconstlttttional and that the resulto,nt Act
cannot be inaqlidqtcd on ground of violence.
43. The maJoritg Jttstices of the Constifirtionql Coura
erred in law and
tact
in
tailing
to inaalidqte the entire
impugned Act on the bqsis of its being processed o,midst
uiolence inside o,nd outside of Parliament.
44. The majority Jnstices of the Constittttional Court
erred ln la,w and
fact
in reJusing to inaalidate the entire
law on the basis of a police circtldr ad.d.ressed. to o;nd
cornplled wtth bg Uganda Police Force commanders in
Uganda.
45. The majoritg Jttstices of the Constitrttional CourA
erred in laut andJact when theg
failed
to declare the entire
impugned Act unconstittttional afi,er making a
findlng
that the restrictions on
fundamental
rights during the
process were not demonstrablg justifiable in a
free
and
democrqtic societg.
46. The majoritg Jrtstices of the Constittttional Court
erred in lqw andfact uhen tlrcgfalled to nullifg the entire
Act aft,er m,aking a
tinding
that the presence oJ Uganda
Peoples Defence.F'orces in Pqrliqment wrrs not called
tor.
47. The naJoritg Jttstices of the Constittttionql Court
en'ed in lqw and
tact
in
tailing
to nullify the entire Act
,
o
15
20
25
o
27
10
,
o
5 afier mo,klng a
ftndlng
thdt the pollce clrqtlar uthlch
c:ratta;lle d publlc p artlclp atlon utas uncortstlttttlonaL
48. The maJority Jnstices oJ the Constittttionql Court,
en'ed. ln laut and
Jact
when theg held tho:t the police
circular, which wo,s enforced countryuide, had no elfect
on the qmendment of the Constihttion.
49. The maJoritg Jnstices of tlv Constittttional Cout't.
en'ed in lsw and
fact
in holding that the actions of the
Uganda Peoples Defence Forces urere demonstrablg
Justifiable
ln a
free
o;nd democratic societg.
50. The majority Jtrstices of the Constitrttional Court,
erred ln laut and
fact
when theg held thdt the ololence in
Parliament, uthich theg
found
to be uncalled.
Jor
and
unconstltrttional, dld not uttiate the entire lqut.
PART H: GROUIIDS RELATING TO NON-COMPLIANCE WITH THE RU/"E,S OF
PROCEDURE OF PARLIAMENT AND/OR ALIG,/,ING THEDI WITH
co.Us TI?u?IoIvrr PRo wsrofls.
51. All the leanted &stices of the Constittrtional Courl
erred. in laut andJact uhen theg held that the Speaker has
sueeping pouters to prevent the petitioner
from
accessing
Parlitzment without
q.
resolution of Parltannent or anu
Rules gazetted
Jor
that purpose.
52. The maJoritg ,lustices of the Constittttional Cour-t,
erred. in law and
fact
when theg held that the Speaker,
o
10
15
20
)',
25
,
10
o
15
20
25
o
solelg, has pouers to detertnine the business of Parllo,menf
ond Order Paper.
53. All the leo;nted &sf,ices of the Constit;.ttional CourA
en'ed in law and
fact
when theg justified and upheld
szspension and. euiction oJ members of Parliament on the
same dag of reading out there na.m.es.
54. The maJority Jrtstices of the Constittttionql Court
erred ln law and.
Jact
in holdlng tho:t non-second.ment of
the motion to suspend the Rules of Parllament requiring
separatlon of at least three sittlngs afier presentatlon ot
the Commlttee Report utas not
fatal
to the Constlttttional
Amendment process.
55. The maJoritg Jttstices of the Constitrttional Court
erred in laut and
fact
in hold.ing thqt the Speaker was
justiJied in entertqining Hon. Raphael Maggezi's motion to
present a priuate mernbers' Bill eartier than the eq.rlier
motion of Hon. Nsamba
for
d resolution
for
establishment
oJ a constlfi.ttiona,l reuieut commission.
56. The majority Jttstices of the Constihttiondl Coutt
erred. in law and.
fact
uhen theg upheld the Committee
report which was signed bg members of Parllament who
did not panticipate in the hearing oJ the publlc dnd. other
Committee processes.
23
,
o
5
10
15
20
25
58. The maJottty Jttstices oJ the Constittttionql Court
etred in law when theg held that the Speo'ker ot
Parliament has unJettered powers in Parliament.
59. The maJority Jrtstices of the Constittttional Court
etred in lqw andtact in upholding the suspension ofRules
of Parliamrlnt durlng the constittttional amendmcnt
process.
60. The tnajority Jttstlces of the Constlttttlonal Cour.f,,
en'ed. in laut and
fact
uhen theg
failed
to applg estoppels
against the Spedker in respect of an un-seconded motion
and crossing and sitttng of members of Po;rlio;ment to the
opposite side.
61. All the leqrned &stices of the Constittttional Court
etted in laut and
fact
uhen theg held. that in a multi-parAg
dispensation, o,bsence of opposition members oJ
Parliament does not render Parlia,ment not
fulls
constituted.
62. All the learned &stices of the ConstlttttTonql Court
erred in law and
fact
tll.hen theg ualtdoted, t v Spealcer's
o
24
57. The rnajoritg Jrtstices oJ the Constittttional Court
etred in law in justifying and upholdtng the Speaker's
refusal to close the doors of Parllannent chambers during
the roll call voting on the 2"d
qnd
3d reading of the Bill.
PART I: GROUITDS RELATING TO MULTI-PARTY DEMOCRACY.
t
5
10
o
15
20
a
25
arbitrary decision to allout ruling party mcrnbers of
Pqrlirrrnent to cross and sit on the opposition side.
63. The najoritg Jttstices oJ the Constltrttionql CourA
erred in law and
Jact
when theg, after
finding
thqt und.er
nortnrrl circttmstances, opposition members of Parliament
ha,d to be in dttendantce, uent
q.head
to ualidate part of
the Constitrttional amendmcnt Act.
PART J: GROUMS R.ELATING TO REMOVAL OF AGE LIiWIT QUALIFICATIONS
rOR PRES^rDEMT OF THE RBPIIBLIC.
64. The maJorlty Jrtstlces of the Constltrttlonal Coura
erred in laut and.
fact
ushen theg dtd not
ftnd
that
amendment of Ariicle 1O2(b) otthe Constittttion amounted
to colourable lcgislatiotdomendment of Articles 7, 2 llnd
3(2) of the Constittttion in a manner prohlblted bg the
Constittttion.
66. The majority Jttstices of the Constitrttional CourA,
erred in laut and
fact
uhen they held that qualifications
and disquallfications of a President under our 7995
25
65. All the leo.rned.ftrstices of the Constltrttlonal Court.
en'ed. in laut and
Jact
in not
ffndtng
that amcnd,ment oJ
quatift.cations qnd
dtqualiftcations of a President und.er
our 7995 constitution
qmounted
to a constlttttlonal
replacement which Parllament had. no power to do,
,
5
10
o
15
20
o
)(
constifuttion is not one oj the core structttres embedded in
the Constittttion.
67. The naJorlty Jttstlces oJ the Constlttttlonal Courl
erred in law and
Jact
tn upholding lifttng of the age llm,lt
on ground that etnn mcmhers of Parliament luve no ctge
Itntt.
68. The majoritg Jttstices of the Constihttional Coutl
erred in lqw and
fact
when theg
failed
to m.ake a
finding
that the justlft.cattons
tor
tlrc remoaq.l oJ age-lirnits were
tllmsg,
selfish, irrqtionql
qnd
not demonstrqblg
iustifiable
in a
free and
democratLc socletg and not alloued bg the
constihttion renderlng the amcndment null and uoid.
PART K: GROU,DS RELATING TO GENDRAL MISAPPLICATION OF
PRilVCIPI-ES OF COIVS?fiUTIOI'IAL INTERPRETATIO N
69. The majority Jttstices of the Constittttional CourA
erred in law and
fact
in not inualidating the Act afier
naklng a
findtng
that the process utas ttarred. urith
tension and chaos.
70. The majority Jttstices of the Constittttional Courl
erred in law in holding that members oJParllam'ents' r'lght
to represent the people is not absolute.
71. The maJorltg Jttstices oJ the Constittttional Court
erred in laut uhen theg applied. the
26
t
5 substantial,/quantltatfun eJfect test in detertnining the
ualidtty of the Constlttttionql Amendment Act.
PART L: GROUIIDS RDLATING TO SEPARATION OF 14 Sr?"I IG DAvS
BETWEEN THE 2ND AND 3RD REIID'IVG AND PRESIDENTIAT ASSEJYT TO THE
IMPUGNED BILL.
72. The maJoritg Jrtstices of the Constitrttionql Coura
erred in lqut and
fact
in holding that separation oJ 74
sitting dags of Pqrlio,ment wo"s not mandatory
for
the
entire Bill to
1oqss.
73. The majoritg Jttstlces of the Constittttional CourA
en'ed in laut and
fact
when theg held thc;t the Cert{icate
oJ electoral commission that a reJerendum u)as held in
respect oJthe entire Bill uo"s not required in reqtect of the
entire Bill.
74. The mqjority Jttstices of the Constittttional CourA
erred ln la,ut and
fact
in
faillng
to declare the
false
and
legallg insuffictent Certtficate of com;pliance irunlid.
75. The maJorltg Jrtstlces of the Constitrttional Cour-t,
erred. in ldut and
Jact
tn failtng
to declare the entlre Act
tnualtd afier making afinding that the pre-conditlons of a
Presidential assent were not
followed.
PART M: GROU.IVDS RELATING TO CONTINUATICE IN OFFICE OF A
PRE,S.IDENT ELECTED IN 2016 ON ATTAIMNG 7sYEARS.
o
10
15
20
25
a
27
t
76. The majoritg Jttstices of the Constitrttiondl Coutt
erred in lqut uhen they held that a Presldent elected in
2O76 is not liable to uacate office on attaining the age of
7Sgears.
77. The najority Jttstices of the Constittttionql Court
erred in law and
fact
ulen they held. that the
qualiftcations oJ a President should not be mo:intained
through hislher stag in office.
PAR?.IV: CROUMS RELATING ?rO PRAYERS & PLEADINGS.
78. The najority Jttstlces of the Constittttionq.l Court
erred in lo;w and
tact
u)hen they held. that the petitioner
did not contest partlcltlar prouistons relatlng to age-limit,
extenslon of time
for
Supreme Coura to determlne a
Pre slde ntlal e le ctlo n petiti o n.
PART O: GROUTVDS RELATING TO REMEDIES.
80. The majori$ Jttstices oJ tlu Constlhttional Court
erred in laut in applging the princlple of setnrance of somc
sections in q
single Act in a situatlon uhere the
o
15
20
o
28
79. The lea;nted maJority Jrtstices of the Constlttttional
Cour't eted ln laut and
fact
uhen they proposed o;nd
granted a remcdg of seuerance whlch utas not pleaded by
the respondent both in his answer to the petition and o.ll
atfidadts in stpport thereto.
10
25
a
10
15
20
cornstifz.ttioa,ol anrrndtnent procedure uras
fatallg
unc onstittttlonal and defe ctiuc.
81. All the leanted &stices of the Constlttttional Court
en'ed in laut when theg denied the petitioner general
damdges on ground. that he did. not prorn thern
PART P: GROUMS RELATII,TG TO UNJUDICIOUS .EXERCISE OF
DISCRT?'ON.
82. All the leo,rned.ftrstices oJ the Constittttional Court,
en'ed ln laut and
fact
when tlwg unJudiciously exercised
their discretion in contrantention of basic legal principles
bg not summoning the qr.aker of Parliament
for
questioning on her role ln the process leading to the
lmpugned Act.
83. All the leanted.ftrstices of the Constlttttlonal Court
erred ln law and
fact
when theg in exercise of their
discretion unjudiciouslg without any sound rea,son held
that the petltioner is not entltled to professional
indemnitication.
84. All the leanrcd &stices of the Constitrttionql Court,
erred in law and
tact
when theg unJudtciouslg, without
qng
reosoning held that eqch petttion should recelue
professional
fees
of Ugx. 2O,OOO,OOO(Uganda Shillfngs
Tuenty Mlllton onlg.)
WHEREFORE., the appellant pragsfor orders tho,t:
o
o
29
a
5 a. The Appealbe allowed.
c. The Constittttional petltTon be remitted. back to the
constlttttional court for
expeditious hearing, in
compliance withJair learlng principles, beJore a diJferent
paneL
d. The appellant be granted general d.amages
for
inconueniences.
e. The costs ofthis appealandinthe courtbeloutbe paidbg
the respondent to the appellont.
f.
An intcrest of 25"/o per a;nnu,4n be patd, bg the respond.ent
on the
qboue
damages and costs.
IN THE ALTERI{ATIVE btrt uithout prejudice to the above, the
appellant prags
for
orders that;
g. The Priuate Members Blll" Constittttlon (Amendment) Bill
No. 2 of 2077 utds ban'ed. bg Article 93 of the Constlttttlon,
o
10
15
a
0
25
h. Fallure to complg wtth rnand.atory constlttttional
prouisions and the Rzles of Parliament, the ulolence,
tallure
of publtc partlclpation qmong
other lepses
rendered the entire process leading to enactment and.
cssent to the Constittrtion (Amendment) Act, 2078, null and
uold and of no elfect.
30
b. All the proceedings of the Constittttionql court were null
and uoid
for
derogating the rtght to
fair
hearing.
j. The costs ofthis appealqndinthe courtbeloutbe paidbg
the respondent to the appellant.
k. An lnterest of 25o/o per annum be paid. bg the respondent
on the above dannages and costs.
The Grounds of Appeal by the 2"d appellants were as follows:
The learned majoritg .ftrstices of tlrc Constittttional
Coura erred in laut and
fact
in holding thqt sections
7, 3, 4 and. Tof the constittttional(Amendment) Act No.
7 oJ 2Ola which rerrtote age limits
for
the Presid.ent
and Chairperson Local Council V to contest
Jor
election to the respectitre offices uere passed in
full
compliance with the Constitrttion of the Republic of
Uganda.
2 The learned najorifu.ftrstices of the Constittttional
Coura erred in laut and
fact in
holding that sectlons
7, 3, 4 and. Tof the constitrttional (Amendmcnt) Act No.
1 of 2ola r+.hich remote age linits
for
the President
and Chalrpersort Local Council V to contest
for
election to the respectiue olftces did not abrogate,
emascltlate or destrog the basic stntcAffe of the 7995
Constittttion of Ug anda.
a
o
10
15
20
25
O
i. The appellant be granted general damages
for
incontrniences.
*-1.
31
5
10
15
20
4. The learned majority.ftrstices oJ the Constitrttionol
Court ened in lo,ut and
fact
in
failing
to pronounce
themselues on the irnplied annendmcnt of Article 21 of
the Constitrttion bg the itnpugned Act.
The lea;rned majority.ftrstices of the Constitrttional
Court en'ed in law and
Jact
in holdtng tlvt the
ualtdttg of the entire lmpugned Act utcrs not
tatallg
affected bg the discrepancies and varlances betueen
the Speaker's Certlficate of compliance and the Bill
at the time oJ Presidential @ssent to the BllL
7. The learned, maJoritg .irstices oJ the Constitrttional
Courl erred in laut and
Jact
in holdlng thqt the
deplogmcnt and./or intertnntion otUganda Pollce and
WDF in the chambers and within the precincts of the
Parliannent bg causlng euictlon of some mem.bers oJ
a
o
5
o
32
3. The learned majoritg.ftrstices oJ the Constittttional
Court misdirected them.selaes on the construction
qnd
application of the basic stntcfutre d.octrine therebg
coming to a wrong decision.
6. The learned majority.ltrsffces of the Constittttlonal
Court erred in law and
fact
tn holdtng tho:t the
President oJUganda ualldly and lawfullg assentrd to
the Constitrttlonql (Amendment) Act, 20la ln the
circum,stqnces.
15
o
5
10
15
20
25
The learned majoritg .I?rstices oJ the Constittttional
Court erred. in laut and
fact in
holding that the
uiolence tho,t ensued
tollototng
the lnuaslon oJ
Pcrliarment bg Pollce and members of tlv WDF and
other sectrity agencies did not uitiate the process
leading to the enqctmcnt of the Constitrttionql
(Atnendtnent) Act.
The leqrned maJority.ftrstices of the Constltrttlonql
Court ened in law and
fact in
holding that the
impugned Bill qnd the process teading to the
enactlment otthe Constittttional (Amendment) Act did.
not contrauene the prouisions of Atticle 93 of the
Constlttttion.
70. The leanted majoritg.ftrstfces of the Constlttttlonal
Court en'ed 7n law and
Jact
in holding that the Ug.
Shs. 29,OOO,OOO1=
Fuentg
Mlllton Shfllfngs/ doled
out to each Honourq.ble Member of Parliament creahd
no additional charge on the consolldatedfund.
a
o
9
o
33
Parllamcnt wo,s
tustltled
to enable Po,rllo;ment to
proceed urtth tts Constlttttlonal mandate.
77. The let:rned majoritg.ftrstices of the Constittttionol
Court erred in law and
fact in
holding thqt there wq.s
no euidence to dernonstrate thqt the unconstittttionql
Directioe issued bg the Assistcnt Inspector General of
O
5
10
15
fn
25
Police, a one Asumqn Mugengl to District Pollce
Comlmanders on 76th October 2077, crrtailing publlc
patticipotion ura,s netEr implemented and thqt it had
adverselg alfectedthe entire consultatlue process and
the passing otthe impugned. Act.
12. The learned mojority.ftrstices of the Constihttlonal
Coutt ert'ed ln law andfact in holding that the public
consultation by Honourqble Members ojl Porliam;ent
took place
Jairlg
utell and that the lnstances of
interntption of pubtic consultatlon and pdrtlclpation
of the people in the enactrnent process of the
impugned Act bg Police througlaut the counfu dfd,
not render the entire Act a nullitg.
73. The leqrned majoritg.ftrstices oJ the Constlttttlonal
Court eted in law and.
fact tn
findtng
thqt the
Speaker of Parliament did not uiolatn the Rutes of
Procedure.
74. The leanted majorttg.ftrstices of the Constittttional
Coutt erred ln laut and
tact
7n holdlng thdt the
Speaker did not brea.ch the Rules oJ procedure
allowing Hon. Raphael Maggezl's motlon
for
leante to
lntroduce a priuate Memiber's Bill onto tlrc Order
Paper ol26th September 2017.
o
o
34
I5. The learned maJorttg.frrstices of the Constittttionol
CourA erred in lqw bg applging the substantialitg test
in euqluating and assessing the extent upon which
the Speoker dnd Parliament
Jailed
to complg with
and/or uiolated the Rules of procedure of Parliament.
76. The leqrned maJorttg.l?stices oJ tlw Constihttlona.l
Coura ened in ldu.t and
fact
tn holding thqt the extent
upon which the Speaker and Pqrliqment
falled.
to
complg rutth and./or uiolated, the Rules of procedure ot
Parliament did not aduerselg alfect the uhole process
of enacting the impugned. Act
qs
to render it null o;nd.
uoid in toto.
77. The learned majority.ftrstices oJ the Constittttional
Cour-t, erred. in law and.
fact in
holding thot the
Speaker ualid.lg and lautfullg exercised, her d.iscretlon
bg suspending Members of Parlidment
from
participating in the proceedings in the llouse.
Ia. The leanted Justices of the Constlttrtional Court
misdirected, themsehns ln orderlng counsel
Jor
both
parties ta proceed. wlth submissions before cross
examlnqtion of thelr respectiue uritnesses.
79. The learned.ftrstices of the Constitrttlonal Coutt erred.
in lqw in denying the Petitioners a rlght to rejoin after
closure of the Respondent's ca.se.
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20. The ledrned .trrstices of the Constittttional Coutt in
their conduct throughout the proceedings in the
consolidqted Petitions and
qll
applications arising
therefrorn acted uith material procedural
trregularities.
21. The learned. Jttstlces oJ the Constittttional Court en'ed
in lc;w in
fo;iling
to exercise their discretion to callJor
the euldence of the Speaker of Parliqment, Deputy
Speaker, Mlnister of Jrtstice
qnd
Constlhttlonal
AfJalrs, the Chairpersolt and the Vice Chairperson ot
the Commlttee of l*gal o;nd Po,rliqtnentary AJfairs
qnd
Hon. Raphael Maggezi.
22. The learned majoritg .ftrstices of the Constittttional
Coura mlsdirected themselues in lqw
qnd
fact
bg
tdiling
to take lnto considerqtion the Respondent's
failure to
adduce euidence of the Speaker ot
Parliannent, Deputg Speaker, Minister of Jttstice and
Constltrttional Affairs, Minister of Finance, Attonteg
General, the Chairpersort and Vice Chairperson of the
Cotnmittee of l*gal
qnd
Pqrliqmentory Affairs and
Hon. Raphael Maggezi.
23. T'he learned majoritg .ftrsttces of the Constittttionql
Court erred ln laut by
failing
to pronounce themsehres
ot7. a nurnber of the Appellants' pragers and
mtsapplglng tle doctrine of seuerance in detnnnlnlng
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24. The learned maJoritg &stices of the Constittttional
Court erred in lqut and
fact in
auarding UGX.
2O,OOO,OOO/= (Twentg Ivlillion Shillings) ots
professional
Jees Jor
each petition lncluding
Constittttlonal Petition llo. O5 of 2O18 and tuto-thirds
of the taxed disbursements to o.ll the Petitioners.
That thls appeal be olloused.
That the majoritg judgment and orders entered
for
the
Respondent against the Appellants bg the learned.Iustices
of the Constittttional Cour-t, in the Constittttional Coura of
Uganda
qt
Mba.le be set aslde and be substituted with the
following;
L That the Constitrttlon (Arnend.rnent) Act, 2078 fu
crnnulled.
fi. In tlrc alterndtive, but without prejudice to paragraph
E),
the
following
sections of the Constittttion
(Atnendtnent) Act, 20la hereunder listed. be annulled;
a) That section 3 of the Constittttion (Amendmcnt)
Act, 2O78 in as
far
as it putports to lifi th,e
minlmum
qnd maximtm
age qualificatton of a
O
wHERr,Fonp lt ls proposed to ask courtJor the follouting ordersl
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the ualtdttg of tle Constitrttional (ornendment) Act,
No. 7 of2O78.
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person seeking to be electcd as President of
Uganda.
b) That sectlon 7 of the Constitrttlon (Amendment)
Act, 2O78 in cs
Jar
as it purports to lift the
minimum
qnd
tnqximurrt dge gualification of a
person seeking to be elected @s District
Chalrperson.
fi|. Thci the invssion and/or heaug deplogment at the
Parliament bg the combined armcd
Jorces
oJ tle
Uganda People's Defence ?orces
qnd
the Uganda
Police
qnd other
militia in using violence, arresting,
beating up, torturing and subjecting the Appellants
and. other Members of Parliament to inhumo;n and
degrading treatment on the dag the impugned Btll
wc's tabled before thc Pqrliament amounted to
amending the Constitrttion using uiolent and
unlawful mea,ns, underrnined Parliamcntary
independence
qnd
democracg snd as such u)as
inconsistent urith and in contrquention oJ Articles 7,
3, 8A, 20, 24, 29, 79, 208(2), 2O9, 277(31 and 259 of
the Constittttlon.
N. Thqt the arbitrary actions of the armcd
forces
of the
Uganda People's Forces, Uganda Police Force and
other militia in
fntstrating,
restralning, preuentlng
and stopping some memibers oJ Parlio,ment
Jrom
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attendlng
qnd/or participating in the debate
qnd/or
proceedings of the House on the Constitrttional
(Amend.ment) Bill u)as inconsistent with and ln
contrqtnntion of Articles 7, 8A, 20, 24, 28(7), 79,
208(2), 211(3) and 259 of the Constltutlon of Uganda.
V. That the actiotts of the anned.
Jorces
of the Uganda
People's Detence Forces, Uganda PolTce and other
lmilttia to inrnde the Pqrliament while in plenary
therebg intlicting violence, beatlng, torturlng seueral
Members of Parllament
qt
the time uhen the motion
seeking leaue of Parliament to lntroduce the Priuate
Members' Bill. Constitrttion (Amendment) Bill No, 2 of
2077 utas being tabled was lnconsistent with
qnd
in
confr.anrntion of Articles 7, 3, 8A, 20, 24, 29, 79,
208(2), 2O9, 277(3), and.259 of the Constltntion.
W. The c.ctions of the anned
forces
oJ the Uganda Police
force
in beating, torturlng, arresting, and subjecting
severql Members of Parliament while in their uarious
constihtencies to consult the people on the
Constitrrtion (Amendment) Bill, 2077 wqs inconsistent
with
qnd
in contrauention of Articles 7, 3, 8A, 20, 24,
29, 79, 208(2), 2O9, 277(3), 259 ond26o of the
Constittttion.
VT. That tlp arbitrary decislon of the Inspectnr @neral
of the Ugand.a Pollce Force of restrlctlng seueral
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Members of Pqrlio,m.ent to their respecthte
constituencies in their bid to consult thelr electorates
on tlw constitrttion (Atnendtnent) Blll No. 2 of 2077
was inconsistent with andin contrauentl.on otArticles
7, 3,
gA,
20, 24, 29, 79, 2oae), 2O9, 271(3) and 259
oJ the Constltrttlon.
vfir. That the process leading to the enactmcnt of the
Constlttttlon (Amendment) Act, 2078 utas o,gainst the
spirit and stntcAre oJ the 7995 Constlttttlon
enshrined in the preamble of the Constittttion, the
National Objectlues and Dlrectiue Hnclples of statc
poticg qnd
other constitrrtional proulslons and as a
resttlt nrqs inconsistent with
qnd
in contrquention of
Articles 7, 2, 3, 8A, 79, 97 and 259 of the Constittttion
of Uganda.
