Attorney General v Ssemwogerere and Olum (Constitutional Appeal 3 of 2004) [2005] UGSC 29 (7 July 2005)

a a IN THE SUPREME OF UGANDA AT MENGO (CORAM: ODOKI, C.J., ODER, TSEKOOKO, KAROKORA, MULENGA, KANYEIHAMBA, JJ.S,C. AND OGOOLA, AG. J.S.C.) CONSTITUTIONAL APPEAL NO. 3 OF 2OO4 THE ATTORNEY GENERAL :::]:::::: APPELLANT AND 1. PAUL K. SSEMOGERERE 2. HON. ZACHARY OLUM RESPONDENTS I I o REASONS OF KANYEIHAMBA, J.S.C. FOR THE COURT'S JUDGMENT \ THE REPUBLIC OF UGANDA BETWEEN [Appeal from the judgment and decisions of the Constitutional Court (Okello, Mpagi-Bahigeine, Engwau, Twinomujuni and Kitumba, JJ.A.) dated 2Tth June, 2004, in Constitutional Petition No. 3 of 20001. We heard this appeal from 9th to 11th August, 2004, and reserved our judgment. ln view of the urgency and importance of the issues involved in the appeal, we found it necessary to give our judgment and decisions at an earlier date than we had anticipated. On 2,d September 2004, our judgment was delivered with a summary of our I o reasons and it was then intimated that we would give our detailed reasons on a later date. Whereas we were unanimous in our judgment, we differed on some of the reasons for the declsions and I find it necessary to comment on them. I have also had the benefit of reading in draft the excellently argued reasons given for the same judgment by the learned Chief Justice Odoki, and I agree with him in so far as I do not express a contrary opinion in my own reasons on any of his. There were 14 grounds of appeal filed before us. The learned Attorney General abandoned ground I and 13 of the appeal. Following his submissions and arguments on all other grounds, the Attorney General intimated that ground 12 had been covered in the submissions in support of the rest of the grounds and that he did not wish to address us on separately. After hearing submissions and arguments of counsel for the parties, and applying the same to the record of proceedings and laws applicable, we found no merit in grounds 2 and 3 and accordingly dlsmissed both of them. We next considered grounds 5 and 6 and dismissed them on the grounds that the passing of the Referendum (Political Systems) Act No. 9 of 2000 by Parliament was in contravention of the Constitution. We also observed that giving that Act retrospective effect and validating whatever was done under it even if bona fide. was contrary to the provisions of the Constitution. , l t o We next considered grounds 9, 10, and 11 and found merit in 10 and 11. First, lam constrained to observe that in their submissions on methods of voting in Parliament, counsel for the appellant had all along contended that our opinions which we expressed on the matter in Constitutional Appeal No. 1 of 2002, Paul K. Ssemogerere & Others v. The Attorney General (S.C), (unreported), had been obiter. ln my opinion, this was a misreading of our judgment. Besides what we clted from the learned Chief Justice, Odoki, in our judgment in this appeal, in the lead judgment in Constitutional Appeal No. 1 of 2002, I said, "l ant conslrained to stale in the clearesl of terms thal the procedural rules and mode of ascerloining majorities for effecting constitutionol tmendments ate not found in the Constilution (Amendnrcnt) Act 13 of 2000 hut in the provisions of the Uganda Constitution of 1995 itself. It is evidenl lherefore thil the two lhirds mojority of all members of Parlioment required for lhe second ond third readings of o hill to omend the Constilution cannol be ascertained by voice voling under thc porliamentary practice of using shouts of "Ayes" or "Noes" to indicote consenl or dissenl, respectively. In my view, for constitutional omendmenl, the voting in Parlianrcnt should be delermined hv the heul count of members in fuvour of and ogainsl the tmendment at lhe second ond tltird reoding hy lohbt, tlivision or such other mode us c n oscerloin lhtt lhe supporlers of lhe umendmenl ore two thirds of the totol numher of Members of Porliament. In my opinion, it is the stricl observance of the constitutional rules of procedure for determining the will of the majority in Parliamenl thal will creole ond nurture s cuhure of belief in Ugundans thal they- tre truly ond democrtlically represented and governed." ln the same appeal, my learned brother, Oder, J.S.C. said, o ., o The other learned Justices of the Supreme Court, (Tsekooko, Karokora, Mulenga, JJ.S.C. and Byamugisha, Ag. J.S.C.) concurred with the judgments of the learned Chief Justice, Odoki, of Oder, J.S.C and mine, in so far as this matter is concerned. Thus, the court was unanimous in agreeing with the opinion ably expressed in the judgment of the learned Chief Justice which I referred to earlier in these reasons. o "It is my view thal the Constitutional procedural requirements for the enoctment of legislotion for amendment of the Constitution are mtndatory conditions which ctnnot he waived by Parlioment os mere procedural or administrative requirements. They ore condilions to he complied with. Mondotor.l' Cottslitutiontl requiremenls c(rrrrol bc sitttply n,oiverl b.l, Porlianrenl under its utltt procedural rulcs. It is also my considered opinion thot hod lhe learned D.C.l. and Justices of Appeal found that Act/2000 amended Articles 28, 41,44, 128 and 137(l) and (3) they woultl hovefound lltat the Conslitutional procedural requirements under Articles 258, 259,260(l),262(l) ond (2) were mond ory and that Parliament shoultl have complied with thent in enacting Act t 3/2000." ln any event, we upheld the decision of the Constitutional Court on ground 9 by reason of the fact that a committee of the whole house is not a standing committee within the meaning of Article 90 of the Constitution. On grounds 10 and 11, we reversed the decision of the Constitutional Court. We found that there was merit in those two grounds. However, as will be seen later, I will have a little more to say on those two grounds by way of different reasoning. We next considered the submissions on grounds 4, 7 & 8, and allowed them, .