Ssemwogerere and others v Attorney General (Constitutional Appeal 1 of 2002) [2004] UGSC 49 (29 January 2004)

p ( THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT MENGO (GORAM: ODOKI CJ, ODER, TSEKOOKO, KAROKORA, MULENGA, KANYEIHAMBA, JJ,S.C AND BYAMUGISHA AG. JSC) CONSTITUTIONAL APPEAL NO.1 OF 2OO2 BETWEEN APPELLANTS (An appeal from the judgment of the Constitutional Cou rt M ukasa Ki konyogo,DCJ, Kato,Mpag i- Ba h igei ne, anct Twinomujuni JJA, dated 1lh April 2OO2 in Constitutional Petition No. 7of 2000) I have had the advantage of reading in draft the judgment of my learned brother, Kanyeihamba JSC, and I agree with him that this appeal should substantially succeed. The facts giving rise to this appeal have been sufficiently outlined in the judgment of my learned brother, Kanyeihamba, JSC, and it is unnecessary to repeat them. The appellants have filed six grounds of appeal which are set out in the judgment of my learned brother, Kanyeihamba, JSC. The grounds of appeal raise three main issues for determination. The first is whether the Constitutional Court did not have jurisdiction to construe one provision of the Constitution against another. The second issue is whether the Constitutional Amendment Act No.1 3 of 2000 amended the various Articles enumerated by the appellants. PAUL K. SSEMOGERERE) ZACHARY OLUM ): JULTET RATNER KAFTRE ) AND THE ATTORNEY GENERAL :::::::::::::::::::::::::::::::::::::::: RESPONDENTS JUDGMENT OF ODOKI, CJ t The holding also decided Constitutionat petition No.6 of 2000 Karuhanqa Ch?oaa and 2 Others vs Attornev General in the same way as test case,,, This opinion raises question of the role of precedent in the constitutional Court or the Court of Appeal, and the question of harmonisation of the provisions of the constitution. with regard to the first question, the doctrine of precedent is now constitutionalised in Article 132(4) of the constitution, which provides, "The Supreme Court may, while treating its #)revious decisions as normally binding depai from a 'previous decision when it appears to it right to do so; and'all othir Courts shall be bound to fotiow the decisions of the Supreme Court on guestions ol taw." This prlnciple is a codification of the principre enunciated in the case oI Dodhi vs National & Grin dlavs Bank Ltd (1970) EA '195, and the House of Lords Practice Statement (Judiciat precedent) (1966) I W L R.1234 "ln Kiriri Cotton Co .Ltd vs Ranchod, das Kesharlt Dewani (1958) EA 239, Sir Keneth O Cornor P, with the concurrence of other members of the Court, held following Younq vs Bristol Aeroplane Co.Ltd fi944 KB 7 18 that the principle of stare decis is followed by fol I ow i ng q u a I ification s : this Court, subject to the that the court is entiiled and bound to decide which of two conflicting dectsions of its own it will follow; that this court would be bound to refuse to follow a decision of its own which though not expressly overruled cannot stand iith a (1) 3 (2) The doctrine of precedent requires lower courts to follow decisions of higher courts on questions of law. The doctrine also lays down when a court is not bound to follow a decision of a higher court. This means that the constitutional courucourt of Appeal is bound to follow decisions of the Supreme court' As regards its own decisions, it wourd normaily be bound by them except under the three circumstances set out in youno vs Bristo, Aeroolane co.Ltd (1944) K.B. 718 which was approved in Dodhra,s case (supra) where Law JA said at p.210, The second question is one of harmonisation. The Constitutional Court was in error to hold that it did not have jurisdiction to construe one provision against another in the constitution. lt is not a question of construing one provision as against another but of giving effect to all the provisions of the Constitution. This is because each provision is an integral part of the 4 decision of the Privy Council or of the House of Lords; and (3) this court is not bound to follow a decision of its own if it is satisfied that the decision was given per incurium." It is clear from these authorities that the Constitutional Court was not obliged to follow its own decision if that decision was in conflict with the decision of the Supreme Court or if the decision was given per incurium. ln my view the decision of the Constitutional Court in this case is inconsistent with the decisions of this Court in the cases of Maior General David Tinvefuza vs Attornev General. Constitutional Appeal No.1 of 1997 (unreported) and pau! Ssemoqerere and Zachary Olum vs Attornev General, Constitutional Appeal No.1 of 2000, (unreported). ln Maior General David Tinvefuza vs AtTornev General. (supra) this Court held that Section 121 of the Evidence Act, which prevented the production in evidence of unpublished official records without the consent of Head of the Department was unconstitutional as it was inconsistent with Article 41 of the Constitution which provided for a right of access to information in possession of the State and Article 2B(1) which provides for a right to fair hearing. Similarly in Ssemogerere and Olum vs Attornev General (supra) this Court held that Section 15 of the National Assembly (Powers and Privileges) Act which prevented any member or officer of the Assembly to give evidence in respeet of Assembly matters without the special leave of the Assembly, was in conflict with Articles 41 and 28 of the Constitution, and was therefore null and void. The provisions of Section 5 of Act 13 of 2000 amending Article 41 are, as we shall see later, a reproduction of Section 15 of the National Assembly (Powers and privileges) Act which had been declared unconstitutional. The Constitutional Court was bound to follow these decisions of the Supreme Court, and it erred in not doing so. Constitution and must be given meaning or effect in relation to others. Failure to do so will lead to an apparent conflict within the Constitution. The second issue is whether the Constitutional (Amendment) Act amended by implication or infection the various Articles specified. This issue covers grounds 1,2 and 3 in the Memorandum of appeal. The various Articles specified in the Memorandum of Appeal were Articles 1, 2 (1), 2(l 2a@),28, a1(),4a@),128(1) (2) (3) and 137(3) (a). The petition did not aflege that Section 5 of Act 13 of 2000 amended Article 1 of the Constitution by implication or infection. But the matter was argued in the constitutional court and in this Court. Paragraph 1(c) of the petition referred only to Articles 2 (1) (2) and 3 (2) and (4) of the Constitution. The Constitutional Court, by majority, held that these Articles were not amended, and therefore the provisions of Articles 259 and 260 of the Constitution were not applicable. Mukasa Kikonyogo, DCJ in this respect said, "l agree with Mr Denis Bireije that Article ZS9 of the Constitution is not relevant. There was no requirement for holding a referendum. The articles which were amended by Act 13 of 2000 were clearly stated as Artictes BB, 89, 90, 97 and 257 of the Constitution. They did not inctude any of the provisions under the Article 259 and 260. Articles 1,2,2g, 41,44,79(2) and 128(1) were not amended by Act 13 of 2000, expressly, impliedly or by infection as submitted by Mr Lule. ln my view it would be wrong for the Court to impute unnecessary implications on the legislators without proof. ln any case, it would be tantamount to putting words in their mouth. The same argument can be extended to the complaints raised by counsel for the petitioners under Article 260. The Constitution (Amendment) Act did not amend any provisions of the Constitution under that Article in any way. Anicle 260 of the Constitution is also irrelevant." 5 The learned Deputy Chief Justice held that general amendments under Article 258 did not require holding of a referendum or approval by districts. While it is true that Articles 88, 89, 90 and 97, and 257 of the Constitution were expressly stated in the Bill as the subject of amendments, and Articles 1,2,41 ,44,79(2) and '128(1) were not included, it does not follow that the "lf an Act of Parliament has the effect of adding to, varying or repealing any provision of the Constitution, then the Act is said lo have amended the affected Article of the Constitution. There is no difference whether the Act is an Ordinary Acl of Parliamenl or an Act intended to amend the Constitution. The two are treated the same under Article 137(3) of the Constitution. The amendment may be effected expressly, by implication or by infection as long as the resu/f is to add to, vary or repea! a provision of the Constitution. lt is immaterial whether the amending Act states cafego rically that the Act is intended to atfect a specified provision of the Constitution. lt is the effect of the amendment that matters. lt was stated in the Canadian sup reme Court case of the Queen vs Biq M Druq Mart Ltd (1986)LRC332that, "Both purpose and effect are determining Constitutionality, unconstitutional purpose unconstitutional effect can legislation ...this validity.,, relevant, in either an or an invalidate The learned Justice of Appeal went on to say, 6 Articles not mentioned in the Bill could not be amended by implication or by infection, Article 258(1) which provides for amendment of the constitution clearly envisages alteration of the constitution by "way of addition, variation or repeal-" The variation need not be direct but can be indirect by implication or infection. Article 257 (9) which defines amendment also supports this view. It provides: "ln this Constitution, reterences to the amendment of any of the provisions of this Constitution or any Act of parliaienl include references to the alteration, modification or re- enactment, with or without amendment or modification of that provisio-n, fhe suspens ion or repeal of that provision and the making of a different provision in ptace of that provision.,' ln this connection, r agree with the dissenting judgment of rwinomujuni JA, that an amendment may be effected expressly or by implication or infection, and that both the purpose and effect of the amendment are relevant in determining constitutionality. ln considering this point, the learned Justice, said, "lf it was to be othennise, Parliament could alter the entire Constitution, including the entrenched provisions, without following the procedure prescribed in Chapter 1g of the Constitution as long as it took care not to specify them in the Headnote of the amending Act." I entirely agree with those observations. ln Opolot vs Attornev General (1969) E.A. 631, the question of implied amendment of legislation was considered. The appellant who was formerly a Brigadier in the Uganda Army and Chief of Defence Staff, was discharged from the Army on October 7, 1966 and was detained under Emergency Regulations. He applied to the High Court for a declaration:- (a) That his discharge was invalid and that he was still a member of the Armed Forces and Chief of Defence Staff, (b) Forces (Discharge) Regulations 1966 were That the Armed invalid. The application was refused by the High Court and the appellant appealed to the Court of Appeal. ln dismissing the appeal, the Court of Appeal held, inter alia, that reference in the Armed Forces Act lo ',prime Minister', were to be regarded as impliedly amended by the 1966 Constitution of Uganda, and the word "President" substituted. ln this connection the Court said, "Finally Mr Kiwanuka submitted that the appeilant was not validly discharged from the Armed Forces under the Armed Forces (Discharge) Regulations 1966, because the Defence Council which made the Regulations and which took the decision to discharge the appellant was not properly Constituted as its Chairman consisted of the president and not as required by 5.11 of the Armed Forces Act, of the Prime Minister. The trial judge rejected this submrcsion and we agree with him. At the time the decision to make the Regulations and to discharge the appettant was taken, the office of the Prime Minister no longer existed. lt is ctear from the 1966 Constitution that 5.11 of the Armed Forces Act was to be regarded as impliedty amended by substituting for the words "Prime Minister,, the word "President." The implied amendment was not affected by the omission from the Constitution (Modification of Existing 7 Law) lnstrument 1966 of any specific amendment to 5.11. We consider that the Armed Forces (Discharge) Regulations 1966 were validly made by the Defence Council and that the appellant was validly discharged from the Armed Forces by the Defence Councit under those Regulations, whether or not he was vatidly discharged by the President acting under any other powers.', What then were the Articles which were amended by Act .13 of 2000? ln my view Articles 1 and 2 of the Constitution were not amended by implication or infection. Article 1 deals with sovereignty of the people and Article 2 deals with the supremacy of the Constitution. None of the amendments purported to amend expressly or by implication these Articles. The amendments did not affect the sovereignty of the people nor the supremacy of the Constitution. The fact that any of the purported amendments were in conflict or did not comply with the requirements of other provisions did not mean that the sovereignty of the people or the supremacy of the Constitution were in any way affected. The fact that Parliament may have exceeded its powers does not mean that it intended to affect the sovereignty of the people or the supremacy of the Constitution. Sovereignty still remained with the people and the Constitution remained supreme. Any law which is inconsistent with the Constitution, still remains void to the extent of inconsistency. As regards Article 41, which provides for the right to access to information, I am of the opinion that the Article was amended expressly by Section 5 of Act 13 of 2000 which restricted the right of access to information in possession of Parliament. Section 5 amended Article 41 by adding the following two new clauses on Article g7 of the Constitution. "(2) Notwithstanding Article 41 of this Constitution, no Member or Officer of Parliament and no person employed to take minutes of evidence before Parliament or any committee of Partiament shall give evidence elsewhere rn respect of the contents of such minutes of evidence or the contents of any document laid before Parliament or any such committee, as frre case may be, or in respect of any proceedings or examination held before parliament or such committee, without the speciat leave of Parl iament first obtai ned. (3) The special leave referred to in Clause (2) of this Article may, during a recess or adjournment of Parliament be given by the Speaker or in the absence or incapacityr of the Speaker or during a dissolution of Parliament, by the Clerk of parliament.,, Article 41 is not an entrenched provision under Articles 25g and 260, and therefore Parliament had power to amend it without the requirement of a referendum or ratification by members of district councils. However, section 5 of the Act amended Article 28 of the constitution by implication. Article 2g provides for a right to a fair hearing. The right to a fair hearing cannot be guaranteed or exercised unless the public have access to information which they need to support their cases and causes. courts depend in evidence to establish the truth and to substantiate claims and allegations in disputes. The right of access to information is not absolute but can be restricted on grounds of prejudice to security or sovereignty of the state or interference with the right to the privacy of any other person. parliament must make raws to prescribe the restrictions. At present parliament has not done so, and therefore it is incumbent on Government to prove the necessity of restricting or denying access to information. Article 28 of the constitution is an entrenched provision by virtue of Article 44 which prohibits derogation from the rights enumerated in that Article. The rights upon which there shall be no derogation from their enjoyment are: (a) freedom from torture, cruel, inhuman or degrading treatment or pun ishment freedom from slavery or servitude, the right to fair hearing the right to an order of habeas corpus. (b) (c) (d) "No Bill, motion or amendment shatt be introduced in the house which in opinion of the Speaker is likety to result in the derogation from the enjoyment of any of the a particular I Rule 98 of the Rules of Parliament prohibits the introduction of Biils derogating from particular human rights and freedoms. lt states: h-uman rights and freedoms specified in Article 44 of the Constitution- By amending Articre 41 in such a way that it restricted the right of to a fair hearing, Section 5 of the Act amended by infection Article 44 Constitution which is an entrenched provision under Article 259 2(c). amendment required not only to be passed by two_thirds Parliament, but also the approval of the people in a referendum hold a referendum rendered the amendment ineffectual and void. of the Such an majority in Failure to As regards Article 128 (1), (2) and (3) which guarantee the independence of the Judiciary and call upon the various agencies of the state to accord courts any assistance required to ensure their ineffectiveness, lam unable to say that the amendments by imprication or infection amended these provisions. There was no charrenge to or conflict with these provisions, despite the attempted restriction of access to parliamentary records. However, as regards Article 137 of the constitution which provides for the right to challenge the constitutionality of an Act of parliament or any action by any person or authority, I am of the opinion that this provision was amended by implication. This right, like the right to a fair hearing cannot be exercised effectively if the petitioner is not guaranteed the right of access to information in possession of Parliament. The third issue was whether the correcl procedure was followed in making the amendments. lt will be recalled that three methods of amending of the constitution are provided for in Articles zs8.,2bg and 260. According to the first method, amendments require onry two-thirds majority in parriament, under the second method, amendments require in addition to two thirds majority, approval in a referendum (Article 259 (2), and under the third method amendments require additional ratification by district councils (Article 260), in addition to two thirds majority in parliament. The Bill cannot be passed unless it is supported at the second and third readings in Parliament by not less than two-thirds of ail Members of '10 Parliament. ln addition Article 262 lays down procedural requirements for the amendments to be valid. lt states inter alia, "(1) The votes on the second and third readings referred to in Articles 259 and 260 of the Constitution shalt be separated by at least fourteen sitting days of parliament. (2) A bill for the amendment of this constitution which has been passed in accordance with this chapter shall be assented to by the President only if - ln 1996 Parliament made Rules to govern its procedure. Rule g6 which deals with urgent matters provides, *96(1) Where the House determines upon the recommendation of the appropriate Committee of the House appointed for the purpose, that a particular Bill is of an urgent nature, that Bill may be introduced without publication. (a) it is accompanied by a certificate of the Speaker that the provisions of this chapter have been comptied with in relation to it, and (b) in the case of a bill to amend provision to which article 259 or 260 of this Constitution applies, it is accompanied by a certificate of the Electoral Commission that the amendment has been approved at the referendum or as fhe case may be, ratified by the district councils in accordance with this chapter. (2) Copies of a Bill referred to in sub-rule (r) shail be distributed to Members and the Bill may be taken through a/, its stages in a day notwithstanding anything rn theie Rules." "lt was the submission of Mr Lule that parliamentary rules could not supersede those of the Constitution. I would like to point out that the Constitution does not provide for a specia, procedure to be followed by parliament when ln her judgment, the learned Deputy Chief Justice said this on the issue of procedu re: 11 (3) Where the provisions of clause (2) of this Articte are complied with in fhe case of a bill to which Articles ZSg or 260 of this Constitution applies, the president shall not refuse to assent to the bill,' enacting Constitutional Amendment Acts other than those enacted under Article 259 and 260 (supra). lt only makes protiision for Parliament to make iti own Rules under Article 94(1). There was nothing to stop parliament from applying its own Rules. The affidavits sworn by ld and 3td petitioners did not indicate that Parliament did not compty with the correct rules of procedure for enactment of Acts. parliament has powers to waive ifs rules. lt was entitled to resort to its own rules to regulate its proceedings during lhe debate of the Constitution (Amendment) Bill No.16 of 2OOO. lt is provided with powers to waive any referendum of its rules where a particular Bill is considered urgent. lJnder rule 96 (4) a Biil may - be taken through all the stages in a day notwithstanding anything in those Rules.,, On failure to attach Speaker's Certificate, she cited "lt is true that the petitioners filed sworn evidence but in my view it does not add much to their petition. I am unable {o find satisfactory evidence to substanfia te the allegations made." the decision Socrety & in the Justice Constitutional