XX. That the actions of Parliament to preuent members ot
the publlc, with proper ldentlficatlon docttments to
access the Po,rllatnent's gallery durlng the seeklng of
leaue and presentation of the Constittttional
(Amendment) Blll No. 2 oJ 2077 wo"s inconsfstent wtth
ond in contrauention of Articles 7, 8A, and 79 of the
Constlttttlon oJ Ug anda.
X. That the procedure and rnanner of passing the
Constitutlon (Amendment) Act, 2078 utas
JTauted.
utlth
illegality, procedural improprietg and the same was
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a violatTon oJ the Rules of Procedure of Parliannent
and thereJore inconsistent with and in contrquention
qf Articles 79, 97, 94, and, 259 of the Constitrttion of
Uganda.
XI. Thqt the actions oJ the Speaker ln entertqlnlng and
presiding ouer the debate on the impugned. Bill when
the natter on the so,me was before Coura wa's q
violation of Rule 72 of the Rule of Procedure of
Parliam;ent oJ Uganda therefore inconsistent with and
in controvention oJ Articles 79, 97, 94
qnd
259 of the
Constittttion of Ug anda.
Xfi. Thqt the arbitrary acttons of the Speo,ker of
Porliament to suspend the lst, 2ndrsrdr4th and Sth
Appellants who urere in attendqnce in the
Parliamentary Proceedings on the 7&h dag of
December, 2077, a sitting of Parliament where the
two reports on the Constittttion (Amendment) (No. 2)
Bill, 2077 were to be debqted wq.s a violotlon o.f Rutes
87
qnd
88 oJ the Rules of Procedure of Parllannent oJ
Uganda therefore in contrauention of Artlcles 28, 42,
44, 79,97,94
qnd 259
oJthe Constitrttion otUganda,
Thatthe
qctions
of the Speaker otParliamentto close
the debqte on the Constittttlon (Amendmcnt) Bltl No. 2
of 2O77 before each and. eLvry Member of Parliament
could debate and present the views oJ their
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cornstlfr.rcnts concernlng the Constihttional
(Amendment) Btll u)as a uiolqtion of Rule 133(3) (4 of
the Rules of Procedure of Pcrllament thereJore in
contrauention oJ Articles 79, 97, 94 and 259 oJ the
C o nstlttttlo n of U g ando.
xlv. Thc:tthe dctions otPartiamcntin waiving Rule 201(2)
requiring
q
mlnimum of three sittings
from
the
tabling of the Committee Repott on the Constlttttion
(Amendment) Blll No. 2 of 2077 wos ln contrauentlon
of Articles 79, 97, 94 and 259 of the Constittttion oJ
Uganda.
XV. That the purported decision of the Goventment oJ
Uganda to mqke an illegal charge on the consolldated.
fund
to
Jacilitate
the Constittttion (Amendmcnt) Bill
No. 2 oJ 2O 7 7 which utqs tabled a.s, a priuate memiber's
Blll was tnconsistent urith and in contrauention of
Artlcle 93 and 94 of the Constlttrtlon of Uganda.
xw. That the purported decision of the Governtnent of
Uganda to issue a Certiticate of compliance in regard
to the Constittttion (Amendment) Blll No. 2 of 2077
wrrs inconsistent with and in contranentTon of Article
93 and 94 of the Constitution oJ Uganda.
X\fil. Thqt the actions of the President oJUganda to assent
to the Constihttion (Arnendtnent) Act, 2ola was
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lnconslstz.nt urtth and ln contrauentlon of Artlcles 7,
2, 8A, 44(c), 79, 97, 94 o;nd 259 oJ the Constlttttlon.
3 That the Respondent pags costs ojl this Appedl and in the
Coura below.
The Grounds of appeal by the 3'd Appellant were as follows:
7. The learned maJorlty.ftrstices oJ the Constitrttional Court
ett'ed ln law o;nd
fact in
holding that possing o;f the
Constittttion (Amendmcnt) (No.2) Blll 20 7 7 lnto lo,ut utlthout
Pdrlirlment
first
obseraing 74 dags of Parliament sitting
between the 2nd and 3.d readlng is not inconsistent unth
the 1995 Constltutlon of the Republic oJ Uganda.
2. The learned maJority Justices oJ the Constitrttional Court
en'ed ln law and
fact in
holding tho:t the entire process of
concephtdlizlng, consulting, debotlng and enactm'ent oJ
the Constittttlon (Amendment) Act 2078 did not in ang
respect contrquene nor uras it inconsistent wlth the 7995
Constlttttion of the Republic of Uganda.
3. The leanted maJoritg .]trstices oJ Constitrttlonol Court
misdirected thernsehrcs uhen theg held thoi the
Constittttion (Amend.mcnt) Act 2O1a is not inuo.lid
for
the
reat ons tho:t some of the sections tlcrein are inconsistcnt
with prouisions of the 7995 Constlttttion of the Republic ot
Uganda.
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4. The learned majority Jttstices of Constitrttional Court
erred in law when tleg found
that there utere breqches ot
the Constltrrtion o;nd
failed to
make orders ort the
Appellant's pragers.
Wherefore lt is proposed to ask the CourA
for
the Jollowing
ordersl
7. That the appeal be
qllowed
2.That the majoritg
Judgment
dnd orders entered
Jor
the
Respondent against the Appellants bg the leqrned Justices of
the Constitrttional Coura in the Constltrttional Court of Uganda
at ltlhale be set aside and be substituted with the
following;
ti. In the
q.ltento,tir;e
but uttthout prejudice to paragraph (i)
section 3 of the Constittttion (Amcndment) Act, 2078 fu
annulled and. d.eclared unconstittttional in as
tar
as it purports
to
(ifi
the mlnim:ulrn
qnd
ntqxlnturn age qualtfication of a person
seeking to be elected
qs
President of Uganda undennlnes the
souereignty and civic participation of the people of Uganda and
is inconsistent ulth Artlcles 7, 8A, 38, 705(7) and 260(7).
iii. that the
qctions
of the seatritg
Jorces
in entering
Prr;rllament, assaulting and detaining mentbers of Porliament
is inconsistent with or in contrqvention oJ Atticles 23,24 and
29 oJ the 7995 Constittttlon of the republic of Uganda.
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t. Thatthe Constittttion (Amendment) Act, 2078 be annulled. and
declare d unconstittttional
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a. Thaf the passing of the Constitrttion (Amendment) (No.2) Bill
2077 at the second and third readlng utithout the sepdration
of ot lea.st
fourteen
sitting dcrys is unconstitrttionql
qnd
inconsistent with Articles 7,705(7), 26o(2tb) & (l) and. 263(1) oI
the Constittttion.
d. That the acrtlons of Parliament waiuing Rule 2Ol (21
requiring a minimum of three sittings
from
the tabling of the
Commlttee reporA on the Constittrtion (Amendment) (No.2) Blll
20 7 7 wo"s ln contra uention of Articles 79,9 7
,94
and 259 of the
7995 Constittttlon of the Republic of Uganda.
Agreed fssues for determinetion:
/
The three appeals were consolidated by consent and heard together
in this Court as well and the issues agreed upon for determination
are the following:
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ia. That the entire process of concepdtdlizing, tabling,
consltltatlon, debatlng and. possing of the Constittttion
(Amendmcnt) Act, zola utas inconslstent and ln contrauentlon
oJ Articles 7, 8A,29,38,69(1),72(7),73 and 79 of the 7995
Constlttttion of the Republic of Uganda.
3. Thqt the Appellont prags
Jor
costs of this Appeol and 7n the
Court below.
7. Whether the learned.ftrstices of the Constifr,ttlonal Court
mlsdirected themsehres on the appllcation of the basic
strucfulre doctrine.
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2. Whether the l.eamed najodty.ftrstices of the Constittttlonal
Court eted in laut andfact in holding that the entire process
oJ conceptuallzing, consultlng, debatlng and enactrnent ot
Constlttttional (Amendmcnt) Act No. 7 of 2O78 did not in ang
respect contrantene nor wq.s it inconsistent with the 7995
Constittttion of the Republic of Uganda and. the Rules of
Procedure of Parliannent?
4. Whether the leanted .ftrstices oJ the Constitrttionql Court
erred in laut uhen theg applted. the srbstantialitg test in
detzrmlnlng the petitlon?
6. Whether the Constittttional Court en'ed in law and in
fact
in
holding that the Presldent electad in 2O76 is not liable to
vqcqte office on o:ttaining the age of 75 gears?
46
3. Whether the leqrned .trrsf,ices oJ the Constlfi,ttional Court,
erred 7n laut andfact uhentheg heldthatthe violence/scttlfle
inslde and outside Parllament durlng the eno.ctment of the
Constittttion (Amendmcnt) Act No. 7 of 2078 did not in ang
respect contrauene nor u)as it inconststent with the 7995
Constltrttion of the Retrrublic oJ Uganda?
5. Whether the learned majority.trrstices of the Constittttionql
Court misdirected themselues uhen they held that the
Constitrttion (Amendmcnt) Act No. 1 of 2078 on the remova.l
of the age ltmlt
Jor
the President dnd Local Council V oJlices
utas not Tnconsistent with the provlsions of the 7995
Constltrttion?
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7 (a) Whether the learned Justices oJ the Constittttlondl Court
derogated the appellants' right to fair
hearing, tl'rr-
Judictouslg
exerclsed thelr dlscretion and comtnitted the
alle g e d pr o c e dur al in' e g uldritie s.
7 p) IJ so, what ls the effect of the decision of the Coura?
10 8. What remedies
qre
o;uqilo,ble to the parties?
Representation
The 1", appellant Mr. Mabirizi himself, the 2"d appellants were
represented by Mr. Lukwago Elias and Mr. Rwakafuzi assisted by Mr.
Mpenge Nathan and Mr. Nalukora Elias and the 3.d appellant was
represented by Mr. Wandera Ogalo assisted by Mr. Moses Kiyemba.
20
The learned Attorney General Mr. William Byaruhanga appeared in\-
person together with Hon. Mwesigwa Rukutana the Hon. Deputy
Attorney General, Mr. Francis Atoke the Solicitor General, Ms.
Christine Kahwa the Ag. Director Civil Litigation, Mr. Martin
Mwambutsya Commissioner Civil Litigation, Mr. Phillip Mwaka,
Principal State Attorney Mr. George Karemera, Principle Senior State
Attorney, Mr. Richard Adrole, Senior State Attorney Mr. Geoffrey
Madete State Attorney, Ms. Imelda Adongo, State Attorney, Mr.
Jonson Natuhwera, State Attorney, Ms. Jacky Amusugat, State
Attorney, Mr. Sam T\rsubira, State Attorney and Mr. Allan Mukama,
State Attorney.
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a
In their written submissions filed in Court, Mr. Mabirizi argued
issues 7,2,3,4,5,6 and 8 separately. Mr. Lukwago and Mr.
Rwakafuuzi argued issues 1,2,3, and issues 4 together, then issues
6, 7 and 8 separately. Mr. Ogalo argued issues 3, 5, 4
,
2 and 8. The
Attorney Genera-l responded to all the arguments on all the issues.
Mr. Mabirizi and the Attorney General raised preliminar5r objections
as well. They made oral highlights of their written submissions in
Court on the 1 5th and I 6th January
,
20 19 . We reserved our judgment
to be delivered on notice.
o
The Principles of Constitutional Interpretation
15 In determining this appeal, I shall be guided by the following
established and well tested principles of Constitutional interpretation
that have guided our courts:
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1. The Constitution is the Supreme law of the land and forms the
standard upon which all laws are judged. Any law that is
inconsistent with or in contravention of the Constitution is null
and void to the extent of the inconsistency.
2. The entire Constitution has to be read together as an integrated
whole with no particular provision destroying the other but
rather each sustaining the other. No one provision of the
Constitution is to be considered alone but that all the provisions
bearing upon a particular subject are brought into view and to
be interpreted so as effectuate the greater purpose of the
instrument.
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3. Where words and phrases are clear and unambiguous, they
must be given their primarSr, plain and natural meaning. The
language used must be construed in its natura-l and ordinary
sense. Where the language of a statue sought to be interpreted
is imprecise or ambiguous, a liberal, generous and purposeful
interpretation should be given. The interpretation should not be
narrow and legalistic, but should be broad and purposeful so
as to give effect to the spirit of the Constitution.
4. In determining the constitutionality of legislation, its purpose
and effect must be taken into consideration. Both purpose and
effect are relevant in determining constitutionality, either of the
unconstitutional purpose, or unconstitutional effect animated
by the object the legislation intends to achieve.
5. A constitutional provision containing a fundamental human
right is a pennanent provision intended to cater for all times to
come and therefore should be given dynamic, progressive,
liberal and flexible interpretation, keeping in view the ideals of
the people, their socio-economic and political cultural values so
as to extend the benefit of the right to those it is intended for.
6. The history of the country and the legislative history of the
Constitution is relevant and a useful guide in constitutional
interpretation.
7. Judicial power is derived from the people and shall be exercised
by the courts established under the Constitution in the name of
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the people and in conformity with the law and with the values,
norms and aspirations of the people and the courts shall
administer substantive justice without undue regard to
technicalities.
[See:
P.K Ssemwogere vs. AG Constitutional Appeal No. 1 of
2OO2 (SCl; Attorney General vs. David Tinyefunza,
Coustitutional Appeal No. 1 of 1997(SC); Attorney vs.
Salvatori Abuki, Constitutional Appeal No.l of 1998,
Attorney General vs Uganda Law Society, Constitutional
Appeal No.l of 2006 (SC); Livingstone Okello Okello vs.
Attorney General; Constitutional Petition No. 4 of 2OOS (CC)
and Article 126lll and (2f (e) of the 1995 Constitution.
Preliminary objections
Before proceeding with the determination of the issues raised in the
grounds of appeal, it is important to resolve the preliminary
objections raised by Mr. Mabirizi and the Attorney General
respectively to each other's appeal. I prefer to consider them first
before going into the merits of the appeal just in case they dispose of
the appeal without going into its merits.
50
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Mr. Mabirizi raised an objection to the written submissions of the
respondent on the ground that they had been filed outside the
schedule that the Court had given the parties at the pre-hearing
conference. That Court should strike them out on that account. We
considered the objection and found that, although it was genuine,
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this Court had power to validate such a document under Rule 2(2) of
the Supreme Court Rules in the interest ofjustice, and we did so.
The respondent on his part, objected to the entire Memorandum of
\,/'
Appeal filed by Mr. Mabirizi contending that it offended Rule 82 of
the Supreme Court Rules in that grounds of appeal set out therein
are speculative, argumentative, narrative, and insolent and an abuse
of Court process.
The respondent submitted that the appeal was therefore incompetent r,
and should be struck out with costs. He relied on the case of Beatrice
Kobusingye And Anor vs Nyakaaua, Civil Appeal No. 5 of
2OOa(SCl; and Hwang Sung Ltd vs M & D Timber Merchants and
Transporters Ltd
,
Civil Appeal No. 2 of 2018( SC), in support of
this objection.
The second objection by the respondent to Mr Mabirizi's appeal is
that the petition presented by Mr. Mabirizi in the Constitutional
Court did not conform to Article 137 of the Constitution in that it was
filed in December 2Ol7 ,
before the Bill had been passed into an Act.
Mr. Mabirizi did not amend his petition after the enactment of the
Bill. This failure renders his petition null and void. Miria Matembe
& 2Ors v Attorney General, Constitutional Petition No.O2 of
2OOS(CC) and Cardinal Nsubuga vs Makula International
Ltd(1982) were relied on in support of this objection.
Mr. Mabirizi opposed the objection. He contended that the essence of
the respondent's objections is that no appeal lies to this Court, since
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51
all the grounds of appeal offend Rule 82(1) and the petition was also
not properly before the Constitutional Court. This cannot be done
informally because Court may end up by striking out the appeal
without any evidence brought before it. This would defeat the ends of
justice. If the respondent was serious, he would have moved such
objections through an application under Rule 78 & 42(1) of the
Supreme Court Rules. He contended that, the situation would have
been different if the respondent was challenging one or two grounds
of appeal, but he was challenging the entire memorandum and the
entire appeal. According to Mr. Mabirizi, therefore, the objections are
incompetent and should be rejected by Court on that account.
Mr. Mabirizi submitted that, without prejudice to the above, the claim
by the respondent that the grounds of appeal are speculative,
argumentative narrative, insolent an abuse of the court process was
unfounded since Rule 82(1) is clear; it only prohibits grounds that
are
ttargument",
or
ttnarrative"
not "speculative, insolent and
abuse of the court process", as argued by counsel for the
respondent. According to him, what the Rule requires is that at the
end of stating the grounds of appeal, the appellant must state the
nature and order which it is proposed to ask the court to make, as
he had done in his grounds of appeal. He argued that as long as a
ground of appeal points out a specific complaint which is clear to the
extent that the respondent is aware of a specific complaint so as to
be able to contemplate what will be argued, such ground is compliant
with the Rule. He then went through the grounds of appeal and
contended that he was cautious with the requirements of the law and
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Mr. Mabirizi submitted that in the alternative and in the unlikely
event that this Court is convinced by the respondent's objection, the
Court should find that the respondent has suffered no prejudice,
since he was able to understand the complaints in the appeal and
adequately respond to them.
He further contended, the objection is barred by Rule 98(af of the
Rules of this Court which prohibits a party to an appeal from arguing
against the decision of the Court of Appeal without the leave of court,
except on grounds that are specified in the memorandum of appeal
or a cross-appeal or specified in a notice under Rule 88 of the Rules
of this Court. He submitted that when the respondent was served
with the memorandum of appeal, he had the option to file a cross-
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ensured that all the grounds were concise and fitted squarely within
the ambit of Rule 82(1). Counsel for the respondent had thus
misinterpreted Rule 82 (1) and Court should reject this limb of his
objection as well. He relied on the ruling by Mugamba JSC in
Rachobhau Shivabhai Patel & Anor vs. Henry Wambuga and Anor,
Civil Appeal No. O6 of 2O17(SC| in support of this submission on
this point.
Regarding the claim that the petition did not conform to Article 137,
Mr. Mabirizi contended that this claim is not only unfounded, but it
is belated and illegally presented as well, since the objection was
neither raised nor argued before the lower court, hence it cannot be
raised and determined at this level: See: Bitamisi v Rwabuganda,
SCCANo. 16 of2OL4.
5 appeal or a notice of grounds for affirmation of the decision of the
Constitutional Court under Rule 88 of the Supreme Court Rules
wherein he would have raised this objection, so he cannot raise it
now. See: Hamid ve. Roko Construction, Civil Appeal No. Ol of
2013.
t
10 He argued that even if the objection was competent, it lacks merit
and should be rejected since his /ocus arose the moment Parliament
prevented him from accessing Parliament because in that, there was
an act done by the authority of Parliament under the Parliament
O
Rules of Procedure and all the actions throughout up to the
1s purported voting were, in his opinion, inconsistent with or in
contravention of the Constitution. That his petition clearly challenged
the actions of the persons stated in the petition and hence passed
the test under Article 137(3). He said that the consequent processes
of assent and gazette had built on already challenged actions, but
20 even then, he argued the pleadings had captured them. He
emphasised that he had actually filed Constitutional Applications
No. 45 and.46 to halt the assent and gazette but they were overtaken
O byevents.
Ruling on the preliminary objection
1C
I have considered the arguments of both parties on the preliminary
point of law and also considered the relevant laws and authorities
referred to by both sides.
Regarding the first limb, Rule 82 provides that:
54
,
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25
"A
memorandum of appeal shall set forth concisely and
under distinct heads without argument or narrative, the
grounds of objection to the decision appealed against,
specifyiag the points which are alleged to have been
wrongly decided, and the nature of the order which it is
proposed to ask the court to make."
This Court has had occasion to comment on this Rule in similar
situations in a good number of cases including the ones cited above.
The Court stated in the case ofRachhobhau Shivabhai Patel Led &
anor \rs. Henry Wambuga & Anor(supraf that:
uThe
purpose of thls Rule is to ensure that the court
adjudicates on spec-ifc issues cornplalned of in the appeal
and to preuent the cbuse of tlv cour-t. process."
In HwanSung Ltd v M&D Timber Merchants and Transporters Ltd
(supra) this Court observed that:
"It
ls not enoughfor counsel to slmplg com;plain and state
that the Justices etred in lqw. He hc's to speciJy the error
commltted.."
In Beatrice Kobusingye & Anor vs Nyakana (supra) this court
observed that:
uThe
grounds of appeal mag ordinarilg be rejected. if o.ll or
ang oJ them ofJend. the Rules oJ the contents of a
o
30
55
15
20
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10
memona;ndurm oI c;trUreo,l and an objection to any grounds
of appeal ca;n be based on these prouisTons".
It is therefore clear from the above Rule that a ground of appeal must
be precise in challenging a holding or reasoning of the court and
specify the points wrongly decided. Failure to comply with the Rules
renders the ground incompetent and may be struck out.
I have examined the grounds of appeal by Mr. Mabirizi and I find
O
them outside the ambit of Rule 82. They are argumentative and
A perusal of the memorandum of appeal shows that Mr. Mabirizi
raised 84 grounds of appeal some of which were too general,
repetitive and argumentative which offended Rule 82 and ordinarily
were liable to be struck out.
20
a
Mr. Mabirizi rightly argued that the objection by the respondent was
irregularly raised contrary to Rule 98(b) and 78.
Rule 98 reads:
*At
the hearing ofan appeal-
(a) no party shall, without the leave of the court, argue that
the declslon of the Court of Appeal should be reversed or
varied except on a ground specified in the memorandum of
appeal or in a notice ofcross-appeal, or support the decision
56
15 rnconclse.
25
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ofthe Court ofAppeal on any ground not relied on by that
court or specified in a notice given under Rule 88 of these
Rules;
(b) a respondent shall not, without the leave of the court,
raise any objection to the competence of the appeal which
might have been raised by application under Rule 78 of
these Rules;
Rule 78 provides that:
"A
person on whom a notice of appeal has been senred may
at any time, either before or after the institution of the
appeal, apply to the court to strike out the notice or the
appeal, as the case may be, on the ground that no appeal
lies or that some essential step in the proceedings has not
been taken or has not been taken within the prescribed
time."
Further, the respondent was not prejudiced in any way since all the
petitions were consolidated and the same issues were raised by all
the parties to which he clearly responded. 30
57
In my opinion, the respondent should have brought an application
under Rule 78 to strike out the entire appeal on grounds that it is
incompetent and therefore no appeal lies but he did not do so and
neither did he give any sufficient reason nor did he seek leave of this
court as per Rule 98(b) of the Rules of this court.
10
,
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Regarding the issue whether the petition conformed to Article 137,
Article 137(3) reads as follows:
"A
person who alleges that-
is inconsistent with or in contravention of a provisioa of
this Constitution, may petition the Constitutional court for
a declaration to that effect, and for redreaa where
appropriate."
This Article has been interpreted by this court in the case of Iemail
Serugo vs. Kampala City Council & Anor, SCCA No.2 of 1998
where Justice Mulenga JSC (RIP) held that:
"
A petition brought under this prouision in mg opinlon,
sulficientlg discloses a cause of action, iJ it describes the
c,ct or omission complained. oJ and. shours the provlslon of
the Constittttlon with uthlch the act or omission ls alleged
to be inconsistent or uhlch is alleged. to haue been
contrauened bg the a,ct or omissfon and. prags
for
a
d.eclsrqtion to thqt eJfect."
58
(a) an Act of Parliameut or any other law or anything in or
done under the authority of any lawl or
(b) any act or omission by any person or authority,
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deponents of affrdavits under Rule 12 of the Constitutional Court
(Petitions and Referencel Rules. The respondent relied on the
decision of this Court in Hon. Ilsekikubo & others vs. Attoraey
General, Constitutional Appeal No. 1 of 2015 (SC), and Mbogo &
Others vB. Shah, [1968] EA 93 in support of his submissions on
this point.
In grounds 17, 18, 19 and 20 Mr. Mabirizi complained that the
learned Justices of the Constitutional Court did not refer to his
evidence and submissions, did not consider the authorities he had
presented in his submissions; that the majority of the Justices failed
to properly evaluate the evidence, pleadings and submissions and
authorities hence reaching a wrong conclusion. Mr. Mabirizi
contended that this was contra4l to Order 2 i of the Civil Procedure
Rules.
The respondent denied this allegation and contended that each and
every Justice of the Constitutional Court acknowledged the
pleadings, submissions and authorities in their respective
judgments. The respondent referred this Court to the judgments on
record.
Mr. Mabirki's other contention was that the Constitutional Court was
bound to determine all the matters in controversy between the
parties, but failed to do so.
o
The respondent submitted that the Justices of the Constitutional
Court duly determined and resolved all the issues in controversy as
presented in the pleadings, framed issues and submitted by the
15
68
respective litigants. The respondent further submitted that the core
subject matter referred to the Constitutional Court were issues for
Constitutional Interpretation regarding Constltutioaal Amendment
Act No. 1 of 2O18, under Article 137
11)
of the Constitution, and
the respective Justices of the Constitutional Court faithfully
interpreted the provisions of the Constitutional Amendment Act
No. 1 of 2018, uis a uis the Constitution and granted redress. The
respondent submitted that it is a question of style and one can only
determine this by reading the judgment. The respondent relied on the
decision of this Court in British American Tobacco (Uf Ltd vs
Shadrach Mwijiikubi & 4 others
,
Civil Appeal No. 1 of 2O12 (SCl,
in support of his submission on this point.
In grounds 6 , 7 alrtd 8, Mr Mabirizi complains that the Justices of
the Constitutional Court did not mention or even rely on his two
supplementary alfidavits
,
aflidavit in rejoinder to the Answer to the
Petition and supporting affidavits as well as the affidavits in rejoinder
to the affidavits of Mrs Jane Kibirige, Mr Keith Muhakanizi, and
General Muhoozi.
Mr Mabirizi further complained that the majority of the Justices of
the Constitutional Court did not determine the legality of the
substantial contents of the affidavits of Mr Keith Muhakanizi, the
Secretary to the Treasury that of General Muhoozi, the Chief of
Defence Forces, which were allegedly put in issue as hearsay. He
contended that the Constitutional Court was bound to make a
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decision on his application to strike out the said afhdavits, but did
not do so.