+ o While I agree that grounds 4, 7 and 8 succeed, I do not agree that the court has discretion in regard to the declaration it has to make. The Constitution of Uganda in Articles 69 and 271 obliges the country to hold a referendum so as to enable the people of Uganda to exercise their right to choose and adopt a political system of their own choice. Thus, Article 69 provides: "The people of Uganda shall have the right to choose and adopt a political systern of their choice through free and fair elections or referenda." Then, Article 271(1) provides that, "Notwithstanding the provisions of Articles 69 of fhis Constitution, the first Presidential, Parliamentary, local government and other public elections after the promulgation of this Constitution shall be held under the Movement Political System. 271(2) 271(3) during the last month of the fourth year of lhe term of Parliament referred to in clause 2 of this article, a referendum shall be held to determine the politicalsysfern the people of Uganda wish to adopt." The combined effect of the provisions I have reproduced above is that it was imperative and compulsory to hold a referendum before the expiry of the term of Parliament which was elected in 1996. The two Articles of the Constitution provided guidelines for the holding of o holding that in the absence of a valid law the referendum could have been validly held under Articles 69 and 271(3) of the Constitution. 5 o that referendum. According to Article 69, the referendum had to be free and fair. The referendum was held on 29ih June, 2000. lts results were generally accepted in the country. They were not challenged in court. For a period of some four years, no one filed any petition to have the referendum or its results invalidated. I was therefore not persuaded by the arguments advanced by Mr. Lule, lead counsel for the respondents, that since the respondents intended to challenge the validity of the Referendum (Political Systems) Act, it was not necessary and indeed, it would have been futile to challenge the referendum itself or its consequences. ln my view, that argument was in error since the referendum was held and had to be held directly under the provisions of the Constitution which have never been legally challenged ever since its promulgation in 1995. Since the referendum was a Constitutional requirement, it could only have been challenged on the ground that it was unconstitutional. Article 271(2) and (4) provided the timetable and steps to be taken before the holding of the referendum. For instance, before the holding of the referendum, any person would have been free to canvass for public support for a political system of his or her choice for purposes of the referendum. The evidence before the Constitutional Court which heard the petition that resulted in this appeal was that some members of one political party, namely the Democratic Party were prevented from canvassing. Credible as it may be, this evidence was insufficient. o 6 a This may be illustrated by an imagined mandatory Law of Utopia by which all residents on side A of a lake must cross to its B side by a named date. The same law also provides that the Utopia Parliament shall provide an oceanliner to give the residents comfortable means of crossing the lake before the named date. Unfortunately, Parliament fails to provide an oceanliner or provides one which leaks. ln that event, the residents affected would have the right to use any other available means to comply with the law. They may use a canoe or a log raft. They may use an aircraft or if need be, swim across the lake in order to beat the deadline. The obligation to cross the lake and be on side B is a superior obligation compared to the desirability that Parliament provides the means by which the residents shall cross the lake in comfort. Once, the residents are safely on side B of the lake, the means by which they achieved the constitutional obligation becomes of secondary importance. Similarly, under the Constitution, the obligation imposed by the provisions of Articles 69 and 271 ior the people of Uganda to vote In a referendum and determine the political system by which they will be governed is superior to the requirement that Parliament shall provide a procedure by which that referendum shall be held. The other requirements were that the referendum would be free and fair and be preceded by free campaigns. However, as observed earlier, these requirements were not disputed until much later when the respondents