Petition No.8/2000,,lJoand, a Law Semuyaba Act ys Attornev General, that failure to attach the Speaker,s certificate to the Bill would not be fatal to the validity as the Act. yet she acknowledged that: The leamed Deputy Chief Justice quoted the doctrin e ot omania praesumuntur rite et solemniter acta donec probetur in contrarium (all things are presumed to have been performed with all tne formatities untiurlJ proved to the contrary). she observed in this connection that the petitioher had the burden of proof which was not discharged. "The above provisions of the Constitution were intended to save the President from signing for something not legalty passed by Parliament. lt was the intention of the legistitors to render the law passed by partiament void. To lhem the issuance of a certificate were procedural and administrative requirement which does not go to the root of the taw making process." The leamed Deputy Chief Justice concluded: 12 7 " I do not agree with Mr Lule as already pointed out the amendment of Article 97 resulted in the amendment of Articles 41 (1) and 44 of the Constitution which he argued blocked ordinary citizens to have access to information. I disagree with him that the said amendments were linked to other Articles which had not been specificalty amended like Article 137 (a) (supra)i' The learned Deputy chief Justice also held that the required spacing raid down by Article 262 of 14 days between the 2nd and 3d readings was not applicable to the Bill No.16 of 2000. She concluded, There was no requirement of spacing at any stage of Bilt No.l6 of 2000 as it rs conten ded for the petitioners.,, I am unable to agree with those conclusions. parliament has the power to make Rules of Procedure to govern its business, but those Rules had to be consistent or intravires the Constitution. parliament cannot change provisions of the constitution through its Rules. lt can only make Rules to implement the provisions of the Constitution. Therefore in making amendments the correct procedure laid down in Articles 2sg lo 262 had to be strictly complied with. Those provisions could not be waived by the Rules. ln the present case, the mandatory provisions relating to entrenched provisions were not complied with. These provisions require separating the second and third readings of the amendment Bill by at least 14 sifting days of parliament, and the holding of a referendum or ratification by district councils in specified cases. The Uganda Constitution is therefore a rigid one as il cannot be amended easily. Although it is not cast in stone, it is intended to serye not only the present generation but the generations yet to come. 13 "The failure to obserye the 14 days period stipulated under Article 262 (1) of the Constitution in my view, was not applicable to Bill No.16 of 2000. Alt that is required for the amendments under 258 and 261 of the Constitution is the support at ?d and td readings of not /ess than two thirds of all the members of Parliament which was not disputed in this petition. ln paragraph 1 (e) of the petition, the constitutionality of Section 3 of Act 13 of 2000 which introduced a new Article 257 Ain the constitution was challenged for being inconsistent with Articles gg and 137 (1) and (3) of the constitution on the ground that they provide for a procedure where Members of parriament may without a quorum vote on any question proposed for a decision of Parliament by using a voice vote of ,?yes,, and .,Aloes,, which by reason of the amendment cannot be subjected to the scrutiny of the courts when it is the duty of the courts to interpret and protect the constitution under Article 128 (1), (2) and (3) of the constitution and ctause 1 of the National objectives and Directive Principles of State policy. This ground was not argued in the constitutional court. The court therefore did not pronounce itself on whether the procedure of voting by ,?yes,, and "Noes" was in conflict with the provisions of the constitution. The issue seems to have been raised in this court in ground 5 of the Memorandum of Appeal. This ground comprains that the learned majority Justices of the constitutional court erred in law when they failed to distinguish between waiver of Parliament procedure and non-compliance with the constitutional provisions under Articles 2sB, 2s9 and 262 of the constitution. Be that as it may, I shall briefly, comment on the issue because of its importance. 14 The failure to produce a certificate of the Speaker and a certificate of the Electoral commission which aecompanied the Bill was fatal to the amendment process where these certificates were required. once the petitioner alleged that the certificates were not attached, it was incumbent upon the Respondent Attorney General to show that the certificates had been attached to the Bill. lt was a fact within the special knowredge of the Attorney Generar. The Attorney General failed to do so. The presumption that such certificates existed was rebutted by the ailegations made by the petition#which were not seriously challenged. ln the result I would hold that section 5 of Act 13 of 2000 was void for having not been enacted in accordance with the provisions of the Constitution. I Section 6 of the Constitution (Amendment) Act 2000 amended the Constitution by adding Section 2b7 A which provided: "Subject to Article gZ of this Constitution _ (a) no Act, resolution or decision passed or taken or purported to have been passed or taken by Parliament at any time after the commencement of this Constitution using the procedure of voting by a voice vote namely, by the voices of ,,Ayes,, foi tnose in favour of the question and ,Noes,, for those against the guestion shall be taken to be invalid by reason of the use of that procedure; (b) no Act passed or purported to have been passed by Parliament at any time aftet the commencements of this Constitution shall be taken to be invalid by reason of the fact that the bill for the Act was not discussed and recommendations made on it to Parliamenl by a Standing Committee." The declared oolecffirris amendment was to ratify certain past acts relating 'l to procedure of Parliament. This is clear from the long tifle to the Act and the marginal note to the Article which states, "Ratification of certain acts relating to procedure of Parliament.,, This provision was not intended to provide a procedure for passing future amendments to the constitution. lt was a validating provision. I am unable to say that this provision is in conflict with Articles 88 and 137 (1 ) and (3) of the Constitution. ln my opinion however, the procedure provided in Articre 2s7A does not appry to the amendment of the constitution where a two-thirds majority of all Members of Parliament with voting rights is required to pass such an amendment. The procedure of voting by ,,Ayes,, and ,,Noes', is incapable of providing accuracy pgd certainty that the necessary numbers of Members of Parliament requireqlass such important legislation have been obtained. The A. procedure may be applicable in deciding questions where only a simple majority of Members of Parliament present and voting is required, in non- contentions matters, as provided under Article g9 (1) of the constitution. *,11", *::':t:is aee":[:Puld partiarlv succeed. I wourd hold that sround -ene should fail, ground;fQ should partially succeed, and grounds,L +, S anO 6 should succeed. / 15 ,..1 I i ln view of the fact that the appeal has subslantially succeeded, I would grant the appellants the costs in this Court and Courts below. I would allow a certificate for two Counsel. As the other members of the Court substantially agree with the judgment of Kanyeihamba JSC, and the orders he has proposed, this appeal is allowed with declarations and orders as set out in the judgment of the learned Justice of Supreme Court. 29 20o+ in engo this B doki CHIEF JUSTICE 16 .day of Ldgs{- & hoqrk -t--.," zle-tilpe rytrt Cr cv I THE REPUBLIC OF UGANDA )<' r IN THE SUPREME COURT OF UGANDA AT MENGO (CORAM: ODOKI, Cl, ODER, TSEKOOKO, KAROKORA, MULENGA, KANYEIHAMBA JJ,S,C AND C.B. BYANMUGISHA, AG,].S.C.) CONSTITUTIONAL APPEAL NO.1 OF 2OO2 BETWEEN o 2. ZACHARY OLUM : : :: ::: ::: :: : :::: : :: APPELLANTS 3. JULIET RAINER KAFIRE AIYD (An Appeal from the decision of the Constitutional Court at Kampala (Mukasa- Kikonyogo, DCJ, Kato, Kitumba,JJ.A; with Mpagi - Bahigeine and Twinomujuni, lJ.A, dissenting) dated 17th April, 2002, in Constitutional Petition No. 7/2002). The appellants Paul K. Ssemogerere, Zachary Olum and Juliet Rainer Kafire, have appealed to this Court against the whole of the majority decision of the Constitutional Court, (Lady lustice L.E.M. Mukasa - Kikonyogo, DCJ, Mr. lustice C.M. Kato l.A and Lady Justice C.N. Kitumba, LA.) delivered at Kampala on 17/4120Q2. 1 PAUL .K. SSEMOGERERE THE ATTORNEY GENERAL RESPONDENT JUDGMENT OF ODER J.S.C. 1 a In his judgment Kanyeihamba J.S.C, set out the background to the appeal. I shall not repeat the same in this judgment. The Memorandum of appeal sets out six grounds of appeal as follows: - 2. The learned majority Justices of the Constitutional Court erred in law and fact when they held that section 5 of the Constitutional (Amendment) Act. 2000, did not amend articles 1, 2 (1) and (2) of the Constitution by implication and infection which Afticles require amendment in accordance with Articles 259 and 262. 4. The learned majority lustices of the Constitutional Court erred in law and fact when they held that the Petitioners/Appellants had not proved that Parliament did not follow the required procedure under Articles 259 and 262 of the Constitution when enacting the Constitutional (Amendment) Act. 2000. 2 o o I have had the benefit of reading in draft the judgment of my learned 'brother, Kanyeihamba, J.S.C., and I agree with hlm that the appeal should succeed. 1. The learned majority Justices of the Constitutional Court erred in law and fact when they held that section 5 of the Constitutional (Amendment) Act 2000, did not amend articles 28, 41 (1) and '14(c) of the Constitution by implication and infection which Articles require amendment in accordance with Articles 259 and 262 of the Constitution, 3. The learned majority Justices of the Constitutional Court erred in law and fact when they held that section 5 of the Constitutional Amendment Act, 2000 did not amend Articles 128 (1), (2) and (3) and 137 (3) (a) of the Constitution by implication and infection which articles require amendment in accordance with Articles 259 and 262. 5. The learned majority Justices of the Constitutional Court erred in law when they failed to distinguish between a waiver of parliamentary procedure and non-compliance with the Constitutional Provisions under Articles 258,259 and 262 of the constitution of Uganda. The appellants prayed that the appeal be allowed and that the respondent should be ordered to pay the costs here and in the court below. Mr. G.S. Lule, S,C. and Mr. J. Balikuddembe represented the appellants and Mr. Denis Eireije, Commissioner for Civil Litigation, and Mr. Okello Oryem, Senior State Attorney, both from the Attorney General's Chambers, appeared for the respondent. Mr. Lule argued grounds L,2,3 4, and 5 together and ground 6 separately. a o 6. The Constitutional Court erred in law and fact and misconstrued the gist of the petition and the petitioners' contention when they held that a Constitutional Court would have no jurisdiction to construe part of the Constitution as against the rest of the Constitution and thereby came to a wrong conclusion. In his submission, Mr. Lule criticized the majority of the learned Justices of the Constitutional Court for holdlng that there was no amendment of the articles mentioned in article 259 of the Constitution, and that on that ground alone the appellant's petition failed. He contended that provisions of the Constitutional (Amendment) Act 13 of 2002 (Act 13/2000) amended certain articles of the Constitution expressly, impliedly or by infection. Article 41 was amended expressly and impliedly. That amendment automatically affected articles 44, 28, 1,2,28, 128 and 137 of the constitution. However, the Constitutional Courts finding was that as Act 13/2000 did not mention those articles in its preamble, it follows that they were not amended or affected. Learned counsel contended that amendment of a constitutional article does not depend entirely on an express statement that the article is being amended. It also depends on the 3 ' effect of the amending legislation on the article. It is for the Cout to determine the intended meaning and effect of the amending statute. The learned counsel then referred to the decision of this Court in Constitutional Aooeal No, 7 of 7997. Attornev General Vs Maior General David Tinvefuza (unreported). Learned counsel submitted that in that case, the Court dealt with the effect of article 41 on section 121 of the Evidence Act as regards the right of access to information. Learned counsel further submitted that all the procedures laid down in afticle 262 were applicable to article 41, the amendment of which affected the other articles. They were mandatory and amendments carried out without compliance with article 258 (2) (b) cannot be part of the Constitution. The Learned Counsel urged this Court to apply the decisions cited in the appellant's List of authorities submitted in this appeal. He added that the same authorities were relied on in the lower court. Some of those authorities arci Constitutional Aopeal No,7/2OOO Paul Ssemooerere and Another Vs Attornev General (SCUI funreoortedl: The Briberu Commissioner V. Pedrick Ranasinohe (7965) A.C 772 (H.Ll: The Oueen Vs, Bia M. Drua Mart Ltd (79861 LRC (Const,l "rhe wof o o I H. Seeruai. Learned Counsel also adopted his submission in Constitutional Petition No. 13 of 2000 regarding "colourable" legislation by which, he contended section 5 was used to amend article 41 of the Constitution. On amendment of articles of a constitution by colourable legislation, the learned counsel referred to "The Constitutional Law of fndia" (Supra). Attornev General (Constitutional Coutt of Uaandal unreported. He 4 Learned Counsel distinguished the case of Teo Soh Luno Vs, Minister of Home Affaio and others (7990) LRC (Constitutional) 490, relied on by the respondent, as not applicable to the instant case. Learned Counsel also referred to respondent's other authority, namely Constitutional Petition No. I of 2000. The Uoanda Law Societv and Justine Semuyaba Vs, The Ad L3l2 o insertion Constit amendin to prove making t referred with afti counsel. express o mention the pro article 2 under a contend counsel 41, secti affected afticle 4 pointed out that in the judgment of Hon. Lady Justice Mukasa Kikonyogo D.C.J. arnendment of article 41 of the Constitution by section 5 Act 13/2000 was never addressed, but the judgment agreed with the view that section 5 amended article 257 by insertion of a new article 257 A and article 97 by inseftion of new previsions thereto. The two other members of that Court agreed with that holding. 00. In his opinion the articles of the Constitution which were amended /2000 were articles 88, 89 90, 97. Another amendment was by of article 2574. Learned counsel contended that the petition in the nal Court was that Parliament did not follow the Constitution in those articles but the appellants failed to produce sufficient evidence at Parllament never followed the required constitutional procedure in e amendments. Learned counsel submitted that the articles he has les 258, 259, 261 and 262 (2) (a), as contended by the appellants' Learned counsel submitted that the articles which were amended were stated in the preamble of the amending statute. Those not expressly unsel contended that article 41 was amended but he disagreed that ure under articles 259 was required to do so. He submitted that was not amended by implication or infection. Nor was the procedure icles 259 and 262 (1) required to do so. Learned counsel also that articles 1 and 2 were not amended by Act 13/2000. Learned lso disagreed with the appellant's contention that by amending article n 5 affected article 28 and 44, because the right to fair hearing was not the amendment of afticle 41. He contended that the amendment of did not affect article 128, nor did it affect article 137, because people 5 Mr. Denis Bireije opposed the appeal and supported the majority decision of the Constitutional Court, He argued against the grounds of appeal together. He submitted that the issue for decision before the Constitutional Court was whether Parliament followed the constitutional provisions in amending the Constitution by by Act as having been amended did not require their amendment to conform were not amended. Learned still have the right to petition under the latter. Regarding the appellantt complaints in grounds 2, 3 and 5 of the appeal that the procedure required by articles 259 and 262 (2) (a) were not complied with in passing section 5 of the Act, the respondent's learned counsel argued to the contrary. He contended that no evidence was produced by the appellants to prove that the articles in question were not complied with. Learned counsel relied on. Teo Soh Lunq Vs. 'r of Home Affairc and otheE (7990 LRC (Constitutionl 490, in support of the preposition that once the correct procedure has been followed in amending the constitution, the amendments become paft and parcel of the amended constitution. Learned counsel contended that article 257 (a) permits amendment of the Constitution by modification, but he contended that such an amendment can be effected only if the article to be amended is specifically mentioned in the amending legislation. Learned counsel submitted that the Constitutional Court has powers to harmonise provisions of the Constitution, but it can do so only when the right procedure has been followed in enacting the amending legislation. I shall consider grounds 1,2 and 3 together; grounds 4, and 5 together, and 6, separately. The complaints in grounds t,2 and 3 of the appeal are to the effect that the Constitutional Court erred in holding that Act 13/2000 did not amend articles 1,2 (7), (2) 28, 4l (7), 44 (c), 128 (2), (3) and 137 (3) of the Constitution. Section 5 of Act 13/2000 amended afticle 97 by inter alia, introducing two clauses to that article as follows: "(2) Notaithstanding article 47 of this Constitution, no member or ofilicer of Parliament and no peaon employed to take minutes of evidence before Pailiament or any Committee of Parliament shall give evidence else where in respect of the contenE of any document laid before Parliament or any such Committee, as the case may be, or in respect of any prcceedings or examination 6 a o held before Parliament or any such committee, without the special leave of Parliament first obtained, (3) The special leave referred to in clause (2) of this article may, during a recess or adjournment of Parliament, be given by the Speaker or in the absence of the Speaker or during a dissolution of Parliament, by the Clerk to Parliament" In the Constitutional Court the learned Lady Justice Mukasa-Kikonyogo, D,C.J, said this: "I do not agree with Mn Lule, as already Pointed out, that the amendment of article 97 resulted in the amendmenB of atticles 47 (7) and 44 of the Constitution which, he argued, blocked ordinary citizens to have access to information. f disagree with him that the said amendmenb were linked to other articles which had not been amended like article 737 (Supra). Counsel cited a number of authorities in suppott of his argumenB. I had the opportunity to read them but with due respect f do not find them relevant to the inshnt petition." Two other members of that Court concurred with the learned D.C.J. With the greatest respect, I am unable to agree with the learned D.C,J and the lJ,A in this regard, because, first, in my considered opinion, the new additions made by section 5 of Act 13/2000 to article 97 clearly affected the right of access to information guaranteed by article 41 of the constitution. Article 4I was expressly amended. They made availability of records of proceedings of Parliament, for instance, Hansard, subject to prior approval of Parliament, which approval can be granted or denied. If it is denied, the new clauses (2) and (3) of article 97 do not indicate the reasons on which Parliament may deny a citizen access to records of its proceedings. Under article 41 (1) release of Parliamentary proceedings to a litigant may only be denied if the release of such information is likely to prejudice the security or sovereignty of the state or a o 7 a o interfere with the right to privacy of any other person. Moreover, Parliament does not yet appear to have made laws prescribing the classes of information referred to in article 44 (2) and the procedure for obtaining access to such information. Secondly, the authorities relied on by the appellant are most relevant to the instant case. I shall refer to only three for purposes of discussing article 4l. One is Vs. Maior General David linyefuza (Suora). In that case, this Court was concerned with, inter alia, section 121 of the Evidence Act and article 41 (1) of the Constitution. Section 121 provides. "No one shall be permitted to give any evidence derived from unpublished official records relating to any affairc of statel except with the permission of the officer at the head of the department concerned who shall give or withhold such permission as he thinks fit," "The Coutt (the Constitutional Court) then went on to consider section 727 of the Act together with Articles 28/4L43, tl4 and 273 of the Constitution and concluded 'The Constitution has determined that a citizen