The respondent further contended that Mr Muhakanizi was cross-
examined and re-examined and testified that the Certificate of
Financial Implications was prepared under his authority as the
Permanent Secretary/Secretary to the Treasury and duly explained
the circumstances under which the Certificate was prepared.
Sources of information were duly disclosed. No hearsay therefore
arose in the circumstances.
In grounds 25 and 26, Mr Mabirizi accused the Justices of the
Constitutional Court of proposing answers to witnesses and
preventing him from cross-exzunining witnesses. He alleged that the
Court over protected Mr Muhakanizi and prevented him from
answering questions put to him.
The respondent submitted that the Court has discretion to regulate
cross-exarnination and guide litigants to cross-examine witnesses on
pertinent matters related to the litigation and surrounding
circumstances. The Court has the authority to limit cross-
examination including on matters that are speculative, irrelevant and
otherwise inconsistent with the Evidence Act. The court may further
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The respondent opposed this allegation, and contended that during
cross-examination, General Muhoozi testified that as the Chief of
Defence Forces, he was the best person to swear the affidavit in
l0 question since the operation was under his command and he passed
the instructions down the chain of command.
15
make an inquiry of the witness even beyond the inquiry made by the
lawyer cross exarnining the witnesses for the purpose of clarification
and obtaining wholesome testimony depending on the circumstance
of the case.
The responCent prayed that this court finds the Justices of the
Constitutional Court were fully justified in making their inquiry. They
set the ground Rules for cross examination to guide all the parties
and counsel, and cautioned them to keep within the Rules or lose the
opportunity to cross-examine. The respondent pointed out that the
DCJ actually guided Mr Mabirizi on his cross exarnination since he
was deviating from the ground Rules established and required him
to abide by the set Rules.
Another allegation by Mr Mabirizi is that the DCJ's interference was
to cover up the truth that General Muhoozi's affidavit was never
sworn. Mr Mabirizi also alleges the omission to Rule on the
admissibility of substantial paragraphs of General Muhoozi and Mr
Muhakanizi's affidavits could have been a deliberate effort to leave
hearsay evidence on record.
The respondent objected to these allegations on the basis that it was
not only speculative and offended Rule 82 of the Supreme Court
Rules but it is without merit, and should be struck out.
In grounds 79 and 8O, Mr Mabirizi complained that the majority of
the Justices of the Constitutional Court erred when they allegedly
originated the prayer and pleading of the appellant and granted the
remedy of severance which was not pleaded by the respondent. He
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5 further submitted that the majority of the Justices erred in applying
the principle of severance of some sections in a single Act, allegedly
in a situation where the Constitutional Amendment procedure was
fatally Constitutionally defective. Mr Mabirizi contended that the
Court had no power to frame sub-issues of whether severance can be
applied and whether non-compliance affected the Act in a substantial
manner which did not arise from the pleadings and that it was
contrar5r to his right to a fair hearing.
The respondent submitted that the core role of the Constitutional
Court under Article 137 (1) of the Constitution is to interpret its
provisions, while Article 137(3f (bf and L37l4l provide for the grant
of redress within the discretion of the Court based on the
circumstances pertaining. Accordingly, while declarations are the
primary duty, the Court may grant redress including the remedy of
severance either at the pleading or prayer of counsel or a litigant or
by exercising its own discretion.
The respondent further submitted that the Court has discretion to
require counsel or litigants to address it even on non-pleaded issues
and remedies and to accordingly frame issues for counsel and
litigants to address. The respondent contended that severance is a
well-established legal remedy and there is no bar to the Justices of
the Constitutional Court exercising their discretion to grant the
remedy of severance. The respondent contended that he addressed
Court on the remedy of severance at the hearing. Mr Mabirizi had
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5 every opportunity to address the Justices on the issue of severance,
and did not suffer any prejudice.
Mr Mabirizi also accused the Court of making a decision on its own
and inventing points, which is contrary to the principles of fair
hearing, Rules ofprocedure and decided cases.
The respondent submitted that in the course of conducting its
inquiry, the court has a wide discretion to draw on existing
Constitutional and legal principles both pleaded and unpleaded
depending on the circumstances of the case, and it is the duty of the
court to apply the relevant principles for the ends of justice. The
Justices of the Constitutional Court in applying the remedy of
severance relied on Adicle 2l2l of the Constitution as well as the
established authorities. Mr Mabirizi had opportunity to address court
on the said principles and authorities. No prejudice was occasioned
to him. Additionally, the authorities cited by Mr Mabirizi are related
to litigants being bound by facts and matters pleaded. They do not
preclude a litigant from relying on the abundant legal principles to
advance their cases.
Mr Mabirizi also alleged that the Court initiated and granted the
unpleaded defence that once there is no quorum, absence of
opposition is immaterial. He submitted that it was erroneous for the
court to raise the point of quorum which was not in issue.
The respondent submited and reiterated that in any adjudication,
especially Constitutional interpretation, the Court is at liberty and
had the duty to inquire into the entire factua,l and evidentiar5r
73
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5 circumstances of the case and review the entire breadth and depth
of statutes, authorities and literature in coming to its determination.
The respondent contended that in the Constitutional Court
specifically, the Court is not fettered in its consideration of the case
by limitations of litigants. That notwithstanding, the respondent
submited that the parties had equal opportunity to address court on
the issue and thus no party suffered any prejudice as they were duly
and fairly heard.
In grounds 5 and 82, Mr Mabirizi complained that the Justices of the
Constitutional Court erred and "unjudiciuslgf exercised their
discretion when they did not give reasons for their decision in
dismissing his application to summon the Speaker of Parliament for
questioning on her role in the process leading to the enactment of the
impugned Act. This was allegedly an abuse of discretion and in
contravention of basic legal principles, and the effect caught up with
the Justices and the respondent at the hearing. Without summoning
her, the Court erred in commenting and deciding in favour or against
her in their judgment.
In grounds 2l and 22, Mr Mabirizi alleged that the Justices of the
Constitutional Court erred in allegedly failing to exercise their
discretion to call for the evidence of the Speaker, the Deputy Speaker,
the Minister of Justice and Constitutional Affairs
,
the Deputy
Chairperson of the Parliamentary Committee of Legal and
Parliamentary Affairs and Hon. Raphael Maryezi and the majority
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74
misdirected themselves for allegedly failing to take into consideration
the respondent's failure to adduce this evidence.
The respondent referred to the ruling of the Court on record and
contended that the Court duly considered the arguments of the
respective counsel and pronounced itself on the matter of
examination of the Rt. Hon. Speaker before declining to grant the
order sought. The respondent contended that the Court ruling
contained the abridged reasons for declining to grant the application
and as such, Mr Mabirizi had due notice of the reasons for refusal.
The respondent further submitted that the decision to summon the
Speaker for examination was overtaken by events after Mr Mabirizi's
application No. 7 of 2018 seeking to cross examine the Speaker was
dismissed by the Supreme Court on the 14th December 2018.
Grounds 5 and 82 were accordingly rendered moot.
The respondent submited that notwithstanding the foregoing, this
Court should uphold the decision of the Constitutional Court not to
summon the Speaker who had not sworn arly affidavit for
examination since the Clerk to Parliament who is the designated
custodian of the records of Parliament had availed to court the
verbatim record of the Hansard and the Certificate of Compliance and
the counsel including Mr Mabirizi had the opportunity to cross-
examine her at length. The Hansard and the Certificate of
Compliance are recognised as public documents under Sectlon 73
and 75 of the Evidence Act, Cap. 8. Section 76 of the Evldence
Act provides that certified copies may be produced as proof of the
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75
5 contents of public documents. Therefore, the admittance of the said
documents in evidence was sufficient to enable the parties to litigate
the petitions and the court to determine matters in issue. The
Speaker cannot add or vary the contents of the Hansard since it
speaks for itself as a true, faithful, accurate, complete and impartial
account of the deliberations and decisions of Parliament.
The respondent further submited that neither Mr Mabirizi, nor
counsel for the 2"d appellants, sought to cross examine the Deputy
Speaker, the Minister of Justice and Constitutional Affairs
,
the
Deputy Chairperson of the Parliamentary Committee of Legal and
Parliamentary Affairs and Hon. Raphael Magrezi. The grounds of
appeal and submissions on this allegation are afterthoughts which
this Court should ignore.
In grounds 81, 83 and 84, Mr Mabirizi complained that the Justices
of the Constitutional Court erred when they denied him general
damages on the ground that he did not prove them; that the learned
Justices allegedly exercised their discretion "unjudiciuslg" and
without any sound reason, held that he was not entitled to
professional indemnification and further held that each petition
should receive professional fees of 2O million Uganda shillings. He
contended that the 2O million shillings awarded as professional fees
was withou'; basis, inadequate and below the standard set by Court
and that there was no need to prove general damages.
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Mr Mabirizi
compensation
further alleged that he was denied professional
on account of appearing in person whereas he is
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r0 The respondent contended that the awards by the Justices of the
Constitutional Court were purely discretionary under Artlcle f 37(3)
of the Constitution and pays that the Court finds that in the
circumstances, the redress ordered by the Constitutional Court was
O appropriate
15 Complainb bg the 2"d Appellants
The specific complaints by the 2nd appellants on issue 7 are set out
grounds 18, 19, 20,2L,22,23 and24 of their appeal.
20
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25 The 2"d appellants complained in grounds 2l and 22 that the
Justices of the Constitutional Court erred in failing to exercise their
discretion to call evidence of key government officials and individuals
who played a key role in the process leading to the enactment of the
allegedly a professional. He contends that the alleged denial of
professional compensation contravenes Articles 21, 28(1), 44(c),
L26lLl and (2f of the Constitution, Common law jurisprudence
against denying self-represented litigants costs and compensation for
time and resources spent on litigation.
In grounds 18, 19 and 20, the 2nd appellants complained that the
Justices of the Constitutional Court misdirected themselves in
ordering Counsel to proceed with submissions before cross
examination of the respective witnesses; that the Justices erred in
denying the petitioners the right to rejoin after the respondent's case
and that the Justices acted throughout the proceedings with material
procedural irregularities.
77
impugned Act including: the Speaker, the Deputy Speaker, the
Minister of Finance, Hon. Raphael Maryezi, H.E the President and
the Chairperson and Deputy Chairperson of the Legal and
Parliamentary Aflairs Committee and that the Justices misdirected
themselves by failing to take into consideration the respondent's
failure to adduce their evidence.
When they restricted their cross exarnination of the witnesses
to the averments in the affidavits of the respective witnesses,
allegedly in contravention of Section l37l2l of the Evidence
Act;
u. In directing the appellants to submit before cross exzunination
of the witnesses; and
l1l. In denying the appellants the right to make a rejoinder after the
respondent's reply.
Counsel for the 2"d appellants further submitted that the
Constitutional Court erred in law and fact and injudiciously
exercised their discretion in awarding 20 million shillings as
professional fees plus 2l3rds disbursement. This sum is, according
o
The 2nd appellants cited Rule 12(3) of the Constltutional Court
(Petitions and References) Rules and contended that the Justices
of the Constructional Court acted finJudlouslg" when they declined
O to summon the Speaker, moreover without assigning any reason.
15 The 2"d appellants complained about alleged procedural irregularities
and submited that the Justices of the Constitutional Court erred:
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In Baku Raphael and Anor v Attorney Geueral, SCCA No.1 of
2OO3 following the above decision, Odoki, CJ (as he then was) further
held that:
A perusal of Mr. Mabirizi's petition in the Constitutional Court shows
that it describes the acts or omissions complained of and shows the
provision of the Constitution alleged to have been contravened. It a-lso
prays for a declaration that the acts in Parliament were inconsistent
with the Constitution.
il
..
, ,_i ,. r
rJ-;;._. ,
:
In rny opinion he was challenging the actions during the passing of
the Constitutional (amendment) Bill No.02 of 2Ol7 into an Act as
being inconsistent with the Constitution and prayed for a declaration
to that effect. The petition therefore conformed to Article 137. That
notwithstanding, he also filed supplementary affidavits in support of
his petition as and when the Bill was passed and later assented to.
This in my view did not render the petition null and void. The
Constitutional Court interpreted some of these actions as
contravening andttheFs,es+et the Constitutiogarrd he
therefore had a right to appeal against the decision.
The case of Miria Matembe vs Attorney General (supra) is
distinguishable in the circumstances. Whereas that case challenged
the proposed amendments of the (Amendment) Bill No.2 of 20O5 and
o
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"
A liberql
qnd
broader interpretation should be given to a
Constitrttional petitton when determining whether d calz,se
of action has been established.' 10
a
this clearly falls under Article 137 (al, in Mr. Mabirizi's petition, he
challenged the actions/omissions of Parliament in passing of
Constitutional (Amendment) Bill No.2 of 20 17. This falls under Article
1s7(b).
O
They mainly alleged that:
15
o
a) The proposed amendments to some of the articles
referred to in article 26O and 261 will unduly be
subjected to the procedure in article 259 of the
Constitution.
25
b) The proposed amendments to some of the articles
referred to in article 259 (2) of the Constitution will be
unduly subjected to artiqle 260 of the Constitution.
5
10
60
In Miria Matembe's case the petitioners challenged the
Constitutionality of the Constitutional (Amendment) Bill No.2 of 2005
which was tabled before Parliament by the Attorney General/Minister
of Justice and Constitutional Affairs.
The act of the Minister in tabling before Parliament and of
Parliament debating the Constitutional (Amendment) Bill
No. 2 of 2OOS which combines proposed amendments to
articles specified in articles 259
l2l,
260
l2l
and 261 is
inconsistent with and contravenes articles 91 258, 259,
260,261 and 262 of the Constitution in as much as:
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That the said Bill in as far as it proposes to amend in an
omnibus manner several articles of the Constitution
without a specific two thirds vote in Parliament and where
uecessary in district councils and/or referenda on each
specific article and by subjecting the entire Bill to an
omnibus district council vote and natioual referenda
contravenes and is inconsistent with article 1 of the
Constitution."
They prayed for a declaration that the said Bill is inconsistent with
the Constitution and is null and void, an order that Parliament and
all its Committees should be restrained from further consideration of
the Bill and costs for the petition.
This is why the Court held inter alia that:-
"It
is clear to us that in the
first
litrtb ol Article 737 (3) (a),
the Constlhttlon provides
tor
the challenglng bg ang
person uho satisfies the releuant parts oJ the rest of
Artlcle 737, the Constitrttionalltg of an Act of Parliament
and not
q
mere drafi, proposoltor an Act oJ Parliament. IJ
the
framers
of the Constlttttlon lntended that the
Constlttttionalitg of a Bill
for
an Act of Parliament can be
challenged, theg uould hque clearly stated so."
61
cf The proposed amendments to some of the articles
referred to in artlcle 261 of the Constitution wlll be
unduly subJected to artlcle 262 of the Constitution.
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It should be noted that at the time of hearing and completion of Hon.
Matembe's petition, the Committee had also not yet submitted its
report for consideration and debate by Parliament. The Bill was
therefore still premature. Court then held that the petition was
therefore speculative, premature and misconceived. Court also found
that it did not raise any matters for Constitutional interpretation.
In the instant case, the record shows that Parliament passed the
Conetltutlonal (Amendment) Btll No.O2 of 2OL7 on the 2oth
December, 2Ol7 and the President assented to it on tl:e 27th
l), r l'.o,t
December, 2017. *t thre 22"d December, 2Ol7,,jVlr. Mabirizifiled his
petition in the Constitutional Court challenging the Constitutionality
of the actions of Parliament in relation to the Bill as well as the
Constitutionality of the term of the office of the President. In his
Petition in para 1, he alleged that :
"the
action of tlu respondent that the tenn of office of tlrc
cttn'ent Presldent expires in 2O27, afier the expiration of
5 gears is inconsistent wtth Articles 1O2(b) and. 7O2(c) of
the Constittttion.
Inpara2he alleged that: the actions of Parllamentto prernnt
Members of the pftltc to access Parllqmcnt's gallery
during the presentation of the Bill wqs inconsistent with
Articles 7, 8A and 79 of the Constittttlon."
He then prayed for:
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15
62
"q
declaration thqt the cctions of Parllament were
inconsistent utith the Constlttttion and
for
orders that
Presldential elections are cqttied out once the Presldent
attained 75 years oj age. He also praged
tor
an aword of
general d.amages cnd costs wlth inbrest of 25o/"."
On 270. December, 2Ol7 when the Bill was assented to, he filed a
supplementary affidavit updating and supplementing his averments
in the affidavits in support of the petition and on 4th January, 2Ol8
he filed another supplementary affidavit in further support of his
petition. In paragraph 1,2 of his 2"d supplementary affrdavit at page
95 ofhis Record ofAppeal A, he averred that:
u72.Thqt
the
q,ssent
which is null and uoid, coupled uith
the unconstifrttlonal actions complained ago:inst in my
petltlon, the afftdavit in suppora thereoJ rng I't
supplementary affidavit and this alfidavit render the ACT
a nere nullitg onlg awaiting to be declqred so bg Court."
At the time of the hearing of the Petition, the Bill had already become
law. In my view therefore, Mr. Mabirizi's petition was not premature
since it challenged the Constitutionality of the actions of Parliament
in passing the Bill (and was further supplemented in challenging the
Constitutionality of the Constitutional (amendment) Act. No. I of
2018) which was not the case in the case of Mlrla Matembe v
Attorney Geueral (supra). The petition therefore conformed to Article
137 and raised matters of Constitutional interpretation.
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Further, and without prejudice to the foregoing, I agree with Mr
Mabirizi that this issue was not raised in the lower court even when
the matter was being consolidated and issues framed, neither did the
respondent cross appeal in this Court as per Rule 87 and 98(a) of the
Rules of this Court. The respondent cannot therefore ambush the
appellant at this stage without being given an opportunity to be
heard. See: Hamid v Roko Construction, SCCA No. 1 of 2013.
Similarly, I would also re-echo the case of Bltamisi v Rwabuganda,
(supra) where a new issue was raised. The court held that those were
new matters that were not part of the parties' pleadings and could
not, therefore, be considered at that stage. In Tororo Cement Co.
Ltd v Frokina Internatlonal Ltd, SCCA 2l2OOl, it was elaborated
that it is proper and good practice to aver in the opposite party's
pleadings that the pleadings of the other side are defective and that
at the trial, a preliminary objection will be raised. This puts the
opposite party on notice and may save Court a lot of time. Otherwise
the best practice is to raise a preliminary objection at the earliest
opportunity as the determination of the same might dispose of the
matter.
In the premises, I do not find any merit in the preliminary objection
raised by counsel for the respondent and it is accordingly overruled.
Let me now revert to the issues framed:
Issue 7 lal:
Wlrcther the leo;nted Justlces of the Constlttttlonal
Court derogated the appellants' rlght to
fatr
ltearing, un-
t
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64
5
r
5 judtciouslg exercised their discretion and. committed. the
alle g e d pr oce dural irregularitie s.
This complaint was raised by Mr. Mabirizi in grounds
L,2,3,4,5,6,7,9,11,17,19,19,25,26,79,90,91,92,93 and
g4 of
his
appeal. The 2na appellant raised it in grounds 18, 19, 20,21,22,23
and 24 of their appeal. The third appellant did not raise this
complaint.
Mr. Mabirizi complained in ground 1 that the Constitutional Court
failed to hear and determine his petition expeditiously and to render
judgment within 60 days from the 19th April, 2018. This allegedly
derogated from his right to fair hearing and invalidated the decision.
The respondent contended that the Constitutional Court duly
expeditiously heard and determined the consolidated petitions as
required by the standard established by Article 137
l7l
of the
Constitution. Mr. Mabirizi suffered no prejudice or derogation of the
right to a fair hearing on account of the manner in which the hearing
and determination of the petitions was conducted.
He complained in ground 2 that he was evicted from the court's seats
occupied by representatives of the other petitioners and put in the
dock throughout the hearing and that was a derogation to his right
to a fair hearing and the Rules of natural justice.
The respondent denies this allegation and contends that the
appellant was courteously treated like other litigants and the record
clearly shows that he was accorded every opportunity to present his
,
a
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15
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He generally accused the Justices of the Constitutional Court of
proposing answers to witnesses and for turning into defence counsel
through excessive interruptions, citing remarks by the DCJ and
Kakuru JCC.
He alleged that he did not have ample time to present his case. He
also complained that he was denied the right to make a rejoinder,
and throughout the proceedings, the Justices of the Constitutional
Court were in a hurry, derogating his right to a fair hearing and
contravened international Conventions.
The respondent denied this allegation and contended that they were
in stark contradiction and undermined his complaint that the court
did not hear and determine the petitions expeditiously.
The respondent reiterated its earlier submissions that the learned
Justices of the Constitutional Court duly heard and determined the
66
case including: conferencing, making applications, cross-
examination of witnesses, submissions and receiving the judgment,
and no prejudice was occasioned to him.
In grounds 3 and 4, Mr. Mabirizi complains that a miscarriage of
justice was allegedly caused to him by the Constitutional Court when
the court did not give him ample time to present his case. He further
alleged extreme and unnecessaqr interference with his submissions
by court and this allegedly derogated his right to a fair hearing and
allegedly prevented him from substantially responding to the
Respondent's submissions by way of a rejoinder.
5 petitions according all parties an equal chance to present their
respective cases and the record of appeal fully demonstrated that all
parties to the petitions fully participated in the proceedings and had
ample time to present their cases.
With regard to the right to make a rejoinder, the respondent
contended that the appellants could only submit in rejoinder in
regard to new matters raised during the course of the respondent's
submissions. That contrar;r to Mr. Mabirizi's submissions, his right
to a rejoinder is not "outight and absolute"
The respondent refered to the record ofproceedings at pages 2226 -
2231 and contended that the learned Justices of the Constitutional
Court actually gave the appellants an opportunity to make rejoinders
before closing their cases. That Mr. Mabirizi was accorded an
opportunity to rejoin at pages 2230
-
2231. I shall reproduce the
excerpts later in this judgment during the determination of this
specihc complaint.
The respondent denied the allegation that the Constitutional Court
contravened international Conventions. He further contended that
the court is entitled and duty bound to inquire into submissions and
by seeking clarification where necessary. That the court has the
discretionary power to grant leave to allow cross-examination of
)
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67
The respondent further contended that the record of appeal
demonstrated that the Justices of the Constitutional Court were
deliberate and methodical as required in accordance with the Rules
cited.
15
a
5
10
15
20
25
to counsel, manifestly meagre, considering the nature and
significance of the subject matter.
The respondent submitted that the 2"d appellants, submissions were
preposterous and without any basis whatsoever. The respondent
submitted that the 2nd appellants neither applied to court for leave
to examine the Speaker nor did they apply or urge the Court to
exercise its discretion to summon the listed witnesses under Rule
l2l2l of the of the Constitutional Court (petitions and
References| Rules. The Respondent therefore reiterated its earlier
submissions in reply similar to complaints raised by Mr Mabirizi and
prayed that the Court rejects the 2nd appellants,complaints in these
grounds as well.
ISSUE 7(b): If so, what is the effect on the decision of the Court?
Mr. Mabirizi submitted that the alleged failure of fair hearing and
procedural irregularities rendered all the proceedings and judgment
void.
counsel for the 2nd appellants submitted that the said irregularities
limited the scope of the investigation by the constitutional court,
and it thereby failed in its dury under Article lg7(l) of the
Constltution and came to a wrong decision.
The respondent reiterated his submissions in issue 7(a) above that
the appellants participated at each and every stage ofthe proceedings
in the Constitutional Court and duly received a fatr hearing in
accordance with Article 28 of the Constitution. The respondent
o
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further submitted that the procedure adopted by the constitutional
court were entirely within their discretion and did not in any way
prejudice the appellant or occasion derogation of such right.
In conclusion, the respondent submits that the appellants have not
proved any of their respective grounds of appeal and prays that the
consolidated appeals be dismissed with costs.
Consideration of issue 7:
The complaint in issue 7 concerns (i) alleged derogation of petitioners,
right to a fair hearing under Article 28 and 44 (c
I of
the
constitutiou; (ii) Alleged'injudicious" exercise of discretion
,
and (iii)
alleged procedural irregularities by the constitutional court in
hearing anci determining consolidated petitions. I have perused the
transcript of the entire record of proceedings before the
constitutional court, I have also considered the grounds of appeal
as well as the submissions and authorities cited by counsel and Mr
Mabirizi.
Regarding the allegation of failure to determine the petitions
expeditiously, Mr Mabirizi submitted that he filed his petition in
December, 2ol7 and the constitutional court only heard it in April,
2018 and "in a relaxed manner where it could break for weekends
starting from Friday up to Tuesday. Then the court adjourned from
12th to 17th April for four days which was illegal.
l(
My view is that this allegation is not only unfair to the constitutional
court, but it cannot be determined fairly without establishing from
o
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o
the constitutional court itself the reason why they scheduled the
hearing of petitions that way. Besides, as the respondent rightly
pointed out, court is guided by Article 137 (71 of the constitution
which provides that:
"(7) Upon a petition being made or a question being referred.
under this Arttcle, the Cour-t. of Appeal shall proceed to hear
qnd.
determine the petition..cs soon as possiblet qnd
mag,
for
that purpose, suspend ang other matter pending before it.,,
In my view,
ttas
soon crs posstDld depends on the Court's workload
and schedule and I take judicial
notice of the fact that the
constitutional court is among the courts in this country with a huge
case backlog due to inadequate resource a-llocation by government.
The backlog comprises constitutional petitions as well. In such a
situation, Mr Mabirizi would be expecting too much from the courts
to determine his petition immediately it was filed regardless of other
constitutional petitions that would be pending before the court. That
is why the framers of the constitution used the expression
-cs
soon
as posslble". It is noteworthy that Mr Mabirizi equates his petition
to Presidentia-l election petitions which are given specihc timelines
under the Presidential Elections Act. The authorities cited are for this
reason inapplicable to his petition.