prosecuted their petition in the Constitutional Court from which this appeal arose. O 7 a For the foregoing reasons, I am of the opinion that the Constitutional Court erred in holding that the referendum which was held on 2gth June, 2000 was in contravention of the Constitution. I would set aside declaration (b) of that court which held that the referendum under the Referendum (Political Systems) Act, 2000 before passing a law under Article 269 to set free political organisations contravened Article 69. ln my view, the said referendum was validly held and its results are binding and in force by virtue of the provisions of Articles 6g(1)and 271(1) and (3) of the Constitution. Nothing further need be said. Consequently, with great respect I do not share the majority opinion of my colleagues which is implicit in the following words, "To declare the referendum a nullity would have far retching consequences. In our view, these u)ere compelling circumstances in respect of which lhe Constitutionol Court ought to have e-rercised its tliscretion to decline gronting the second decloration", when those circumstances are not based on any sound and firm legal foundation. ln my view, constitutional principles and rules should always be interpreted objectively and impartially without regard to consequences except in very exceptional circumstances which do not exist in this appeal. lt would be an error to construe constitutional provisions on the basis of what that construction might lead to. lt is untenable in a case of this nature to suggest that the constitutional Court or any other court has or can exercise discretionary powers and decline to grant a remedy sought by a petitioner or litigant on the O It o basis of some extraneous issues other than judicial and constitutional. It may be recalled that in the 2000 U.S.A. Presidential elections, the candidate who was eventually rewarded by the fortunes of discretion was George W. Bush following problems in the electoral system of one state, namely Florida. The U.S.A. Constitution gives every eligible citizen the right to vote and with other voters to determine who will be the next President of the U.S.A. The people of Florida exercised their basic constitutional right and voted. However, the electoral laws and practices of the state of Florida which are subordinate to the U.S.A. Constitution that grants the right to vote, appear to have slow and cumbersome procedures when it comes to counting the votes cast in Presidential elections. They also fix a date when the counting of those votes should be ended. lt is not inconceivable that officials who fear that one Presidential candidate whom they do not wish to see win is favoured by the Florida voters, to delay or put other obstacles in the way of counting the votes so as to frustrate that candidate's chances of winning nationally in favour of the candidate most favoured by them. lndeed, that is exacfly what happened in that election as evidenced by the respective rulings of the Supreme Courts of Florida and the U.S.A in Bush v. Gore (00 - 949) and George W. Bush petitioner v. Palm Beach County Canvassing Board, et.al (No. 00.836), December 2000. By the time the deadline for counting the votes passed, hundreds of votes had not yet been counted. The matter became contentious as o I o to whether the counting of the votes should stop or continue after the closing date of the counting. One would have thought that the right to cast a vote and choose a President was more important than the administrative competence or incompetence of counting those votes. The matter went to courts. Both the courts in Florida and the Supreme Court of the U.S.A. exercising their respective discretions gave conflicting opinions as to whether the counting should stop or be continued. o l0 Articulating the respective views of both sides, Justice Breyer, one of the dissenting Justices in George .W.Bush Vs. Albert Gore No. 00- 949 of December 12, 2000, having observed that the political implications of the case were momentous for the U.S.A, continued; "Nonetheless, there is no jusliJicalion for lhe majority's remedy, which is simply to reverce the lower court and halt the recount entirely. An appropriale remedy would be, instead, to remand lhis case wilh instructions lhal, even at this late date, would permit the Florida Supreme Court to require recounling all undercounted votes ...The mojority justifies slopping the recount entirely on lhe ground lhot there is no more time ... But lhe majority, reaches this conclusion in the absence of any record evidence that the recounl could not htve been compleled in lhe time allowed by the Florida Supreme Court .... By holting the manual tecount, ond thus ensuring lhal the recounted legol votes will nol be counted under any standard, the court crofts o remedy out of proportion to the osserted harm. And that remedy harms the very fairness interests lhe Court is ottempting lo protect," a Many other examples of how judicial discretion can be used to frustrate legitimate rights of petitioners and litigants can be found and cases cited. Cases such as R.v. Halliday, ex pafte Zadig [1917]A.C. 260, Liversidge v. Anderson 119421, A.C. 206, and the laws and decisions made following the final determinations in