shall have a right of access to information in the hands of the state. It has determined the exceptions in a manner that is inconsistent with the application of section 727 of the Evidence AcO it is no longer for the head of depaftment to decide as he thinks tit The unfeltered discretion has been overturned by article 4l of the 8 During a trial of a petition in the Constitutional Court, The Attorney General objected to the admissibility of a certain recorded radio message from the Head of State as Commander-in - Chief of the Army to the Minister of State for Defence concerning the respondent in that appeal. The objection was based on grounds of state security under section 121. The Constitutional Court overruled the objection, which was upheld by this Court. In his judgment Wambuzi C.J. (as he then was) put the matter this way. constitution and now it is for the Constitutional Court to determine whether a matter falls in the excePtions in afticle 47 or not. And to this, the state must produce evidence upon which the Cou,t can acl ft has not done so in this ingtance.' The objection as to admissibility was overruled and r am unable to fault the reasoning of the Constitutional Coutt", In my own judgment in that case I said: "The right of access to information is new in the constitutional history of ttganda, The Evidence Act is an old vintage statute of 7909. For this and other reasons f have given r think that atticle 47 of the Constitution overrides section 727 ofthe Evidence Act, f have already referred to the views expressed on page 5260 of "Field's law of Evidence" to the effect that there is a long catena or chain of decisions in which warnings have been given by Cout8 of the menace which supposed privilege implies to the individual liberty and private righE and to the potency of iB abuse. It is this menace which in my view, afticle 47 se/ls out to limit. The right of access to information must include the right to use such information in a Court of Law in suppott of a citizen's case." I still hold the same view. Article 97 as amended by section 5 of Act L3l2O00 by introduction of clauses (2) and (3) are couched in identical terms as section 15 (1) and (2) of the National Assembly (Powers and Privileges) Act, (Cap. 249). The effect of article 41 (1) of the Constitution on section 15 (1) and (2) was considered by this Court in Constitutional Aooeal No. 7 of 2OOO, Paul Ssemooerere and Zachaty Olum Vs. Attornev General (Suoral. This is another case to which the appellants referred the Court of Appeal in support of their petition. Section 15 of the Act provided: "15 (1) Save as pruvided in this Ad no member or officer of the Assemhly and no person employed to take I a o ' minutes of evidence before the Assembly or any committee shall give evidence elsewhere in respect of the contenE of such minutes of evidence or contenb of any document laid before the Assembly or any such committee as the case may be, or in respect of any proceedings or examination held before the Assembly or such commiltee as the case may be without the special leave of the Assembly first had and obtained. "(2) The special leave referred to in subiection (7) of this section may be given during a recess or adiournment by the Speaker or, in his absence or other incapacity or during any dissolution of the Assembly, by the clerk." Rule 171 of the rules of procedure of Parliament, 1996 were worded in identical terms as section 15 (1) of the Act. In that case Learned lustice Kanyeihamba, JSC, wrote the lead judgment. All the other members of the Couft, except Wambuzi C.J, (as he then was) agreed with him on his conclusions on the application of section 15 (1) and (2) of the Act (Cap 249) in the light of article 41 of the Constitution. Kanyeihamba, JSC said: "ft is my view that in the light of the prcvisions of article 47 (1), the argument that a citizen needs permission of parliament to use Hansard or allow memberc of Parliament to give evidence in Court proceedings is unsustainable, In this case, the Speaker gave what is known in administrative law as a speaking orden He disclosed that he had consulted the registerc of memberc and used the numberc registered therein to ascertain the quorum, A speaking order is impeachable in courE of law, especiaily if there is evidence that it was based on a wnong principle, Conseguently, since under articb 47(1), information in possession of the state is freely available to a citizen except where iE release would be "prejudicial to the security or 10 a o sovereignty of the state or interference with the right of privacy of any percon* f can find no constitutional or legal grounds to prevent the release and use of Hansard or stop memberc of parliament from giving evidence in cout* of law.,.............,,........,The Attorney General did not show nor am f aware that Parliament has made the necessary law under article 47(2), In any event it would be incumbent upon the Attorney General to show that the information to be excluded as evidence in Constitutional petition No. 3 of 7999, came within the puruiew of the exceptions listed in clause (7) of the same afticle. In my opinion, while it is still a practical necessity for a litigant to write to the state or organ or agency in possession of informatio4 once that information is obtaineL with or without the co' operation of the statq or organ or dgency concerned, the information is freely usable and admissible in cout# of law unless it falls within the exceptions under afticle 47(7), Moreover, where the state refuses to release such information, the citizen entitled to receive it may take the necessaty legal steps to compel iE release" In the case of Phato Vs Attornev General (1994'1, 3 LRC (Suoreme Court of South Africa) it was held that the right of access to information by an accused person was required for the exercise of his right to a fair trial within the meaning of section 23 of the Constitution of South Africa, notwithstanding that it was not essential for the exercise of the latter right in circumstances where another law already provided for an alternative method to gain access to some, but not all, of the information sought, enabling him to defend the charges against him. A right of access to information in terms of the supreme law, the Constitution, could not be whittled away. Further more where information existed which was highly likely to be relevant, such information was 'required' within the meaning of section 23, at least in order to enable the person seeking it to exercise or protect a right to take a proper decision about it. On the facts in o o 11 o that case, the first appllcant'required'the information in the police docket and particularly the witness statements in order to prepare for trial. Act 13/2000 expressly amended article 41 by the introduction of the new clauses (2) and (3) to article 97. Patt of the appellant's case is that other articles of the Constitution were amended by implication or infection. These are articles 1,2(1) and (2), 28,44 (c), 128 (1), (2) (3) and 137 (3). The respondent's contention is that these articles were not amended, just as article 41 was not amended, because the preamble to Act 13/2000 did not specifically state that they were to be amended. Amendment of the Constitution is provided for by article 258 of the Constitution, the provisions of which are to the effect that the Constitution can only be amended if an Act of Parliament is passed for that purpose; the Act has the effect of adding to, varying or repealing any provision of the Constitution; and the Act has been passed in accordance with the provisions of Chapter Eighteen of the Constitution. To me, it follows that if an Act of Parliament has the effect of adding to, varying or repealing any provisions of the Constitution, then the Act must be said to have amended the affected article of the Constitution. The amendment may be effected expressly, by implicatlon or by infection, as long as the result is to add to, vary, or repeal a provision of the Constitution. It is immaterial whether the amending Act states categorically that the Act is intended to affect a specified provision of the Constitution or not, It is the effect of the amendment which matters. This view, in my opinion, is suppofted by the t2 o In the instant case the effect of article 97 (2) and (3) as amended by section 5 of Act 13/2000 is to restrict the citizens' access to information in the hands of Parliament subject to the absolute discretion of Parliament to release or not to release the information. In my view the provisions of section 5, conflict with the right of access to information, guaranteed by article 41. They are, therefore, null and void. decision of the Supreme Court of Canada in The Queen VS, Big Ll. Drug Mart Ltd (1986) LRC (Const ), with which I agree. In that case, the respondent had been charged with unlawfully carrying on the sale of goods on Sunday in Calgary, contrary to the Lords Day- Act (RSC 1970 C. L - 13) and was acquitted at the trial. The Alberta Court of Appeal dismissed the appeal and a further appeal was made to the Supreme Court in which various constitutional questions were raised, in particular, whether the Act, (1) especially section 4, infringed the right of freedom of conscience and religion guaranteed by section 2 of the Canadian Charter of Rights and Freedoms; (2) was justified by section 1 of the Charter; (3) was enacted pursuant to the criminal law power in section 97 (27) of the Constitution Act of 1867. The Attorneys - General of Canada, New Brunswick and of Saskatchewan intervened in the appeal. The appeal was dismissed, because: (1) Since the true, purpose of the Act was to compel the observance of the Christian Sabbath, it, especially section 4, infringed the freedom of conscience and religion guaranteed by section 2(a) of the Charter. Nor was it justified as a reasonable limit under the Charter, because, though a secular justification for a day of rest in the Canadian contex could be found, it was not the motivation of the legislation. (2) (Per Dickson, Beetz, Maclntyre, Chouinard and Lamer, JJ): Both purpose and effect are relevant in determining the constitutionality, either an unconstitutional purpose or an unconstitutional effect can invalidate legislation. All legislations are animated by an object the legislature intends to achieve. This object is realised through the impact produced by the operation and application of the legislation. Purpose and effect respectively, in the sense of the leglslation's object and lts ultimate impact, are clearly linked, if not indivisible. Intended and actual effects have often been looked to for guidance in assessing the legislation's object and thus its validity. l3 a O o o In that case, Wilson J said: "while it remains perfectly valid to evaluate the purpose underlying a particular enactment in order to determine whether the legislature has acted within iB constitutional authority in division of powerc terms, the Chafter demands an evaluation of the infringement by even intra vires legislation of the fundamental righE and freedoms of the individual. rt asks not whether the legislature has acted for a purpose that is within the scope of the authority of that tier of governmenl but rather whether in so acting it has had the effed of violating an entrenched individual right. It is in other words, first and foremost an effec$ or oriented document " In my opinion the principles expressed by the Canadian Supreme Court in ?he in nt case. A her important principle governing interpretation and enforcement of the stitution, which is applicable to the instant case, is that all provisions of the tution touching on an issue are considered all together. The Constitution m st be looked at as a whole. In South Dakota Vs North Carolina, 192 L the U.S. Supreme Court said at page 465. "Elementary rule of Constitutional Construction is that no one provision of the Constitution is to be segregated from all otherc to be considered alonq but that all provisions bearing on a particular subject are to be brought into view and to be so interpreted as to effe(tuate the great purpose of the instrument " t4 VS. Big I+t. Drug Maft Ltd (Supra) apply with equal force to the For the same reasons, a citizen's right under article 137 (3) to petition the Constitutional Court for a declaration that an Act of Parliament is inconsistent with, or contravenes, the Constitution would be rendered impossible if Parliament can deny him/her information in its possession which the citizen requires to support his/her petition for that purpose. Denial of such information would inevitably result into denial to the citizen the right to fair hearing and to violation by Parliament of its Constitutional duty under article 128 (3). Consequently the Constitutional Court's jurisdiction under article 137 (1) is affected in that where a petitioner for purposes of article 137 (3) is denied information to support his/her petition the Constitutional Court cannot give him/her a fair hearing. In the circumstances, the amendments introduced by section 5 of Act L312000, which I have discussed in this judgment, are also in conflict with articles 28, 44 (c), 128 (3) and 137 (1) and (3) ofthe Constitution and, therefore, null and void. a o 15 l I Thd right to a fair hearing is protected by article 28 of the Constitution, clause (1)of which provides that in the determination of civil rights and obligations or any criminal charge, a person shall be entitled to a fair, speedy and public hearing before an independent and impartial court or tribunal established by law. Under the provisions of article 44 (c) derogation of the right to fair hearing is prohibited. Under article 128 (3) all organs and agencies of State are enjoined to accord to the Coults such assistance as may be required to ensure the effectiveness of the Courts. Parliament is such an organ of state. It should not therefore enact laws which hinder functions of Courts in dispensing justice, of which the right to fair hearing is an important aspect. In my considered opinion a litigant whose right of access to information is curtailed by the amended article 97 ofthe Constitution cannot enjoy the right to fair hearing under articles 28 (1) and (c) if Parliament withholds from him or her Parliamentary proceedings which he/she needs for evidence in a Court of Law. By withholding such information from being used in a Court of law Parliament would also be violating article 128 (3) of the Constitution. In view of my finding that Act 13/2000 is in conflict with the constitution, it is my considered opinion that Act 13/2000, was a "colourable" legislation. A colourable legislation occurs where a legislature lacking legislative power or subject to a constitutional prohibition may frame its legislation so as to make it appear to be within the legislative power or to be free from the constitutional prohibition. Such a law is "colourable" legislation, meaning thereby that while pretending to be a law in the exercise of undoubted power, it is, in fact, a law on a prohibited field. The principle of colourable legislation has been applied in some Common -wealth jurisdictions. fn Union Colliety Co, Of British Columbia Vs. Bryden (7899) AC. 580, the Privy Council held that section 4 of the impugned Act, which prohibited China men of full age from employment in underground workings, was not a law relating to Provincial Undertakings, nor a law relating to Property and Civil Rights in the Province but was in pith and substance a law relating to naturalisation of aliens, a subject of exclusive Dominion legislative power. Accordingly S.4 was ultra vires the Provincial Legislature. ln Attornev General of Ontorio Vs Reciorocal fnsurerc (79241 A.C 328, the Privy Council had to consider, inter alia, an attempt by the Dominion of Canada to control contracts of insurance within a Province. The Dominion having failed to secure that control by the Insurance Act of 1910, inserted section 508 (c) in the Criminal Code which made it an offence for any person to solicit or accept any insurance risk except on behalf of or as agent of a company duly licensed under the Insurance Act, 1917 of Canada. The Dominion contended that its power to legislate on Criminal Law was unfettered and that the impugned law was intra vires. Rejecting this contention the Privy Council observed that this claim was a claim to legislate every topic of exclusive Provincial Legislation by resofting to the entry on Criminal Law, and that such a claim could not be allowed consistently with the principles governing the interpretation of Sections 9t and 92 of the B.N.A Act 1869. At page 343 the Privy Council said: a a 16 o "It is one thing, for example to declare corruption in Municipal elections, or negligence of a given order in the management of railway trainq to be a criminal offence and punishable under the Criminal Code; it is another thing to make use of the machinety of the criminal law for the purpose of assuming control of municipal corporations or of Provincial railways". Other cases in which the principle of colourable legislation has been discussed include /ff, Gen for Albefta Vs Att. Gen for Canada U979) A.C. 777; W.R. Morgan Pty Ltd. vs Dy Commissioner of Taxation for N.S.W. (1940) A.C. 838; and K.C. Gajapati Narayan Deo Us Orissa (7954) 5.C,R.7, (53) ASC. 375. In the Geiapali case (supra) Mukhherjea J, observed that the doctrine of colourable legislation did not involve any question of bonafides or malafides on the part of the legislature. The whole doctrine resolved itself into a question of the competenry of a padicular legislature to enact a pafticular law. The whole doctrine of colourable legislation is based upon the maxim that you cannot do indirectly what you cannot do directly. See Constitutional Law of fndia, f EditioO By Hl'l. Seeruai, Paragraph 3.75. In the instant case, Act L312000, in my view, was a colourable legislation, by which Parliament sought to amend articles 28, 4L, 44(c), 128 and 137 (1) and (3) of the Constitution without saying so. It did indirectly what it could not do directly, without complying with the Constitutional procedural requirements. For this reason and the others I have already given in this judgment, section 5 of Act 13/2000 is in conflict with the provisions of the Constitution in question, and is null and void. Article 1 of the Constitution provides for the sovereignty of the people and for their governance through their will and consent. In my view Section 5 of Act 13/2000 did not affect or amend article 1 of the Constitution, for it did t7 o t a In the circumstances ground 1 of the appeal should succeed. So should ground 3. On the other hand, ground 2 of the appeal should fail. t l8 hot remove away or in any way affect the right of the people to exercise their sovereignty in accordance with the Constitution. Nor did the section affect or amend article 2 of the Constitution, which provides for the supremacy of the Constitution. I shall next consider grounds 4 and 5 together. The Constitution stipulates ceftain procedural conditions for enacting and assenting to bills intended to amend ceftain provisions of the Constitution. Firstly provisions of article 259 (1) state that a bill for an Act of Parliament seeking to amend provisions of articles zl4 and 128 (1) shall not be taken as passed unless it is suppofted at the second and third readings in Parliament by not less than two-thirds of all members of Parliament; under article 261, the some procedure applies to afticle 41. Secondly, it has been referred to a decision of the people and approved by them in a referendum; thirdly under article 262 (l) the votes on the second and third readings required under articles 259 and 2G0 shall be separated by at least fourteen sitting days of parliament; fourthly under article 262 (2) a bill for the amendment of the Constitution which has been passed in accordance with Chapter Eighteen shall be assented to by the President only if: (a) it is accompanied by a certificate of the Speaker that the provisions of Chapter Eighteen have been compiled with in relation to it and (b) in the case of a bill to amend a provision to which articles 259 or 260 of the Constitution apply, it is accompanied by a certificate of the Electoral Commission that the amendment has been approved at a referendum or, as the case may be, ratified by district councils in accordance with Chapter Eighteen. o In her judgment with which other two members of that Court agreed, the learned DCI held that there was no requirement to hold a referendum or to have approval by district councils. Such a conclusion on the part of the learned DCl, in my opinion, is not surprising because the learned DCI held that only articles 88, 89, 97 and 257 of the constitution were amended, and that articles 1,2,28, 4L, 44, 128 and L37 (3) were not amended, by Act 13/2000, The learned DCJ also held that there was no requirement for spacing of 14 days between the second and third readings of the Constitution (Amendment) Bill No.16 of 2000 (Act 13/2000); that the Constitution does not provide for special procedures to be followed by Parliament when enacting Constitutional amendment Acts other than those enacted under articles 259 and 260. It only makes provision for Parliament to make it's own Rules under article 94 (1): In the instant case, there was nothing to stop Parliament from applying its own Rules. The learned DCJ also held that the affidavits sworn by the 2d and 3'd appellants did not indicate that Parliament did not comply with the correct rules of procedures. It was entitled to resort to its own rules to regulate its proceedings during the debate of Bill N0.16 