Most importantly I take note of the fact that the clurt was faced with
a very complex matter involving at least q[re petitions with
voluminous documents and pleadings that required the court to
peruse in order to prepare for the hearing. This included authorities
o
81
5 cited by the petitioners specifically Mr. Mabirizi who stated in this
court that he filed a total of 6o authorities before the constitutional
court. This would inevitably necessitate a lot of reading and research
by the learned Justices of the court which could not be accomplished
within a sh<.rrt time.
The same reason applies to the failure to deliver the judgment
within
60 days. Most importantly, it should be noted that the 60 days
requirement is not mandatory. The Uganda code of Judicia-l conduct
is simply a set of principles and Rules that were adopted by judicial
officers to provide guidance in judicial
conduct. Failure to comply
with it is not fatal to the judgement.
It says:
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Mr Mabirizi never inquired from the constitutional court whether it
had no good reason why the judgment
was delivered outside the 60
zo days. There is no law cited by Mr. Mabirizi that had been violated by
the court. The period must be in context. In most jurisdictions
cases
O
take more than six months. For this reason, I find that his complaint
has no basis.
25
Mr Mabirizi's complaint that he was evicted from the seat of the court
also lacks merit. It is a notorious fact that Mr Mabirizi is a law
graduate who has not yet been ca_lled to the bar since he has not yet
acquired the Post Graduate Diploma in Legal
practice
that is required
for his enrolment. He cannot therefore practice law from the bar
alongside other counsel with the requisite qualifications. That is why
82
"...WhereJud.gment is resetted, it should be deliuered. within 6O
dags, unless for oood. reason. it is not oossible to d.o so.r,
5 the Constitutional Court rightly advised him to sit where the rest of
the petitioners were seated. It should be noted that Mr Mabirizi was
given a separate desk and seat away from the bar even in the
Supreme Court. What is most important is that he was able to
present his petition without suffering any prejudice as a result the
seating arrangement.
The allegation that he was not given ample time to present his case
is unsubstantiated. He did not elaborate on how much time he
needed to present his case, and how much of his case, if any, was
left out. It also not on record that he asked for more time and the
Court refused to grant his request.
The allegations that the court turned into defence counsel and even
suggested answers were not substantiated by Mr Mabirizi. Regarding
the denia-l to make a rejoinder, I f,rnd that all parties were given equal
opportunity to present their respective cases. This was after the court
had from the outset, set out the ground Rules on how the
consolidated petitions would be heard This is the accepted practicel
"
,1.''
I also find that all appellants were given an opportunity to make
rejoinders before closing their cases and Mr Mabirizi actually did so
at page 223O to 3l of the record of proceedings. The Deputy Chief
Justice used the wrong term he called it "closing remarks' but they
were in essence rejoinders.
The Constitutional Court did not contravene any of the international
conventions as alleged. The court had the discretion to deal with the
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Irt
a
af
?5
5 petitions in accordance with the Rules of procedure, and it did
precisely that.
I have perused the judgments
of the five Justices of the
Constitutional Court, and it is crystal clear that the judgments
were
based on the pleadings, the affidavit evidence as well as the
submissions including the authorities relied on by the parties. The
fact that the Justices did not specifically mention all of them does
not mean that they never took them into account in arriving at their
decision. It is a question of style.
I also find that the Justices determined all the issues that had been
framed and agreed upon by the parties for determination by court.
The legality of the affidavits of Mr Muhakanizi and General Muhoozi
were not in issue. Even so, both officials had sworn the said aJhdavits
in their capacities as the highest technical officers in the UPDF and
the Ministry of Finance respectively. The allegations were against the
UPDF and Ministry of Finance. Musoke JCC rightly found that the
affrdavits in question did not contain any hearsay and declined to
strike them out.
I also frnd that the allegation that the DCJ was covering up the
affrdavit by General Muhoozi is baseless. I have checked the record
and I find that the afhdavit was sworn on 29th March, 20 18 before
one Annet Okwera as commissioner for oaths.
Regarding the issue of cross examination, I note that the witnesses
were cross examined with the leave of court. I note that the Court
gave leave on condition that counsel should confine the cross
84
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s exarnination to areas that were covered in the affidavits of the
respective witnesses. I am aware of the requirement of section rc7 L-k
but it does not apply in such circumstances. Section 137 applies
where the evidence is given orally in court.
As for the remedy of severance, I agree with counsel for the
respondent that it need not have been pleaded. Article l37l4l
empowers the Constitutional Court to
"(a)
grant an order of
redress."
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Regarding the failure to give reasons for dismissing his application to
summon the Speaker for examination, I find from the record that
Kakuru JCC who delivered the ruling on that said application
actually gave a reason for dismissal to the effect that the Court had
not found any reason to do so. He however added that the Court
would give a detailed reason later on in the judgment. Unfortunately,
the court, most likely through an oversight, did not do so. This was
an error on the part of the court. The issue is however moot now since
the Supreme Court dismissed application No. 7 of 2018 for a similar
request on the 14tn December, 2O18.
The request for the other officials were not made by both Mabirizi and
counsel for the 2"a appellants. The Constitutional Court cannot be
blamed for failure to summon them. Perhaps, as argued by the
.:
respond; the Court was satisfied that the evidence availed
particularly the Hansard together with the Certificate of Financial
Implication as well as the Certificate of Compliance by the Speaker
would suffice in the circumstances.
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Regarding the alleged injudicious exercise of discretion particularly
with regard to the professional fees
@,
and denial of professional
compensation to Mr. Mabirizi, it is well settled that an appellate
Court can only interfere with the exercise of discretion by a court of
original jurisdiction where:
where the
Judge rnisdlrects
him-self utlth regard to the
princlptes gouernlng tlte exerclse of his discretion;
o
ii. Where the judge
tqkes into account mo,tters that he ought
not to consid.erl or
fails
to take into
qccount
matters that
he ought to conslder;
ls lii. Where the exerclse of discretion ls platnlg urrong.
(See: American Express International Bankiag Ltd vs Atul
If
99O-
e4l EA 10 (SCU)
25
In conclusion I agree with the respondent that the procedure adopted
by the Constitutional Court was entirely within its discretion and did
not in any way prejudice the appellant or occasion any derogation of
his rights to a fair hearing.
20
a
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These awards were purely discretionary and the appellants have not
proved that the Justices misdirected themselves on the principles
regarding the award. This Court will not interfere with it. The same
reasons apply to the complaints by the 2"d appellants.
5 All the appellants participated at each and every stage of the
proceedings and received a fair hearing in accordance to Article 28
of the Constitution.
12.Whether sections 3 and 7 of the Act, lifting the Age limit were
inconsistent with and/or in contravention of Articles 21 (3) and (5) of
the Constitution."
Issue 6(9) was answered in the aJlirmative in respect to sections
2
,5 ,6 ,8,1
0 of the Act and in the negative in respect of sections I
,
3 ., 4
and7.
o
a
The appellants have not proved their respective grounds set out
herein, and they accordingly fail.
7(b) if so, n'hat is the effect on the decision of the Court?
In light of my findings on issue 7 (a), this issue does not arise.
Issue l: Whether the learned Justices of the Constihttional
Couri rnisdirectcd themsehrcs on the application of the basic
st ltcture doctrine.
15 Issue 5: Whether the leqrned. maJorttg .Iustices mlsdlrected
thernseh:cs when theg leld that the Constlttttlon (Amendment)
Act No. 7 of 2O78 on the rem.oual of the age limit
for
the
President and Lc,cal Council V Offtces wa-s not inconsistent with
the 7 995 Constlttttlon.
"6(9) whether the Act was against the Spirit and structure of the
Constitution.
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87
10
zo The issues before the Constitutional Court were:
Issue 12 was unanimously answered in the negative.
Submissions by counsel:
It is the contention of the appellants that the constitutional court
misconstrued the application of the basic structure doctrine when
they limited it to the extension of the term of Parliament and not to
the age limit.
Counsel also argued that the Article was also intended to place the
destiny of the country in the hands of a mature and not very old
President given the risks and dangers of political upheavals, coup
detats and rigged or sham elections.
a
a
Counsel for the appellants argued that the framers of the 1995
constitution deemed it necessary to enshrine within the text of the
constitution such provision of Presidential term limit and age limit as
1s would be necessar5z to give effect and operationalize the ideals
encapsulated in the preamble as well as the National objectives and
Directive principles of state policy. These provisions were intended to
guarantee orderly succession to power and political stabitity.
Therefore by amending Article 102 (b) after scrapping term limits,
20 Parliament not only emasculated the preamble to the constitution
a
but also destroyed the basic features of the constitution there by
rendering it hollow and a mere paper.
10
25
88
5
Counsel for the 2nd appellants argued these two grounds together
s1
t
15
20
Counsel for the respondent on the other hand argued that the
constitutional court rightly unanimously identified the features that
form the basic structure of the constitution and that the framers
carefully entrenched such provisions by various safe guards for
protection against the risk of abuse of the constitution by
irresponsible amendment of those provisions. Only people can amend
these provisions pursuant to Article 1(a). The Constituent Assembly
was alive to the fact that our society is not static but dynamic and
over the years there would arise a need to amend the constitution to
reflect the changing times. It was within the general power of
Parliament under Article 79 and259 to amend the Article 102(b) and
it did not in any way contravene the basic structure of the
constitution.
Consideration
The basic structure doctrine is a judicial principle that the
Constitution has certain basic features that cannot be altered or
destroyed through amendments by the Parliament in exercise of its
legislative powers. These features are considered to be fundamental
principles that give identity to the constitution. They are intended to
subsist forever to enable the continued existence and legitimacy of a
a
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89
5
The learned Justices of the Constitutional Court gave a detailed
history of the Basic structure doctrine in their judgment.
I do not
intend to repeat them. Let me briefly summarise the essence of the
basic structure doctrine in this Judgment.
10
5
o
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This doctrine was introduced by the Sr,rpreme Court of India as a
t+
.(
limitation on the power of Parliamenhas a measure against arbitraqr
l''
exercise of Parliament so that it would not be able to'amend the
J,o
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25
This doctrine became more pronounced in India following the case of
Kesavananda Bharati v State of Kerala, AIR 1973 SC which
imposed limitations upon the amendment power of Parliament in
amending the constitution in as far as certain features of the
constitution were concerned. The court held that:
This doctrine was affirmed by Professor Conrad Dietrich a German
jurist. It has since influenced the Constitutional jurisprudence in
several other jurisdictions across the world including, Taiwan; India
in the case of Minerva Mllls v Union of India, AIR 1980 SC 1789;
Bangladesh in the case of Anwar Hossain Chowdhury v Bangladesh
10 41 DLR 1989, App Div 169; South Africa in the case of
Enecutive Council of Western Cape Legislature v the President
of South Africa & Ors
lC,CT27l95) [1995]
ZAC.C 8; and Kenya in
90
country and therefore cannot be amended in a way which would
destroy the indestructible character of a constitution.
15
"Accordlng to the doctrlne, the amcndmcnt pouer of
Parllament is not unlimited.; rather it does not include the
poucr tp abrogate or change the identtty of the
constltrttlon or its basic
fedtures.D
5 Njoya v Attorney General & Ore
l2OO4l
LLR 4788 HCK. In all these
cases, it is generally established that there are certain features of the
constitutional order that are so fundamental and form the foundation
of the constitution and therefore carinot be changed by Parliament
even if it followed the necessaql amendment process.
In other countries however such as Tanzani.a, this doctrine was not
accepted because the Tanzanian Constitution does not contain any
provisions that cannot be amended. See: Attorneg Ge.neral us Reu.
Chrlstopher Mtlklla, Ciril Appeal No.45 of 2OO9 tn 2O7O (EA) 13.
,
i.(
Hoc*es, drere is no hard and fiist'Rule for determining the basic
'/1..,,,
structure of the Constitution. This is determined by Court on a case-
by-case basis. The ,courts have taken in account the historical
background, the preamble and the entire scheme of the Constitution.
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Various courts have identified certain constitutional core or set of
basic constrtutional principles that form the constitutional identity
which cannot be abrogated through the constitutional amendment
process. I{p{irerc
i-4t
is widely believed that the supremacy of the
constitution, democracy, federalism, independence of the judiciary,
secularism, human dignity, sovereignty of the people, separation of
powers and the Rule of law among others are part of the basic
features of a constitution.
In the Constitutional Court, the learned Justices rightly recognized
the fact that this doctrine is embedded in our Constitution and while
97
5 determining the basic structure of this country, the learned Justices
were guided by our constitutional history, constitutional structure,
political changes, preamble and national vision of the country.
The learned Deputy Chief Justice observed as follows:
"Ad.mittedlg,
the Constlhttion ts liable tp amcndment or
alteration; but, owing to its speclal cha;rq,cter as the
souereign legal instttr,m,ent,
.for ang
amendment or
alteration thereto to be justitied, there has to be
compelling reo,son
tor
doing sol and. the amend.ment must
be done in strict cornplionce with the msnner expresslg
provlded
for in
Chapter Eighteen of the Constittttion
ftself;..... The principal character of the 7995 Constitrttlon,
which constihtte its sttttct;.tral plllars, includes such
constlttttional princlples cs the sovereigntg oJ the people,
the Constittttion rzs the supreme tegat insttrlmenl
democratlc gotarnolrce and practices, cL unitory state,
separation oJ powers between the Exeqttiue, Parliannenl
qnd
the Judiciary, Bill of Rights ensurlng respect
Jor and
observance of
fundamental
rtghts, qnd
judtctal
independence. In tle
fullness of
their wisd.om, the
Jramers
of tle 7995 Constltrttion utent a stcp
larther
in clearly
tdenttfying proulslons of the Constlttttion, which tt
considers are
fandamental features
of the Constittttlon.
Theg caretullg entrenched. these provisions bg uorlous
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92
5 saJeguards and protection against the risk of abuse of the
Constitrttion bg irresponslble amendment of those
prouisions. The safeguards contqined. ln the prouisions
entrenched. in the Constittttion either
trrut
the respectiue
provlsions completelg and safely begond the reach of
Parllannent to
qmcnd them,
or
felter
Pqrllq.ment's powers
to do so and therebg deng it the
freedom
to treat the
Constittttion with reckless dband.on.'
e
10
I
Kasule, JCC observed that:
"....The Odoki Constitrttiondl Commission in d uag
addressed this issue oJ baslc sttttcture oJ the
Constihttion.... The Constituent Assemblg too accept*d
these recommcndations and reJlected them in the 7995
Constltrttion. Therefore, the d.octrine of baslc sttttcture is
embed.ded. in the 1995 Constittttion. Our history oJ
tgranng, uTolence and Constitrttional instabilifu is
dijferent from
that of Tqnzo;nia thqt has ha;d
Constitrttlonql stability since her becoming an
Independ.ent State, and. it is
fitting
thot Uganda ad.opted.
the doctrine of basic stt.rtcture. Accordinglg bg application
of the doctrlne of basic sttttcture, the Parlio,mr,nt of
Uganda can onlg amend the Constittttion to d,o awag or to
reduce those basic sttttctures such as sotnreigntg oJ the
people (Arttcle 7), the supremccg of the Constittttion
(Article 2) defence oJ the Constittttlon (Article 3), non-
20
t
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93
15
5 derogation of panticlt-lar baslc rtghts and.freedom.s (Article
44), democracg includtng the right to rnte (Arttcle 59),
pdrtlclpating qnd
changing leadership periodicallg
(Aritcle 67), non-establishment ota one-parAg State (Article
75), separation of pouters o:mongst the legislature (Article
77): ?he Executiue (Articte 98): The Judictary
@rticle
126)
and Independence of the Judictary (Article 728), utlth the
dpproual oJ tlrc people through a referendum as prouid.ed.
Jor
under Article 260 of the Constlttttion".
I
I Cheborion, JCC observed that:
I
10
20
94
u..Jaithful
intcrpretation of our Constlhttion girnn its
historicql background as earlier detqiled and in light of
its preamble
fauour
tlrc position that the bqslc sttltcture
d.oc*ine, to a restrictcd etdent, be upheld as applicable in
ottr legal sgstem to gotErn amend.ments to the
Constittttion. We must dlso take into accotr.nt our shored
aalues as a country uhich are allud.ed to in the Directive
Principles of Sto,te Poltcg. I ann not convlnced. tho;t
Parlic;ment, in exercise o/its pouers under Article 79(1) ts
tree
to efJect amendments thqt would in eflect replace the
Constittttion resulting
from
the consensus of the
Constituent Assemblg with
q new
one. Consequentlg, I hold
that the Ugandan Constittttion is deslgned. to recognise, to
a certain etdent, the basic stntct;.ll.e doctrine in its
preamble, national objectirns and Directive Hnciples ot
15
5 Stqte Policg read together with Article 8(A). In mg view, 7n
the Ugandan context tlrc basic strttcture doctrine operdtes
to presenn the people's sovereignty under Article 1 of the
Constitrttlon. Amendmcnts to the Constlf,rttlon slauld. not
be introduced or passed in q
manner that deteats our
countty's natlonal objectitres snd Directiue Prlnclples of
State Policy without the tnptt of the people in Gt
reJerendum."
Musoke, JCC observed that:
"...Wltether or not a proulslon is part of the baslc sttttcture
aaries
trom
country to country, depending on each
country's pecullar clrcr:,mstances, lncludlng its hlstory,
political challenges
qnd
national uislon. Inportantlg, in
ansuering this imporaant questlon, Courts uill consld.er
factors
such as the Predmble to the Constitntdon, National
Objectiues
qnd
Directlve Principles of Sto:tc Poltcg (in
countrles uhtch hante them in their constihttlons, szch cs
Uganda), the Bill oJ rights, the history of the Constittttion
that led to the giuen provlsion, and. the likely consequences
oJ the amcndment. I
find
that ln tlganda the Preqm.ble to
the Constittttion captures the sptrit behind. the
Constittttlon. The Constihttion u)cts made to
q.ddress a
history charactzrized bg political and, constittttionq.l
tnstability. The new Constlttttion is
for
ourselues and our
posterltg, rrnd. the Preamble is meqnt to emphaslze the
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95
5 populqritg dnd durabllitg otthe Constittttlon. htra,her stlll,
a critical aspect of the baslc stntcatre of out Constittttlon
is the empouertnent
qnd
encouragemcnt of
qctirrc
participation of all citlzens
qt
o,ll leuels of goaentance,
?his is the ho'llmork of the Democratic Prlnciple No. II (i)
of the NationalObiectiaes o;nd Directlue Principles o;f State
Policg. Alt the people of tlganda are assured oJ access to
leadership positions
qt
a,ll leuels.
[See
Dlrectiue Principle
il (i)l.The goal of ensurlng stabilitg is echoed 7n Directitn
Princtple No. IE. And pursuqnt to Article 8A, the Obiectiue
Prlnciples dre now justiclable. Anothet oJthe basic pillars
of our Constihttion is Arficle 7(7), uthich guarantees the
sornreignty of the people bg prouiding that all power
belongs to the people who shall exercise tlrcir sormeigntg
ln accordclnce with the Constittttion. The Bill oJ Rtghts to
be
found
in Chapter Four of the Constltrttion contains
fundrrmento,l
humo:n rights which are inherent and not
granted bg the Sto;te. The ones ln Artlcle 44 are non'
derogable and are part of the basic strltctt re which if
remoued or
qmended utould be replacing the Constittttion
altogether."
In summary, the learned Justices in the majority
judgment observed
the basic features of our Constitution to include the following:
o
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96
The national objectives and directive principles of state policy,
sovereignty of the people, the Constitution as the supreme legal
20
instrument, democratic governance and practices, a unitar5r state,
separation of powers between the Executive, Parliament, and the
Judiciary, Bill of Rights ensuring respect for and observance of
fundamental rights, judicial independence and, preamble.
Kakuru, JCC in his dissent also highlighted the basic structure of
the 1995 Constitution as follows:
l)The sornreignty of the people of Uganda
qnd
their
inalienqble right to detennine the
forrn
of gouernance
Jor
the Country.
2)The Supremacg of the Constitrttion as
qn embodlment
oJ
the souerelgn will of the people, through regular
free
and
tair
electlons
qt all
leuek oJ political leadership.
3)Poltttcal order through adherence to a popular ond
durable Constihttion.
4)Polittcal o;nd constlttttional stfrility based on
princlples oJ unlty, peace, equality, democracg, Jreedorn,
social justice and
1rublic
participation.
S)Aristng
from
4 dboue, Rule of laut, obsentance of human
rights, regular
free
and
tair
elections, public
ptzrticipation in decision making at o,ll leuels, seporation
of powers and accountabilttg of the gouernment to the
people.
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5
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6)Non-derogable righf.s andfreedom,s and other rights set
out in the extended. and. expanded Bill oJ Rights and the
recognition oJthe
fact
thatfundo,mentol Rtghts and
Freedoms are lnherent and not granted bg the Sto;te.
7)Ldnd belongs to the people qnd
not to the gouentment
qnd
as s:tch gouentment connot deprirn people of their
ldnd without their consent.
qhql of etnry citizen to defend the Constltrttlon Jrom
being sltspended, otnrthroun, abrogated or dmcnded
contrqry to its provisions.
I
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He concluded that:
25
"Parliqmcttt,
in mg view, has no pourer to amend alter or
in ang wag abridge or remoue ang of the
qbove pillars or
sttttcfr.rres of the Constlttttion, as doing so would. amount
to its abrogation as stipulatcd under Artlcle 3 (4). This ts
so, etan if Parliament uas to
Jollow
all the set procedures
Jor
amendment of the Constittttion as prouided.
98
8)Natural Resources
qre
held bg gouentment in tntst
for
the people and do not belong to gortentment.
7O)Parltament cannot make
q
law legalizing a one'pattg
strztc or reuerslng a declslon of a CourA of taw as to depriue
a party.'
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In thls regord thereJore, I
find
tho:t the basic sttttcture
doctrine dpplies to Uganda's Constitutlonal ordet having
been delTberatelg enshrined in the Constittttlon bg the
people tlem,sehtes. Mg uiew expressed qbove
is
tortified
bg
thefollowtng prouisions of the Constltrrtion. Articles 7 and
2 : These Artlcles establish the
Joundation
oJ the
Constlttttlon upon which o,ll other Articles are
qrchlued.
therefore in mg uiew cannot be qmended,
not even by a
reJerendum. Doing so would offend Article 3(4). Arttcle 3.
Thts orticle is reallg unique, and I haoe not seen or knoutn
of ang other Constittttion with a similqr Article, whtch
effectirnlg renders inapplicoblc to Uganda the Kelsen
Theory of pure lq.ut. Under Article 3(4) an o;m.endment by
Parllament mag hque the elfect of abrogatlng the
Constittttion euen if such an amendment ht:,s been enacted
through a
flawless procedure.
I say so, because on Act of
Pa;rliament amendlng the Constittttion is still subJect to
Article 2 thereof. It must pass the constitrttionality test."
I have quoted extensively from the judgments of the Justices of the
Constitutional Court to demonstrate how each of them resolved the
issue of the basic structure. I find that they have brought out clearly
what constitutes the basic structure of the 1995 Constitution of
Uganda.
In my view, the owners of a Constitution are the people under Article
1 (1) of the Constitution. It states that:
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t'all
power belongs to the people who shall exercise their
soverelgnty in accordance with this Constitution."
While Constitutions are intended to be both foundational and
enduring, they are not intended to be immutable. If they are to
endure, they must respond to the changing needs and circumstances
of a country. To evolve and change with all changes in the society
and environment is a necessity for every Constitution.
The 1995 Constitution was as a result of an elaborate and highly
detailed constitution making process that involved all citizens. The
framers of the Constitution did not in my view perceive the
constitution as an eternal document that could not be amended in
any way. They were alive to the fact that the law was dynamic and
could change with the changing society. It is for this reason that they
provided for a methodologr which is either rigid or flexible for
amending the constitution in two folds:
The rationale for the foregoing was to put checks and balances and
ensure that the will of the people is not interfered with at will by their
elected leaders. It is for this reason that the constitution to an extent
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100
a. Amending the Constitution through the participation of the
people of Uganda (referendum).
b. Amending the Constitution through the people's representative
(Parliament).
15
5 has a basic structure to act as a check on Parliamentary power so
that the Constitution does not become a play thing in the hands of
Parliament which is a delegate of the real sovereign, namely the
people.
Parliament cannot treat on its sweet will and pleasure the
constitution as a play thing as its power to amend itself is limited in
nature. Its power to amend can be exercised only without disturbing
the batance between the rights conferred on the people and the
legislative power of the state. See. Minenta Mllls (Supra)
Although the basic structure doctrine envisages that certain basic
features cannot be changed, our Constitution is unique. It expressly
provides under Article 255 and 260 for how our basic features can
be amended/ altered. This is amended through the participation of
the citizens by way of a referendum and the support by not less than
two thirds of members of Parliament. Parliament on its own does not
possess the mandate to make any amendments to such provisions
without the will of the people through a referendum.
This is in line with the recommendations by the Odoki Commission
in its report in respect of amendments of the core features which were
adopted in the 1995 Constitution that:
n28.7O4.
We accept in princlple that the procedure
Jor
a;mending the new Constitrttion should. be rigid in order to
promote s cltltl.lre of constlttttionallsm, to protect the
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suprema.cy ot: the Constlttttion, and to safeguard the
soverelgnty of the people dnd the stablllty of the country.
28.105. Amendment bg referendum would satisfg the
above objectiues and it utould provide one of the highest
torns
of rigidity or entrenchment. It would ensure thqt
amendments receirrc the popular approval of the
population. Houtever, ute think that stbmitting eLvry
proposed smcndment to a relerendum mag be too
cttmibersomc and expenslue and it mag euen be too ditficult
to obtaln popular approual oJ desired constitrttlonal
chtznges. This procedure, therefore, should he restricted to
a
few
most
Jundamental
or controttersial provisions o3[
uthich the people should have the
fi.nal
sag. These include
provisions on the supremqcg oJ the Constitrttlon and the
polttical sgstem. The prouisions
declaring the supremqcu
ofthe Consti tution
qre
the founddtion of constittttionolism
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and the e ntire constittttional ord.er. Theu are basic to the
charq.cter and staf;,ts of the Constitrttion and should notbe
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altered wlthout the consent of the pe ople."