Burmah Oil Co. v. Lord Advocate [1965] A.C. 75, Republic v. Micheal Kamaliza and Others, Crim. Sess. Case No. 103 of 1970, and lbingira and Others v. Uganda [1966], H.C. Crim. Sess.306, are some of the examples. lt is for this very danger and the desire to uphold constitutionalism and good governance that, with great respect, I differ from the view that the Constitutional Court should have exercised its discretion to decline to grant a remedy. I will now discuss ground 14 of this appeal. ln my opinion, ground 14 was an important and controversial alternative ground to have been included in the Memorandum of Appeal in this case. This is the ground which required the court to hold that what had been effected under the impugned referendum Act should be validated and become effective under the doctrine of prospective overruling. lts import and o t1 ln these reasons, I have endeavoured to emphasise the supremacy of the Constitutional provisions in Articles 69 and 271. Where Parliament is required to make a law to implement those provisions smoothly and fails to do so or makes a law which is null and void, that failure does not, per se, invalidate or affect the implementation or enforcement of the same provisions if such implementation or enforcement is done under some other scheme or regulations not outlawed by the Constitution itself. o It was further contended on behalf of the appellant that failure to apply that doctrine was contrary to public policy and national interest because the declaration would affect schemes that had been set up bona fide on the legitimate assumption that the Act had been constitutionally and validly passed by Parliament. Counsel contended that certain rights and obligations had been created under the impugned Act and were in operation. To uphold the decision of the Constitutional Court that whatever was authorised under the invalidated Act was also null and void and inoperative would lead to manifest absurdity and result in dire and undesirable national consequences. Counsel for the appellant cited the majority decision in the U.S.A. case of State of Wisconsin v. Waylon Picotte, No. 01- 3063, Croi-3063 CR of 2003; State v. Esser, 16 Wis. 2d 567,115 N.W.2d.505 (1962); United States v. Chase, 18r. 3d. 1166, 1172, o ll potential consequences are so enormous that Counsel for the parties made extensive, elaborate and powerful arguments for and against it and cited a number of authorities in favour or against the propositions advanced for either side. ln my view, this court ought to have pronounced itself on it in our judgment of September, 2004. Be that as it may, lt was submitted on behalf of the learned Attorney General that notwithstanding the declaration by the Constitutional Court that the Referendum (Political Systems) Act, 2000, was unconstitutional and therefore null and void, all the same, that court ought to have applied the doctrine of prospective overruling and validated the acts and decisions which were done or reached under it before that declaration, especially those which were bona fide. o 14th Cir. 1994); American and English Encyclopaedia of Law, Vol. 6, p. 289, Baker v. Carr, 369 US. 186 (1962); Interpretation Act, Cap. 3 and the House of Lords, Practice Statement published in [1966] IWRL . 1234, amongst others. For the respondents, Mr. Lule, S.C., opposed ground 14. He contended that once an Act of Parliament has been declared null and void nothing done under it can be held to be valid since to do so would be validating the very Act which has been impugned. He contended that the effect of declaring a law null and void is to say that that law is invalid ab initio. A law which is void ab initio cannot confer on anyone or some authority, rights or obligations or create schemes. Any of such perceived consequences would be stillborn. Counsel for the respondents cited the following authorities in favour of his submissions; J. Beatson and M.H. Mathews: Administrative Law: Gases and Materials, Clarendon Press, Oxford; Franklin v. Minister of Town and Country Planning, [1948] A.C. 87, S.A. De Smith,s Judicial Review of Administrative Action, 4th ed. pp. 250-266, S.G.G. Edgar's Graies on Statute Law, 7th ed. Sweet & Maxwell, 1971, pp. 352-401 . We held that the referendum which was held in 2000 and its consequences were valid and constitutional, not because they were held under the Referendum (Political Systems) Act, 2000, but because they were in compliance with the obligatory requirements of the Constitution and in fulfilment of the mandatory provisions of Articles 69 and 271 ln effect, we were o t3 a The determination of ground 14 calls first for an understanding of what is meant by void and nullity. ln their 8th Edition of Wade's "Administrative Law, 2000", published by Oxford University Press, the learned authors, H.W.R Wade and C.F. Forsyth describe a nullity or a law which is void as, "An Acl or olher order which is a nullity, utterly without e-rislence or effecl in law. Thal is the meaning of voitl, the term most commonly used, In several decisions, the House of Lords has made it clear thal lhere are no degrees of nullity and thtrt errors such os bad foith, wrong grounds, ond hreach of nalural justice ill necessorily involye e-rcess of jurisdiction and