of 2000. Parliament is provided with powers to waive any reguirement of its rules where a particular bill is considered urgent. Under rule 96 (4) a bill may be taken through all the stages in a day notwithstanding anything in those rules. The learned DCI also held that although they were members of Parliament, the affidavits of the second and third appellants did not prove that the Speakers Certificate under article 262 (2) was not attached to the bill when the bill was sent to the President for his assent thereto. In any case failure to attach the Speaker's Certificate to the bill would not be fatal to the validity of Act 13/2000. Issuance of the Speaker's certificate was a mere procedural and administrative requirement which does not go to the root of law making process, Similarly, none of the Constitutional amendments effected by Act 13/2000 had to be accompanied by a certificate of the Electoral Commission. o 19 a With great respect I am unable to agree with the learned DCI and the two JJ,A. that the amendment effected by Act 13/2000 did not, require approval by the people in a referendum or by district councils; that the second and third readings of the amending bill did not require to be separated by 14 days; that the perlod oF fourteen day's was a mere procedural requirement which Parliament could waive as it wished under rule 96 (4); and that the requirements for the Speaker's certificate or the certificate of the Electoral Commission were mere procedural and administrative requirements which did not go to the root of the law making process. It is my view that the Constitutional procedural requirements for the enactment of legislation for amendment of the Constitution are mandatory conditions, which cannot be waived by Parliament as mere procedural or administrative requirements. They are conditions to be complied with. Mandatory Constitutional requirements cannot simply be waived by Parliament under its own procedural rules. It is also my considered opinion that had the learned D,C.J and lustices of Appeal found that Act 13/2000 amended articles 28, 41,44, 128 and 137 (1) and (3) they would have found that the Constitutional procedural requirements under articles 258, 259, 260(1), 262(1) and (2) were mandatory and that Parliament should have complied with them in enacting Act 13/2000. In my considered opinion this view is supported by the decision of the House of Lords in AC 172. It was held in that case that a legislature has no power to ignore the conditions of law making that is imposed by the instrument which itself regulates its power to make law. This restriction exists independently of the question whether the legislature is sovereign. Such a constitution can be altered or amended by the legislature if the regulating instrument so provides and if the terms of those provisions are complied with, and the alteration or amendment may include the change or abolition of those very provisions. A a 20 legislature has no inherent power derived from the mere fact of its .establishment to make a valid law by for instance, the resolution of a bare majority which its own constitutional instrument has said shall not be valid unless made by a different type of majority or by a different legislative process. Regarding the findings in the instant case of the Constitutional Couft that there was no proof that the requirement for fourteen days interval betlveen the second and third readings of the Bill 16 of 2000 had been fulfilled; that the respective certificates of the Speaker and the Electoral Commission did not accompany the Bill to the President for his assent, the second and third appellants filed affidavits to say that the relevant procedural constitutional requirements were not complied with when Act 13/2000 was enacted. Zachary Olum, the second appellant deponed in paragraph six of his affidavit that the Bill was read for the first, second and third readings within two days only; that the Bill was not referred to the decision of the people for approval in a referendum; and that the Bill was not accompanied by respective certificate of compliance from the Speaker of Parliament and from the Electoral Commission. In her affidavit, Juliet Rainer Kafire, the third appellant, deponed in paragraph five of her affidavit that Act 13/2000 was passed by Parliament in one day, namely 31.8.2000. It was published in the Uganda Gazette on 1.9.2000 and became law the same day. The respondent's answer to the appellant's petition was supported by the affidavit of Patricia Mutesi, a State Attorney in the respondent's Chambers. Mutesi's affidavit was silent on the allegations made in paragraphs six and five respectively of the second and third appellant's affidavits' which, therefore, were not controverted. In my view, some of these were matters within the special knowledge of the respondent. He alone knew or should have known whether the bill for the enactment of Act 13i2000 was accompanied or not by the respective certificates of the Speaker and the Electoral Commlssion for purposes of assent to the bill by the President. The appellants had no access to official information or materials as evidence in the possession of the a a 2t respondent. By their affidavits, the appellants had make a prima facie case that the Constitutional requirements were not complied with. The burden to prove the contrary, in my opinion shifted to the respondent, because the matters in question were within his special knowledge. See section 105 of the Evidence Act. Regarding the absence of the 14 days interval the two appellants were members of Parliament and deponed to that fact from their own knowledge. It is my opinion, therefore, that the appellants proved what they alleged in their affidavits. In ground 1 (e) of their petition, the appellants challenged the constitutionality of the new article 257 A introduced by Section 6 of Act 13/2000, The Constitutional Court did not make any decision about that ground of the petition. However, it is my opinion that t should comment on it for purposes of clarification since it relates to a procedure for passing Acts of Parliament. The provisions of the new article 257 A are to the effect that no Act or decisions passed or taken by Parliament at any time after the commencement of the Constitution using the procedure of voting by a voice vote shall be taken to be invalid by reason of the use of that procedure. It follows, in my view, that procedure is inapplicable to passing of Acts of Parliament which were or are intended to amend the Constitution where a majority of two-thirds, majority of all the members of Parliament at the second third readings are required by the Constitution. Such a procedure would require a head count to ascertain a majority of two thirds of all the members of Parliament who are entitled, excluding ex-omcio members, which is not possible in a voice count of 'Ayes" or Noes." In the circumstances, grounds four and five ofthe appeal should succeed. o o cc I shall consider next ground six of the appeal. The passage of the judgment of the Lady -lustice Mukasa-Kikonyogo, DCJ, with which two members of that Court agreed, and which is relevant to this ground of appeal reads as follows: "Once the correct procedure for enacting a Constitutional Amendment Act is complied with, iB provisions become paft and parcel of the Constitutio4 they cannot be challenged in this Coutt This Coutt by a majority of 3:2 in Constitutional oetition No,5 of 7999 Dn Rwanyarare and Haii Sadim Degulo VS. Attorney General held that this Coutt would not have jurisdiction to construe patb of the Constitution as against the rest of the Constitution. See also Kesavananda VS StaE of Keraala 7654 Paragraph 788 A.f.R. All that this Court could do was to determine whether the challenged Act was enacted in accordance with the procedure for enacting constitutional amendmenE. Thb petition was, hence, adjourned for hearing to determine the issue of compliance with the laid down phocedune. In the necent Constitutional Petition llo.8 of 2OOO Uoanda Law Societw and Justin Semuuaba VS Attorney General . where a similar constitutional petition was heard by this Coutt, the unanimous holding of the coutt was that Pailiament passed Act 73 of 2OOO known as The Constitution (Amendment) Act, in accordance with the laid down procedure. The petitionerc failed to prove that the procedure was not followed by Pailiament. fn my view, the decision to that etrect b still standing as no appeal was filed against it and this Court has not reverced iBelf, The holding also decided Constitutrbnal Petition No.6 of 2OOO Karuhanoa Chaoa and 2 otherc VS Attorney General in the same way as a test case. When this petition came up for hearing on 7* February 2OO2 that decision of the Coutt was brought to the attention of Mn G, Lule and Mn Balikuddembe, learned counsel for the petitionerc, but they replied that their clienb' case was distinguishable from the two petitions decided. Unlike in the other petitions, they told the Couft that they had evidence to prove that the laid down procedure was not followed by Parliament when enacting Act 73 of 20O0." 23 o I As I understand it, the decision of the constitutional court in this passage of the judgment is that the constitutional validity of an Act of Parliament intended to amend the constitution can be challenged only if proper procedures are not followed in the enactment process' It appears to mean that because such an Act becomes part and parcel of the constitution it cannot be challenged that it is inconsistent with or contravenes the Constitution even if that is the perception of the petitioner. such a decision in my view, with respect, would severely limit the jurisdiction of the constitutional couft as provided for under article 137 of the Constitution. lurisdiction is defined in Mulla on the code of civil Procedure at page 225 as: "By jurisdiction is meant authority which a Court has to decide matterc that arc litigated before it or to take cognizance of matteE Pnesented in a formal way, for iB decision. The limiB of this author@ are imposed by statute, chafter or Commission, under which the Coutt is constituted and may be exercised or restricted b y the like means, ff no restridion or limit is imposed the iurisdiction is unlimited" For purposes of ground six of the appeal in the instant case, the jurisdiction of the Constitutional Court to construe Acts of Parliament is set out in article 137 of the Constitution. (3) A pe$ on who alleges that- (a) an Act of Parliament... . is inconsistent with or in 24 o a / '137 (t) any guestion as to the interpretation of this Constitutrbn shalt be determined by the Court of Appeal sitting as the Constitutional Court. contravention of a provision of the Constitution may petition the Constitutional Court for a declaration to that effect, and for redress where appropriate." The Constitutional Court's jurisdiction to declare an Act of Parliament inconsistent with or in contravention of the Constitution goes together with the one for interpretation of the Constitution. It is unlimited. The Constitutionality or otherwise of an Act of Parliament must be construed vis- a-vis the Constitution. The Court's jurisdiction in article 137 (3) (a) must be applied together with the one in article 137 (1). In my view these provisions apply to any Act of Parliament which a person alleges is inconsistent with or contravenes the Constitution. For purposes of exercising these jurisdictions by the Constitutional Court there can be no distinction between an Act passed to amend the Constitution or an Act passed for other purposes' As long as a person alleges that an Act of Parliament is inconsistent with or contravenes the Constitution, the Constitutional Court shall and should construe the Act of Parliament in the light of the Constitutional provisions it is alleged to be inconsistent with or to contravene whether it is the former kind of Act of Parliament or the latter. For purposes of jurisdiction of the Constitutional Court under article 137 (1) and (3) (a) there can be no distinction between an Act for amendment of the Constitution and other Acts of Parliament. Whether the petition presented to the Court is to challenge the Constitutionality of an Act in the sense that the Act is allegedly null and void or that the Act was enacted in a manner which did not comply with the Constitutional procedural provisions, such as, for instance, requirements under articles 259,26L (1) and 262 (1) and (2), the Constitutional Court has jurisdiction to make a declaration or other redress sought by the petitioner. Any Act of Parliament intended to amend the Constitution or not, in my view remains valid as against the Constitution until it's validity is successfully challenged in the Constitutional Court. To say that the Constitutional Court has no jurisdiction to entertain a petition challenging the Constitutional o a 25 I o validity of an Act of Parliament intended to amend the constitution as long as the relevant procedures are followed in enacting it would, with great respect, severely whittle away the jurisdiction of the Constitutional Court under article 137 of the constitution. Moreover, there is no constitutional provision to that effect In the circumstances ground six of the appeal should succeed' In the result, this appeal should substantially succeed. I would allow it with cost in this court and in the constitutional couft. I would also make the Declarations proposed by Kanyeihamba JSC. o 26 l t Dated at Mengo this . ,1_ A.O, H. ODER ,USTICE OF THE SUPREME COURT 2004. o o 2* .*roJlr**+q1 (_ \ >J v IN THE SUPREME COURT OF UGANDA AT MENGO 'l [coRAM: oDoKt. ., g?:l TsEKooKo, KARoKoRA, MULENGA, KA N y E I HAM B A, J J. d c. n rurj e virr,t"u6r sin, nc. I s ct. CONST ITUTIO NAL A PPEA L No.1 oF 20 02 BETWEEN APPELLANTS RESPONDENT : This appeal is against the decision of by a rirajority, the appellants,petition to d sought a number of declarations. t a l l l 1 2 2 ATTORNEY GENERAL JUDG MEN TOFT SEK ooKO JSC ll,ll:?,O.r,^thc Judgnrcnt of lhe Constitutionat C *s:x#i';i,?';f :i:;!t:i:i:,,*ii;'t#!i::iiili:fff ii,li!!!!x'f;.,., the Constitutiorial Court dismissing, that Court in which the.appellants ha I have read in advance- lhc toe.t i, A^^^-t G w Ka n ye h a m ba, ,; H ::: J::ffi :fiff :";''J,T: ::':, J :T:; Justice and A.H.Oder, JSC. I agree that ttrrs appeal ought to succeed substantia,y and that.the decrarations sought by the apperants, as set out in the lead judgment ought to be granted. 1 THE REPUBLIC OF UGh*;T .,)}'" 'I AND l4ul K. SSEMoGERERE ZACHARY OLUM JULIET RAINER KAFIRE t rn constitutionar petition No.3 0f 1ggg, the.j"r and the 2nd apperants challenged the varidity of the enactment by parriament of the Referendum and other provisions Act, lggg on ground that the Act had been passed by Parliament without the requisite quorum stipurated in the constitution. on 23r9r1ggg, the constitutionar court summariry dismissed the petition Ieading to an appeal to this court which on 31/512000 reversed that decision and remitted the matter to the constitutionar court for hearing. The present respondent was the respondent in the petition. The latter court heard the petition and on lorgr2ooo granted the decrarationt sought and struck down the Act' There was no appear. However, on 1/g/2000, the Government reacted by moving parriament to enact the constitution (Amendment) Act 2000 (Act 13 0f 2000) whose effect was, inter aria, to nullify the said judgment of the Constitutional Court. Act 13 of 2000 amended Articres BB, Bg, g0 and g7 0f the constitution. The amendment arso affected Article 41, among others, and introduced a new Articre 257A. The appe'ants herein thereupon instituted a fresh petition (No. 7 0f 2000) against the respondent charenging the amendment. ln summary this time the appellants contended, inter alia, that: _ (a) (b) The Act indirec,y amended, inter alia, Articre 41 0f the constitution. Act 13 of 2000 made Parliament supreme over the constitution of 1995 yet lhe reverse is the position. Act 13 of 2000 creater other political parties. s a one party state' the NRM' and eliminates a (c) o : 1 on 10111./2}oo, when the petition was called for hearing in the court below, Mr' Deus Byamugisha, Ag. Director of civir Litigation, objected first to the competence of the petition and secondly to the jurisdiction of the court to hear the petitio-n' Ruring on the objection was given on 2g/11t2ooo, overruring the flrst point of objection but the court herd that it had no jurisdiction " to decrare that one part of the constitution was in confrict with the another.,, After hearing the petition subsequenfly, the Constitutional Court, by a majority of three to two, The appellants now appeal against the dismissal a six grounds which have been set out in the judg dismissed the petition. nd base the appeal on ment of Kenyaihamba, JSC. a I wourd like to make observations on ground 6 0f the appeal. For easy reference I will reproduce it and it was formulated this way: The constitutionar court erred in raw and fact and misconstrued the gisf of the petition and the petitioners, contention when they herd that a constitutionar courl wourd have no jurisdiction to construe paft of the Constitution as against lhe resf of the C onstitution and thereby came to tlte wrong conclusion o This ground rerates parfly to the court's ruring to which l have just ailuded by which the court accepted Mr. Byamugisha's contention that the court had no jurisdiction to interpret Act 13 0f 2000 because the Act was part and parcer of the constitution and the court itserf cannot construe one part of the constitution against another part of the same constitulion. At the commencement of the hearing of the petition in the constitutional court and parry because of the earrier ruring aruded to above, the court disabred,and restricted itserf by framing onry one issue as forows: - "Whether the Constitutional Amendment Act No.13 of 2000 complied with the Constitutional requirements for .f amcndntent of the constitutian,,. It would appear from the opening remarks in that court by Mr. Lule, who was counsel for the petitioners, that this was not the only issue which arose from the preadings' Indeed in his dissenting judgment, Twinomujuni, JA (at pages 2 and 3) ramented that the issues raised by the petition courd have been more direcfly addressed rf the court considered _ 'I I "Whether the Constitution (Amendment) Act No.l3 of 2000 was consrstent or inconsistent) with the Constitution of Uganda". This shows that the preadings raised more than one issue and indeed this is refrected in the submissions which were made in the court berow and a before us. Now whether it is a constitutionar matter or an ordinary suit, it is trite that a trial court must frame a, issues arising out of the preadings so as to determine the matter, or matter, in controversy. A perusar of the preadings in this case (petition and affidavits) shows that among the issues in controversy was consistency or inconsistency between the Act and some - other parts of the constitution' That is what needed to be crearry framed and decided upon. o Be that as it may, Mr. Godfrey Lure, sc, counser for the apperants in this court argued that the majority learned Justices of the constitutionar court erred when they herd that the court had no power to interpret one part of the constitution against another part. rn a way Mr. Bireije, commissioner for civir Litigation, conceded this point when he agreed that the court had jurisdiction to harmonise various provisions of the constitution provided Ihat the right procedure of amending the constitution hqd been fo,owed Here he quite properly abandoned the position taken in the constitutional 4 o court by his colreague, Mr. D. Byamugisha. He however grossed over the point whether the court would have jurisdiction to harmonise the original articles of the constitution which is the holding of the constitutional court. As noted arready, on 2grh November, 2000, the constitutional court which at that time was differenily composed, rured uphording one of the objections to the petition by Mr. D. Byamugisha that lhe ',courl would have no jurisdiction to inquire into the question whether amending secfions if they properly became part of the constitution were unconstitutionat,,. Mr. Byamugisha, the then Ag. Director for Civil Litigation, had argued, during the hearing of the preriminary objection, that once an Act amending the constitution became law, it became part and parcer of the constitution. of course this rast point is indisputabre. However, Mr. Byamugisha,s strangd view suggests that once a constitution amending Act becomes raw, and part of the constitution, it acquires sanctity against interpreting its provisions against the rest of the constitution. For this strange view, Mr. Byamugisha and the constitutional court reried on the rndian case of Kesavananda Vs. State of Kerata 1654 SC. reported at paragraph 7gg A.l.R and on the ugandan-constitutionar petition decision in Rwanyarare & wegulo Vs Attorney General, constitution petition No.5 of l ggg (unreported). Thus the constitutionar court in its ruring administered to itserf a preventive dose which in effect disabred it from considering one of the rerevant issues raised by the petition and, therefore, the court abdicated its duty by declining from examining the impugned articles of the constitution in order to determine whether the compraints raised in the petition were varid. or otherwise. This is unfortunate. a 5 O It is my considered opinion, and with due respect to the constitutionar court, that Kesavananda case was misunderstood and, therefore, misapplied to the facts of the petition. The provisions of our constitution override that case. clauses (1) and (3) of Article 137 of our constitution are very crear. The first crause gives unrimited jurisdiction to the court to interpret our constitution. lt reads: l "Any question as to the interpretation of this Constitution shall be determined by the Court of Appeal sitting as a Constitutional court,,. lf there was any clear answer to the doubts in the mind of the constitutionar _ court as to its jurisdiction to interpret any provision of the constitution, clause (1 ) is the answer. rn my opinion crause (3) does not fetter in any way whatsoever the pciwers of the court contained in clause (1). Clause (3) reads: - "1. A person who alleges that - (a) An Act of parfiament or any other raw or anything in or done under the authority of an law; or (b) An act or omission by any person or authority, is inconsistent with or in contravention of a provision of this constitution, may petition the constitutionar court for a declaration to that effect, and for redress where appropriate,,. The issue which was in the Kesavananda case appears to have been whether an Act of parriament had become part and parcer of the- constitution. That was and is not the issue in ilre petition giving rise to the appeal before us- lndeed nobody ca. dispute the fact that a constitutionar Provision introduced by an amendment of the constitution forms part and parcel of the Constitution. o 6 o No copy of the judgment of Kesavananda case was availed to us. I have not been able to lay my hands on the fuil judgment. But passages of it are quoted in the singaporean case of reo soh Lung Vs Minister for_Home Affairs and others (1990) LRC (const.)490. At page 504, chua.J., quotes a passage from a judgment of one of the judges in Kesavananda case as follows: I ., "Fundamental or basic principles can be changed. There can be radical changes in the Constitution like introducing a Presidential system of Government for a cabinet system or a unitary system for a federal..system. But such amendment would in its way bring all consequential changes for the smooth working of the newsystems., ( Para 932). Those who frame the Constitution also know fitat new and unforeseen problems may emerge; that problents once considcred imporlant may lose their importance because pri-orities have changed; that so/utions to problem.s once considered right and inevitable are shown to be wrong or to requirc considerable ntodification; that udicial in terp retatio I] ntay rob ce rtairt pro visiorts of tlte a ir intended effect; tltat public opinion may shift from one philosophy of Government to another.... The franters of the Constitution did not put any limitations on the an.tending powerbecause the end of a Constitution is the safety, the greatness and well being of the peopre. crtanges in the constitution serve these great ends and carry out ilte rea! purposes of the Constitution, (para gS9),.. 