I would therefore adopt the above observations by the learned
Justices as to what constitutes the basic structure of our
Constitution including the ones in the judgment of Kakurus JCC as
these all stem from Articles I and 2 of the Constitution' The basic
102
5
5 structure having been enshrined by the people themselves, then it is
the people themselves to alter the identity of the Constitution and
this is by way of a referendum.
The issue therefore is whether Article 102(b) forms the basic
structure and Parliament did not have the mandate to amend it in
the manner they did.
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103
All the learned Justices held that Article 102(b) does not form part of
the basic structure and therefore Parliament can amend it using its
powers and the procedure set out in chapter eighteen of the
Constitution.
The Deputy Chief Justice held that:
"It
ls noteuorthg that this proulsion of the Constlttttion
utas not securedbg ang prouision therein requirtng holding
oJ d reJerettdurn, or subject to any oJ the safeguards that
characterize the other proulsions of the Constltrttion,
uthich u)e hqur recognised
qs
basic or
Jundamcntal
features
of the 7995 Constitrttion. Thus, theJramers of the
7995 Constittttion neter treated the proulsions of Artlcles
7O2 on age limltfor President,
qnd
Article 783 on age limit
tor
LCV Chairpersott, as a
fundannental featrrre
of the
Constlttttion; uthich would have necessltated its
entrenchme.nt. This contrasts with the instltrttfion of the
Presidencg, uthich is enshrined. as a
tundamental feafitre
5 of the Constittttion; bg the requirement that the President
be elected directtg bg unittersal
qdult sulfrage;
andfurther
that beJore the
ftve-gear
Presidentiql tenure ptouislon can
be altered bg Parliannent, it must
first
bc approued bg the
people in a referendum. It
tollouts
therefore tho:t
for
tlu
amendment oJ Articles 7O2 and 783, uthich Proaided
lor
age limlt
Jor
qualilications of the President ond LCV
Chalrperson respectfutelg, Porliqment uas obliged to
complg with the prouision of Article 262 of the
Constittttlon; under the general power of legislation
confened on lt bg the people"
Kasule JCC observed that,'
"The Jralmers
oJ the 1995 Constittttion, thol is the
Constituent Assemblg, ln their wisdom saut lt
f7t to
hann
the age limits of one who is to stand
for
election as
President of Uganda, under the category oJ the
qualifications of the Presldent. Theg provided.
Jor
these
qualificattons under Article 1O2 olthe Constittttion. Theg
dld not put this Article 7O2 amongst those Articles that
hante to be
qmended.
afier
ftrst
getting tlrc approaal of
tlgandans through a reJerendum. Theg left it as one of
those Articles that Parllqment, on its ott r\ ca n am;end
from
titne to tirne under Article 259 bg passing an Act of
Przrliament, the sole purpose of uthich is to
qmcnd.
the
Constittttion and the
q.mendment
is supporaed in
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Pqrliament at the second
qnd third readings bg not less
thaln tuto thirds oJ all Members of Parliamc.nt. The Odoki
Constittttional Commission itse$ did not consider age
limits on the President o;nd other local governntent leaders
as one of the sttttctural pillars to be enttenched in the
Constlttttion. The Constltuent Assemblg also adopted the
sanrte attitude, uthich hqs been shoun abotrc. I therefore
comc to the conclusion tho;t age limits on the President and
on the Dtstrict local gotnrn rrrnt leaders
qs
enacted in
Articles 1O2(b)
qnd
183(2ilb) do tr,ot constitute a
fwnda;mental
sttttctttre of the Constittttion. Accordinglg
the
qmendment of Artlcles 7O2(b) and 783(2)(b) does not bg
implicatton
qnd/or
inJection amend. Atticle 1 of the
Constittrtion so cs to requlre a reJerendum bg the people to
approte such an olnreendment. Pqrliqment thus proceeded
within its powers to amcnd Articles 1O2(b) and 183(2)(b) by
removing the age limits as guallftcations
for
the offtce ot
the President or District Chairperson."
Cheborion, JCC held that:
o
o
"The
proulsions on amendment of the Constittttion uere
enqcted bg the people's representetives in the Constidtent
Assemblg. Clr.apter 18 of the Constittttlon exists
for
tho:t
sole purpose. The argument bg the Petitioners that tle
original Constituent Assemblg did not mo,ke a rnlsto,ke ln
enactlng the age restrictions is mislecrding and nottenable
IU
105
as it utould loglcallg be applied to prohibit all possible
amendrnents to the Consttttttion. I am theretote unable to
agree wtth the contentlon thqt Sections 3
qnd
7 of the Act
indirectlg infect Articte 7 of the Constitrttion. Furaher, I am
not conuinced that rnlnlmum
qnd mqxlmum
qge
restrictions on eligibilttg
for
the olfices of President
qnd
district Cho;irperson in the Constittttion o,mount to sz'tch
fundamental
plltars of the Constittttlon thot doing auag
wlth thetn leaves us with @ dilferent Tnstntm,ent
altogether. That utould be a gross mis:tnderstanding oJthe
baslc sttttcture doctrine. Age restrictions co:nnot be
descrihed as part of the ualues whtch are enshrined in our
Constittttion alongside a sacroscnct principle such as
detnocratic gouerna;n'ce if it were, then tlrcg utould hante
been entrenched just like other core ualues urere
entrenched. Tn Articles 260 and 74(1) of the Constittttion.
Musoke, JCC held thaU
uThe
remoual oJ age limits
for
the Presldent and local
gotarnment councils d,oes not, in rng vleut, derogate
Jrom
the basic stt.r.tcfrtre. Article 7O2 is not an entrenched
prouision. The amendment d.oes not infect Article 7 or ang
of the mentioned Articles that
fonn
the basic stntcAre.
Tnte the remouql of age limit mag encourage
qn
incttmbent
President to wish to keep htnse|/in office perpefitallg, but
the citizens still remain uith the power to elther return the
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sc;rrte Presldent or elect d dlflerent one. Citizens are etEn
more encouraged to aspire to elect a leader oJtheir cholce;
andtor those who hque htthetto been d.onnant, to actiuely
participa:te in polltics and elections.
The people's pouer to elect a Presldent or district
Chairperson of their choice is not to.ken quray,
bg lifttng
the respectiue age limits. I hann not
lound
Sections 3 and
7 among the ones that hque olfended or contro;lened the
Constittttion. Artlcles 7O2
qnd
787
qre not
annong the
entrenched Articles
qnd
their amendrnent did not infect
ang other prouisions of the Constitrttlon."
"I
hante
Jound
nothing to suggest, let alone proue thot
Parliament canno[ through the establtshed constihttionql
process, vary the gualtfications oJthe President or that of
the Distrlct Chairperson. The quallfications of the
Presldent dnd those oJ Chairpersons Distrlct locql
gouemments do not ln mg uleut
lortn
part of the basic
st'ucture oJthe Constlttttion uhlch I set out eatlier in this
Judgment. I, theretore,
qccept
the stbmlssions oJ the Hon.
I*drned Deputy Attorneg General that Sections 3 and 7 oJ
the impugned Act dre not inconsistent urith or in
contrantention oJ Articles 7, 3, 8A, 79, 90 dnd 94 oJ the
Constlttttion. The people ol Uganda, through their
o
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Kakuru, JCC held that;
10
25
5 Constihttion, should be able to treelg,
whenetnr it is
ahsolutelg necesscrry to do so, vqt! tlrc qualification oJ
thelr leaders. These qualifications include but are not
Itmited to citizenship, age, and acqdemic qualifi.ccrtions.
The sqme ought to applg to the disqualifi.cations of the
samc leqders. It mag be,
Jor
example,
Jound
necessary in
fafirre
to require elery Presidentidl candidqte to be
contr uter literate,
Jluent
in both English and Suahlll and
at least tuto local languages the list is endless. The
framcrs
of the Constittttion did. not
qnd
for
good rec'sion,
ftnd
it lruecesscry to entrench the provisions that relate to
qualifications qnd
disqualificqtions of the President and
/or members of Parlisment. I hque read the Odoki report
excerpts. Nowhere in the reporA dtd the peoplc of Uganda"
suggest, propose or d.ebate, the age limit oJ the Presid.ent.
?his issue appears
Jor
strange reasons to have sprung up
during the Constitttent Assemblg debate. Be that as it mag,
it euentually
found its
wag into the Constittttion. For tho,t
rec"son
qlone
I would not regard it one of the basic
sttttcture s of our Constittttion.
"
I am in agreement with their Lordships that the qualifications of the
President do not form part of the basic structure that amending them
would change the identity or destroy the basic features of the
Constitution and therefore cannot be amended by Parliament
following the constitutional process. In my opinion, in interpreting
the constitution, I find that Article 102(b) is not among the
108
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30
entrenched provisions that amending it would be contrary to the
provisions of the constitution or that the identity of the constitution
would be destroyed.
The Presidency flows from the people. As provided under Article 1 of
the Constitution, power belongs to the people who may freely vote the
President of their choice to govern them. If there are sham elections,
the Constitution has still provided mechanisms to redress such
issues. The remova-l of the age limit does not in any way take away
the sovereignty of the people entrenched in Article 1 of the
Constitution.
It is not the age that matters in governance but the state of mind and
the conduct of the person. In any case, there are other safe guards
in the Constitution such as Article 105(1) which gives a 5 years
tenure to the President and Article 107 which provides for the
removal of the President from office for abuse of office, misconduct or
physical or mental incapacity, arnong others.
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Age therefore is no guarantee for good judgment neither does it guard
against undemocratic governance to safeguard the ideals of the
Preamble and the Constitution in general as alleged by counsel.
Orderly succession to power and political stability in my opinion is
not guaranteed by age but by term limits which help to legitimize
democratically elected leadership.
Transfer of power after the term of the Presidency gives citizens hope
for new policies and approaches in the new leadership' A person may
be 30 or 76 but productive with greater political ideologies than a
person who is 70 or 35. The report of the Committee of on legal and
Parliamentary allairs indicated countries such as Kenya, South
Africa, India, Rwanda, Ghana, Germany, UK, USA and Australia
which do not have the upper restriction on age limit in their
Constitutions. The international practice apPears to shun the upper
age limit restrictions in modern Constitutions. Most of them have
term limits instead.
Accordingly, Issue 1 and 5 fail.
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110
In conclusion, I share the opinion of the learned Justices of the
Constitutional Court that amending Article 102(b) does not
emasculate the preamble or destroy the basic features of the
constitution since the people still retain the sovereignty to democratic
governance and freely choose who they want to lead them for a
specified period in this case one term limit or more if they still want
the incumbent to Rule them.
Issue 2: Whether the leo;rned maiorlty .ftrstices oJ tlv
Constittttional CourA erred in law and
fact
in holding that the
entlre process oJ conceptualizing, consultlng, debating and
enactment of Constittttional (Amendment) Act No. 7 of 2O78 did.
not in ang respect contrauene nor was it inconsistent with the
t
Submissions of Counsel
5
10
15
It is contended by the appellants that the entire process of
conceptualizing, consulting, debating and enactment of the
Constitutional Amendment Act No. I of 2O18 contravened and
was inconsistent with a number of articles of the 1995 Constitution.
Mr. Mabirizi listed several reasons including:
o 1. Violation of Article 93 of the Constitution;
I
2. Non-compliance with Parliamentary Rules of Procedures which
included:
Denying him access to Parliament;
Absence of the Leader of Opposition, Opposition Chief Whip and
other opposition Members of Parliament;
Allowing Members of Parliament from the ruling party to cross
and sit on the side of the opposition Members of Parliament;
Violence, torture, inhuman and degrading treatment of the
opposition Members of Parliament
High level of intolerance and partiality which necessitated the
opposition Members of Parliament to move out of Parliament;
The Hon. Speaker condemned the standing up on top of chairs
by Members of Parliament from the ruling party;
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7995 Constihttion of the Republic of llgand.a and. the Rules of
Procedure oJ Parliament.
20
11.
l1l.
v.
25 Vl.
t
5 vll
vlll.
15 Xlll.
xlv.
Suspension of opposition Members of Parliament for several
sittings by the Speaker even after stating that the Bill was
dealing with the sovereignty of the people;
Evicting Members of Parliament from the same sitting
Insuffi cient public participation
;
Crossing the floor;
Power ofthe Speaker;
Signing the report of the Legal and Parliamentary Affairs
Committee by Hon. Members of Parliament who never
participated in the debate;
Signing of the report of the Legal and Parliamentary Affairs
Committee by strangers after expiry of 45 days;
The hnding by the Constitutiona_l Court that the motion to
suspend Rule 20 1(2) by Hon. Rukutana was at the stage of the
Committee of the whole House;
Failure to second the motion by Hon. Rukutana;
Lack of evidentiary basis for the finding by the Constitutional
Court that the Members of Parliament had got the report of the
Legal and Parliamentary Affairs Committee 3 to 4 days prior to
the 18/9/t7;
Preventing Members of Parliament from debating the Bill;
Failure to close the door during roll call and tally voting;
Failure to separate the 14 sitting days;
Defect in Presidential assent;
Invalid Speaker's Certificate of Compliance;
Lack of a Certificate from the Election Commission;
IX
x
xi
xl1.
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xvlll.
xxl
30 xxu.
Lt2
10
20 xv
xvl.
xlx.
xx.
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20
i.
ii.
iii.
iv.
v.
vi.
vii.
viii.
ix.
x.
xi.
I
Violation of Article 93;
Inadequate consultation/ public participation
;
Smuggling the motion on the Order paper by the Speaker;
Denying Members of Parliament adequate time to debate and
consider the Bill;
Closing the debate before each and every Member of
parliament
had debated;
Giving each Member of Parliament only 3 minutes to debate;
Suspension of some Members of
parliament
and other
illegalities committed by the Speaker during the sitting of
18/12/17;
Suspension of Rule 2Ol(21requiring a minimum of 3 sittings
from the date of tabling the Committee Report;
Failure to close doors of the chambers during voting;
Discrepancies in the Speakers Certificate of Compliance and;
Illegal assent to the Bill by the President;
a
The 3.d appellant's list by included the following:
o
11.
25 1ll.
1V.
Violation of Article 93;
Violation of article 97 by deployment of tJ:e UpDF;
Violation of Articles l, 8A, 29(al and (d), and 38;
Violation of the sovereignty of the people under articles 1 and
38 due to inadequate consultation and public participation;
Violation of article 38 on the orderly and peaceful transfer of
power and;
v
113
The 2"a appellants'list included the following:
5 vr.
bl a Member of Par liament has the righ t to move a
private
a
The respondent supported the decision of the majority of the Justices
of the Constitutional Court arguing that the appellants had not
proved their alleged unconstitutionality in the process of enactment
of the Act.
Consideration of issue 2:
Since the impugned Act was initiated by a
private
Members Bill, I
find it instructive to briefly explain the legislative process that a
Private Members Bill must go through before it is enacted into law,
in order to appreciate the complaints raised under this issue.
1. Article 9a$) of the Constitution provides that a Bill may be
initiated by private Members of Parliament. It reads as follows:
'
(4)The Rules of procedure of
parliament
shall include the
following provisions: -
(a|...
o
20
(
o
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Member's Bill.
(cf the Member moving a private Member,s Bill shall be
afforded reasonable assistance by the department of
Government whose area of operation is affected by the Bill;
and
(d) the oflice of the Attorney General shall afford the
Member moving the private Member,s Bill ..."
714
Violation of articles 260, 262 and 263 by failure to give 14 days
between the 2nd and 3'd reading before passing the Bill.
10
15
5 Pursuant to the above article, Parliament made Rules of Procedure of
the Parliament replicating the same words in Rule 12O thereof. The
have been amended from time to time. Ttre 2Ol2 Rules were amended
in November 2017, which are the Rules obtaining now. Rule 121 of
the Rules provides the following procedure in respect of a Private
Member's Bill:
(2) If the motion is carried, the printing and publicatlon of
the Bill in the Gazette shall be the responsibility of the
Clerk.
(3) Following the publication of the Bill in the Gazette, the
proceas of the Bill shall be the same as that foltowed in
respect of a Government Bill."
2. A Privatc Member's Bill also requires a Certificate of financial
implication signed by the Minister of Finance,
planning
and
Economic Development in accordance with section lO of the Budget
Act and Rule lO7 now 123 of the Rules of Procedure of
parliament,
stating in respect of the Bill in question, the financial implications if
any, on revenue and expenditure over the period of not less than two
years after its coming into force.
3. After publication in the Gazette, the Bill then goes through the
processes necessary for Parliament for passing a Bill. Rule 124
a
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15
20
25
o
115
"(1)A Private Member's Bill shall be introduced first by way
of motion to which shall be attached the proposed draft of
the Bill.
5 provides that every Bill shall be read three times prior to its being
passed. The processes are described by Rules from Parts XIX to XX11
as follows:
(c) The Committee of the Illhole House Stage: The Committee stage
is regulated by Rules l3O-124 of PART XX1 of the Rules.
a
10
(a) First reading: this is a formality which marks the formal
introduction of the Bill in Parliament and the Bill is then committed
to the relevant Sessional Committee of Parliament for consideration.
At this stage, the Committee will formally invite the private Member
initiating the Bill to introduce the Bill and may invite other
stakeholders to state their views on the provisions of the Bill. The
Committee may even sometimes hold hearings for that purpose. o
15 (b) Submissions of Report of the Sessional Committee and the
Second Reading: The Committee must submit a report on the Bill to
the plenary of Parliament and at the same time,
parliament will
consider the Bill on the Second Reading which is a debate on the
principles and policies of the Bill, not its details.
20 According to Rule 129, the Second Reading of the Bill shall not be
taken earlier than the fourteenth day after the publication of the Bill
O
in the Gazette, unless the sub Rule is formally suspended for that
purpose.
IJ
116
This is the stage of the Bill at which Parliament deals with the
provisions of the Bill clause by clause and all proposed amendments
to the Bill.
5 At the Committee stage, the Speaker sits in the well of the House as
the Chairperson of the Committee of the Whole House. (Rule 132).
According to Rule 133(4), the Committee of the Whole House shall
consider proposed amendments by the Committee to which the Bill
was referred and may consider proposed amendments, on uotice,
where the amendments were presented but rejected by the relevant
Committee or where, for reasonable cause, the amendments were
not presented before the relevant Committee.
(d) Report of the Committee after Committee Stage: This is the
stage where the Committee of the Whole House reports to the plenaqr
on the Bill which has been committed and amendments are
considered. (Rule 135).
(e) Re-committal: This is a stage which comes at the end of the
Committee stage, where it is felt that there are still certain
amendments which have to be considered or reconsidered (See
pART
XXll Rule 137)
(f) Third Reading and Passing of the Bill: At this stage, the Bill is
not debated and it is passed as a formality upon a motion "that the
Bill be nou read a Third Time and do pass." (See Rule 136).
In the case of any Bill for an Act of Parliament seeking to amend the
provisions of the Constitution, such as the instant one, such
amendments are governed by the procedure laid down in chapter 1g
of the Constitution.
a
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15
20
25
a
1,77
a
1. Non
-compliance with Article 93 of the Coastitution.
The issues before the Constitutional Court was framed as follows:
5
10
20
6(a) Whether the introduction of a Priuate Members
inconsistent with and or in contrquention of Article
Constitution;
Bill was
o
93 of the
6(b) Whether the passing of sections 2,5,6,8 and 1O of the Act was
inconsistent with ond or in contrauention of Article 93 of the
Constitution;
15
Musoke JCC Ruled thus:
o
'3
I han;e pentsed. the Bill as introduces bg Maggezi. The
proposed Priuqte Members Btll in lts origlnalfonn urith its
four
amend.mr.nts wo,s rr,ot liketg to lmpose a charge on the
Consolidated. Fund and was budget neutral as certified bg
the Certificate oJ Financial Implicatlons that accompanied
the Bill. Ifousetar, I would, not sag the same of the
Constituf,lon Amendment Bill (No 2) uthich reintroduced,
tenn limits dnd. re-entrenchment oJ the so;me q.s
well as
increasing the life of Parliament and local govetnment
councils, which would in mg uieut, impose a charge on the
Consolidated Fwnd.
118
I shall now proceed to determine the complaints raised by the
appellants under issue 2.
In addressing both issues the learned Justices held as follows:
25
5 On whether tlrc pagment oJ tlganda shiltings tutenty nine
million onlg (29,OOO,OOO) to euery Member oJ
parliament
ds
facilitation for
consultation contrauened. Article 93 (e
fi)
and, (ii) of the Constittttion, I agree with the respond,ent
that since the money paid to the Members of
parliqment
for
consultation had fuen appropriated
Jor
use bg the
Parliqmentary Commission, it ls not afresh charge on the
Consolldated, htnd.
Accordinglg, I find
that tlrc introduction o! a priuate
Members Bill that led to the Constlttrtlon Amend.ment Bill
was not inconsistent urith the and./or in contrauention of
Article 93 of the Constittttion, except
for
the introduction
o.,f sections 2,5,6,8 o;nd 7O.,,
Kasule JCC Ruled in respect of the 29 million shilling as follows:
IJ7nd, onthe basis oJthe evidence adduced.before Court,
that the petitloners qd.duced.
no evidence to rebut the
assertlon of the respond,ent that the
facllitation
of UGX 29
(mlllion) to each Member of
partialrrzcnt
u.ru.s not
q.n
additional charge on the Consolidated. tr\tnd. and thort the
srr.me was withtn what ho.d, alreadg been approprlated to
ParlTament within the approued budget.
This Court, therefore
ftnds
that the said.
Jacilltation to
Members of Parliament did. not make the enolclcment of the
o
o
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10
15
20
1-79
$(ii)
Facilitation of 29,OOO,OOO/=
5 Constitntion (Amendm.ent Act no. 7 oJ 2Ol8 to be controlry
to Article 93 oJthe Constittttion',.
O
Cheborion JJC held as follows:
"ii.
Facilltattng
Use of Priuate Members Bill to
qmcnd
the Constittttion and.
Jacllttatlon of
Members of Parllament to consult on the
a
I hque carefullg considered Article 90 which deats with
restrictions on
financial
mqtters and Article 94 which
provides
for
priuate Members Sills crs well as section Z6 of
the hrblic Finance Management Act, 2OOS which deqts
with Cost estimates
Jor Bills.
15
o
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20
7q.
120
sa.fne
The petitloners seem to ho;ue mlsconstnted the import, o!
Artlcle 93, I do not accept that a
prtaate
Memberrs Bill
should not recehrc angfonn of support orfacilitationfrom
Gotrcrnlrr'ent or Parliament. Article 93 d.oes not prohibit
that support or
facilitation,
Article 93 is specift.callg concented, with Bills uthich
contrrln clcuses that hque the eJfect of causlng a charge
on the Consolidqtcd Fund or increasing taxation. It is
concerrted. with the content of the Bill qnd
not the mctntl'le'-
in uthlch it is processed in Pdrliament.
5
There is no disputc that the Bill did not rnake any express
provisions contrary to Article 9S(a).
Regarding the source of the moneg
lor
consultatlon, Ms.
Kibirige testifi.ed during cross exa;mination that it utq.s
appropriated
from
the Parliannentary Commissio n, not the
Consolid.atcd Fund.. Tlrc said, posltion wors corroborated bg
Mr. Muhakanizi durlng cross-examination. I am thereJore
satisft.edthatthe UGX 29,OOO,OOOJor consultation did not
occasion ang charge on the Consolidated F.tnd..
I thereJore
tind
that tlrc Prfuqte Members Bilt d,id not
contratEne Article 93 of the Constittttlon since it dtd not
lmgtose an itlegal charge on t E consolidqtcd
Jund,.
Howeuer, the addttionql amendments of Article ZZ, los
qnd
26O of the Constitrttion clearly oJfended Arttcle 93
because theg requlred q
reJerendum uhtch hcrs a charge
on the Consolidqted Fund..
o
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15
20
25
o
121
Euid.entlg, a Priuate Member,s BiII is not barred, bg ArAicle
94(4W) of the Constittttion. Clauses (c) ond (b) enuisage help
toward.s the mouer of the priaate memberrs Bill bg the
alfected Giouernment department and the Attorneg
Cteneral's Chambers. It is silent on
ft.nancial
help though
it mentions
"req.sortcble cssistantcerr. The wording of
Ariicle 94(4) mod.e lt mqnd.qtory
for
the aboue proulsions to
be included in the Rules oJ procedure oJ
parllament
when
theg were euenhtallg enacted.
5 I therefore answer issue 6(a) ln the negatiue and 6(b) in the
negqtiue."
o
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The appellants contended that that although the constitutional
Court made a finding that the impugned Act violated the provisions
of Article 93, it declined to nullify the entire Act on the basis that
non-compliance only affected sections 2,6,8 and i0 of the impugned
Act. They contended that the whole Act ought to have been struck
out since the Article prohibits Parliament from proceeding on a Bill
or a motion including amendments which have an effect of creating
a charge. Parliament therefore violated the impugned Act entirely. It
was therefore erroneous to apply the doctrine of severance in a Bill
passed as an integral legislation.
o
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Furthermore, the appellants submitted that the 29 million given to
the Members of Parliament as facilitation to carry out consultations
created a charge on the consolidated Fund and therefore violated
Article 93 as well.
15
25
Submissions of Counsel
counsel for the respondent on the other hand contended that Article
93 and 94 had to be construed harmoniously. That parliament
only
proceeded to determine the Bill presented by Hon. Magrezi upon
satisfaction that it did not have financial implications. That the
Justices of the constitutional court were therefore justified
to strike
out the provisions of the impugned Act that did not comply with
L22
5 Article 93 by applying the principle of severance. He invited this
Court to hold the same.