therefore a nullity." I agree with the learned authors on this matter. English jurisprudence from which Uganda draws a great deal of experience is rich in decisions to the effect that in public law, void and nullified statutes hardly ever confer rights or obligations beyond their judicial graves. ln cases such as Anismic Ltd. V. Foreign Compensation Commission, [1969] 2 A.C. 147, Ridge v. Baldwin [1964] A.C. 40 and Credit Swiss v. Allerdale B.C. [1997 Q.B. 306, the House of Lords and other English courts are cited with approval for the majority proposition that judicially nullified laws confer no rights from beginning to end. Thus, in Hoffmann La Roche & Co. v. Secretary of State for Trade and lndustry [1975] 4.C.295, at 365, Lord Diplock said, "It woultl, however, be inconsistent with the doctrine of ultra vires as it hos been developed in English low os tr means of controlling obuse of power by the execulive orm of o not validating anything. We were simply applying the Constitution and construing its provisions. l4 o government dthe judgment ofo court in proceedings properly constituled thsl tt stotutory instrument wa,s ultra vires were to htve ony less consequence in law than to render lhe inslrument incopable of ever having had tny legd effect." ln the same case, the court held that the court's judgment that an Act is a nullity operates erga omnes, that is against everyone concerned. ln Boddington v. British Transport Police [1999]2 A.C. 143 at 158, Lord lrvine, L.C. said that when an Act or a regulation has been pronounced by the court to be unlavvful, it is then recognised as having had no legal effect at all. The doctrine of prospective overruling may be contrasted with that of retrospective legislation. ln reference to one of the authorities cited in support of the arguments in favour of the doctrine of prospective overruling, namely the Wisconsin v. Waylon Pictotte case, the court was split and one of the opinions expressed was: "Permitting retroactive application of expended criminal /aws as a general proposition threatens the liberty and interests of everyone within a free and open society." ln 2001, in the case of Rogers, 532 US.451 the Supreme Court of the U.S.A stated, ln my view, the doctrine of prospective overruling which has the effect of validating what is illegal should never apply to legitimize what was done mala fides. o l_s "We conclude that a judicial alteration of a common law doctrine of criminal law violates the principle of fair warning, and hence must not be given retroactive effect". o I have had the benefit of reading the reasons given by the learned Chief Justice, Odoki for our judgment in this appeal. The Chief Justice has dealt with and discussed authorities from diverse jurisdictions including those of the U.S.A, the U.K, tr/alaysia, lndia and South Africa stating, expounding and elaborating upon the concept and use of the doctrine of prospective overrullng. o 16 Most of the cases and opinions cited in favour of the doctrine relate to administrative acts and decisions in which discretionary powers are exercised and are so exercised to determine rights and obligations in personam or relate to criminal justice. ln an administrative act, the court may exercise discretion and refuse to grant the necessary legal remedies that would follow from that act being declared null and void. Thus, in the English case of Smith v. East Elloe RDC, [1956] A.C. 736, it was held that an administrative order however void, becomes valid for practical purposes where a statutory time limit expires after which its validity cannot be questioned. The rationale here is clear. The statute does not make the order valid. lt simply terminates the time in which a remedy could have been granted. Nevertheless, even in administrative law where the exercise of discretionary powers is a common feature, the degree and range of applying prospective overruling are severely limited. ln his Judicial Review of Administrative Action, Fourth Edition, S.A. de Smith observes; "Void acts and decisions are indeed usually destitute of legal effect; lhey can be ignored with impunity; their volidity can be atlacked if necessory, in collaterol (or indirect) proceedings; they confer no legil rights on anybotly." o The learned author concedes to a number of exceptions such as the validation of voidable actions on such grounds as time limits, consent, waiver or acquiescence of parties. He also observes that the same principle of prospective overruling has been discerned in collateral and statutory remedies such as those relating to habeas corpus proceedings and orders of compulsory purchases. He then concludes, "In practice, the courts have sufJicienl room for manouevre lo be able to avoitl being driven to reoch unsalisfoctory conclusions by the pressure exerted by conceptutl reasoning. The sdverse meanings ond implications of voidness and the eloslicity imported by the discretionory noture of most of the judiciol remedies, are apt to generate uncertaintlt and indeed exasperation." ln my view, the issues raised in ground 14 even if admitted should, in Uganda, be confined to criminal justice, administrative actions and other cases where discretionary powers and decisions relating to res in personam abound. The