7 This passage indicates that written constitutions are not static and are liable to be amended. There is an obvious implication in this passage that courts have to interpret constitutionar provisions to bring the constitution in rine with current trends' rmplicit in this is the real possibirity that one part of the constitution can be harmonised with another part of the same constitution. Further in para (h) of the report, Chua. J., pointed out t Courts had declined to follow Kesaananda doctrine. decision in the case itself was not unanimous which ro hat Malaysian Moreover the bs it of its fuil persuasive value. a Besides, r am of the considered view that even if the-provisions of the constitution (Amendment) Act, 2000 are part and parcer of the constitution, its provisions as enacted constitute an Act of parliament. That is how the Act describes itserf' According to definitions i. ,; ;;;" "r'rlr,,r*"r, o., and the rnterpretation Act, 'Act or Act of parliament,, means a raw made by Parriament' That is so whether the Act amends or does not amend the constitution. For the foregoing reasons, r think that the decision of the constitutionar court in Dr' Rwanyarare & weguro vs Attorney Generat (petition 5 0f - 1999) in so far as the constitutionar court herd that it has no jurisdiction to interpret one provision of the Constitution wrons approach to our principres or constitu,ffi::,ilH;#'j::H; opinion that case was wrongly decided and rr raw which should not be fo,owed. :presents a wrong view of the Ground six ought thereforqto succeed. o 3 'l agree with the minority iudgment--of'the constitutional court .that-1he-.- appe,ants had in the main estabiished their compraints as raised by the consfitutionar petition. Therefore r wourd ailow the appear. l agree with the orders proposed by Kanyeihamba, JSC. ir \ Delivered at Mengo this se oko f tlte Suprente Court day of. .2004. O o I/S N. ice i 9 ----=....-- 'I t. THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT MENGO (coRAM: oDoKI, C.J., oDE& TSEKOOKO, THAMBA, J.J.S.C. .t KAROKORA, AND BYAMU MULENGA, IGNYE GrsHA, AG. r.s.c.) CONSTITUTITIONAL APPEAL NO. 1OF 2OO2 BETWEEN PAUL K. SSEMOGERERE } ZACHARY OLUM } ]ULIET RAINER KAFIRE} APPELI-ANTS AND THE ATTORNEY GENERAL:::::::: : : ::: : RESPONDENT (An appeal from the iudgment and decisions of the Constitutional Court (Mukasa-Kikonyogo' D'C'J'' Kato' Kitumba' J.l.A, with MpagrBahigeine and Twinomujuni''J'J'A'' dissenting), dated 17th of April 2002, in constitutional Petition No. 7 of 2002) IUDGIIIENT OF I(AROKORA JSC I have had the benefit of reading in draft the iudgment prepared by my learned brother, Kanyeihamba JSC and I agree with him that the appeal must succeed. I only wish to add my voice on the issue of I whether the Constitution (Amendment) Act 13/2000 amended articles l, 2 (l) (2), 28,41, 44 (c) and 128 (l) of the Constitution in addition to those which had been expressly mentioned by Constitution (Amending) Act 13/2000 as the articles which were intended to be amended. I shall hereinafter refer to the Act as Act 13/2000. Mr. Lule (SC) appearing for appellants, submitted that section 5 of the Act 13/2000 expressly amended articles 88, 89, 90, 97, 257 and 257A of the Constitution. He contended that the majority of the lustices of Constitutional Court were in error when they held that padiament never amended articles l. 2(1) (2), 28, 41, 44(c) and 128 (1) of the Constitution. He submitted that article 41 was amended by implication whilst articles 1, 2(1) (2), 28, ,t4 (c) and 128(1) were amended by infection. Counsel submitted that amendment by infection means that the amendment of an article had the effect of amending an article which had not been specifically mentioned at all. He contended that it was immatenal that the amending Act did not categorically state that the Act intended to affect those articles. What was materaal was the effect, design and impact the amendment had on these other articles. He cited the case of The Oueen Vs Bio trl Druo Mart Ltd 1987 LRC 3:ILin support of his submission. On the other hand, Mr. Denis Birilie, counsel for respondent, submitted that articles which were amended were expressly mentiond by the Act 13 of 2000 as articles 88, 89, 90, 97,257 and 257A. He contended that articles 1, 2(1) (2), 28,41,4 (c) and 128 (1) were none of those mentioned to be amended. Counsel submitted that the amendment was done in accordance with afticles 258, 261 and 262 (2) (a) of the Constitution, but contended that amendment did not require compliance with article 262 (2) (b). Counsel contended that the appellant had failed to prove that the amendment was not done in accordance with the procedure laid down t in the Constitution. In order to determine whether section 5 of the Act 13/2000 affected more articles than those mentioned by the amending Act, particularly articles 1, 2(1)(2), 28, 41, 44(c) and 128(l) of the Constitution, it is necessary to go through the preamble to the Act and section 5 of the Act atself. The preamble to the Act states as follows: 'An Act to tepl and rcplae article 88 of the Constitution to make povision in telation to quorum, to amend atticle 89 of ty're Constitutiott, ptoyide for dre numEr of axwtaining the majority of yottss cast on anl question, to rcpl and rcplae afticle 9O of tlrc anstitution to rqni* the rcle of the @mmitlv of the whole hou* in the psing of bills and to ma*e povisions in rclation to tlre function of the ammit&s of Parliament; to amend afticle 97 of tl,€ Constitution to ptoffi the pudings of prliament ffim bing ud oubide pdiament witfiout tl,€ lave of Padiament; and to inst a new aftic'le 257A b ratify eftain F$ acts rclating lo procdurcs- Section 5 of Act 13 of 2000 which amended article 97 renumbered article 97 as clause 5(1) of that article. Immediately after the new clause (r) there follows a new clause (2) which reads as follows: "Notttithstanding article 47 of this Constitution no membr or oltfrer of pdianrent and no Fnnn employd to take minuEs of evidene 0elforc Padiament or dny l.rrmmitlw of prliament shall give evidene els whete in rcsper.t of <rntlr;nts of such minuEs of J eyidenoe fi dE oolirbnts. of any deament laid bfwe prtiament t rny suci ommlt@ as the a* may @ q in rcs6ct of any @hgs or examination lpld bforc Parllamcnt or such @mmltt€, wldrout tE s6ial lare olpdlament llrlt obbhd.' What we are concerned with here is the impact the Act has on a citizen's right of access to information in possession of the state or any other organ. I agree with submission of Mr. Lule, counsel for appellant, that though Act 13 of 2000 was not purposely enacted to derogate on the right to fair hearing, a careful examination of the preamble to the Act and s€ction 5 of the Act vis-i-vis articles 4l and 44 (c) shows clearly that the Act had that effect. In my view, so long as the Act had this effect on the non-derogable right to fair hearing it does not matter what the purpose behind the enactment was. In the case of tsdgI General David Tlnyefunza and Attornev General ConsUtutional "tto onc shall b Frmitd to give anl eYidcnae deriud fiom unpblishd ofuial rur.nds t*ting to any affairc had of the dryftment @nemd who shall giYe or withhold such Frmission as he think llt' Then in Paul General constitutional Aooeal No.l of 2OO0 the Constitutional .t Aooeal l{o. I of 1997 the majority of the Justices of the Supreme Court held that on the advent of 1995 Constitution article 41, section 121 of the Evidence Act which was intended to shield all unpublished official records from being used in evidence was declared unconstitutional. The section provided inter a|ia.. ........ Court upheld the decision of the constitutional court that to the effect that on the advent of 1995 constitution, section 15 of the National Assembly (Powers and Privileges) Act became null and void. Section 15 of the above Act stated as follows: ".$rve as Fovitlcd in thls Aq t o nemb or olfrcer of the As*mbly and no Ft*tt ernplold b Akc mlnu$ of the evidetrc 0clfore dE A*mW slall gire evilrcnae el*wherc in regprlct of the @rrErr,ts of any dxuncnt latul bforc dre A.*mW u such @n mlt& as the ca* maf b q in rlrsryt of any padings I exrmlnallon held bforc the As*mUy or such @mmltte as tle a* may h, without s ial lave of tfie Astcnily frEt had aN obbind,- Whereas Parliament had powers under article 259 of the constitution to amend any provisions of the Constitution, I agree with Mr. Lule (SC)'s submission that the amendment brought about by section 5(2) of the Act 13/2000 had the effect of amending articles 1, 2(1) (2), 28,4L, 44 (c) and 128 (1) of the Constitution by implication/infection. A number of decided cases from common Law Juridiction illustrate amendments by infection. In the case of the Queen Vs Big lil. Drug Marrt LU (19E6) LRC 5 In the instant case the parliament transplanted the nullified provision of section 121 of the Evidence Act see Maior General David Tinyefuza Vs Attornev General (suora) and into section 5(2) of the Act 13/2000. 332, the respondent had been charged with unlawfully carrying on the sale of goods on a Sunday, contrary to the Lord's Day Act' 1970 and acquitted by the trial court' The couft of Appeal dismissed the appeal' Further appeal to the Supreme Court of Canada' the main question was whether the Act especially section 4 which prohibited any one to sell any thing or offer for sale or purchase any goods' chattels or to carry on any business of his ordinary calling on that day' infrinqed the right of freedom of conscience and religion guaranteed by section 2 of the Canadian Charter of Rights and Freedom' The Supreme Court, stated: "fx)tt, purry* and efffi arc rclevant ln deW'ninitv onstitutionallty, eitl'f,,r an unonstitutional PurP* or an unottstitutiooal ellfi an invalillaE lqlslaltiott' All lqislation is anitmd by 'n etrii€t the lqislafrte inEnds to achts'lvr- 17* &*rt is ralid throttgh the impa gducd by the oryation and appllcation of tlre lqistatiot. PurP* and eM tstrctiYely in tlrc *n* of tlr lqisla(stt ei*t e"d tB ultinpfe impct arc linkd, if not indivisibla InEndd and actual effi haye otlen En tcrlt(d b fq guib'w ln asssing tfne lqislation's &ir,t and tfius tfie validity" See also the Attomef General fu Ontario Vs R&iprsal fnsurers (1924) AC 326 ftom Canada and l'llc Brihty Commissions Vs Padric* Ranasinghle (1965) AC 772 fiom CeYlon. 6 In my vie\,Y, if it was to be othenvise, Parliament could amend any provisions of the Constitution, including the entrenched provisions without complying with the prescribed procedure in chapter 18 of the Constitution as long as it avoided mentioning them in the amending Act. Now, the question is whether Act 13/2000 amended articles 1 and 2 of the Constitution. Article 1 of the Constitution provides:- "1. All powers belong to the people who shall exercise their sovereignty in accordance with this constitution. Article 2 of the Constitution provides: - *2 (1) the Constitution is the Supreme Law of |Jganda and shall have binding force on all authorities and persons throughout Uganda. The provisions of these articles are very clear. It is the people of uganda who are sovereign and exercise their sovereignity through the Constitution. It is the Constitution, not the Padiament nor executive nor judiciary which is supreme. Each of these organs can only exercise the jurisdiction conferred on it by the Constitution. None can confer on itself jurisdiction not authorised by the Constitution. (2) If any other law or any custom is inconsistent with any of the provisions of this constitution, the Constitution shall prevail, and that other law or custom shall, to the extent of the inconsistency, be void." Under 1995 Constitution, independence of organs of state must 90 with responsibility and accountability. Each of thes€ organs must be transparent and accountable in their operations. Under afticles I and 2 people are sovereign and exercise their sovereignty through the Constitution which is Supreme Law of Uganda and has a binding force on all authorities and persons throughout the country. Article 4l was enacted to guarantee transparency. Any attempt to whittle down article 4l would conflict with 7 articles I and 2 and would be an attempt to amend them. In the instant case the complaint is against section 5 (2) of Act 13/2000 which amended article 97 of the Constitution, which I have already quotd in this judgment. I must state that I agree with the judgments of Mpagi Bahegeine and Twinomujuni IJA and especially the passage in the judgment of Twinomujuni lA where he stated, inter alia, thaU "The atuve anendment stion (5) (2) of Ad 73/2OOO) which amendd atticle 97 of the Conctit rtion can only sutvive in a juridiction whete Pdiament, like in Unid Kingdom, is supeme,,. In Uganda dah dP amendment amounb to a oup against the *veteignty of the pple and the Suprcmacy of the Constitution. It can not exist side by side with afticles 7 and 2 in tlte sme onstitution. ft @nVavend dre two atticls and Parliament alone annot aYiss such amendment unlss it lfust rrnsults tlrc pple in a rcfsendum ln awrdane with chapEr 78 of the anstitution. I would hold &at altfiough wtion 5 (2) of the Constitntion (Amendment) Act 13/2OOO did not expressly and spillcally name articles t and 2 of t/,ae Constitution as Eing amendd, yet it had tfie eM of rcpling or vatying tlre afticles and thercfore it amendd tlem by treoe!*ety implications' I would add that section 5 (2) 8 Act LA2000 further amended article 128 (1) of the Constitution by implication, because, as the Act stands, courts cannot access minutes of evidence taken before Parliament or any committee of Parliament without first seeking leave from Parliament, which leave can be 8 granted or withheld - thus making Parliament supreme to constitution. I have already stated in the course of this judgment that section 15 of the National Assembly (Powers and Privileges) Act became unconstitutional on the advent of 1995 constitution in the case of Paul Ssemogererc & Zachary Olum Vs Attorney General (supra) by this court and therefore in contravention of articles 28, 4l and ,t4 (c) of the Constitution. In the instant case, by seeking to elevate provisions of section 15 of the National Assembly (Powers & Privileges) Act which had already been declared unconstitutional in Pau! Ssemogerere & Zackary Olum (supra), into an amendment to article 97 of the Constitution, Parliament amended articles 28, 4l and 44 (c) of the Constitution by implication. The next question is whether Parliament had powers to amend arti€les 1, 2, 28,41, 44 (c) and 128 (1) of the Constitution. There is no doubt that under article 258(1) of the Constitution, Parliament can amend any provisions of the Constitution by addition, variation or repeal in accordance with the procedure laid down in chapter 18 of this Constitution. However, whereas the Parliament had the powers to amend those articles, it had to do so in strict compliance with the provisions of articles 259. 262 (l) and (2). Afticle 259(1) specifically states that a bill for an Ad of Parliament seeking to amend any of the provisions of this Constitution which include articles 1, 2, ,14(c) and 128(1) shall not be taken as pass€d unless;- (a) It is supported at the second and third readings in Parliament by not less than two- thirds of all the members of parliament, and (b) It has been referred to a decision of the people and approved 9 by them in referendum. Article 262 goes further and states that; "(r) The yo/cs on the 2and and / tudings rctW to in article 259 and 260 of this onstihttiotr shall & *pnH by at leg,st fourTen silting days of PadiamqtC-. (2) A Ull for the amendment of this @nstitution which has &n pd in amrdane with this chapter shall b asse,nN to by tlle hesident only if:- (a) It is acompnid by a ettiltcalre of tlB spku that the prcyisions of this chapbr have fun amplid with in rclation to it; and (b) In tlre @* of a bill to a mend a provision to which articles 259 or 26O of this Constittttion aflies, it is acompnid by a ettilfate ol the Elxlorial Commission tlnt tlle anondment has &n appovd at a telbtendum or as tlre ca* may E ratilld by the distict auncils in amrdane with this chap@r.- Each of the 3 petitioners adduced evidence through their unchallenged affidavits. Both Zachary Olum and Juliet Reiner Kafire are members of Parliament and averred that they were in Parliament when Act 13/2000 was debated and passed. (i) Hon Zachary Olum's unchallenged affidavit averred that the bill was passed in two days instead of not less than 14 days prescribed by the Constitution. That it was not referred to the people in a referendum \ ( ii) l0 (iii) It was not accompanied by the certificate of Electorial Commission that the amendment had been approved at a referendum or as the case may be, ratified by the district councils in accordance with this chapter. That it was not accompanied by the certificate of the speaker of Parliament certifying that the provisions of chapter l8 had been complied with. (iv) The respondent never refuted the above averrments. The affidavit of Patricia Mutesi from the Attorney C,€neral's chambers did not claim that she attended parliament when the Bill was being debated. Clearly an omission or neglect to challenge the evidence in chief on a material or essential part by cross - examination would lead to the inference that the petitioners' averrment was accepted subject to its being assailed as inherently or palpably in credible. See the case of James Sowabiri and Another Vs Uoanda (SSC) Cr. Aooeal No.S of 199O In the instant case, although the petitioners never averred that they saw the Bill being submitted to the President and that they never saw the Speaker's certificate stating that the provisions of chapter 18 of the Constitution had been complied with, in my view, the petitioners' unchallenged averrments in their affidavits were sufficient to discharge the burden cast on them. The fact that the President assented to the Bill was not conclusive that all the formalities precedent to the passing of the Bill had been complied with. On this point, Kato JA, as he then was, stated that: "I age with him (Hr. Bidje's). It is my opinion tlpt t/ne abvc ptovision was inbndd to awid the Prcsident signing for anrething not lqally pssd by the Padiament fhe issuane of a stillcab is a mene pocdural and administatiye rquitement which des not go to the twt of tlrc law making pruecu,. Sine tlle president il assenfoed to 6e Act, in the abne to lhe @nt th ote ls omryl@ b @rclu& tfiat 6e;tote lE dA e t e was sdsH lhat all the formalitis had En canH out lly holdlng s ott lhis gint is bd on the lqal cletine which startes that ,il things arc prcsumd to haye &n pfiotmd with all due lumalltbs until it is ptotd to tlrc on With all due respect, I cannot agree that the above doctrine applies to cases where there is a supreme law clause requiring the Speaker's certificate to accompany the bill. Article 262 (2) (a) specifically makes it mandatory that "a Nll for amendment of tfiis anstitutbn.......,,,,,,,..,...shall b as*nN to by tlp Prcsillentonly if:- (a) it is ammpnid by a eftifraE of tlp Spker Apt dE ptovisions of this chapbr have fun amplld with in rclation to it.' The house of Lord's decision in the case of The Briberv Commissioners Vs Pedrick Ranasinohe (Suora) is relevant and is almost on all fours to the instant case. In that case, by section 29 of the Ceylon (Constitutional) Orders- In - Council, 1946(1) provided that subject to the provisions of this order, parliament shall have power to make laws for the peace, order and good government of the Is|and.................