Regarding the 29,000,000/= counsel submitted that this money was
appropriated for use by the Parliamentary Commission and not
drawn from the Consolidated Fund. He argued that Article 93 only
prohibited Parliament from proceeding with a Bill that made
provisions which had financial implications unless introduced on
behalf of Government. That the Article did not concern itself with the
money used in processing the Bill such as allowances or facilitations
that was paid to the Members of Parliament to process the Biils. He
prayed that we uphold the decision of the learned Justices on this
1SSl'le.
Consideration
Article 93 reads:
"Restriction on financial matters.
(a) proceed upon a Bill, including an amendment Bill, that
makes provision for any of the following-
(i) the imposition of taxation or the alteration of
taxation
othennise than by reduction;
(iif the imposition of a charge on the Consolidated Fund or
other public fuud of Uganda or the alteration of any such
charge other:crise than by reductionl
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723
Parliament shall not, unless the Bill or the motion is
introduced on behalf of the Government-
20
25
5 (iii) the payment, issue or withdrawal from the Consolidated
Fund or other public fund of Uganda of any monies not
charged on that fund or any increase in the amount of that
payment, issue or withdrawal; or
(iv) the composition or remission of any debt due to the
Government of Uganda; or
I
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20
25
o
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124
This means that although a Member of Parliament has the right to
move a Private Members Bill under Article 94(4)(bl, Partament is
barred from proceeding on a Private Members Bill under Article 93 if
the Bill has a provision or provisions that would lead to the
imposition of a charge on the Consolidated Fund or any other public
fund of Uganda or the alteration of such fund other than by
reduction. For instance, a Bill for the construction of a Universit5r or
a hospital. My opinion is that in determining whether or not the
provisions of a Bill would lead to an imposition of a charge on the
(b)proceed upon a motion, including an amendment to a
motion, the effect of which would be to make provision for
any of the purposes specified in paragraph (a) of this article.
t.t
It is clear that Article 93 of the Constitution bars Parliament from
1s proceeding cn either a Bill or a motion unless that Bill or motion is
introduced on behalf of Government in specific cases which include
(a) (ii) the imposition of a charge on the Consolidated Fund or any
other public fund of Uganda or the alteration of such fund other than
by reduction.
5
How does Parliament determine that a Bill complies with Article 93?
Although Rule 123 of the Rules of Parliament provide that it is the
Speaker who should give an opinion regarding financia-l matters in
respect of private members'Bills, in practice, this is the responsibility
of the Minister of Finance who is expected to be the expert in this
area. It is cletermined by looking at the provisions of the Bill right
from the inception.
Rule 107 of the Parliamentary Rules of
procedure
(2012) under which
the impugned Bill was introduced by Hon. Magrezi in
parliament
provided that:
'
(1) All Bills shall be accompanied by a Certificate of
financial implications setting out-
(a)The specific outputs and outcomes of the Bill;
(b)How those outputs and outcomes fit within the overall
policies and programmes of governmentl
(cfThe costs involved and their impact on the budget;
(d)The proposed or existing method of financing the costs
related to the Bill and its feasibility;
In the case before Court, the record shows that on the 27rh of
September, 2017, Hon. Magrezi sought leave to introduce a
private
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15
20
25
125
consolidated fund, one should consider the content and not the
process of a Bill.
(2) The Certificate of financial implications shall be
signed by the Minister Responsible for Finance."
o
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5
10
15
20
Members Bill and Parliament gave him permission to do so. The
record further shows that the Bill that Hon. Magrezi introduced
was accompanied by a Certificate of Financial Implication dated
28th September, 2017. It certified that the Bill entitled
I.THE
CONSTITUTION (AMENDMENT) B,ILL, 2017," has been
examined as required under section 76 of the Public Finance
Management Act of 2015(as amended).It is reported in the relevant
part that:
"(e)
lttndlng and budgetary impllcqtlons:
There are no addltlonalfinancial obligations begond what
is in the Medium Tertn expendihtre Framework o;nd. thus
the Bill ls budget treutrql."
The Certificate was signed by Hon. Mattia Kasaijja, Minister of
Finance, Planning and Economic Development.
On the 3'd October, 2Ol7
,
the Bill was tabled for the First Reading
after which it was sent to the Legal and Parliamentary Affairs
Committee for scrutiny. The Committee scrutinized the Bilt in detail
and interacted with and received memoranda from a number of
stakeholders. On the lSth December,20lT
,
the Committee submitted
its Report to Parliament and the Constitutional (Amendment) (No.2),
2077 Bill was given the Second Reading where ifsrlas its merits and
principles were debated. During the presentation of the Report the
Chairperson of thetlegal and Parliamentary Committee pointed out in
the Report that some members expressed the wish to introduce some
726
5 amendments to re-introduce term limits and to extend the term of
the President to 7 years. The committee reflected it in in its report.
Notably, the Report indicated that:
uTle
Committee is agreeable to the proposed amend,ment
but note thqt it is a requiretnent in the Constlttttlon
Jor
such decision expanding the tenn oJ olfice of the
president
begond
ftue
gears to be subjected to a reJerendum of the
people. The Committee, therefore recommend.s thqt the
terrn of office of the President be extended. to seven Ueqrs
but the legal processes prescribed bg the Constittttion
pursuant to uthlch such amendment can be legaltg made
mag be cotnplied wlth.,,
A vote was taken on the Second Reading. There were two abstentions;
I
97 against and 317 in favour.
The Bill was then committed to the committee of the whole House for
consideration clause by clause. It was during this stage that Hon
T\rsiime and Hon Nandala Mafabi introduced the two amendments
extending the term of Parliament to T years and reinstating the term
limits for the President. These amendments were in Articles TT
, lgl
,
29, 29l,IOS and 260 of tl're Constitution. They were later contained
in sections 2,5,6,8,9, and 1O of the Act. These amendments called for
a referendum and therefore posed a charge on the consolidated
Fund.
o
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25
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127
2Q
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15
In the premises, I share the opinion of the learned Justices of the
Constitutional Court that the introduction of the new clauses, given
that they required a referendum which in essence would increase and
strain the government expenditure, had an effect of creating a charge
on the Consolidated Fund and therefore Parliament ought not to have
proceeded on these amendments. In my opinion, the amendments
were null and void ab inito and had no consequence. As the majority
Justices of the Constitutiona_l Court rightly found, in my view, these
amendments contravened Article 93 of the Constitution and rightly
applied Article 2 (2) of the Constitution and severed them from the
Maryezi Bill.
Regarding the issue of the 29,000,000/= given as facilitation to the
Members of Parliament, in my opinion this did not create a charge on
the Consolidated Fund since the evidence showed that this money
had been appropriated by the Parliamentary Commission.
For this reason, I find that Issue 6(a) was rightly Ernswered in the
negative by the learned Justices of the Constitutional Court.
In the circumstances I find that the learned Justices were right to
apply the doctrine of severance to expunge the invalid sections from
the Act.
o
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25
728
Likewise, with respect to issue 6(b), I lind that the passing of sections
2,5,6,8 and lO of the Act was inconsistent and in contravention of
Article 93.This issue was also rightly answered in the afl-rrmative.
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15
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25
Article 2(21 governs the principle of severance and once the new
clauses are severed as was done by the Constitutional Court, The
original Magzezi Bill stands alone.
Article 2(2) reads:
clf
any other law or any custom is inconsistent with any of
the provisions of this Constitution, the Constitutlon shall
prevail, and that other law or custotn shall, to the extent of
the lnconsistency, be void."
In the case of Attorney General v Salvatorl. SCCA No. 1 of 1998.
This court in declaring S.7 of the w"itchcraft Act unconstitutional on
the basis of an exclusion order which had an effect of denying a
person means of livelihood stated that:
"25.
Severance of partly invalid instruments or actiona.
An order or other instnrment or an
qction
mag be partlg
vatid and partlg inuqlid. Unless the irunlid part is
o
"sittce under Article 2(1) oJ the Constittttion, the
Constittttion is the supreme law of Uganda, then pursuont
to clquse 2 of Arttcle 2, thqt other lo;w which is
inconsistent shall to the extent oJ the inconsistencg, be
uold.'
I am also fortified by the principles of severalce stated in flalsbury,s
Lawe of England volume 1(4th edition) para. 26 now in volume
f(11 (2OO1 reissue) para. 25 that:
129
t
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10
15
inextricablg interconnected. utith the ualid., such tho;t to
seuer it would be to alter the substance oJ the ualld parA,
a court is entitled to set aside or disregard the irutalld
part, leauing the rest intact. The courts' approach to
seterance is that it is generallg approprtate to setar wh@t
is inualtd if uthat remalns afier setnrance ts essentlallg
unchanged 7n purpose, opera;tion and effect.,,
This was re-affirmed in the case of Thames Water Authority v
Elmbridge Borough Council
[1983]1
ALLER 836 at 847 per
Stephenson LI.
u...thls
exercise co;n be carrled out onlg where the good and
bad. parts qre
clearlg identtfiable qnd
the bad part co;n be
separated
from
the good. and rejected without alfecdng the
rnlidttg of the remaining part...n
In South Africa the courts recognize that severability in the context
zo of constitutional law often requires special treatment. In the case of
Coetzee v Government of the Republic of South Africa, Matiso
O
aad Others v Commanding Ollicer
port
Elizabeth
prison
and
Others
lCCTtgl94 , ccT22l94l
[1995]
ZACC T; L99S (10) BCLR
1382; 1995 (41 SA 631, the Constitutional Court stated that:
25
uAlthough
severabititg in the context oJ Constittttional laut
mag often require special treatm.ent, in the present case
the trite test co;n properlg be applied.: if the good. is not
dependent on the bad and ca;n be separated,
from
it, one
130
a
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15
)n
25
o
giues elfect to the good that rernoins afier the separation
iJ it sttll giues effect to the main obJectirn oJ the statutc.
The test hqs two parts:.,1Erst is it possible to seuer the
irutalid. prouisions and second.,
ifso,
is who;t remains giving
effect to the purpose of the legislatlue scheme?u
(Where
it is poss{ble to separate the good
from
the bqd tn
o statute qnd
the good. is not dependent on the bad, then
that part otthe stadrtc uthich is good must be giuen efJect
to, protided that uhat remalns carrles outthe main object
oJ the statute. Where houtever, the task of separatlng the
bad
from
the good is of such complicqtion thqt it is
lmpracticable to do so, the uhole stafutte mustbe d,eclared.
ultra uires."
131
10 The conventional test for severance has been laid down in
Johannesburg City Council v Chesterfield House (pty) Ltd, l9S2
(31 SA 8O9 (ADl, 822 and followed in other cases. In that case, it
was stated that:
In my view, since the process of enacting Hon.Magrezi's Bill into law
was passed in accordance with the law, Ieft to stand alone, it is not
substantially altered. It still reflects the intention of the maker in its
purpose, operation and effect. The principle of severance in my
opinion therefore applies in the circumstances. Since the new clauses
introduced in the Bill during the Committee stage were not passed in
accordance with the constitution they are invalid and the Justices
were right to apply the principle to sever the clauses from the Bill.
5
These include:
a
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20
25
i. Smuggling the Magyezi Motion on the Order Paper.
The appellants' contention is that the motion to introduce the
Maryezi Bill was smuggled onto the Order Paper and was presented
in contravention of Article 94 and Rules 8,17,25,27,29 and 174 of
the Rules of procedure. That Members were taken by surprise when
the Speaker on 26th September, 2Ol7 arnended the Order Paper to
include Hon. Magrezi's motion yet there were other motions before
his. The appellants further contended that the Speaker was enjoined
to give the Members of Parliament the Order Paper at least two days
or three hours before the sitting.
The respondent on the other hand argued that the motion was not
smuggled. That according to Article 94(4) the Speaker has powers to
determine the order of business in Parliament and that a Member of
Parliament has a right to move a Private Member's Bill. That Rule 24
and 7 of the 2Ol2 Rules which was applicable then give the Speaker
discretion to amend the Order Paper and set the order of business.
That the Magrezi had Bill met the test in Rule 121. It was a motion
with a Bill attached yet the motions brought by Hon. Nsamba and
Hon. Lyomoki had nothing attached and one was a mere resolution.
He also submitted that the Speaker had given 3 days prior notice of
this motion.
Consideration
132
2. Non-compliance with Parliamentary Rules of Procedure
I
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20
According to the Hansard, on 26rh September, 2Ol7 the Speaker
decided to amend Order Paper and include motions on amendment
of the Constitution due to failure by the government to present to the
House comprehensive amendments. She highlighted notices of
motions for leave to introduce private Members Bills that had met the
criteria in Rule 47 for inclusion on the day's Order Paper. These
included the motion brought by Hon. Maryezi with a Bill attached
another by Dr.Sam Lyomoki with a Bill attached and the other by
Hon. Nsamba with nothing attached. The Speaker informed the
House that the reason why she had consideredMagrezi's motion first
was that under the Rules Bills take priority over motions.
In my view, Article 94gl together with Rule 24 and 165 of the 2Ol2
Rules (25 and 174 respectively of the 20 17 Rules) are clear that the
Speaker shall determine the order of business in the House. Further
Rule 7 (2) and 7(3) give the Speaker general authority to decide
questions of order and practice stating reasons for her decision. RuIe
8 is to the effect that in case of any doubt and for any questions of
procedure not provided in the Rules, the Speaker shall decide.
In my opinion, in the above laws the Speaker has discretion to amend
the Order Paper and determine the order of business of Parliament.
Further the Speaker's reasoning for allowing the Magrezi motion
before the Nsamba's motion was not unconstitutional. First she had
the authority to determine the order of business. Secondly, Nsamba's
motion was not a Bill but a resolution of Parliament urging
government to constitute a Constitutional Review Commission.
15
25
133
Magrezi's motion had a Bill attached and according to the order of
business of Parliament although they both met the criteria in Rule
47 of th.e 2012 Rules, Bills take priority which is reflected in Rule
24lnow 25) and Rule I 1 1(now 121). The Hansard further shows that
at the time of moving the motions for leave, neither Hon. Nsamba nor
his seconder was available.
However, having amended the Order Paper the Speaker should have
sent the same to the Members at least three hours before the sitting
as required under Rule 26(1)(b).
15 "Order Paper to be sent in advance to Members.
20 (b)In the case of any other sitting, at least three hours
before the sitting without fail."
5
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25
Failure to comply with this Rule was an irregularity in my view but
not a violation of the constitution that would lead to the nullification
of the Act.
In conclusion, I find that the Speaker had the power to amend the
Order Paper. The constitution provides that the Speaker is in charge
of Parliament. The Rules were made by Parliament, and the Business
134
Rule 26 reads:
(1)The Clerk shall send to each Member a copy of the Order
Paper for each sitting.
(a)In the case of the first sitting of a meeting, at least two
days before the sitting.
o
a
5 Committee is a creature of the Rules. In my view therefore, it would
be unduly interfering with the internal workings of
parliament
which
would also be unconstitutional in view of the doctrine of separation
of powers.
This issue fails.
10 ii. Denial of Access to Parliament to Members of the public
20
Mr. Mabirizi alleged that he was denied access to the gallery and this
evidence was not rebutted. Therefore the learned Justices'holding
was erroneous. He relied on S.57 of the evidence Act, Order
g
Rule 3
of the Civil Procedure Rules and the case of Amama Mbabazl v
Museveni & 2 Ors, to support his submission on this point.
The respondent on his part refuted the appellant's contention that
the proceedings were not public and that the Justices of the
Constitutional Court had misapplied Rule 23O of the Rules of
Procedure of Parliament. counsel submitted that Rule 23o empowers
the Spealer to control the admission of the public to
parliament
premises in order to have order at Parliament. The constitutional
court therefore properly found that the Speaker acted within the
constitution in making the orders as regarding admission of the
public to the gallery.
2s Consideration
Rule 22(1) now 23(l) provides that:
"222 sittiags of the House to be pubtic
I
135
15
5
I
"(1)
Subject to these Rules, the sittings of the House or its
Committees shall be public."
However, under Rule 219 now 23O of the Rules of
parliament,
the
authority to admit the pubtic vests in the Speaker.
Rule 219 now 23O reads as follows:
"(lf
Members of the Public and the press may be admitted to
debates in the House under Rules that the Speaker may make
from tlme to time.
(2f the Clerk and the Sergeant-at-arms shall ensure that all
Rules made under this Rule are complied with.
(3! Subject to such Rules made under sub-Rule (2), the
authority to admit strangers shall be with the Clerk acting on
behalfofthe Speaker."
o
15
It is common ground that there was a lot of tension in
parliament
during that period. This necessitated extra precaution on the part of
zo the Speaker and the Parliamentar5z staff. Therefore, the Speaker
O
acted within the constitution and the Rules in directing that the
members of the public were screened to ensure security of
parliament
during the enactment of the controversial Bill. It is of course not
entirely true that Members of the public were denied access to
2s Parliament on the day Magrezi moved the motion to introduce the
Bill. The Hansard indicates that on the 26tr, September, 2OlT, the
Speaker acknowledged the presence of Members of the public
including a delegation from the parliament of Sierra Leone.
136
10
5 On the 27 the September, 2OL7
,
the Hansard reports the presence of
a number of people in the VIP gallery including former Members of
Parliament Alaso, Fred Ebil, Ibi Ekwau, Paul Mwiru, and EALA
Members of Parliament Ovonji Irene and Denis Namara, among
others.
This issue fails.
iii).Tabling Constitutional Bill No.2 of 2OL7 in Parliament in the
absence of the LOP, the Opposition Chief Whip and Other
Opposition Members of Parliament.
Mr. Mabirizi contended that in the absence of the Leader of
Opposition, Opposition Chief Whip and other opposition Members,
Parliament was not properly constituted and the reasons given by the
Constitutional Court has no basis.
On this issue, the respondent submitted that Rule 24 made pursuant
to Article 88 of the Constitution provides that the quorum for the
business of Parliament shall be one third of all Members entitled to
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In my judgment therefore, I find that although Mr. Mabirizi has
proved that he was denied access to the gallery on the day Magrezi
applied for leave to introduce the motion for his Private Members Bill,
I was within the Speaker's powers under Rule 230. I also find no proof
of the allegation that members of the public were denied access to
the gallery of Parliament during the enactment of the Act and thereby
contravened Articles 1, 8A, 79,2o,8121, 2O9, 27-ll3) and 2L2 of the
Constitution.
5 vote. Therefore the business of Parliament can continue in the
absence of the Leader of Opposition as long as there is requisite
quorum in Parliament and this is permitted under Article 94 of the
Constitution.
10 The learned Justices were unanimous on this issue.
The learned Deputy Chief Justice had this to say:
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uThe
euldence regardlng the
q.bsence
of the l*ader of
Opposition uhen certo;in proceedings took place is qulte
interestlng. Wlten the Speaker Rulcd that she should sit
douttt, the Hon. Leader of Opposition took offence,
qnd.
on
her own volition, utalked out oJ the Chamber of
parliament.
I d.o not understand uthg angone should blamc the Speaker
tor
the l*ader of Opposition's
free
uilled. choice to eua.cla,oite
herself
from
the Chq.mbers of Parliament. If eLery titne
q
Memher uo.lks out in protest, the Speaker must suspend.
proceedings, I can enulsage a sifr.to;tTon uhere
pqrllament
utould aluags be held at ransom; thus paralgzing the work
of Parliament."
Kasule JCC held that:
"Itfollows
therefore, tho;t the business oJ Parliament co;n go
on in tlae absence of the lead.er of the opposition, opposition
chief uthip and opposition Members of Parliament as long as
there is the requisite quottnn in Pqrlio;rl'rrent. Ind.eed. und.er
Consideration
138
5 Artlcle 94 of the Constihttion, Parliannent tnag o;ct
notwithstdnding a uaco,ncg in its Membershlp. There wos no
evidence receitrcd bg Court as to uthg the Leqder oJ the
Opposition, Opposition ChieJ Whip and otler opposition
Members uere not in Pqrliqment, when the Constittttion Blll
No. 2 of 2077 wqs tabled
Jor
debate. It is not aLso
q.sserted.
bg the petitioners thqt there wa.s no requlslte quontm of
Members of Parliament entitled, to uote at tha:t materiql tlme.
There is therefore tto basfs
.for
holding that ang
Constitrttlonal proulsion ura.s contrquened. At ang rate in the
course of debating the Bill, the l*ader of Opposition qnd,
the
other Honourable Memhers retunted to
po;rliament
and
particlpated in the debate oJthe Bill."
As pointed out by Kasule, JCC, Article 94(2) is clear. It provides that:
"Parliament may act notwithstanding a vacancy in its
Membership."
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Further, Rule 24(1f provides that the quorum of
parliament
shall be
O
one third of all Members of Parliament who are entitled to vote. Sub
Rule 2 provides that the quonrm is required only when
parliament
is
voting on arry question.
Not only does the Constitution allow business of
parliament
to
continue in the absence of some Members but still the appellant did
not adduce evidence that Parliament lacked quorum in voting on a
question. No reason was given for the absence of the LOp, the
139
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15 In the premises, I find no merit on this issue.
iv) The Speaker permitting Members of
parliament
from the
Ruling Party to sit on the opposltion side
20
Mr. Mabirizi submitted that the Speaker breached the Rules of
Procedure of Parliament by allowing Members to cross the floor. He
submitted that Rule 9 provides for the sitting arrangements and Rule
82 provides that a Member shall not cross the floor of the House or
move around unnecessarily. The learned Justices therefore erred to
find that there was no evidence adduced that crossing prejudiced any
Members and affected the process of enactment of the Bill.
He further contended that the learned Justices Musoke, JCC and
Cheborion, JCC had erred when they assumed that crossing the floor
was actual switching of political sides yet it was not the case.
140
Opposition Chief Whip and Other Opposition Members of
parliament
from Parliament on day when the Bill was tabled. They actually
walked out of Parliament voluntarily. There is also no complaint that
there was no quorum on that day. According to the Hansard, they
later on returned to the House and participated in the debate of the
Bill. The allegation of violation of the constitution is accordingly not
made out. I therefore agree with the learned Justices of the
constitutional court that the act of tabling the said Bill in their
absence was not unconstitutional and did not breach the Rules of
procedure.
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25
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15
20
The respondent on the other hand contended that Rule 9(1) obligates
the Speaker to as far as possible, reserve seats for each Member and
Rule 9(4) further obligates her to ensure that each Member has a
comfortable seat in the House. Therefore, since the Members of the
opposition had walked out leaving empty seats, the Speaker was
justified in permitting other Members to take up the available sits.
This did not amount to them changing parties neither did it
contravene the Rules ofProcedure.
Consideration
Rule 7 and 9 of the Rules of Procedure give power to the Speaker
depending on the circumstances to allow Members of Parliament to
sit in particular sits reserved for them in Parliament. There was no
evidence that the Hon. Members of Parliament were prejudiced in any
way when she permitted them to sit. There is evidence that the order
was temporary and thereafter, when the opposition Members of
Parliament returned to the House, they were able to occupy their
seats. There is no evidence on record that this order of the Speaker
had any impact on the process of enacting the Act.
a
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1,41,
Rule 9 of the Rules of Parliament sets out the sitting arrangement
in Parliament. Rule 9 (3) provides that:
25
"(3) The
seats to the left hand of the Speaker shall be reserved
to the Leader of Opposition and Members of the Opposition party
or parties in the House."
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20
I find that the allegation that the act of the Speaker complained about
violated the Constitution was not proved by the appellant. This issue
fails.
v) Signiag of the Committee Report by non-Members of the
Committee
Mr. Mabirizi's general contention on this issue is that some Members
who did not participate in the Committee proceedings signed the
report and therefore it was not valid,
Consideration
It was established that some Members who joined
the Committee at
a later stage signed the Report although they did not participate in
the proceedings before the Committee. This was irregular but not
unconstitutional because Article 94(3) of the Constitution provides
that:
"(3) The
presence and participation of a person not entitled to
be present or to participate in the proceedings of Parliament,
shall not, by itself invalidate those proceedings."
The signature of the Members in question could not invalidate the
report of the Committee.
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742
5
15
The respondent on the other hand relied on Rule 183(1), 184(1),
201(1) and Articles 90 and 9a(3) and contended that the Members
who constituted the Committee were 26 and therefore it was valid as
per the law.
5 Parliament operates through Committees which are established as
per Article 90 and Rules 153 of the Rules of Procedure for eflicient
discharge of its functions. Articles 94(l) empowers
parliament
to
make Rules to regulate the procedure of its Committees. Article 94(3)
is to the effect that the presence of persons not entitled to be present
or to participate in Parliamentaqr proceedings sha-ll not in itself
invalidate those proceedings. Rule 184(1) provides for the quorum of
Members on the Legal and Parliamentar5r Affairs committee to be not
less than 15 Members or more than 3O Members. Similarly, under
the general provisions for the operation of Committees, Rule 2O1
provides that a report of the Committee shall be signed by at least
one third of all the Members of the Committee.
The report of the Legal and Parliamentary Affairs Committee,
indicates that 17 Members signed, two of whom were the newly
appointed Members on the Committee by virtue of the decision made
on29.Ll.l7 by the House. It is not clear though from the evidence
on record whether they did or did not participate in the meetings of
the committee. If they did not participate but merely signed after the
conclusion of the proceedings, in my view this act would be irregular
as it was found by the Constitutional Court. However, the report
would still have enough quorum to validate it as per Rule 184. In any
case, the signatures of the two Members per se would not invalidate
the proceedings since Article 94(3) covers this situation as rightly
pointed out by the learned Deputy Chief Justice in his Judgment. In
my opinion therefore this irregularity if any, did not affect the
enactment process.
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20
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s This issue fails.