doctrine should have no place in constitutional disputes where the courts' role should be confined to empirical declarations of law and the precise interpretation of constitutional provisions in a prudent, impartial and objective manner. To widen the operation of the doctrine of prospective overruling to cater for constitutional challenges in an evolutionary jurisprudence such as that of Uganda would open the floodgates for the arbitrary amendments of every Article and Clause in the Constitution. There would be great expectations and belief among those intent on effecting the amendments that even when they do so unconstitutionally and capriciously, what they will have done will be o l7 O valid and binding notwithstanding that the same amendments are later judicially pronounced null and void and to have been engineered through bad faith. My reasons for not accepting the use of the doctrine of prospective overruling so readily are simple to discern. ln his scholarly and illuminating discourse contained in the reasons for the court's judgment in this appeal, the learned Chief Justice, Odoki, has cited authorities in support of the doctrine of prospective overruling. The analysis and reasons given are strong and persuasive. The Chief Justice concludes with the caution which I partially agree with to the effect that: "It oppears to me that the doctrine of prospective overruling is o relalively new principle which has been developed in various j urisdictions under different circumstances and which may be applied in Uganda after careful considerarion. It is a useful remedy which is based on judicinl tliscrelion to do justice in each cose to preserve the volues and goals explained earlier in this judgment, which include lhe preservation of the rule of law and a stable constitulionol order and the prevention of chaos and anarchy. The doctrine shoultl be further developed in Uganda to clarify its scope and application in future." As already noted, with a few exceptions, the authorities and opinions ably examined by the learned Chief Justice, were concerned mainly with criminal cases and administrative actions where justice, discretionary powers, vested rights, obligations and liabilities call for the invocation of the doctrine of prospective overruling. lt is in the o I8 t ln the developed countries where the largest number of examples on the doctrine of prospective overruling are derived, the doctrine is often utilised under a background of where governments and public authorities which are largely subject to accountability, act wrongly or unconstitutionally but honestly and without sinister motives. Such schemes, rights and obligations arising under impugned laws and measures have gone on for years undetected and it is only later that someone or a body discovers that not everything was done according to the strict rules of law. lt is in such situations, that it is perfectly legitimate and understandable to salvage them under the doctrine of prospective overruling. On the other hand, in the developing countries of which Uganda is one, decisions to bypass proper methods of making law or of amending constitutions are deliberately and knowingly taken. Sometimes they are effected arroganily with impunity and against professional advice. o l9 area of constitutional affairs that society endeavours to avoid occurrences of chaos and anarchy, if any. However, in my opinion, even in the unlikely event of chaos or anarchy threatening, the use of prospective overruling should only be resorted to when all other possible options such as conferences for alternative resolutions, elections and resignations of the defaulters have been fully explored and exhausted. ln my opinion, it should only be used after the rights, obligations and the schemes it is intended to save have existed for a long time and where the irregularity or illegality had occurred inadvertently and not deliberately induced or encouraged. o The makers of the Uganda Constitution of 1995 outlawed the Kelsenian theory of the grand norm by including in that constitution Article 3 which reads; o 20 I ln some countries, constitutions are perceived by those in power, not as protectors of the human rights and the liberties of the individual but as instruments for legitimizing the exercise of power. For the opponents of these rulers, constitutions are understood in terms of the government's legitimacy to exercise arbitrary power, to impose restrictions on certain freedoms and rights and to do whatever the rulers deem necessary firstly, for their survival and secondly, in what they deem to be the interest of society. ln effect, the application of the doctrine of prospective overruling has the same characteristics and effects as the application of an effective revolution othenrvise known as a species of the Kelsenian theory of the grand norm. This stipulates that where a constitutional order is violently or othenrise overthrown and its replacement is acquiesced in and accepted by state officials, judges and the general public, the replacement becomes the new constitutional order. For many years, this was a persuasive realization of the legal consequences of successful revolutions. lt was invoked in Pakistan in the case of The State v. Dosso P.L.D. 1958 S.C 