(4) provided that in the exercise of its powers under this section, Parliament may amend or repeal any of the provisions of this Order.,............. .in its application to the island; provided that no Bill ior the amendment or repeal of any of the provisbns of this order shall be presenEd for the Roya! Asscnt unless it has endorsed on it a ceftificate under tte hand of the speaker that the number of the votes cast in favour thereof in the house of representatave amounEd to not less than two thirds of the whole numbers of members of the house. Every certificate of the speaker shall be conclusive for all purposes and shall not be questioned in t2 any court of law. The respondent was tried and convicted for bribery by the Bribery Tribunal under the Bribery Act, f954. During the course of trial and argument it emerged that the Act which established the Bribery Tribunal, though it received Royal Assent had not been accompanied by a certificate of the Speaker, certifying that all the requirement under the Ceylon (Constitution). Order - In - Council 1946 had been complied with. It was held that the principle that one cannot go behind an Act of parliament does not apply to cases, where there is a supreme law clause requiring the Speaker's certificate. Therefore, in the case of amendment and repeal of the constitution, the Speaker's certificate is a necessary part of the legislative process and any bill which does not comply with the condition precedent to the provision is and remains, even though it receives the Royal Assent, invalid and ultra vires. Therefore orders made against the respondent who had been tried before a Bribery Tribunal on a charge of bribery were null and void and inoperative since the persons comprising the tribunal were not validly appointed to the tribunal - having been appointed pursuant to the ultra vires provisions of the Act. In the instant case, there was no attempt by the respondent to refute appellants'argument that articles 259 and 262(1) (2) of the Constitution had not been complied with. Mr. Birije, counsel for respondent merely contended IJ It was submitted for the commissioners that once the Royal Assent was given and the law was enacted, the court could not go behind it but must take it as a law. On the averrment by appellants that when submitting the Bill for Presidential Assent, there was no Speakers certificate, ceftifying that the provisions of chapter 18 had been complied with, Mr. Birije, counsel for respondent submitted that there was no evidence adduced to show that the copy sent to the President did not have certificate from the Speaker. He also contended that the issuance of a certificate was more of a procedure and administrative requirement which did not go to the root of the law making process. I am not peGuaded by these submission. As stated in the case of The Bribery Commissioner (Supra), where there is a supreme law clause requiring the Speaker's certificate to accompany the Bill , submitting it for Presidential Assent, that certificate is not procedural and admanistrative requirement but rather a necessary part of the Legislative process. In my view, the absence of the ceftificate, accompanying the Bill, certifying that the provisions of chapter l8 had been complied with, even though it received the Presidential assent, remained invalid and ultra vires. Therefore, the stipulated number of 14 sitting days were not complied with. Further, since section 5(2) of Act 13/2000 amended articles l, 2, 4L, 44 and 128 (1) of the constitution by implication/infection as I have already stated in the course of this judgment, and since according to clause (2) (b) of article 262 of the constitution no certificate of the Electorial Commission accompanying the Bill, certifying that the amendment had been approved at a referendum...........in accordance with chapter 18 of the constitution, the President's assent would not cure and give life to the Bill which was invalid ab-initio. I{ that there was no requirement for interval of 14 sitting days of Parliament between the 2d and 3'd readings before the bill was passed. Consequently, in my view, s€ction 5(2) of Act 13/2000 infringed the provisions of articles t, 2(l) (2), 41, 44 (c) and 128 (1) of the Constitution and was therefore unconstitutional. In the result, I would hold U'lat section 5(2) of Act 13/2000 is null and void. I would allow this appeal and grant the reliefs sought in the petition and the costs as proposd by Kanyeihamba J.S.C (R Dated at ue,lro, tnis..'2.-9- day or J 2003. \r A.N. Karokora JUSTICE OF THE SUPREME COURT t5 t I VL CONSTI'I'U'|IONAI, AP]'IIAI- NO. I OF 2O02 BIil.WIiriN 1. I'AIII, I(. SS]1X,1OGIrRERI,] 2. ZACIIAII.y OLUM ):::::::::::::::::::::::::::::::::::::AI,l,lll_LAN.l.S 3..'TJI,IIlT RAINER I'AFIRII ] ANt) .tu]) ATTORNE, GENERAL ,,,,,,,,,,,,,,,,,:::::::::::::::::::::::::::RESpONDENT _-[Appcol -[rotn nnjorift tleciston of the Constitutional Court (trttukasa_Kikonyogo DCJ, Karo' and Kitunfia' Jr'A; wirh Mpagi-Bahigeittc and rwinonu$utti disscrtting) darad 1/t, April 2002 i Cohstituliotnl pctition No.7 oJ 2000/ IN TIIE SIIPREMD COURT OF UGAN'DA I![tN, ATIYIENGO (CORAM: ODOI( CJ., ODER, TSEKOOKO, I(AROKORA, IWULENGA, r KAI\rrEIrIAMBA, JJ.s.c, and ByAMucrsHA AG.J.s.c.)i o t I had flrc advantage of rcadi,g in drafl thc judgrncnt prcpared by nry lcar,ccl :::"'' Kanyeihar,ba JSC' I agrec that trris ,p,;cal oug,t ro s.rccced. I arso rrad thc lurrjrer a(rvantagc or re:rding, thc jucrgments of nry Icamcrr brothcrs, odoki CJ, Oder, Tsckooko and Karokora JJ.S.C. rvith rvhich I "gr..... l\1rt I rvill briefl N'I' or EN GA JSC. y grve my reasons for allowing the appeal. I The appea.i arises frr ffi *;I r :**i: :liijld:: T::: :;;:il: ;ffi ,;; 2000.,.rh^ a^_,, , trtutionaliry of rhc Consri .., ;, ;;; ;;:':' n o-r rep:at'n' o'*-"'l j . Jffiff ':'],i::,I: ::,,"J :ffi:,*rI::[1-:I[:T:",1:;;," surnces '' "''u'l '''rheir j'in oi the Act viorate som t p.ovisions o'tnt aort"'' passed the Act without due peri rion, and ar rrre,, j ll, j, :i :l ;; ;il::T: :li:':;:':: j::":' r: asking thc courl to strik ""6' Luu( otlt preiinrinary objcction to the pcririon, ' r,e affidavits ,ut " o't on two grounds' nanre'ly' that - ;T;: ;:1.,:r# ::#T ":il.:: J:Tffi :,,1_",,.. k,l_ The Constitutional Cour adrnissible, and that ,,r. ,t ou"*'td the objection, holding that the affidavits wcre the proper pro..* ;;r::f ]'14 ;;'i'ai'tio, to dete.rnine ir pa.riam.r, a,,"*"0 hcJd tirat it - r- 3sslng the Act Howcvcr, in the corrrse "r,,r.r,,r*, ,, ",r. o would have no jurisdiction to ng sectiot,ts, i the ro erl t,lqu f;eca rre into the question whether the tl1e antendi o 'lh unconstitutional,,. the ,7.t t i o CO tltIio v)ere at holding had trerlgnflous in iilu strate presently. In support o An oihcr f tlre holding, fluence on the final decision oft \,s. AI Ittl-111' the court cited its previsu5 (icn crel Constitutional petition decision l-- r lc COLIr[ as I will rn .Ie nr cs Il rr. eIl :t l':l t. c& ']vo.5 of 1999 and an Indian decision rn l(esa 1973 SC t46. I lltIl anda vs. Stlr should observe in passing, irowcver , -as the majoriry decision that the court seems to h21,s e of Iicr e I:r A]R mrsconstrued th e lafier case 2 therein does not support the said holding Be that as it may, the petition proceeded to hearing on one fiamed rssue, namely whether the Act _ " was passed in compliance with the procedural requirement for rhe amendnrcnt of the Constitution,,, o rv.ich thc court answered by majority of 3 to 2, in tr]e affi'native, and rrisrnissed the perition. My conclusio, fi'om reading the preriminary ruring a,d trre judgnrents i, trris case, is that trre undcrcurrent, which is rvrrat the courl nlca.r lo portray i. thc said holding, was that it had no power to declare any provision of the Constitution voicr. To my mind, however, jurisdiction to interpret or construe a constitutional provisio,, a,d powc. to ,eclarc sucrr a provision void, arc rwo airr","r, ,r,i,rg.. Neverlheless, i, trre final decision, thc majority of trre court appcar to have considered rhat trrcir hands were tied by the rrording in trre prerimi,ary ruling, to the extent that trrey declined to consider questions, which crearry arose Iiom trre pleadings, fbr fbar of "interpreti,g ore cot.tstitutionar provision agaittsr anotrrcr,,. The issue of the courl's jurisdiction is now subject of thc sixth gro,ncl oI appear, which rcads in parl as fbllows _ " 6. The ConstitLttional Court et.recl in lavu andfact... .....tphen the1, hc1,1 trrut a Consritutionar Court u,ottrd have no jurisdictiotl ro co)'srt-ttc part of thc Constitu/iott ct.s ttgainst the rcst of tlrc Constirtttictn......,, 'rhe constitutio, prescribes rhe jurisdiction of trre constitutional Court i. clarrsc (l) olArticle 137, as follows - "tbry question as ro trrc inrer.prctariott of rrtis constirulion srnu bc trc/enttittct! by the Court of Appeal sitt[ng as tl;c Cortsrirtttiottal Cottrt.,, a J I The court is rhus unreservedly vested with jurisdiction to detennin e any question as ro the interpretation of any provision of the constitution With regard to rnterpretation of the Constitution the court's jurisdiction is unlimited and unfeftered. This is reiterated in clause (5), which provides for reference o{ "o,y 'l questton as to the interpretat of th is Cons t i tur ion,,, arrsrng in any proceedings in IOn o(:t vs. No rth II) Carol I n,t 192 US 268 (1940 ) put the same "It is an elemenrary rul, point thus - e of cons!itutional construction that no one provision of the Constituti on is to be segregatedfrom the others and to be considet 'ed alone, but that a ll the provisiotts bearing upon a particulttr subject are to be brought into vie wandbbe tnterpreted as to effectuate the great purpose of a court of law to the Constitutional Court ,for decision rn occordance with clause (t)' Clause (3) provides that any person who alleges that a law or anyhing done unde r la rv or any act or onrission by any person or authority, is inconsistent with or ln cor.ltravention of; any provision of the Constitution has a right to access the I Constitutional Court directly by petition. Thereupon the Constitutional Court lray grant a declaration that such la thing, act or omission is inconsistent with or contravenes the provision in questi on. To rny mind, the clause does not thereby preclude the court from interpretin g or construing two or more provisions of the Constitution brought before it whi ch may appear'to be in conflict. In my opinion, Ule coutt has not only the jurisdic tron but also the responsibility to construe such provtsrons with a view to harmonise thcm, where ltossible, tlrrough interpretation. It is a cardinal rule in constitutional interpretation, that provisions of a constitution concerned with the same subject should as much as possiblc, be construed as conplimenting, and not contradicting one a nother. The Constitution must be read a as an integlated and cohesive whole. Th e Supreme Court of U.S.A. I)e Ir 1 the instrument Srrri(lr l-- There is no author.ity, other than rhe Consti responsibilif, to ensure ,r,; ,.-: 111tr Lonstrtlrtional couft, charged .,,',ith the H:T#j*#"T:ff#iT' uf"n where i'i i' noi jo"iui''o ncons srenr *;,, ","r, ,;::';;:::,; :::j::#ii,, ::: ;il:: :l:;',1: than shunning it, the courr ," ,,._ _^-1" r'1.' cxecutlo, of that responsibiiity, rather if any, to .orr" ,r*.,on'tt is able to guidc the appropriate authorities, on trre need, decision triat the constir tlu'ough arrendrne any provision orrn. .on"'onal courl nr, ," rr,rlj,i:": :ff::'::};::, ground of appear ought,"t:]::|o}lt t,isconceived a,d en'oneous in raw. The sixth Crounds 1,2 attd 3 zlc com-t.;-,^ r ;::*lJ""j =;::,T::;: two combined bu'l distinct contentions A, c es *u. ..qu i." a',; :r*;.,1;: i. ;xFT::::: j]::j: : fi:'':,:l contention is reirerated ,, ,.^,,], l'*llt *,,n ,futicres 259 and 262. Thesecond holding rhat rhe ,,ru",,orr* ?rr".iJ;--l"r_1 '"*o''int thar rhe courr erred in Articles 259 and 262. The u^,r_i'1"" rrctn-compliance with procedures under conrention, was thar ,,-]":, hoiding by the majority, i, ."rp"., of ,i,,. fi.r, ;,.-11:,::",:"-#jfi .# ;::'ilj:;:nicres *"." no' incruded in'rhe r rrre e r eame d rus ti ces .":Y:: ::,,,," ;;;',', # j; jl.r1il]: ;:,rff :: .;1,7 H: :;:;:,.#:]*,'::J:,"J::::' .: c.u-,his n",0,"* ** "", resulted fi.om the .learned in question' tt t""''t"t of tire effect ol the provisions on rhe m i s corcei ved,",,'^:"l.t"t' t'"'o""r"lr r;;'illt...ll::. j::::::ffi; conr)rcting provisions or,'on 'n" the courl did nr :he constitution. This,r.'t nuur jurisdiction to interpret vident {iom q.hat each one sa.id o o 5 ln response to the conter some provisions of rhe "j:::lJ::,re Acr had rhe effect . The iearned Deputy Chief Justice said: a of indirectiy amending " it is not tue as suggesred by counsel amended other provisions of the Con for the pefitioqers that Acr t3 of2000 specifically mentiorled all rhe prot,isi s t ttut ion indirectly... the Act amended. I dno cvtden ons of the Constitution which it had ce I o us 1t tha/ sorl lnler relation ,rv hich i ado tcd h cour t )71t hte ndu o ndi )1 all r lte rol) ts lon SO the Kato J.A. (as he then was) said: "Parliament in .its wisdom lisred the art icles was interested in amendi NP ... this petition tn courl now is colce rned wilh the procedure followe by the parl tament but hot the effect th d Provisions of the latp. The t.tesl ton be e amendment will have on other rc t/te cou rt 1,, t7 lta t tuill the o1)t en Qt)z ent have o,l I itt at+ls ? The questiott is; was the ol v) e ect exIs er procedurefollowed when the Act wa o . and Ki tumba J.A. said: ls no t tlte du t lt i.r Co ol, oolc I t11.) llte e ect ori ca ti otl 0 () thos ea ln n7e t7 dntents do u1 ;o ru o11 to t nte ret o tle Prop ,,h QOn i/ ttul torla rovt .t lo t1 A Qln ,tl a )t( ) s enacfud? / a ther". bec ause it and does n would foll (emphasis is added) Ap art frorn the misconceived notion I also find that the holding is unsus rs self-defeating. If rhe posi ta inabic ot amend the Articles that th ron were that the Act was not intended to Articles ow that any provision of the Act e appellants allege it purpons to do then it ts tPso il'acto void to the extent of which rs rnconsistent with any of those that inconsistence. The Consti tutlon nd any of its 6 empower s Parliament to ame p rovlslons, but does not em ower lt to '1 Cons Iitution,,; a make any law th enactment ls lnconsist of its provls.ions. Under Arr icle 2 an not am end th e Consti tution is void to the which is incons extent of the inconsistency tstent but does v Ir is common gror},d that in sections 2, J and 4 th^ ,t ^, .l Articies gg, g9(l) and 90 by substitution. and 4, the Act expressly seeks ro amcnd r'c Acr th,t s..ks,";n,,;;:,:::::1, Thc cent,.e of conrrover.sy rs sccrio,r 5 of rercre,,cc ._.,,,r:;:j;;::,il':X.:v,oddirio,, orr,"o.rn,.",,,"n,.,, by cross - Arricre 4r. w,,,,. o,-i.,";l ^,:::": and docu,enrs fi-onr the appricarion or infornration ,n 0,"'t Article 4 i guarantec I .]1,,,,, "r,,,. ;*:,.*i:*::i,:i":::i*:.],",,::-llilff ;: citizens access to inforrrution;;::::^^:lttt"t:o-n 'n Parlianrc,t to lrcrnir or r.efusc ;",1[: ffiiH, ;:T T j, ".:::" l,:: :: t jxx ",,*; J : : by imprication an -'- ' r ' drru oi amending Articles 1,2, 2g, 44, l2gand I37 comnrissioner ar,o t'*tt'on. For the re he srren t : o u sry *;:",,::':: ::;;;T# J ::,:;:,,:',,,:::: ";.:: ;ilI groLrnd t,at an amendnien, ,,,]..;"-^"1' ol'jtt un' of the other Articies, on rhe havc, in ,,,",. ...o"lLl'.'il:::::""::::c, nor inrpricd i\4y rearncd brorrrers o ":;r,,,:,a:;::";'L.''tr that an '-u'"" "",""'' consicrcrc<r a.surrents on both agrec that in th. instz' the eflect of indirectly endtnent of one provision oi' the only Arricrc 4 r, but ,,tnt to'"' se ction 5 o"'" nn'""oing anothcr provisio.' I also _ *,ere i. fbr cc, those f< Articies 2g, 44, I2g an has the efrtct of anrendirg ,ot ,,,wever, agrec wirh ;.T::*;]:ji;,: Jj:"',:::H;,; il:j:; ; judgnrenr, rhat rhesaidsecrion r;;.;:r.;:", a. rhe reasons ser our i. rris sanre effect on Articles I ancj 2_ 7 : Ihe substance of the second contention in prorrn,_1" r -, ground 4, is thi - passed ,n u..o.,tt the Articles' which the t ' t ano J' which is reiterated in 262 rhis,,,,,,;ilil.*, ;*;fi :iH::ii:":, :" *,i, );;" in quesrion ^.;.,";;;;;;;.:"1:::"Ti1re 2se does not apprv to arr thc Anicres applies 259 provides that a bil,, seekrng ,o ,,r.na1,.",.,"r, to whiclr ir ,,shall not be hken as passed unless _ (a) ir is supported at the secon no.t tess rha, /. ,o_thirds *:;::",:::,r,:;1;:; :,::.,,::::",, 0., (b) it has been referrecl to a deL . t hem in a referendum.,, '''"o" of the people and approved by Artide 44 is among the provisions to which the Act indirectiv seeks ro amend provis,.rll' ]:'19 applies' si,ce secrion 5 of referred to a decision "r,n. """.,.:"^"lt':" tn Article 44, it ought ro have been for rhe A* *r, n"r]n of the peopre in a refer, :r so referred. Section , ,r'"01"' It is not in dispute that the bill terefore cannot,,be taken as passed,,. kticle 262 ssts out , - crauses ,;;;;;;;:,:] .,1,,"'?r'; rhose pertinen*o rhe instanr case are i, readings of an arnendm*, 0,,, ^ .,,1,1: ': ': mandatorv lor tlie second and rhirtl .,,,:::i# ;#::H#::I rT,^",::: *,,,", ;;. .;ara,ed by a, (including section ,r.,, ""'" the second and th lltstarlt case' that rcquirement was rcration to section , ,u.." oon" on the sanre 0.,,.0 ,"oo,nrs of thc biil for thc Act a rendrnenr "r,n. .",rl,tl.;"t ;;':,:::" ;r'::::,:J ;rl "T";: rj: sha ilb eas ed t, ob the P rCS I dent onl (a) it is accompan ied by a certificate of the Speaker that rl.te apter /1ave been conplied with 8 provisions of this Ch (b) in the case oif a bilt to a, ::::",:.:,;:;,,;::';':"':,';,Y:',;";::',1,,;.,", Tfie president ot.eferendunt....,,i.rrpt,r.illr",^,rlo,ir"oi has been .,apptoved at o ,:: :m;#i ;i m :r: :: j,: ."::ff ,.il, : j:x,il Constirution does not ur,no.r.. ,u^"r. ^^:: "t"t referred to a rcferendunr. sincc rhe : ;i*}1"","x,": r:= :':il:::T::il*IT::x:: :: o ;:[",;::ii:::,;':"i::,]i,,.,,0 SimiiarJv, ,h. r,,"siden, is ..r ;: "", :];]ff .;$: i:;l** i,;:ffi .I ":.,, l, ", it J", .#;;l arso sougJ.rt,",,,r", ;""',,tt m#;;:'L:il ;, il il"r:H::i: anrend Article s 2g, . .rHr- - ""'" " t rt, and in my opinion, it indirectly sought to orher of the 0.o".0"11'ou 137' All those arnendments had ro compiy with one or bilJ containing ,n"nlttt set out in chapter l8' and the preside,t courd such conr,lian... ,i' only if it was accontiranicd by rh" Speake.,s ;il:j:':: o;::,*,,"us issue ,,;;,':il,,ilH:f:::.: accompanied rhe bir, howcver, is a - 2'd appciiant expressry ,r;;;^;: ^" ]:"':"'-t in support of tirc joinr perition, rr.rc ,,re Ac, did no, .;,ilH;:;:#::::15 and 6 ,n,, .,,.,*,",,,, ,,rhe Bir,"., ,,1,,))'))"',,1,""":,:.:. speciarprocedures, and ,,,;;,;il:il:l' fi'ont rhe *".0",',ri':,:::::"? rtrc pt'es*ibed certtfcatt: of contptiance 'l'he rs5p6n6snt did r _ pctirion or in rj,e "",, ,rjo,,,;,::::j:::,:,,.,1,,.,,, either in rhe Ariswer to rhe ' for the respondenr r'as rhar ,,r" ;;;;;.r,'lanslver' At the trial, rhe conrenrio. rad the onus to prove the non_ 9 compliance which they did not dischar and in the a certificate was not fatai. The majority of the Consti contention. Kato JA who discussed the contention grounds. First he relied on his earlier Itemarive, that absence of the tutional Court assspled thaf at length, upheld it on rwo judgment in ti :rnda La rv )OCIC :r tt rl on No.8/2000, in which he e was intended to avoid the as not intended to render a An 'l ,,The i.rsuance of a certificate i;; a requiretttent u,hic/t doe" h^t ^^ a ., "'u'u procedural and adnzinistrative , t/te president "r,",,;;",;';;:;;,,1,",,,,-oo, of the taw ntakins proces.r ,Since otte is compelled b conclude,h* b"/b: oltu'"'": of evide'ce to the cot,tt.at?, all rheforntar,,i", nJl ^"))'-:':.'-.t u,o*' 'n did so hc was satisJied (sic) thar ::"':#,i{i:i j:; j::,:''::;,":,::i j*-:::::.;; It should be noted, howeve. ,::,"::^":""'t.es untir it is prsl,sar 16 tl.te contraty.,, ;,:x*:Hi;:6,::::l::H: ;:,",.' req u ire,nen, i, r..'r,. Speakcr regularity,, be a basis formalities *ttt too'J President to satisfu hirnselli by any o:::u,o r,. r.,,n"a .rl,l : ;;ffi..[::" ::,[T:,T J:::::':i : -trot pro,e anything since rre did not discrose no'"t t"" 2"d appellart's avemrent did the certiflcare. Kitumba * ;;"::l'".'":" l"* Iie came to know ttre absencc of m :" ;:;;:*:,;;:,.:":;:_. :";:, .",,he 2nd pe,i,i.n". *ou,d u., .n s,aff rv,h,he dury,",I: r"*: i:i:.ffi]," :;J::::l:H,.,'": Justice of Appear, because h. rrir -^. ,. assent According to the rearned rlfidrvit \vrs nor rvorthy "t.0.,*, ;.T:I.:he source o[ iris infornratio,, his rle, hor.i,ever, that neither leamcd othe r \/s. Altor ncv Gene rr I Consriturional petiti optned that the requirement for th e Speaker,s cenificat President signing something not I egally passed, but w law passed by parliament void and added _ j0 'I Jusrice ofAppeal adve rhat averment or ract, ff[:L::'j:::'I,:.