Counsel for the 2"d appellants contended that on lSth December,
2017, the Speaker arbitrarily suspended the 2"d appellants and other
Members of Parliament without giving any reason or stating the
offence committed, neither did she give them a fair hearing before the
suspension. That at the time of suspension, she was also functus
officio. She therefore grossly violated the Rules of procedure and due
to this action, the appellants were denied the right to effectively
represent their constituencies in the law making process, The
Speaker's action of suspending the Members was therefore contrary
to Article 1, 28(1), 42,44(c) and 94 of the Constitution and this
vitiated the entire process.
o
Similarly Mr. Mabirizi submitted that the act of the Speaker was
unconstitutional and in a way disenfranchised not only the Members
but also the voters. He submitted that the justification
of the
suspension by learned Justices'was based on morals, emotions and
not on Constitutional principles. Therefore, they erred when they
relied on Rules 77 & 80(6) of 2Ol2 Rules (Rules 85 & 88(6) of the
2ol7-Rules of 10th Parliament in isolation of Rule 80(41 of 2Ol2
Rules 88(4) of 2Ol7 Rules yet legislation must be interpreted as a
whole. He contended that suspension of Members is not an event but
a process. They were therefore robbed of their right to request for a
reversal. He relied on the case of Uganda Law Soclety & Anor v
1,44
10
20
vi) Speaker's action of suspending six Members of
parliament
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Attorney General, CCCPs No.2 and 8 of 2OO2 in support of his
submissions.
The respondent on the other hand submitted that the Speaker has
general powers under Rule 7. She had an obligation to preserve order
and decorum of the House. Under Rule 77, 79,80 and 82, she had
the power to suspend the said Members therefore the Constitutional
court ca.nnot be faulted on their findings in this issue.
He contended that a person suspended had to immediately withdraw
from the House until the end of the suspension period as per Rule
87. He also argued that Rule 88(4) requires that a Member is
suspended for 3 sittings. This Rule was therefore misconstrued by
Mr. Mabirizi.
In relation to fair hearing, Counsel for the respondent relied on Rule
86(2) and argued that the Speaker's decision is not open to appeal
and cannot be reviewed by the House except on a substantive motion
and in this case there was non made by the suspended Members.
He further contended that at the time of suspension of the Members,
the Speaker was not functus officio. In suspending the proceedings
up to 2 o'clock, she also suspended the Members. As per Rule 20 the
Speaker can at any time suspend a sitting or adjourn a House. She
therefore suspended the sitting to 2 o'clock and did not adjourn the
House.
Consideration
1,45
5
5 The Constitutional Court found that the suspended Members had
defied the Speaker and disrupted the proceedings in the House. Her
action to suspend them was therefore justifred.
There was no
evidence that she acted ultra vires the Rules permitting her to take
disciplinary action to maintain the Honour of the House. There was
further no evidence of a substantive motion to question her decision.
There was necessary corarn for debate in the second and third
reading and therefore the suspension did not make the enactment of
the Act unconstitutional.
"77.
Ttc Speaker shall be heard in sllence
Rule 78(2) provides that:
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I note that the Speaker suspended the Members of
parliament
twice
during the process of enactment of the Act. The first suspension was
on the 27.9.17 where she suspended 25 Members. After addressing
the unruly conduct of the Members the Speaker invoked her powers
under Rule 7(2), 77, 79 (2) and 80 of the 2Ol2
parlianentar5r
Rules
of Procedure and suspended them.
20 The Speaker exercised her powers under PART XIII of the Rules
Rule 77 provides that:
146
When the Speaker addresses the House, tny Member
standing shall immediately resume his or her seat and the
Speaker shall be heard in silence."
a
10
"The Speaker or Chairperson, shall order any person whose
conduct is grossly disorderly to withdraw immediately from
the House or Committee for the remainder of that day's
sitting; and the Clerk or Sergeant at Arms shall act on such
orders as he or she may receive from the Speaker or
Chairperson to etrsure compliance with this Rule."
Rule 80 is entitled
"Naming and suspension of Members".
It reads:
a
considers that the conduct of a Member cannot be
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Member named from the House
It is clear that in line with these Rules, the Speaker is mandated to
ensure that there is order and decorum in the House, and is to decide
on the questions of order and practice to ensure orderly proceedings
in the House. In preserving order, she is therefore permitted to
suspend the Members who disrupt the proceedings. I cannot fault
the learned Justices on this issue. They considered the Rules on
suspension non in isolation of the other and I agree with them on
this point.
747
"(1)
If the Speaker or Chairperson of any Committee
adeLuatelv dealt with. under sub Rule (21 of Rule 29. he or
she mav name the Member.
l2O) Where a Member has been named. then-
lal ia case of the House. the Speaker shall suspend the
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25
Suspension in my opinion did not disenfranchise the Members or the
voters in any way since it was justified. Part XII of the 2Ol2 Rules
similar to Part XIII of the 2Ol7 Rules clearly lays down the
behaviour of Members during debate. In addition the code of
conduct for Members of Parliament in appendix F particularly
Rule 5 requires that
"Members
shall at all times conduct
themselves in a manner which will maintain and strengthen the
public's trust and confidence in the integrity of Parliament.
Unruly behaviour does not strengthen public trust.'
I am further fortified by the case of lbinobusingye Severino v
Attorney General. Constnl Petition No.47 of 2O11 Court observed
that:
nalthough
Members of Parliament q.re
ind.ependent
qnd
han;c the
freedom
to so:g angthing on the
Jloor
of the House,
theg are howeuer, obliged. to exercise and enjog their
Pouers and Privileges with restralnt and decontm and. in
a mcrnner that giues Honour and adtnlro:tlon not onlg to
the instlttttion oJ Parliament but also to those who, lnter-
rrlirr elected them, those uho listen, to and. utatch therrn
debating in the public gallery a;nd on television o;nd. read
about them in the print media. As the National leglslature,
Parllqment is the
fountain
oJ Constitrttlonalism and
therefore the Honourqbk Members of Parliament qre
enjoined by uirfite of their office to obsente and. o;dhere to
148
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the basic tenets of the Constittttion in their deliberatlons
and actiotts."
The 2"d appellant's contention seems to be mainly on the second
suspension of Members which was done on the 18tt December,2OlT
during the second reading and presentation of the Committee report.
A perusal of the Hansard for that day shows that the Speaker
reminded the Members who were suspended that if they do
misconducted themselves again, they would be suspended again for
seven sittings that time beyond Christmas and therefore they should
not endanger their right to speak and vote. She urged them to tolerate
and listen to one another. However during the presentation, she kept
on asking the Hon. Members to take their seats and maintain order
in the House as is the practice of Parliament. She further reminded
them of Rule 88 of the Rules that regulates their conduct in the
House. Even after having done so, there was still no order in the
House. She therefore suspended the six Members and the
proceedings up to 2 o'clock. She ordered them not to come back to
the house in the afternoon. I find that some of the suspended
Members were earlier suspended during the lirst suspension and
they were warned in during this sitting. Therefore it is not true that
the Speaker merely suspended the six Members for no reason. It all
stemmed from the first suspension and after several warnings. The
Speaker therefore rightly suspended them as per Rules 87(2) and 88.
That notwithstanding, even if there was no reason given as alleged
by the appellants, Rule 86(1) states that:
o
149
5
(2) The decision ofthe Speaker shall not be open to appeal
and shall not be reviewed by the House, except upon a
substantive motion made after notice.t'
In the present case there was no substantive motion to question her
decision as rightly held by the learned Justices.
In addition the evidence is clear that at the time of suspension she
was not functus officio as alleged by the appellants. She just
suspended the proceedings up to 2 o'clock and in the process of
suspending the proceedings, she suspended the Members. At 2.16pm
the House resumed and was adjourned at 6.3opm.
In my view therefore, from the forgoing, the Speaker's action of
suspending the six Members was therefore not contrary to Article 1,
28(ll, 42,44(c) and 94 of the Constitution neither did it vitiate the
enactment of the Act.
This issue fails
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150
"(l)The
Speaker shall be responsible for the obsenrance of
the Rules or order in the House.t'
vii) Non -compliance with the Requirement of 3 sittings days
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The appellants submitted that the report of the Legal and
Parliamentary Committee was never tabled as per the Rule 20 I and
neither was the three days Rule observed as required under Rule
20ll2). Counsel submitted that a resolution was hastily passed
suspending the Rules so that the debate could proceed immediately.
Mr. Mabirizi also faulted the learned Justices for finding that the
motion to suspend Rule 20 1(2) by the Deputy Attomey General was
at the Committee stage yet it was at the plenary. He also submitted
that the motion was not seconded therefore making the subsequent
proceedings invalid. He relied on the case of Makula International
Ltd v Cadlnal Nsubuga & Anor (1982) in support of his
submissions.
The respondent on the other hand refuted the appellants'assertions
and submitted that the Speaker had directed the Clerk to upload the
report on the ipads four days prior therefore Rule 2O1 did not apply.
Counsel submitted that even if it did, a motion to suspend the said
Rules was moved and supported by Hon. Janepher Egun5ru and other
Members. He refered to the decision of the Hon. Deputy Chief Justice
and Cheborion, JCC and submitted that the Members had adequate
notice as to the contents of the report and therefore the purpose of
Rule 2O1(2) was achieved. There was no prejudice to the Members.
151
He argued further that regarding secondment, counsel submitted
that the motion did not require secondment since it was raised at the
Committee of the whole House as found by the learned Justices.
Counsel ho.,vever submitted that without prejudice to that holding,
t
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5 the motion still satisfied Rule 59 since it was supported by Members.
Counsel submitted that since the Rules do not clearly define
secondment, Rule 8 should be adopted to lind that the motion was
seconded.
Consideration
10 Rule 201 provides that:
"
Debate on a report of a Committee on a Bill, shall take
place at least three days after it has been laid on the table
by the Chairperson or the Deputy Chairperson or a Member
nomlnated by the Committee or by the Speaker."
15 Rule 2(1) defines "tq.ble"
"to
mean the Clerk's table and tabling means laying of an
official document on the Table and laying before Parliament
shall be construed accordingly."
20
The Hansard shows that on the 18th December 2017 during the
second reading, the Chairperson of the Legal and Parliamentary
Aftairs tabled the report of the Committee before Parliament. He
informed the Speaker that the report had been uploaded on the ipads
of the MPs by the Clerk four days earlier. A point of procedure was
raised that Rule 201 requires that the debate shall take place three
days after tabling the report. The Speaker Ruled that the Rule did not
apply because the 9th Parliament had agreed to use less paper and
she had directed the Clerk to upload the report onto the Members
Ipads four days prior to that date. The point was raised again that
25
752
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tabling means tabling on the Clerk's table not the Ipad. The Attorney
General moved under Rule 16 to suspend Rule 201 arguing that the
Rule was no longer useful with the establishment of the e-
communication. The motion was supported by Hon. Janepher Eguyu
and Mr. Gaster Mugoya and the Rule was suspended.
It is therefore not true as found by the learned Justices that this Rule
was suspended at the stage of the Committee of the whole House. It
therefore required secondment under Rule 59 read together with Rule
16.
(l)Any Member may, with the consent of the Speaker, move
that any Rule be suspended in its application to a particular
motion before the House and if the motion is carried, the
Rule in question shall be suspended.
O
Rule 59 provides that,
5
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25
153
"SusDension
of the Rules
(2)This Rule shall not apply in respect to Rule 5,6, 11, 12,
13(11, L6 and,97."
'Seconding of motions
"(lfln
the House, the question upon a motiou or
amendment shall not be proposed by the Speaker nor shall
the debate on the saure commence unless the motion or
amendment has been secouded.
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(2)In Committee of the Whole House or before a Committee,
a seconder of a motion shall not be required.,'
Although the Rules do not deline secondment, According to the
Oxford Advanced learner's dictionaqr, 7tt'edition, seconding means
..
to state offtciallg
qt a
meetlng that gou suppor-t, o;nother
personts id.ea, sltggestlon, etc. so tlto:t it co;n be discrrssed
and/or uoted on.'
The requirement of the three days after tabling did not apply in the
circumstances. This issue fails as well.
viii) Violation of the Requirement of 14 sitting days between the
2"d and 3'd readings
The appellants' main contention was that although the learned
Justices found that non observance of 14 days between the second
and third reading contravened the Constitution, they did not find this
fatal to the process of enactment of the Act. The appellants
contended that the new clauses became part of the Bill and therefore
required 14days separation and Article 260(ll states that such a Bill
shall not be passed. That the Presidential assent was therefore in
vain. In support of this submission they relied on the case of
Sekikubo v Attorney General, Chowdhary v UEB, No.27llo and
Kaslrye v Bazigattlrawo, No.O3/ 16.
154
As stated above, the evidence shows that it was supported by Ms.
Janepher Eguyu and Mr. Gaster Mugoya. So it was validly
suspended.
15
5 The respondent submitted that the learned Justices rightly found
that the non-observance ofthe 14 days was not fatal. Counsel argued
that the contents in the original Bill did not contain any provision
that required separation of 14 days. He submitted that the learned
Justices rightly found that it was only the new clauses introduced at
the Committee stage that had an infectious effect on Articles 1,
gA
and 260 and required 14 days separation between the 2nd and 3.d
reading. They were therefore null and void and the Justices rightly
severed them.
o
c
Consideration
15 The 14 days is a requirement in respect of amendments under
Articles 260 and 26 1. The Magrezi Bill was initiated under Articres
259 and 262 of the Constitution. As such and as the majority of the
Justices of The Constitutional Court rightly found, in my view, the
amendments in sections 1,3,4 andT of the Act were not covered by
Article 260 and 26 1. And therefore did not require a 14 days sitting
between the second and third reading.
20
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25
As was established by the majority of the Justices of the
Constitutional Court, the amendments that required a referendum
were contained in sections 2,5,8,9 and lO and those should have
complied with the 14 days requirement under Article 263(Ll of the
constitution. Each of those sections are thus unconstitutional. This
issue lacks merit.
155
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ix) Closing the debate before each and every Member of
Parliament could debate the Bill
The appellants'main contention on this issue was that the Members
of Parliament were denied adequate time to debate and consider the
Bill yet this was a matter of great national importance. They
contended that 3minutes to make submissions on the Committee
report was insufficient. In addition the Speaker closed the debate
before every MP could debate and only 28%o debated which violated
Rule 133(3).
In relation to closing the debate before each Member could debate,
Counsel for the respondent submitted that Rule 80(2) provides for
closure of the debate and if the majority agree then the debate is
closed. In this case majority agreed to the closure of the debate when
the questicn was put. He further submitted that there is no
requirement that every Member has to debate before closure.
Rule 62(2) provides that
"The Speaker may at the beginning of any debate specify
the period that each Member contributing to a debate may
be given."
25
20 Coasideration
Part XII of the Rules provides for the Rules of debate and Rule 69(1 1)
provides that,
156
5
"the
Speaker Eay, on the commencement of the
proceedings of the day or on any motion, aunounce the
time limit he or she is to allow each Member contributing
to debate and may direct a Member to take his or her seat
who has spoken for the period given,,
In this case the Speaker gave each Member 3 minutes and 124
Members contributed to the debate. She has the discretion according
to Rule 62(21 and 69(11) to allocate time to debate and therefore
cannot be faulted.
Further there is no requirement that every Member has to debate. At
the close of the debate, when a question was put to close the debate
no Member objected. The question was put and agreed to. I do not
find that the Rules were breached and that they affected the
enactment process. I agree with Cheborion, JCC in his Judgment
where he held that;
"I hante pentsed Arttcle 79 (1) (2) which empourers
Parlioment to make lquts in llganda. I hque also
considered. Article 262 that allows porliament
to amcnd
prouisions of the Constittttlort, GLs, well ds the Rules oJ
Procedure of Parllament that regulatc debate o;nd
proceedlngs in Parllament. I hqve not come across ang
specific prouision, and. none uas clted to us as maklng it
a mandatory requlrement that
Jor ang
Constlttttional
amendment Btll to be enacted. into laut, deliberqtions must
be receivedfrom each and, euery Member or majorlty of the
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5 Members of Parliam.ent. In mg uieut, the only condition
precedent set under Article 262 is the requirement
for
the
Bill to be supportad. by 2/3 of all the Members oJ
Parliament.
Be tltat as it mdg,
from
the Hansard, 724 Men$ers of
Parliqment hqd contributcd, before the Speaker closed the
debate. Tlrc l*ader oJ opposition raised her concern about
being d.enied an opportttnitg to gitn the ulews of her people.
In replg, the Speaker blamed. her
for
uastlng time tho;t
should hante been used
for
more Members to debate.
I
find
that the l*qder of Opposition equallg
Jtttstrated the
Speaker's effort to have more Members contrlbute to tlw
debate. This howeuer, d.id not adverselg affect the passing
of the Act,"
According to the Hansard, a number of Members of
parliament
debated the Bill at its second reading. The time of 3 minutes allotted
to then by the Speaker appears to short though, for any meaningful
debate to have ta-ken place on this very important Bill. However, there
is no record on the Hansard that Members complained that they had
been prevented from debating the Bill. In any case, there is no Rule
that before a Bill is passed by Parliament, each and every Member of
Parliament must debate it. What is most important is for Members to
be present and closely follow the debate and understand a Bill so that
they can in turn explain the Bill to their electorates who sent them
to represent their view in Parliament. With the over 40O Members of
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5 Parliament, it would be inconceivable for each one had to debate a
Bill before passing it.
I therefore flnd no merit on this issue.
x) Failing to close the doors of Parliament durlng debate
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Consideration
159
ro counsel for the 2nd appellants contended that failure to close the
doors at the time of voting contravened Rule 98(4). That the rationale
for the Rule is to bar Members who had not participated in the debate
from decision making. He submitted that the Speaker however left
the doors open and called Members who were outside the chambers
rs to enter and vote. counsel therefore faulted the learned Justices for
in holding that no evidence was availed as to how failure to close the
door was unconstitutional.
Mr. Mabirizi contended that failure to close the doors was not at the
Speaker's discretion. Article 89 requires that voting in a manner
20 prescribed by the Rules of procedure made under Article 94.
The respondent on the other hand contended that the Speaker gave
reasons for failure to close the door. This was because all Members
did not have seats and therefore it was not possible to lock out some
Members. He submitted that Rule 8 validated the Speaker,s action.
she therefore acted within the ambit of these powers and court made
a correct finding on this issue.
This was a violation of Rule 98 (41 of the Rules of parliament which
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However, according to the Hansard, the voting was done in an orderly
and transparent manner. There is no evidence that those Members
who were absent Parliament on that day also voted. Voting was done
in accordance with Rule 98(6f Members voted one by one by all
Members present. Theoretically Parliament could sit in an open place
with no door as long as it is gazzetted for that purpose. The Speaker
explained the reason why she could not close the door due to the
large number of Members of Parliament. This did not violate the
Constitution since there was a requisite quorum to pass the Act.
For that reason this issue also fails.
20 xi) Consultation and Public Participation
This was issue 6(d) and (e) before the constitutional court and it was
framed as follows:
5
"
(4) The Speaker shall then dlrect the d,oors to be locked and
the bar drqwn and. no blember shqll thereafier entcr or leque
the House until afier the roll co,ll uote has been taken.,,
(d)whether the consultations carried out were marred with restrictions
and uiolence tuhich were inconsistent uith and/ or in contrauention of
Articles 29 (1) (a), (d),(e)and 29(2) (a)of the Constitution.
160
(e)Whether the allegedfailure to consult on sections 2, S, 6, 8 and 1O
is inconsrsfent with and/ or in contrauention of Articles 7 and. BA of the
Constihttion.
The majority Justices answered 6(d) in the negative and 6(e) in the
affirmative.
The Appellants' general contention was that the learned Justices
erred in law and fact when they hetd that there was proper
consultation of the people on the Bill. counsel submitted that there
was no consultation yet it is a fundamental va-lue of the constitution.
Counsel submitted that this being a matter that touched the
foundation of the constitution consultation was paramount since the
rationale is to ensure that people retain their sovereignty. counsel
submitted that there was overwhelming evidence that there was no
consultation. Such evidence included the fact that the process of
enactment was not preceded by a consultative constitutiona-l Review
exercise as was the case in the 2oo5 constitutional amendments.
There was no evidence on record that Hon. Maryezi in presenting his
Bill consulted the public before tabling in
parliament.
There was no
structural framework for public participation.
public
gatherings for
the Members of the Opposition were blocked and violently dispersed
by Police and other security agencies. Despite the fact that the
Members were given 29 million as facilitation the purported
consultation was illusory and ineffective.
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5
5 Counsel further submitted that the test to ensure participation of the
people in legislation was not passed since Parliament was not
reasonable in closing out the people's participation but rushed to
amend Articles that rotated around the sovereignty of the people.
Counsel submitted that since Parliament was obliged to consult the
public on the amendments, failure to do so vitiated the entire process
hence rendering the resultant law null and void. Counsel relied on
the cases of Law Society of Kenya v Attoney Creneral,
Constitutional Petition No.O3 of 2O16; Robert N. Gakuru & Ors
vs The Crovernor of Kiambu County & Ors; Doctors for Llfe
International vs The Speaker of the National Assembly & Ors.
South Afrlca Constitutional Court Case No. CCT 12lOS in support
of their submission.
The respondent's counsel refuted this allegation and submitted that
the learned Justices made a proper finding that there was public
participation and consultation in the process of enactment of the
impugned Act. Counsel argued that unlike the Constitutions of South
Africa and Kenya arnong others, our Constitution does not provide
standard measures for consultative Constitutional Review rather it
recognises various roles of people and bodies in the Constitutional
amendment process thereby permitting amendment of the
Constitution in various ways as provided under Article 259, 260,261
and262. Counsel submitted that Parliament has never enacted a law
to set a yardstick or guide consultation or set parameters upon which
effective consultation can be measured. The cases cited by the
appellant's are therefore distinguishable in the circumstances since
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5 they were decided on the basis of the Constitution which strictly
provided for public participation in the law making process and also
provided yardsticks for the sanne.
Counsel further argued that there is no requirement that all persons
must express their views concerning the law, rather, what is required
is that reasonable steps were taken to facilitate public participation
and reasonable opportunity afforded to the public to participate in
the legislative process.
Counsel further argued that notices inviting all persons who wished
to be part of the process were published upon which 54 groups of
persons responded to the invitation including the
president
of
Uganda and registered political parties. That the Hansard clearly
showed that the reports of the Members of
parliament
through
debating and voting was a representative of consultations carried out
in their various constituencies. counsel therefore invited this court
to find that there was public participation.
Consideration
Public participation is a political principle enshrined in the
constitution under The National objectives and Directive principles
of State Policy. The Democratic Principles (i) stipulate that
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"the state shall be based on the democratic principles which
empower and encourage the active participatlon of all
citizens at all levels in their own governance.r,
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In Doctors for Life Interaational vs. Speaker of the National
Assembly and Others. (supra) Court observed that:-
'If
legislation is infused with a degree of openness and
participation, this will minimize dangers of arbitrariuess
and irrationality in the formulation of legislation. The
objective in involving the public in the law-making process
is to ensure that the legislators are aware of the concerns
of the public. And if legislators are aware of those concerns,
this will promote the legitimacy, and thus the acceptance,
of the legislation. This not only improves the quality of the
law-making process, but it also serves as an important
principle that government should be open, accessible,
accountable and responsive. And this enhances our
democracy."
Although our Constitution provides for active participation of all
citizens, it is couched in general terms. It does not provide a mode of
consultation and participation neither does it provide a yard stick for
setting standard measures for consultation. I therefore agree with
the finding of the Hon. Deputy Chief justice
that there is no law that
lays down a structural modus operandi for public consultation.
The question therefore is whether or not there was consultation in
the circumstances.
t64
I am guided by the South African case of the Minlstr,r oJ Health as.
New Cllcks South Africa (ftq) Ltd,
{2OOS\
ZACC,:- Sachs, J.
observed:-
o
What mqtters is that at the end of the dau a
rerrsonqble oooortl,tni tu is offe red. to Members of the oublic
qnd.
all interested p,o;rties
to kn ow dbout the isstte and. to
hque an adequate scla. Whqt r:,mounts to
q.
reasonab le
oDDottuni tu will d.eoend. on the circumstances of each
o
Further, in the Doctors
lor
lile case (supra) court held that
The court further held that
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cq.se."
"uhat is ultimablg im,portant is thqt the legislature has
taken steps to afford the public a req.sonq.ble opporfitnity
to participate etlectitnlg in the lant>making process. Thus
constnted., there are at least two qspects
of the dutg to
Jactlttate
public inuoluemcnt. The
.;Erst
is the dutg ta
provide meanlngful opportunities
for
public particlpation
in the laut-making process. The second, is the duty to take
meat ures to ensure that people ho.tn the ability to take
aduantage of the opportunlties proulded. In thls sense,
publtc inuoluement ma.g be seen as
..a
continuum that
ranges
from
prouiding infonnation qnd
buildtng
aurtrertess, to pantnerlng in decislon-making.,'
5 "in deterrnining uhether Parliqment ho,s complled, with its
dutg to
Jacilitate
public participatton in ang partlatlar
case, the Court utlll conslder uhat Parliament hqs done in
that cq.se. The question will be whether uhat Parliament
has d.one is reasonq,ble in a,ll the circum.stances. And
Jactors
reletnnt to determining reasonq.bleness would
include Rules, if ang, adopted bg Parliament to
Jo,cilitatc
public participatton, the nqture of the legislation under
conslderqtTon, and whether the legislation needed to be
enacted urgently. Uthnately, whqt Pqrllo;rnent rnust
detennine in eo'ch case fs whqt methods of
facilitating
public participatlon utould be appropriate. In deterrnlning
uhether whqt Pqrliament has done is reasono,ble, this
Court wlll pag respectto what Pqrliament has assessed
qs
being the appropriate method.. In detertninlng the
appropriate level of scrtting of Parliament,s duty to
facilitato
public lntroluement, the Court rnust bo,lqnce, on
the one hand, the need to respect Parlio;mentary
instlttrtiono'l a;utonomg,
q.nd
on the other, tlrc right of the
public to participatc in public affairs. In mg uieut, this
balrr;nce is best sttttck bg this Court, considering whether
uhqt Parliament does in each cq.se is redsonq.ble."
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In the case of Law society of Kenya v
(Supra)Court observed that;-
Attorney General,
166
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Although the above cases are from another jurisdiction, I
find them
persuasive in principle.