533; in Uganda in the case of Uganda v. Prisons Commissioner, ex p. Matovu [1966] E.A 514 and in Zimbabwe when it was still known as Rhodesia in the case of R. v. Ndhlovu 1968 (4) S.A 515. a 3. (1) lt is prohibited for any person or group of persons to take or retain control of the Government of Uganda, except in accordance with the provisions of this Constitution. (2) Any person who, singly or in conceft with others, by any violent or other unlawful means, suspends, overthrows, abrogates or amends this Constitution or any part of it or attempts to do any such act, commits the offence of treason and shall be punished according to law. (3) This Constitution shall not lose its force and effect even where its obseruance is interrupted by a government established by the force of arms; and in any case, as soon as the people recover their liberty, its obseruance shall be re-established and all persons who have taken part in any rebetlion or other activity which resulted in the interruption of the observance, shall be tried in accordance with this Constitution and other laws consistent with it. (4) All citizens of Uganda shall have the right and duty at all fimes - (a)to defend this Constitution, and in parlicular, to resist any person or group of persons seeking to ovefthrow the established constitutional order; and (b)to do all in their power to restore this Constitution after it has been suspended, ovefthrown, abrogated or amended contrary to its provisions. (5) Any person or group of persons who, as required by clause (4) of this afticle, resisfs the suspension, overthrow, o 2l t o abrogation or amendment of this Constitution commits no offence. (6) Where a person referred to in clause (5) ot this afticle is punished for any act done under that clause, the punishment shall, on the restoration of this Constitution, be considered void from the time it was imposed and that person shall be taken to be absolved from all liabilities arising out of the punishment. Article 3 was further inspired by the knowledge that in Africa there had been massive violations of human rights and blatant disregard of constitutional obligations, with some courts tending to uphold the government's side on controversial issues. Thus, one judge of the former Court of Appeal for Eastern Africa made remarks which are reported in 2 E.A.L.J [1969], as follows; " I ask you to imogine what might happen if the courts of o newly emergenl n ion, in which lhe rule of law is not a settled woy of ltfe eilher on the part of the executive and the people,, were by their jutliciol decision to enter the politicol arena." ln common law countries, rules of equity and construction have been developed and are applied in order to avoid awkward situations that may arise as a result of interpreting laws literally. These rules include the literal rule, the golden rule, the mischief rule as well as the ejusdem generis rule. The doctrine of prospective overruling is a potential rule that is knocking at the jurisprudential door to be admitted and operate along the ones I have enumerated. As the learned Chief Justice Odoki rightly observes in his reasoning, it ls still o 22 o The doctrine of prospective overruling as a device is pleaded in order to give courts an excuse not to displease an impatient executive or inattentive legislature either of which may deliberately depart from the dictates of constitutionalism. Justice A. Aguda writing in Essays On Third World Perspectives ln Jurisprudence, 1978, astutely observed; "It would, of course, be erroneous and catastrophic if judges in developing countries occepted the formolistic interpretation of lhe Rule of Ltw, and thus, stood aloof while countries foll into the errors of South Africa (before that country was liberated from Apartheid), and ldi Amin of Uganda and Bokassa of the Central African Empire. llhilst admittedly it may not be the duty of the judge lo consider lhe rightness or wrongness of o law especiolly an eroded law, a judge in a developing country must regord himself (or herselfl to the extent possible, as the bulwork against lyranny and oppressive laws. He must continuously remind himself (or herselfl of the asserlion by the Internotionul Commission of Jurists, that ,The Rule of- Lau, is o/ univarsal wlidity antl upplicotion as it embraces lhose principles of .iusticc v,hich are considered minimul to the as"-urance of hunan rights und the dignity o/'ntan'." o 23 in its formative stages even in the developed countries that claim to have mature jurisdictions. The developing countries with delicate and evolving jurisdictions ought to hesitate long before embracing the doctrine of prospective overruling. I ln my opinion, the doctrine is presently unsuitable to resolve the issues which arose in this appeal nor would it be desirable to apply it to similar or other constitutional disputes in the near future. For the reasons I have given, I would dismiss ground 14 of the appeal. It was for the reasons I have given that I agreed that the appeal should partially succeed. I would order that each party bears its costs of this appeal while the respondents get half the costs in the Constitutional Court. 2005. O o G.W. KANYEIHAMBA JUSTICE OF THE SUPREME COURT 24 I Dated at Manso mis .7/.L day "t {il+) L