-ondenr did not positivery deny Justices of Appear were nnr "":;,^-, "'lttcr tvro€ocs' In mY opinion the learned cogency. In view or,r1.,' not entitled to reject the evidence without t.rting it. or the respond.,,,, *"";T:,H:ili:il:,1*., within the spec ia r ;ffi ;; rhe biil was accompanied by the speaker,s .",r,;^1:: the respondenr to prove rhat discharge the onus. It i. -.,",/r,,-,;:^,-'.:' r uerltrlcate of cornpliance. He did not the blr was accompan,.r['f::,j,?:j#l]n. respondent wourd rair to show rhat would trrerefore hord ,nu, n.,"", ^*""r::"'L-: rI.rn tact it had been so accompanied. I bv rhe speake.,, ."n,0",,.1?'"'i,ii:,:]I]"."' biil tor the Act was nor ,..o.puni.d 3 I do not share the learned Justices making process. The Constitution vtew that the presidential assent is n ot a larv allows the president discretion to refuse 6- ar- or evenfuality. Save under those s assent to a bill , and provides for what has to be done in such special clrcumstances the instant case pecial circumstdnces vrew therefore a bill does not become law until the which are not applicable in the presidential assent is an inte gral President assents to it. In my part of law making process. Under Article 2 62(2), the Constitution commands the President to assent only if specified conditions are satisfied. The command does not allow for di rs nrandatory, not discretionary. It o scretlon in the president to assent w ithout the Speaker,s certificate of complian ce. In the circumstances compliance with tfie requirement u indirect amendments nder Arti the asse cle 262(2)(a).In the result nt to the bili was invalid for I would hold that in respecr of both I would the ex press and non- hold that the Act did not becom Constitution did not becorne part of - t^-_ L rdw and rts proposed antendmen ts to the succeed. On ground 5 I do not wish the Constitution. Grounds f, 3 and + ought to to add anythi have said. The ground o ught to succeed ti ng to what my iearned brothers ...:'- ,i i Before taking 'reave of this case, I am constrained to observe that at the tria, the issue ofthe Speaker,s certificate was not trei my vi ew, facts perra i ning to constit",, ;t"r'r:l:,:rT ff , T::t,r:il":,:; certainry rather than being left to the fare of ,,hide and seek,, between lririgants, which the rures on the onus of proof evoke. whether or not the certificate of conrpliance accompanied the biil was not a difficurt fact to ascertain. I wourd go as far as to say that ifthe parries faiied to do sr ), rt was open to the coun, apart frorr - examining tire 2nd respondent as to the sou evidence from the appropriale officer of ou.'tt" o' his knowledge' to call direct 3 :::'::1 i:lt^o tl'c arena' rrrc desirability '::T::Jit:::rffi:;il:':l ascertained facts cannot bc ovcr ernphasised. For trre reasons I have indicated, I wourd arow the appeai a.d grant the declarations and orders proposed by Kanyeihamba JSC. Datcd at )q day of J NMul cltg JUSTI CB OF TIIB SUPRtrJ\{I, COURT 12 2004 o 't '.-----.----....-. -t .) I 'l) l,' I 6 TI{E REPTJBI,IC OF UGANDA IN TI]E SIIPREME COURT OF UGANDA AT MENGO (CORAM: oDoKI, C.J., ODER, TSEI{OOKO, KAROKORA, IIn}T,aWCe, KANYEITIAMBA, JJ.S.C. AND BYAMUGISHA, AG. J. S.C.) CONSTITUTIONAL APPEAL NO. 1 OF 2OO2 BETWEEN PAUL K. SSEMOGERERE ] ZACHARY OLUM l JULIET RAINER KAT'IRE ] A],{D THE ATTORNEY GENERAL :: : : : :: : : :: : : : : : : : : : : : ]: : : : : : RESPONDENT (An appeal from the judgmerlt and decisions of the Constitutional Court (Mukosa-Kikonyogo. D.C.J, Kato, Kitumba, J.J.A, with lvlpagi-Bahigeine and Tuinomujun|.J.J.A;, di-ssenhng), dated 17h of April 2OO2, in Conshtutional Petttion No. 7 o-f 2OOO) JUD GMtrNT O F KANTEIHAM BA J.S.C. The background to t.l.is appea.l is as lollor"vs SorncLime in 1p99, Paul I(. Ssemogerere ern d Zacl'rary. Olur:-r pctitior-red the Constitutiorra-I Court in constitutionaJ petrtron No. 3 o[ thc sarne ycar seekrng a declaration that the Refcrencium arld Otl-rer Prcrvisiorrs Act o[ 1999 whrch was passed by Parharnen t on I't ..lrrly, 1999 rvas aull ::urd void on the grountl t}-rat Parlrament had passed it r,.lthout a qllorum. The ConstitLrtronal Court drsn-rissecl the pctitiolr as incompete nt and APPtrLLANTS o o 1 ). I decided that it had no jurisd'rction to entertain the petition' The pe titioners appealed to this court by way of Con stilutional Appeal No I of 2O00 On May 3i'" 2OOO' we delivered judgment in which we a1lowed the appeal and held that the Constirutiona-l Court had -lunsdicuot to decide whether or not the Referendum and Other Provisions Act was passed in accordance with the provisions of t-he Constitution We directed that the Constitutional Court should hear the petition on its merits. Following our judgnent in that appeal' the Constitutional Court heard Constitutional Petition No' 3 of 1999 between the same parties and delivered its judgment on lOs August' 2OOO' ln that judgment, the Constitutional Court declared null and void the Referendum and Other Provisions Act No' 2 of 1999 which had been passed by Parliament without the requisite quorum and in disregard of the Constinrtional pro"risions applicable ' As a result of that judgment, Parliament passed the first amendment to the lgg5constitution,namelytheconstitution(Amendment)Act No. 13 of 2O0O' lt was introduced in Parliament' debated' passed and received the Presidentia-l Assent on the same day ' namelY Lhe 31st of August' 2OOO' o I l a The three appellants, Messrs Paul Ssemogerere ' ZacharY OIum and Ms. Juliet Rainer Kahre' hled a constitutiona-l Petttton against thc Attor-ney Ger-reral challengrng' amongst ot1-rer things' lhe con stitutio nah tl' of the Constitution (Amendrnerrt) Act No i 3 I I of 2OO0 I I : l I 1 I I I t I r I a, The petjtioners, fr'led their petition I'n the Constifutional Court under Article I37 of the Constitution. [n the petition, they, inler alia, chaJlenged the vdidiry of Lhe Constirution (Amendment) Act t3 of 2OOO. The petition \\'as supported ald opposed by se.,veral aJf-tdavits- The petition contained several grounds ald prayers. However, the Constitutional Court, having heid that it was bound by irs previous decisions on similar matters, declared by a majoriry that it had no jurisdiction to interpret one provision of the Constitution agajnst alother or others lt decided that it could only hear one ground which was framed by the Court itsetf, namely, whether Act 13 of 2OOO was passed in compliance with the procedural requirements for the amendment of the Constitulion. ln consequence, by a majority of three to tLvo, tJ-e Constitutiona.l Court dismissed the petition and held that the Constitution (Amendment) Act 13 of 2000 had properly a.mended articles BB, 89, 90, 97 and 257 which were specifically enumerated in the long title to the arnending Bill' The Court further held that the Act had not amended any other Articles of the Con stitution as alleged by the Petitioners. The appea.l before this Court is against the judgrnent of the ma.lority learned Justices of t-}.e Constitutiona-l Court. o o The Memorandum of Appeal in this Court conta.ins six grounds -,vhich are fra-med as follou,s 1. Tlrc learned majonty Juslices o/- the ConsiltutionaL Court erred it law and fact tultert t)rcy held tlwt Seclron 5 of the Corrstitution (Anrendrrrcrtt) Act 2000 ditl rtot ctntetrd Arttcles 28, 41(1) and 4a@) c:J tirr" Con.strfu trort bg rntpLrcatiort ancl ilecliort i ,j i I a o which Articles require amendment in accordance wtth Arl]Ictes 259 anci 262 oJ the Constttutton. 2.ThelearnedmajonLyJushcesoftheConsLitutionaLCourterred in Latu and- fact ,when tley Lrcld that Section 5 of the Constitution(Amend'ment)Act2oOodidnotamendArt.tcles] and 2 (1) and (2) of tlrc Conshtution by implicatiort and infectio n ' uthich Articles require ana amendment to be in accordance tuith Articles 259 and 262. 3. The learned maio ntA Justices of the Constitutional Courl ened in lata and fact when they held that Section 5 of the Constitutton (Amendment) Act, 20OO did not amend Artrcles 128(1) (2) and (3) and 137(3) of the Constitrttion bg imptication and infectton - wttich Article s require amendment in accordance tuith ArticLes 259 and 262. 4. The learned majoitg Justices of the Constitutional Court eted in la ut and fact when they Lleld tLat ttrc Petihoners/ Appellan5 had not proued that Parliament did not follotu the required procedure under Articles 259 and 262 of tle Constihttion u'then enacting the Constitution (Amendnent) Act 2OOO. 5. Tlrc leanted majoity Justices of tl'te ConstitutiorLal Courl ened in latu when they fotled to distragursi r betuteen a tuoiuer oJ Parliantentary proccdure and non-cort'tpliance tuith tlrc Conshnrtional Prouisions under Articles 258, 259 and 262 ol the 1995 Constilrttion of Uganclct. { o o 6. The Conshtutional Ccsurt eted rn Law ond fact and rnisconstrued the gist of the Petitton and the petttioners' contention urt'Len theA hetd that a ConshtuhonaL Court would haue no juisdiction to constnLe pafi of the Constitutton as agoinst the rest of the Constitution aqd thereby came to a wrong conclusion' Mr. Lule, s.c. and Mr. Ba-likuddembe represented the appelialts and Mr. Birer.1e, Commissioner for Civil Litigation assisted by Mr' Okello Oryem, Senior State Attorney, both from the Attorney General's Chambers, appeared for the respondent' Mr. Lule, for the appellants argued gtounds L' 2' 3' 4 and 5 together arid ground 6 sepa-rately' He subrnitted that the appeal had arisen because of the failure by the rnajority learned Justices of Appeal to resolve several allegations brought before them including the allegation that the enactment of tlie Constirution (Amend-ment) Act 13 of 2O00 did not comply wrth the constitutionai provisions for amending certail provisions o[ the 1995 Constitution and that some provisions o[ that same Act variance with several provisions of the Mr. I-ule cot'rtcncled that Ct-raptcr I8 of rhe Constitu[rotr pr cscnbcs trr Arttcles 25A, 259 , 261 and 262 t\e procedurc whrcl-r art annettclrncnt oI thc Cor-rstitrrl-ion must [ollow' Counsel contravene or are at 1995 ConstifuLion. corrtended pfo\rrsrons frrrthcr that the Corlstitution classifies irrtr: tirrec g1'oups cach oI rvhicl-r requires lhose its orqr l\ct l -) special procedure that Parliament igSored "i'hen enacting ( o o of 2OOO. He pointed out those provisions v'rirh which Parliament did not comply. I witl be discussing them in this judgment' Mr. Lule contended that the majority of the Justtces o[ lhe Consti\utional Court erred in holding that only those provisiops of the Constitution which were expressly mentroned by the Act were amended. Counsei contended that rvhether or not a provision of a constitution is amended depends on the purPose and effect of the purported amending instniment ln law' a provision can be amended by rmplication or by infection ln Mr' Lule's view, even though not specifically mentioned in Act 13 of 2000, the reading of its sections indicate clearly Lhat Articles 1' 2(Ll,212\,28,41(I), aa(c), r28 (1), (2), (3) arld r37 (3)(a)' were all amended either by implication or infection' lt was a-lso Mr- Lule's contention that by amending Article 4I' the constitution (Amend"ment) Act infected Article 4a(c) which prohibits any derogation from the enjoyment of '.tre right to a fair hearing. Counsel further contended that by re-enacting Article 41 and adding on it two more clauses' Parliament not only diluted that Article's original authoriry' but amended it without lollowing the procedura-l ruies required of it by the Con stiru tio n. Couns;el subn-rittecl tilat previoursly, both thrs Court ar-r cl tht: Cons trtutiot'r a,l Court had held Section I5 of the Natiorlal Assernbly (Porvers and Prit'ileges) Act, Cap 2+9 inopcraltve in so llrr ars tt *,as iu conflict *T LI-r tl-re provrsions o[ Artrcle 4 1 a:-r cl yet' tlrc Constituttorr (.{r-trcrrclrnent) Act 13 of 2OOO }rad restorecl Lhe ( a-ffid an t Atto rneY IN support of the respondent's case was bY a State who was not a Member of Parliament .\ Counsei cited the cases o[ Paul Ssemogerere and ?achaty olum v. The Attorney Generar, constitution{ Appeat No.-1 ol 2000, (S'C) , (unreported)' and Paul Ssemogerere and Zac}:.ary OIum v. The Attorney General' Conslitutiond Appea-l No 3 of 1999, (Constitutional Court)' (unreported)' Major General Tinyefrrza v' The Attorney General' Con stitutiona-i Appeal No i of 1997 (S C')' (unreported) ' The Queen v' Big M' Drug Mart Ltd. [19861, LRC' 332' H'M' Seervai on the Constitutional Law of India arrd Teo Soh Lung v' Minister of Home Affairs and Others, Il99Ol' LRC in support of his submissions' For the respondent' Mr' Bireije supported the majoriry j"dg'*t": of the Con stitutional Court He contended that Parliament had correctly follorved the rrght procedure rr"hen enacting Act 13 ot 2OOO. Counsel contencled tLat the only issue before the Constirutiona'i Court for determilation was rvhether Par liament had complied with thc relevant consdrutional provisions when amendir-rg articles BB' 39' 90 and 97 and in creating a new article 257A- He [r-r r thcr contcnded that the pe Litione rs had failed [o producc cvidct-tcc to prove rheir ailegation that Parlta:ncnL hzld not {ollowctl tllc correct procedure ln Courlsel's vierv, lhe provistot-ts ''vlllcli wcrc lilc subject oI rl'rc amctrdllenI rcqutrcd conformtty rrrltll artrclcs 258' 2(r \ and' 26212)(a) of the Constrtulor-r :urcl Parltanlcnt fully complrcd rvr Lh these provrsrons. Couttscl t:otltcnclcd lurtl-rer.that tlle -ll-e:::::" cffecleclbyActl3o(:2OOOclrtlr-rotrcqttirecofi-rpliancerrrtl'' o o { article 262(b) , as cla-rmed by counsel for the appellalts' lt was Mr. Bireije's further contention rLLat all the constitutional provtsions ..vhrch Act 13 of 2000 aJtected had been clearly rdentified a.d expressly; stated in the amending bill and consequen$l those other provisions narned by the appellants as having been amended were not amended since the latter were not sPecrfica-llY named' o Counsel contended that the amendment did not in arty way aJfect article 137 as alleged in the petition because even today people continue to enjoy the right to Petition Court if they claim that any of their constitutional rights have been violated or threatened- Mr' Bireije concecled that the Constitutional Court has jurisd,iction to harmonise various parts of tJ-e Constitution but contended th at in this particular case' the Court was only concerned' with one issue' namely rvhether Parliament had enacted Act 13 of 20OO il accordance with the constitutional procedure applicable lor this lond of legislation' It was counsel's contention that Parliament had correctly compued with that procedure. He cited tlte cases of Uganda Law Society and Justine Sernuyaba v' Attorney General' Constirutiona-l PetiLion No. B of 2OOO, (Cor-rst' Court)' (unreported)' and Dr' Rwanyarare and Haji Badru Wegulo v' Attorney General (infra) rn supPort of his submissions ' O I rvr.ll firrst conslder thc isstte rarsed tn gr-ound 6 o[ thrs appeal a prelimrnarl' IlaLLlrc and ot-t rvhich the rnade a lLndrng By a majority' the held that it had no jurisdiction to consider rvh,c)r I : cgercl as ol Corr stittt trorrd Court Co, r st, tal tt o,r nl Cottrt ncerflent on ooe part o r rnore parts oi the s f the Constitution in arne Constrtution ln D C J staLed' /eiation to anY ottler o \e arne d her judgrnent ' Mukasa -K-rkonYogo ' Constittt the cofi dotol A flsb ect P mendm ecoftLe ro cedure eftt Act Paft a Jo r etactin Lied a ttlr, ttOnce is contP L of tlrc nd Parce d in this it-s p rouisio challen9e end rnake a Prorlou Cotst itttion' Court' Constitrtti gd to2in Theg ca naot be This Court bU d maJ oitU o ,lr 7999' ofld I Petiti ora No 5 of ad We u Io u. f(L d nd II B f1l o t Ge fle ral eLd tlt- ot ttt'i the onsttue Pa the 7d tot s Cou rt wou Dr. R LL) A tto r rle haue JLL O-n a lr ofL to c st the re rts oJ st oJ t oft as r:.sdict agattL this Court co uld do was constituti Ail that eftdcted r11 dc u-thether th ittttional am cordance w e challenge TL efl h the Pro dnrett's" d Act t'Das Ior Constittrtio.n cedure to determtn e enactin g cotst o o as Yre then was' observed ' Kato, -l'A Re-echoing tkre sarne view' - tho oetitior r,,r"L€ up for "?,2:":r;:o, *w |: :', - ; ;;.' r r, "ri*il, i :! "'rjr'i!.rir"i", ."r' ',ii',i {-,, ;'* *' ii"t:"i' 1.,jry f;; "' it ffi Litigdtlotl i) .n"tt""god tnt^,:). ln. p"titioners objectioft'; ::;';;" f:,:":12Zi"i"* r'",1 "f th: Court xo '-'o*' *u o u) e r e d s K, n c . ", ;. ? ::1.: :r.::;; ;i. !:" :: " ; :7 :* 7"[;tY:T;i[ii"Z'"!.,','#,,:;i;:"":::::::::'X otrcarrict,c,,itrr"'.o',,oo::,:'.,)!"'o'r'r',.J"*o,f ouotucd an'othcr ' Dw" '" ,- - ' *i" "''"' o: :1'. : "21;' ;::'P a s'" d'" 7h"n Att 13 oJ zt Iijtun'rba', J A s a,rd \11 i-r.er coIl cLrrrrrr g iutdgn]ent ,.rt is crcor {,:,'i:,:1" :}"',';,'j" tJ:1i,":li:"' nrrrcntlccr tr ( '(- '!:::r;iiT'"i:'i sPecifted clrTr", !'\ ri 1 I l ^.:.4 97 ana t -.t ' ' ft is not the dutg artic Les 88, 89' 90' k into the effe ct or irnP Li cotion of th is Court to loo ts as doing so us rrision dgaiftst ould be trytn g of th ose anteadmen nstitutional Pro another' This Cou rt declined to d-o that' See tu iftterP ret ofte co u) dtt (Lr are and Hcr iBd clr-u We tl lo D. Ja me sR Constit iitton No' 5oI ALto ffle G efle rdl. utional Pe 1999 and th Court's rtling in the Lrl' staftt peliti on on 29th Nottember,2OOO' ents o[ the majonty Justices 9f . the I *ote that in the .1udgm reliance ,"vas placed on tfre decistons ConstttutionaJ Court' great wanyarare and wegulo v' Attorney ' Dr' of that same court ln General, Co n stitu tion ai Petition No 5 of 1999' (Con st. Court) , aw Society and Justine Semuyaba v' (unrePorted), Uganda L titutional Petidon No- I of 20OO' AttorneY General' Cons ruhanga ChaPaa and Two Ot R o (Const hers v. (Const ecord of Court) , (unrePorted) ' Ka titutional Petition No' 6 of 2OOO' AttorneY General' Cons is also evideni from both the r Court), (unrePorted)' It menls o[ t]re Corrstinrtiona-l Co urt that roceedings and the judg ones from tLris Court were ther authorities includin g binding ln these other authonLies P o C ited by Counsel [or the appeilarts' Attorney General' (suPra)' as Major Gerreral TinYefuza v' Attorney General' lum v- such Par,r.l my oplnlon, Ssemogerere and Zaclr,arY O mpala CitY Council and arr d Ismail Serugo v' Ka O (stLltttt) Another, Conslitutiona-l APPeal of constitutionai (unrePorted) , r.v as exte n sivelY and' judicial interPretatton . ^, .',,'ir cxlrt:tttt'-''l , CX Cx]lau)t'"') - ' s Court Other leac"ing au No 2 of 1996' (S C )' lll instruments and oLher legal docume nts plarned ald Pronounced rhonties rvere cited artd guiding rhe bv tht u l)o ll Nloreover, In !-'! tllts (-('Lllt rclrCC i)POrI vJ \ I \ ConsttluIiorta-l Court, somc oI these authorities were cited by CounseI in lavour of the appella-nts petitron The record of rndicates quite proceedings qlearly that be fore the counsel for Constitutional Court the apPellants made submissions on how constitutional amendments are inlerpreted by courts. Thus, Mr. Lule, lead cour-rsel for the appellalts in the Con stitu tional Court submrtted, "Constitutional Appeal No' 7 of 2OOO at pp'32 - Articte 4 7 uas hetd' to be tir-ked u;ith Article 44 bg lton. Warnbuzi, C'J' at PP'15 oJ his judgment' ie linked. uarious Articles - Arnendrnent of one affects others. Hon. Tsekooko's, PP'T and 8' Hon' Ii'c.rokoro't p.7 and 9, Hon' Mulenga's pp'75 and 79, IIan. kangeiharnba's pP'7O, 71 and 14' Hin- Oder pp.S and 70' I s-ub rnit Articles 47 and 44, 728 and 28(1) are all linked'" J a Courrselfortheappellantscitedadditiona-lauLhorities|romthe Commonwea-Ith ald other jurisdictions such as The Bribery Commissioner v. Pedrick Ranasinghe [1965] A C' 132 Phato v. Attorney General of South A-frica (1999) 3 LRC 5B7 The Queen v. Big M. Drug Mart, LRC (1986) 332 Wrrh great rcspcct, I c-l o rrol agrcc wrll-r thc learncd DCJ tlrat a]l the aLullroriLie s cite cl r,vcrc it rcicvallt' WIth {lreal respect, tilc majontv oI r]le learned JusLrccs o[ tlrc Corrstrturrional Cor-trt do Ilot appcar to have ta-liell lllto accolltlt courrsel's submisstons zlld relevant aut[roritrcs ctted to tllat court' Ttle approacll t)re]" aclopted ts alnosl t'rntamount to taliirrg a mzuden \:oYagc rnto the mvste ln cl inte rpretatlon' _...-.-c€ The uterv o[ the ma1on|y learned Justices ol the C-o n str [u tlona-l court that once Parliament has passed a constrtutlona'l amendment correctly that zlrnendment becomes part of the constitution and thereaJter cannot bq guestioned ln a court oI law is, to say t.he least, a n egatlon of Article 137(3)(a) which provides that a person rvho aJleges that "on Act oJ Parliament or dng other authoritg of contrauention Co nstitrttio nal laut or angthing ia or done under dnA lau is inconsistent tuith or of this constitutiorl mag petition Court Jor a d'eclaration to that effect' the tn tlte and Jor redress uthere appropriate'" a In my view, an Act of Parliament w'hich is challenged under Article 137(3) remains uncertain until the aPproPriate court has pronounced itseli upon it' The Constitutional Court is under a duty to make a declaration, one ivay or the other' ln denying that they had jurisdiction to make a declaration on this petition' the learned ma,l ority Justices of the Constitutional Court abdicated the function of that court' Only the dissenting learned Justices o[ the Constirutiona] Court o found it necessary to refer to Lhese other authonties' Tht-ts' 1'rvrnomlt.lr.ttrr, .-l .'