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n...To parophrase
Gq.kuttt casre (Supra),
1rublic
participation ought to be real
qnd
not illusory and ought
not to be treated as d mere
Jonnality for
the purpose ot
fulfilment oJ the
Constittttionql dictdtes. It behoues
Parliament in enacting legislation to ensure tho;t the spirit
of publlc patticipatlon is atto;ined both quantltatitrelg and
quolitatluelg. It is not enough to simplg
,,tweet,
messcrges
q.s
lt uere and leaue it to those uho cqre to scantage
for
it.
Parliqment ought to whqteuer is reasono'ble to ensure thoit
as many Kengans are aursre of the intcntion to pass
legislation. It is the dutg of Parliament in such
clrcum"stances to exhort the people to partlclpate ln the
process of enactmcnt ol legislation bg making use of as
mang
for
cr as poss{ble such as churches, mosrlues, pubtic
"be?ezasu,
nqtlono,l and uentacr.tlor rqdio broad.casting
stations and. otler a:uenues uhere the public are known to
conuerge dnd disseminate infonnqtlon with respect to the
intcnded action..."
zs I agree with the majority learned Justices that the directive by the
inspector General of Police, Mr. Asuman Mugen5n to the District
Police commanders to curtail and restrict the conduct of consultative
meetings was arbitrary and contrary to Article 29(2) since it was
intended to prohibit Members from holding joint rallies or getting
5 support from outside constituencies. This directive on the face of it
would limit public participation. However evidence shows that the
police did not unduly restrict consultative meetings countr5rwide.
Although in some places police interfered with consultations which
was unconstitutional, in other places rallies took place and people
were consulted.
There is evidence on record, however, that although the Committee
had planned to conduct countrywide consultations, it was not
facilitated by Parliament for very unclear reasons. This was a set back
because it would have gone a long way in raising the level of public
participation required.
Further, according to the Hansard, during the presentation of the
Committee report on the Legal and Parliamentary Committee, its
Chairperson stated that the Committee had extended invitations to
identified stake holders and other interested parties to appear before
it and submit their views on the Bill. It is also not in dispute that the
Speaker cautioned the Members to comply with Article I and 2 of the
Constitution.
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The evidence on record shows that after the Bill by Hon Maryezi was
sent to the Committee on l,egal and Parliamentary Affairs, the
Committee met and even received comments and views from the
public and institutions such as inclusion of term limits to the Bill
and adjusting tenure of the President among other views concerning
the Bill.
5 The evidence further shows that Parliament facilitated each Member
of Parliament with shs. 29 million to carry out consolations before
debating the Bill. There is also evidence on record in the Hansard
that some Members of Parliament reported that they had indeed
consulted the public.
In the premises I agree with the majority Justices of the
Constitutional Court that the consultative process of the enactment
of the impugned Act was not adversely affected by restrictions or
violence. I therefore firaffifriJi r,"aro., in respect of sections 1,3,4
and 7 of the Act but there was no consultation of sections 2,5,6,9
and 10.
In the premises this issue fails.
The appellants' contention was that the learned Justices erred in
holding that the validity of the entire impugned Act was not fatally
affected by the discrepancies of the Speaker's Certihcate of
compliance. Counsel submitted that the Certificate was materially
defective in content and form which rendered the assent a nullity as
per Article 263(21. Counsel submitted that the Certihcate only
indicated the clauses in the original Bill yet the Members also agreed
to introduce new clauses to the Bill. The Certificate therefore
contravened Article 263(21 and S. 16 of the Acts of
parliament
Act.
Counsel further contended that not only did the Certificate have
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3.Discrepancy In the Speaker's Certificate of Compllance and
illegal consent.
5 discrepancies, there was also no Certificate of the Electoral
Commission which invalidated the Act. Counsel submitted that in
the circumstances, the Court therefore erred and misdirected itself
on the legality of the Speaker's Certificate when it found that the
Certificate only affected the newly introduced provisions and not the
entire Act. Counsel relied on the case of Semwogerere & Anor vs
Attorney General. No. 1/O2 (SC) in support of their submission.
Regarding the illegal assent counsel contended that the presidential
assent is an integral part of a law making process and any defect
therein renders the law a nullity as per Article 9L,263 and s. 9(l) of
the Acts of Parliament Act. Counsel submitted that the
president,s
act of assenting to the Bill without scrutinizing it to ascertain its
propriety contravened the law.
The respondent on this issue submitted that the validity of the entire
Act was not fatally affected by the variances in the Speaker,s
certificate. counsel submitted that it was not materially defective to
render the Presidential assent a nullity. The original Bill did not
contain any provision that required its ratification through
amendment and therefore the certificate of Electoral commission
was not necessary. The decision of the learned Justices in upholding
the validity of the certificate was a recognition that it complied with
the form prescribed in section 16(2) and
part
VI of the second
Schedule of the Acts of Parliament Act. The constitutional court
rightly used the severance principle as espoused in Article 2(2) to find
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that the Articles not included in the Speaker's Certificate were
unconstitutional.
Counsel invited court to uphold the findings of the majority that the
discrepancies in the Speaker's Certificate and the Bill at the time of
Presidentia-l assent was not fatal to the Bill.
Consideration
Under Article 263 l2l
(al of the Constitution:
"l2l
A Bill for the amendment of this Constitution which has
been passed in accordance with this Chapter shall be
accented to by the Present only if:
(allt is accompanied by a Certificate of the Speaker that the
provisions of this Chapter have been complied with in
relation to it.'
It is not in dispute that the Bill that was sent to the
president
for
assent, that is, Conetitution (Amendment) (No. 2) Bill 2OOZ, was
accompanied by a Certificate of Compliance of the Speaker dated22"d
December, 2018 as required by Article 263l2llal of the Constitution
above. The certificate however indicated that only 4 Articles of the
Constitution, namely, Articles 61, l02rlO4 and l8B, were being
amended. It excluded Articles 77, 7-OS, 181, 289 and 291that had
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been amended by Parliament and had been included in the Bill as
well.
It is also not disputed that the Bill that the President assented to
contained all the 1O Articles of the Constitution that were amended
by Parliament. It is thus true that there was indeed a discrepancy
between the Speaker's Certificate of Compliance and the Bill that the
President assented to.
My view is that the President ought not to have assented to a Bill that
was at variance with the Speaker's Certificate of compliance. He
could have avoided this irregularity by refusing to assent to the Bi[
for non-compliance with the Constitution under Article 263.
However, I find that the Certificate of Compliance did not lie as
alleged by counsel for the appellants. It stated the truth; that the
provisions of articles 259 and 262 of chapter 18 of the constitution
had been complied with in respect of amendments to:
"
(a) article 61 of the Coastitution;
a
(bf article 1O2 of the Constitution;
(df article 183 of the Constitution',
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(c) article lO4 of the Constitution; and
It did not cover those articles that were not amended in compliance
2s with the Constitution, namelyArticles TT,l9l,29,29l,105 and 260
of the constitution and the Justices of the constitutional court
rightly found so. Had the Certificate stated otherwise, it would have
5 told a lie. The Certificate covered only a part of the Bill that had
complied with the Constitution, namely Sections I,3,4 and7.
Assent cannot bring into law what is a nullity by the Constitution.
Parts of the Bill were unconstitutional and therefore null and void.
The Speaker was required to certify that the Bill was passed in
accordance with the constitution. The Speaker realized that some of
the provisions were unconstitutional and that is why in her
Certificate, she listed only those provisions that had complied with
the Constitution. In my opinion this is a valid certificate as far as the
amendments that were passed in accordance with the Constitution
were concerned.
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Issue 3: Whether the leqnrcd .ftrstices of the Constittttional
Court erred in lo,ut and
fact
when theg held that the
violence/scufJTe inside qnd
outsid.e Pq.rliament during the
enqctment of the Constittttion (Amend.ment) Act No, 7 of 20la
did not in ang respect contrauene nor wqs it inconsistent with
the 1995 Constitrttion oJ the Republic of Uganda.
This issue was framed in the Constitutional Court as follows:
1.7 3
The decision of Ssemwogerere(supra) relied on by the appellants is
distinguishable in that in that case, the Bill was not accompanied by
a Certificate of compliance issued by the Speaker unlike in the
instant case.
20 This issue also fails for the reasons given.
"S.Whether the alleged uiolence/ sculfle inside and outside Parliament
during the enactment of the Act was inconsistent and in contrauention
of Articles 7,2, 3 (2) and 8A of the Constitution."
Submissions of Counsel
The contention on this issue was that the l,earned Justices of the
Constitutional Court erred in law and in fact when they held that the
violence inside and outside Parliament during the enactment of the
Constitution (Amendment) Act did not contravene nor was it
inconsistent with the Constitution.
Counsel submitted that the Bill was passed amidst violence within
Parliament, outside Parliament and across the entire Country
thereby vitiating the entire process and thus making it
unconstitutional. Counsel submitted that there was heavy
deployment and unprecedented violence against the Members of
Parliament and this led the Speaker to inquire into the existence of
the armed persons in the precincts of Parliament, which fact was
rightly established by the learned Justices. Further the
Constitutional court observed that the directive issued by AIGP
Asuman Mugenyi on consultative meetings was unconstitutional.
However the Constitutional Court held that these acts were not
sufficient to vitiate the enactment process.
Counsel submitted that the violence had a chilling effect on other
Members of the public as well as other Members of Parliament that
wished to participate to oppose the amendment. This had an adverse
effect of curtailing several persons from participating. Counsel
174
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therefore submitted that it was imperative for the learned Justices to
find that the process of amendment was filled with violence and was
therefore contrar5r to Article 3(2) of the Constitution. Counsel relied
on the case of Doctors for life International & Ors v The Speaker
of Natlonal Assembly & Ors (supra)
Counsel further submitted that the violence inside
parliament
included a-rrest, assault detention of Members of
parliament
and
their forceful exclusion from representing the Constituents. The
actions violated Article 23, 24 and 29 of the Constitution. The
Constitutional Court however, did not make any declarations to that
effect neither did it grant redress as required under Article 137.
counsel therefore invited this court to find that violence vitiated the
enactment process.
Counsel for the respondent in reply submitted that the learned
Justices rightly found that violence inside and outside
parliament
did
not amount to breach of the Constitution to vitiate the process of
enactment.
Counsel submitted that the unprecedented violence inside
Parliament was occasioned by the Members of
parliament
misconduct which led to their suspension. However since the
suspension was not heeded to, this led to their forceful eviction by
Members of the security forces under the command of the Sergeant-
at-arms.
175
5 Counsel relied on Article 79(l), 94(l), Part XIV of the Rules of
Procedure and Rule 88(6) and submitted that the Speaker had the
right to suspend the Members and was mandated to ensure order
and decorum in the House was maintained. Counsel relied on the
case of T\rinobusingye Severino v Attorney General. Constnl
Petltion No. 47 of 2O11 in support of this submission.
In relation to the violence throughout the country, Counsel
submitted that there was evidence that an overwhelming number of
Members of Parliament carried out their consultation meetings
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counsel submitted that the scuffles from the events that transpired
on the 26rh and 27th September,2OlT necessitated the limitations of
the enjoyment of the Members of Parliament rights and their eventual
arrest and detention by the securit5r forces. counsel submitted that
the enjoyment of these rights is valid only if it is done in a manner
that is acceptable and demonstrably justifiable
in a free and
democratic society as illustrated in Article 43(1).
Counsel also relied on the case of Hon. Lt (Rtdt Kamba Saleh &
Another v Attorney General & 4 ors. No. 16/ lo on constitutional
interpretation and submitted that the entire constitution should be
read as a whole. counsel therefore submitted that the Members of
Parliament should not confuse their right to legislate to mean that it
also extends to the disruption of other people's representatives right
to debate as well as the disruption of the conduct of
parliamentarSr
business.
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uninterrupted and were able to vote on the Constitutional
amendment Bill.
counsel argued that regarding Article 3(2) of the constitution, this is
a new argument that force was used to amend the constitution. This
issue can therefore not be raised at this point. counsel submitted
that this notwithstanding, evidence shows that the amendment was
done with full participation of the Members of
parliament
and
therefore the application of Article 3(2) was misconstrued.
o
counsel therefore invited this court to uphold the decision of the
Constitutional court on this issue.
1s Consideration of issue 3:
Violence inside Parliament
According to the evidence on record there were events that occurred
during the proceedings of 2lst, 26th ur,O 27*,which necessitated the
Speaker to use her discretion and maintain order and decorum in the
House as required under Rule 7(2) of the
parliament
Rules of
Procedure. In so doing, under Rules 77, 79(21 and 8O, she suspended
25 Members who had adamantly refused to exit the House despite
her orders.
Rule 81 provides that:
25
"a
Member who is ordered to withdraw under sub Rule (2) of
Rule 79 or who is suspended from the senrice of the House
by virtue of sub Rule (2) or (3f of Rule 80 shall immediately
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withdraw from the precincts of the House until the end of
the suspension period."
According to the affrdavit of Jane Kibirige the clerk to
parliament
and
Mr. Ahmed Kagoye the Sergeant at arms and the Hansard, the
Speaker had made calls to Members of Parliament to maintain order
and decorum in the House so that the debate could proceed. When
the Members defied the Speaker's order, she was therefore forced to
ask the Sergeant- at -arm to evict them from the house. She
suspended the House for 3Ominutes to enable them to be evicted.
The Hon. Speaker justified
her action under Rule 80(6) which states
that:
I note however, that in the process of evicting the said Members from
the House, some unknown persons brutally beat up some of the
Members including those who were not suspended, thus causing
chaos in Parliament. Some Members were also arrested and confined
in Police stations. This led the speaker to inquire from the president
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"Where
a Member who has been suspended under this Rule
from the service ofthe House refuses to obey the direction
of the Speaker when summoned under the Speaker,s orders
by the Sergeant-at-Arms to obey such direction, the
Speaker shall call the attention ofthe House to the fact that
recourse to force is necessary in order to compel obedience
to his or her direction and the Sergeant At Arms shall be
called upon to eject the Member from the House.r,
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in a letter dated 23.d October, 2017 about the invasion of Parliament
precincts by Security Agencies on the 27th September,2OlT.
From the foregoing, in my opinion, I agree with the Justices of the
Constitutional Court that the violence was caused by the Members
of Parliament themselves as a result of lack of decorum on their part.
In the case of Trrluobusingye Severino v Attorney Gileneral.
Constltutional Petltion No.47 of 2O11 the Constitutional Court
observed that:
u...although
Members of Porliament sre independent and,
hanlc thefreedomto say angthing onthefloor of the House,
they are houseuer, obliged to exercise o;nd enJog tleir
Pouers and Prlvileges uith restralnt o;nd. d.econtm
qnd
in
a mclnner that gitns Honour and. admiration not onlg to
the institrttion oJ Parliament fufi also to those uho, inter-
rrlia electcd thern, those who listen, to and watch thetn
debatlng in the public gallery o;nd on teleuision and. reqd.
about them in the print media. As the National leglsldture,
Pdrllamcnt is the
fountain
of Constihttionqlism and
therefore the Honourable Members of Parliqment are
enjoined bg uirtue of their offt.ce to obsente and adhere to
the bo.sic tenets of the Constihrtion in their deliberations
and. actiotts."
This had been further emphasised by the Deputy Speaker in his
address to the House in the proceedings of 21"t September, 2O17
when he emphasised that:
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u...the
halllnark of a Parliannent is courtesy among and.
betueen Mernbers. So please let us not do things that will
cquse unnecessary anxietg in the House."
That notwithstanding, I note that in bringing calmness to the House,
there was also violence caused by the invasion of the security
agencies as indicated in the Speaker's letter. The Affidavits of Hons.
Betty Nambooze, Munyagwa, Karuhanga, Odur Jonathan and
Sewanyana Allan show that they were brutally tortured and treated
inhumanly causing injury to the victims which acts were
unconstitutional.
The respondent relied on the aflidavit evidence of Gen. David
Muhoozi where he stated that under Article 209(b) the UPDF can
ensure civil public compliance and in that regard, the UPDF
supported the Parliamentary Police in ensuring harmony during the
proceedings.
20
(bf to cooperate with the civilian authority in emergency
situations and in caaes of natural disaster.,,
1C
Even if the presence of the UPDF was justified,
excessive and
unwarranted force was not required in the circumstances. I find that
these acts were therefore contrary to Article 23 and 24- In such
circumstances, the appropriate court, if the affected Members wished
to seek redress for enforcement of their rights would be the High
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Article 209(b) states that:
"functione
of the defence forces
Court which is mandated to investigate and determine
appropriate redress as per Article 50 and 137(4)(b) of
Constitution.
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In conclusion, I agree with the learned Justices that even if there was
violence inside Parliament on the said date, it did not vitiate the
enactment process. The scuffle took place before Hon. Magrezi lnad
moved his motion for leave to introduce the Bill under Article 94(4)(b)
and thereafter, there is no evidence adduced by the appellants that
the subsequent proceedings were interfered with by the securit5r
agencies in order to vitiate the process or that there was a chilling
effect in Members debating. The Bill was debated and supported at
the second and third reading by the votes of not less than two-thirds
of all Members of Parliament. Arncle 262 was observed and
subsequently the Bill was passed accordingly as per Article 259 of
the Constitution.
o
There is evidence that in the process of carrying out the directive d{
by Assistant Inspector General of Police, Mr. Mugreni restricting the
Members of Parliament within their constituencies and in some
places rallies were disrupted. This contravened Article 29. However
there is evidence that in other places rallies took place as rightly
found by the Constitutional Court. This did not vitiate the enactment
process since the Members reported during the debate that they had
consulted and were therefore reporting the views of the public.
181
5
20 Violence outside
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I therefore find no merit on this issue.
Issue 4: Whether the learned. Jrtstices oJ the Constittttiono.l
Court erred ln law uhen theg applied. the sl.tbstantio,litg test in
determlnlng the petitlon.
The appellants faulted the majority Justices of the Constitutional
Court for applying the substantiality test in determining the
consolidated petition. They contend that whereas the applicability of
the substantiality/quantitative principles to election petitions is
expressly provided for in electoral laws, the test is tota_lly different in
Constitutional matters. Therefore, the Constitutional Court acted
outside the jurisdiction
conferred on it by Article 137 of the
constitutiorr when it applied the substantiality test in evaluating and
assessing the extent to which the speaker and parliament failed to
comply with and or violated the Rules of
procedure
of
parliament
as
well as the invasion of Parliament.
The respondent contended that the Constitutional Court was right to
inquire into the extent of the alleged massive irregularities and in
doing so applying the qualitative and quantitative test, the Court
considered whether the errors and irregularities identified sufhciently
challenged the entire legislative process and lead to a legal conclusion
o
Article 3(2) is misconstrued, the Act was not amended violently. It
was amended through the vote of the majority of the Members of
Parliament who freely voted in favour of the amendments.
Submissions of Counsel:
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Consideration of issue 4:
The constitutional court derives its power to determine disputes and
grant remedies under Article r37 of the constitution. Article 137(l)
reads:
"(1f Any question as to the interpretation of this Constitution
shall be determined by the Court of Appeal sitting as the
Constitutional Court.
12t...
20 (31 Any person who alleges that-
(a) an Act of Parliament or any other law or anything in or
done under the authority of auy law; or
(b) any act or omission by any person or authorlty,
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2s Constitution. tnav petition
the Constitutional Court for a
183
that that the Bill was not passed in compliance with the requirements
of the Constitution.
The respondent invited Court to uphold the hndings of the
Constitutional Court that certain irregularities
/errors
were mere
technicalities and were not fatal to sufficiently invalidate the entire
process of eaactment of the Constitutlon Amendment Act, No. 1 of
2018.
is inconsistent with or in contravention of a provision of this
5 declaration to that effect. and for a redress where
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appropriate." (the underlining is for emphasis)
The words of Article 137 are clear and unambiguous. The article gives
the Constitutional Court the power to interpret the Constitution in
order to determine whether any Act or actions complained of are
inconsistent with or in contravention of the Constitution and where
it finds in favor of the petitioner, to declare so and give redress or
refer the matter to the High Court for investigation and appropriate
redress.
20
The Constitutional Court has made declarations in the several
petitions including the examples given by Mr. Mabirizi such as Paul
K Ssemwogere & 2 Others vs Attorney General, SCCA NO. 1 of
2o,o.2.
o
The test applies to Presidential and Parliamentary election petitions
under two specific laws, namely, Section 59(6)(a) of the
Presidential Elections Act, 2OO5 and section 61(1f(a) of the
Parliamentary Elections Act, 2OOS .
10
25
184
Section 59(6)(a) of the Presidential Elections Act, for example,
provides that:
The Constitutional Court is not mandated, after finding that there
1s was contravention of or inconsistency with the Constitution, to
investigate the degree of contravention or inconsistency. It just has
to make a declaration to that effect.
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"(6) The
election of a candidate as President shall only be
annulled on any of the following grounds if proved by to the
satisfaction of the court-
There is no similar law or Act of Parliament made under Article 137
of the Constitution that gives the Constitutional Court the legal basis
to apply the substantiality test to Constitutional petitions. An Act or
act is either Constitutional or unconstitutional. Although this is a
tool of evaluation of evidence, the learned Justices of the
Constitutional Court erred when they relied on the Election Petition
Rules and jurisprudence
in determining a Constitutional matter.
O
For this reason I answer this issue in the affirmative.
25
Issue 5: Whether the learned maJor.ttg &stices of the
Constltutlonal Cour-t. mlsdlrected themselues when theg held.
thqt the Constltutlon (Amendment) Act No. 7 of 2078 on the
remoual of the age ltmtt
Jor
the Presldent and Local Council V
offices utas not {nconsistent wtth the proolslons of the 1995
Constltutlon.
185
(a)noncompliance with the provisions of the Act, if the
court is satisfied that the election was not conducted in
accordance with the principles laid down in those
provisions and that the noncompliance affected the result
of the election in a substantial manner."
(The underlining is added for emphasis)
This issue was resolved together with issue 1.
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Issue 6: Whetlrcr the Constittttlonal Court erred ln lq.w and. in
Jact
ln holdlng tha;t the Presldent elected tn 2076 is not tlable
to uacqte otffce on atto;ining the age of TS gears.
The issue before the Constitutional Court was whether continuing in
office by the incumbent President elected in 2016 upon attaining 75
years contravenes Articles 83(U
D) and
1O2 (cf the Constitution. It
was issue 13. All the Justices answered this issue in the negative.
Submlssions of counsel
Mr. Mabirizi's main contention on this issue was that the
president
elected in 2016 ceases to hold office on attaining 75 years of age as
per Article 1O2(b) and Article 83(1Xb) He submitted that Article
1O2(b) prescribes the nature of a person to appear for nomination
and this has nothing to do with what happens after the nomination
and elections.
He submitted that the answer to the question as to when a leader
ceases to hold such qualifications is found under Article 83 (l) (b).
He argued that since the President's qualifications are pegged on
those of a Member of Parliament, Article 83(1) (b) therefore applies in
the circumstances. According to him, when a Member of
parliament
ceases to be a Ugandan citizen, a registered voter or does not possess
the required academic qualifications, he/she does not wait for the
five year term to elapse in order to step down. This equally applies to
the President.
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Mr. Mabirizi therefore faulted the learned Justices for failing to
harmonise Article 83(1) (b) with 102(b) of the Constitution. He
submitted that had they harmonised the said Articles, they would
have found that the President elected in 2016 ceases to hold office at
75 years of age. He relied on the case of Semwogerere v Attorney
General (supra) in support of his submissions.
counsel for the respondent on the other hand submitted that the
constitutiona-l court rightly interpreted the law when it found that
Article 1o2 (b) purely relates to the qualifications prior to nomination
for election and not during the person's term in office. Counsel
submitted that Article 1O2 (b) is clear and unambiguous and
therefore the learned Justices'finding on this issue cannot not be
faulted. counsel therefore invited this court to uphold the decision
of the Constitutiona-l Court.
Consideration of issue 6:
20 Article 102 provides
A perso
n is not qualifie
d for election as President unless
25
that person is-
(ala citizen of Uganda
(c) a person qualified to be a Member of
parliament.,,
787
"LO2. Qualification of the President
(b) not less than 35 years and not more than seveaty-Iive
years ofage; and
a 83 (1) (c) reads:
*83.
Tenure of Oflice of Members of
parliament
(a|...
(b)...if such circumstances arise that if one was not a
Member of Parliament would cause that person to be
disqualified for election as Member of
parliameut
under
Article 8O of this Constitution;
(c)..."
The words used in Articles 83(l) (b) and 102 (b) are plain and ought
to be given their natural meaning. Article 83 applies to the tenure of
Members of Parliament, not the President. The requirement of age as
a qualification for being elected President is at the point of election,
and not during the incumbency. The framers of the constitution
would have expressly stated so, had they intended that the president
should vacate office upon attaining the age of 75.
I therefore find no merit in the submissions of the appellants on this
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a
lSSl-le.
Issue 8: What remedies are avo;ilobte to the parties?
For the reasons I have given herein, I would dismiss the appeal and
the parties shall bear their costs in this court. I would confirm the
decision of the Constitutional Court.
o 5 and not during the incumbency. The framers of the Constitution
would have expressly stated so, had they intended that the President
should vacate office upon attaining the age of 75.
I therefore find no merit in the submissions of the appellants on this
lSSUe.
10 Issue 8: What remedles are aaallable to the par.tles?
For the reasons I have given herein, I would dismiss the appeal and
the parties shall bear their costs in this Court. I would confirm the
decision of the Constitutional Court.
15
20
I wish to express my gratitude to Mr. Mabirizi and Counsel for all the
parties for the industry and skill they put in the preparation and
presentation of this case.
Delivered at Kampala this
l8
day of April
, 2019.
M.S.Arach-Amoko.
JUSTICE OF THE SUPREME COURT
25
188
(*
---
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I wish to express my gratitude to Mr. Mabirizi and Counsel for all the
parties for the industry and skill they put in the preparation and
presentation of this case.
Delivered at Kampala this
l8
day of April, 2019.
M.S.Arach-Amoko.
JUSTICE OF THE SUPREME COURT
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