\ , obscrvcd rn his judgnlcrl[' "Fottouing its earlier decisions and those of the Suprente Court of Uganda in Tinuefitza u' AAp-r-lS:l -qrflgeJ, Constitattional Ccrse No' 1 o'f 1996, Attorneu General u' - Iinuefuza' Constibutiorra I Appeal No' 1 o-f 1997 and Ssertoqc-lere anrl Ol'tm u' Atrnmeu General' Co nstitutto r.dl APPedI held thttt: ' (a) of 2OOO, this Court No. 1 section 15 oJ :": ::::#i::;;T':i.l:"i;'; c:r.a Pa"ittges) Act ' ihe Cotstirution' \ 1 Justice Mpagi-Bahigeine' J A' ' tlne other dissenting ieamed Justice of the con=titutiona-l Court referred to those same binding and Ieading authontres includrng The Attorney General v. Major General David Tinyefuza (supra) ' Paul Ssemogerere and Another v' Attorney General '^t::'' and The Queen v' Big M. Dru'g Mart Ltd'' (1986) LRC' 332' in 1'rer judgment' ln the case o[ Tinyefuza v' Attorrey General (supraJ' the petition "at <:o"tid"recl by the Constitrrtional Court differently constitllted tto"-' rh"t ''vl-ricll hearcl this appcal and on the constttr.tttonai Inlcrpl'ctiltttlrl' lr'lalvirrdo ' D'C 'J :rs he Lhetl lvas' obset-ve cl, "77rs ctttire Co^stitutio " "ot ^?.rlJur:ttj':;tT:)' i ri e g r ate ct u h o lc' ot 11 rt o "'"" ^'^l'i"'i' J;i"' i" g tttc' ttestrosirts thc ot,tt-c^r :,i: :7'';"#;;;; r-ute. of. oLhcr. This ls L'tc ss and tltc ntlc ol c o r tt P lc tc n es s a rt rI : :'-"',i,:: : :t;; ;;;;i" "' .T.':" parontou.rrtc.'lrr,-"t, r'i;:;";;,; ; orcls oJ the turittcrt third Prrrrc o a ( o o I The other learned Justices of the Court' Ag Justice Okello, Ag Justice lvlpagi- Bahigeine, Ag Justice Tabaro and Ag Justtce Egorrda-Ntende agreed or e;<presscd the same views Guidance as to ho"v to interpret a constitutional instrument tn relation to other documents inctuding those which are not specificatly mentjoned by rhat instmment' may be discerned from Article 273 of the Constitution' It provides' constitution prevail ouer alt unutritten ."^"L^ri"^s, prlcedents and' practices' I think it is nou-r aLso uLidetg accepted' that a court shoutd not be suagecl ag "oniidtrations d- policg and i."rl-"rg innu lnt"rpreting prouisions oJ the Constittttio n" ' *273(7) subiect to the prouisions of this article ' ti"ip"rotiln of the existing lau't afier the coming in o-'7or". of this Constitution shall not be "it".i"a bg the corning into force of this iinstit:rttion, but the existing law shall be constrtted with s-uch rnodifications' a-daptations' qualificcttions o,nd exceptions a's fiaaY be =n""uitory to briag it into conforrnitg tuith this Constittttion '" This provision shorvs quitc cleeuly that provistons o[ the ConstiFutron or any other Iarv clo not have to be specillcally rnentroned to [lc :url e tlcle cl by rmplicaLron t>r irl [ectton ' I arl.t thcrc'rore not 1lcrsuaCcd l-r-r' thc argumcnts oI rr:sporldeut's courrsel ii-rat rI collstltLltiolllrl provisions a-re r'rot sllccificalIy rnertl.iouecl 1n aIl anlclldrrrg trill thcl' cannot be hcld to have been arncnded 1-hts lrrgr-tnrcllt ts Ilot iotlndeti Lrl logrc or llrecedenL' It lltt.rnDts to clothc l)at ltltlilcltt rr'rth atl apParcnt allthoritv to do ( ( o what it is not permitted to do by the Constitution with Lhe result Lhat what it enacts has the appearance of a lar"v, but it is a Lar,r, which has iro substance to it. This is what the learned lead counsel for the appellants called . colourable legislation. Curiously however, this assertion managed to find comfortable accommodation in the judgments o[ some of the learned Justices of the Constitutional Court. In thc Ca.:tadral Supreme Court case o[ The qucen v. Big M Drug Mart Ltd. (srLpra) at p332, it was sarcl, "Both purpose and elJect are releuant in deterrnining c o ns ti tutionalitg; either an unconstitutional purpose or drt unconstitrttional effect can inaalidate legislation. AII legislation is anirnated bg an object the legislature intends to achieue. This object is req.Iised through irnpact produced bg the operation and applicatton of the legisla-tion. Purpose and effect respectiuelg, in the sense of the iegislation,s object and its ultintate irnpact, are clearlg linked, if not inditrtsible- Intended and acltieued effect-s ltauc been looked to for guidance in assessing the legislation's object and thus the ualiditg.,, In Smith Dakota v. North Carolina, 192 US 268(l9aO) tirc U.S. Supremc Court expresscd Lhe opinion that: "It is (tn elernentary rule oJ constitutionctl constrttction that no onc prouiston of the Constifutton is to be segregated frorn the others and to be considered alone but that aU tl.Le prouisions bearing upon a particular subject are to be brougltt into uieut and to be interpreted. as to effectttatc tlte great purpose of the instrttntent.,, e Wher-r a Court tgnores or overlooks a brndrng Precedent arr d decides a case as if that precedent does not exfst' its deciston rs sard to be a decisro n per incunurn l agree r''r Lh -i\rnomu;uni' ,J.A , r,vhere he laments rn his dissenting judgme nt that in the Constilutional Court, 1 *We appear to bc'bent on adiudicating this Coutt out of existence bg declining to e'xercise it:atai.ti"n conferred expresslg or bg irnptication o bg Article 1343|" ln my opinion, the majority o[ the Justices of the Constitutiona] Court tr.'ere in error ald their decision' in so lar as it holds that that Court has no lurisdiction to adjudicate on a provision of the Constirution in relation to others' is a decision per incttrium ln this context, it is my view' that petition 5 of 1999 ' Dr' James Rwanyarare and Haji Bad'ru Wegulo v The Attorney General' and Petition No. Another v- The The Uganda Law SocietY and General, were wrongtY decicied' 8 of 2000, AttorneY a Ground slx ol tl.is appeal therefore ought to succeed I urrll I-rert consider and resolve grounrls 1' 2' 3 ' and 4 These grounds reiate to the contenliorr by the appella-nts that the Con st itr-r tron al Court crred iu holcling tl-r zrr Act i 3 oI 2OOO did not alncllcl Articles l. 2(1), (2), 28' o 1(l), +a(c) l2B(2\, (3) an ct I3?(3) oi tl-re Constitultioll 'lncl that cvcrl in relatiorr to tllost: Artrcles lt irltcnclcci to atlletlci t)at ltanlcnt cltd r-lor cornply rtrtll thc' provtston s oI tllc Cot-tstitutrolt lir ordcr to rcsolve this malte r, It l:-' I1c(:essal]' to examllle rvllat ls ltl('lr-ni i;r' al:lCllclttl!i the ('r)lllit1l IlIl'Jll ' l)crL]sc the Provisions oI ( Lhe Constrtutronal (Arnendment) Act I3 of 2OOO' ald then decide whether or noL tts provtsions had the effect of amendrng Lhre Articies ;rrtd clauses oI the Constrtutron rvhich have been enumera[ec.l above, eirher drrcctly, indrrcctly or by rnfection as contended bY tl-re aPPellants' o o I trnc.l thc meaning of 'Amcndrnent o[ tl-rc Constitution" as ably set out irr the dissenting 1r-rdgme nt of TVtnomujuni' J A ' to be rnost pel sltasive. 'l'fr c lcarrlcd 'Jutsttcc of the Constitutional Corlrt said , "'Tlte meaning of this phrase is to be-found in Article 258 of ttie Consiitution' It states that the Constittttioft can onlg be amended iJ; '(i) An Act of Parliarnent is passed' (ii) TlLe Act has the effect oJ adding to' varietion (sic-/ or repealing dnA provision of . the Constitution' (iii) Tne Act lt'as been passed tn qccordctnce uith Chapter Eighteen of the Constittttion'' If an Act of Parliament has the effect oJ ad-ding to, uarying or repealing ang provision of the CortstiLtttion, thci tlt'e Act is said to haue artendcd th-c affccte cl article of the constitution' Therc is rt o clifference tultcther the Act is an ordinary Act oJ Pc rtianrcrrt or an Act itttertded to c,rrtcncl t/te Constitutiort' The arncrrclnu:nt rnay be effectecl e-xpressly, bg irnplication or bg infection' ii tor.ll as'tl:.c rc"stLtt is to aclcl to' ucTrg or repeal a J:rcruitiol of the Corrstitutiol' lt is not material utltcLhcr tlte antendinq Act -statcs ccttegoricallg that the ,4 c f is intc ndecl to afJect ct specified prouisiorr of tIrc Constitrrtion' It is tlte effect of thc arttcnclntent tlt'at ttrattc rs '" ( lw'rli frrsI consLdcr witetlier cacll ol the provrstons llsted In Lhe grounds of appe a I \vas amended in any oI the ways mentioned ald rf so ,,vhethcr the procedure prescnbcd by the Constitution [or a:.rnendrng it r,.,ere adl-rered to b1' p3r-1,-',-rent. The appellarrts deporred and thcLr counsel sr-rbmitted that Sectlon 5 ol Act 13 oi 'I 2000, arncndcd Artrcle s 1 a.nd 2(1) and (2), 128(1), (2) and 137(3)f a) of the Constitution. The respondent contended that since none ol thesr: Articles ard claltses were specifically mentioned in thc amending Act, they w'ere not amended. Sectron 5 provrdes as [ollows. "Arttcle 97 of the Constittttion is antended - (a) Bg renurnbertng the e.xisting article as clause (1) of that article; and o a (2) Notwithstanding article 4 7 of this Constitution, no Member or Officer oJ L'arliarnent and flo person ernploged to take minutes of euidence before Parliarnent or aftg Cornmittee of Parlia.rnent shall giue evidence el-seuhere in respect of the contents of such 'r:.inutes oJ evidence or the contents of ang docurnent laid before Parliarnent or qng such comntittee, as the case fitctg be, or in respect oJ ang proceedings or exantinatton lteld before Parliantent or srrch cornntittee, tuithottt the special leaue oJ P a r li ctrnc n t fi r st o btai nc d. (3) The spectal leaue rcferred to in clause (2) oJ this ctrticle nrag, during recess or adjournnrent of Parliarnent be given bg the Speaker or in the absencc or incapacity of tlrc,Speaker or during a disso [ution of Parliarnent, bg the Clerk to Par Iianre nt. " (b) Bg inser-ting irnrnediatelg afier the raew clause (1) the fotlonting new clauses, I ( o ln my vrew, the enactrtrent o[ secttotl I of Acl t3 of 2OOO per se, does not aJfect or amend the pro'.'rsrons of Artrcle 1 of rhe 1995 Constirution since in enacting the Act, Parlrarnent believed it Ltas ei:ercising tl-re soveretgnrv of the people as lheir representative body. The er':actfnent \'/as not an attempt to oust the sovereigrlty of the people cven iI Parliament mat' have been mistaken in doing what it did. Orr the othe r hand, Section 5, in so lal as ir prescribes ner't' clauses (2) and (3) of Arlicte 97 u'hich a.r'e intended to restric[ a citizen's unhampered "access [o information in the possession o[ the state . or any other orgart or agency o[ the State" '"vl-re n the Constirution of Uganda in Article 4l guarantees and entrenches that nght, is not only in conflict with tieat sarne articie but constitutes a blatant attempt to clothe Parliament with supremacy rvhich in Uganda Lres in Lhe majesty arld sanctity crf the Con stitution. Regajding the right o[ a citizert to access to information in thc possession of the State, rny leamed brother, Mulenga, J.S.C. expresscd a vierv in Paul K. Sscmogerere , Zachary Olum and Julict Rainer I(afire v. Thc Attorncy Gencral, Const. r\ppcal No. I of )OO2, (stLprai, rvrtlr rvhicir Iagrec cntircl-v. 'lhe [e zu-nccl .J lt st rcr: s iu ci . "Wheretts under s.721 oJ tlt-e Euidcnce Act the state had unfettered discretion tultether or not to release (tn official docuntcnt ort grounds oJ nattorral securitg, Article 41 of the Constitaltiorr recoqnises the citizen's nght of access to ang o exce L infortnatio n 7n the Possessron of thc stcate on is likelg to uthere release oJ sttch infonn ati souereigntg' p rejudice Conseque ntl!, state the court has beco securitY or rne the arbiter betueen the citiz en u.tho desires to access s-uch and the state tult h rndg tuant to 1C p rotect the infomation ir,Jonnotion front rel eose. " inion, in so far as section 5 of Act 13 o[ Consequently, in mY oP rict that access uncon stitut'ionally' tt 2OO0 Pr-rrPorts to rest tution and therefore ' is null arr d void con flic ts rvLth the Constt o o Under Article 2B(1)' a person ts entitled to the right of a fair' speedy and public hearing before a-rr rndependent and impartral courL or tribuna-l established by law Consequentlv' by subjeclrng that nght to the engencies of Pa-r[amen[ arrd the whimsica-l discretion o[ its personnel' Section 5 attemPts to amend Article 2B(f) by implicarion and Article a+(c) by rnfection' Article I28 prescribes and guarantees the independence of the ' :w' Lhc provisions of Act 13 ef 2Q00' '"r'l-' ile JudiciarY. [n mv vI( not a{[ecting that rndependence' r'vhittle away the r-mportance of Article 2B(3)' Clause 3 oi Article 28 enjoins atl organs and agcncies of thc State wl-rich include Parliarner-rt' Ivlembers of l'arliament, lhe Spea-Iicr and tl-rc CIcrl< oI Parlranrrent to accord to thc Courts such assLslaiLcc as nray llc reqrlirccl to ensure the r'[[cctit'eness oI tirc Cot-tt ts By grvirrll P:r'rlizrrr ctrt' Lhe Spe alicr atrci tl-re CIerk oI l'arlrarllcnt thc solt: cltscrcLiotr as [o \vilu eulcl lvlli.It may zlssist thc Cottr-l arnd u'lrcu' thc [uncttot-t oI thc Cottrts to iiclnrinistcr jr-tstice [arrly' sllccdtlv ;urcl irlpartrallv rr''ortlcl [re so scr'':t ely rcsrrtctcci b)' thc ilrovtstoLls ol Act I 3 oi 2OOO as to Ilc t t'tlclered illr-rson' Sil-nrlarir" Ill s\) l::rl as Scctrorl 5 of "\ct I ll of )()()Llrestlict:;therlgilttli\lcnlllr:tstlIPirtlianlc:'rtanCti-lcttst:of 1 Hansard and Other Parlramentary records lc asslsL petrtloners, rhe Constitutional Court anci other courts to proceed effectively' the prouisions of Articte 137(3) and those oLhers guaranteeing the aclmi;r i stration o[Justice "vould be amended by infection I norv turn to lh. ,"t:o'-'tl issuc oI procedure tt is to be apprecrated that a-l I tlre provisions of the Ugalda Constrtution are enIrenched. Not a single pro'rision of the Constitution may be altereci r.vi[hout [6lle"vir-r$ a specia] procedure The easiest ald simplest ol thesc procedures is an a-rnendment by Parliarnent a.lone whe n the sole purposc of the bill is to amend the Constitution a:rd the me asure is supported on the second andthirdreadingsinParliamentbynotlesstharrtwo.thirdsof a.ll Ivlembers of Parliament in accordance with the provisions of Article 261. In relation to bills amending articles prescribed in Articles 259 and 260, a perio.d o[ at least 14 days must lapse betrveen the 2nd and 3'c readLng of the bill. The Constitutioir is silent as to what penod o[ trme musl lapse betrveen the second and third readings of a bill of Lhis kind. Horvever, wl.rether passecl under Article 26 L or under Articles 259 or 260' the bill cannot be asscrlted to by the President unless it rs accomparied by a ce rtificatr: ol tl'rc Sllea-l'ier that the provisions of CI-rapter Dighteen of []rc Constitrttion trave beetl conrplicd with Reearciing ltLils plisst:cl urlcle r Ar ticle 259 zulcl 260' the rc is a [urthcr requiIcntcnt 1]iat tlrcv bc accornllar-rie cl by a Ccrlificiite <lI fltc Elcctoral (lortrrrtrsstorl srgniiyrng that tlle al-itcticinlctrt llas bt:en approvccl at lr rcfclctlclltrn or. as thc casc nlAv bc, ratified Itv tl.rt- LlrStrtCt r:or rrre rls, ttr ;tCcord:1tlCc: rirtit tht: 1.lt ovistotrs oI C It apie r E,tqhte e I-t o O ln Major General rinyefuza's case I.'s uprz/' I crted the famous s[atement of Srr Owe n Du<on "vhich he expressed rn 1965 in t]re Law Quarlerly Re'.'retr', 590 at 604 thus, "The law existing for the ti)e being is supreme u.then it prescribes the conditions tohich must be fulfilled. to rnake a laut but the question of uhat "rni.g n" d.one bg the law so made, Parliarnent is s1)p retne ouer the laul , o o and then concluded that if Parliament is to sttccessfully cla-rm and protect its porvers and inlernal procedures it must act in accordance with the constiruLional provisions which determine its tegislative capaciry and the manner il ''vhich it must perform its functions. Sir Owen was of course describing situations in countries such as the United Kingdom where Parliament and not the Constirution used to be supreme. tn Uganda, it is in the people ald the constitution that sovereigntl' resides ' However' even in the United Kingdom before the creation ol the European Union of rvhich that country is a member, it "vas al'vays emphasized that Partiament was obtiged to obey the constitutional rules which ,.r'ere prior to the exercise of its sovereignr-v' lrr thc casc ol Stockaclale v. Hansard (1839) 9 Ad & E l' the I Iousc oI Cotrrtnot-l5 ,l.t,|ltch is t}rc electccl chanlbe r of t}-rc Britislr Parllanre;ltpassc<Jil:esolutiottaut}lorlSingtllcilrrntirrgand pttblrc;riion ol Hcrrtsnr ci rvl-rich corltirtlrccl de [arllatory eqiunst tirc platr-,trli- l'hc illaintllf br oLtghi l'' sLIlt slatements agalnst thc ( o o prtnters and publishers of Hansard who were then directed by the House of Commons to plead in defence that tJrey had pnnted arr d publish ed Hansardunder the express orders of the House of Commons and that that House vvas the sole judge of its privileges and rmmunities and Lherefore Hansard t"":tii:,t-:: or:",,1""o in any court o[ law' The High Court of England rejected thal detence on the ground that no resolution o[ the House of Commons a-lone could oust the jurisdiction of the courts since lor a,y law to be valrdry passed in the United t(ingdom, a legislative bill must be supported by both the Hou;c o f common s an d the " "" :: :t ::'-1:,,TJ. ;:'i::i":Jil:: Monarch. These requirements constltute law in t}.at Kingdom and cannot be waived' In Ugalda, courts and especia-lly the Consttutional Court and this Court were established as the bastion in the defence o[ the rights and freedoms of the individual a-r'rd against oppressive and unjust laws and acts' Courts must remaln constaxtly vigilant in upholding ttre provisions oI the Conslitution' Only in this way can we irr Uganda avoid situations in some other countries rvhich were ably described by Professor Nwabueze of Nigeria in his bool< entitled: "Constltuttons ttr folloqrrng t-erms, Emergent Nattons" in the "The tenn 'constitutio nal gouernment' is apt to or"'" ,ir. irrtpression of a goietnfiTeftt according to the ternts o1 a r,onititulion' There ctre indced 'rrri.ny .ountles in the Worlct to'dag uith written constifirtions but tuithottt c o nsti futio ncr lisnr' A .""rii"rtt. ft mag also be ttsccl for other PurPoses than a restrain't LtPoft got)crnnter.t' - It rnag consist ,"*r' ,.rg" extent i1 noitli"g but tofig declarations pecace, equc,li!' dettocracg' Jreedorn' social justice aad Progress' Exercising ou, so'"'"ign and inatienable right to i.t"rr,.inZ the fo rtn of g o''te'aance for our country' and hauing fitttg paiicipated in the Constitution' rnaking Process, Noting that a Constitttent Assernblll wd"s established to rePresent us and\ to debate the ;;;J, Constitt^ttion prepared bg the Uganda Constit-utional Co-*istiott and to adopt and enact a Constitution for uganda' Do HEREBY, in c..r.iit th'ough this Constihtent 7tt"rnary solemnlg adopt' enact ^and giue to ourselues clrrd ou'"postektg' this Constitution oJ the Republic of 'Ugand'i' this 22"'1 dag of Septemler, in the gear 1995' FOR GOD AND MY COUIVTRY., o I have reproduced these solemn lvords of dedication lest we ever forget them. It is the solemn duty of the courts of Uganda to uphold arld protect the People's Constitution ' o "There u;as notltirtg to stop Pc'rliarr.ent frorn applging its own Rules' in tt rtt'c rtcl i'ttg the Co nstittLtio rt "' I(ato' J A' l crtcratlng tvllaL hc llzrcl sattl irr tllc eal'licr casc tll Uganda Larv Society and Justinc Scr:ruyaba v' Thc Attorney Gencral of Uganda, (stLPr a), obscrtvcd, "The issrzcrncc of a ccrtificate is d ntere pro..rtrr.rt ancl administratiue requirernen t tuhich 'do". ,r.ot go to tl,l"e root of the latu rnaking process' With the Breatest respect, I disagree with rhe views of the ma;onry of the learned Justices of the Constitutional Court which rhey expressed in rheir resPective judgements' Thus' Mukasa- K-rkonyogo, iea-nled D C'J ' sard' The burd.en Lt)d-s uPon the petitioners to adduce "ura"n"" to prooe that thc act cornplained of utas done tttithout compliance rt; ith the required procedure. The burien has not been discttarged'" K,rtumba, J.A., concurnng, remarked, 1 "Regarding the absence of the certificate oJ coriptiance from the Speaker of Parliament as .uqui."d bg- Article 262, (2) (a), I agree utith Mr' Bi)eije's kbmission s that absence of the certifica-te is not fatal'" the requirements cannot be rvaived, of Chapter not even Eighteen are by Parliament- o o Consequently, and rvith the greatest respect, the majorir)- of the Iearned Justices of the Constitutiona-l Court erred in law in holding that those provisions could be waived ald that in arLy event, they were not essential to va-lidating arly constitutional ameridmenl. Be that as it may, it is apparent that Palliament failed to cornPly with the Constitutional prorrisions rvhen attempting to amend by implication or infection Articles 2ll)'28' a1(1), a(c) , L2B(2,, (3) and I37(3) Any amcndmetlts to Articlcs 2(l\, 44 a:-r d 128 necd lo be referrecl to a <lecisior-r o[ thc people for approval by thern ttl a refercndunl ' The amendment of the Articlcs 2E,4i(l) and I37(3) rrced to bc passed by trvo-lhircis rralority on cach o[ thc sccond ar-r d ri-rircl rclrcltn5ls o[ thc bills Tl-rcrcafter, a bill must bc iacconl plul r ecl by the certlficate of the Speal<er !o the eflect that it lias beerl passcd t:r accordancc ruttlr thc provisior-rs oI Chaptcr Erghteen Srncc the responderlt ilas pe rslstentlv de r-ricc1 that ary of tl-resc A-r-ticlcs zu-r cl clauses werc anrendecl. tlre ,\!rol.rrev ccnct ai was lral dll rn e positiotr ot ln my oPinion, mandatory arld a o I respectfully drsagree w-rth all the Lhree views of the majonry Justices oI ttre Corrstitutiona] Cotlrt which I alluded to earlier on in this juclgme nt. Those vrc\\:s arc Ilot founded in our constitutiorral laur or precedent sincc 1995 The-v constitute art error in iaw ald fact. With grcat respect, thq onus of proving that a bill is accompanied b-v the Speaker's certiftcate should always be on the Attorney Ceneral rvhenever he is a party to proceedings lor it is he or she rvho has special knowledge oI the fact in accorda:rce t'nrh tlle llrovisions oI section 105 of the Evidence Act. I regard all the amendments contained in sections 2, 3,4 and 5 of the Constitution (Amendment) Act 13 oI 2OOO as merely intended to prescribe internal rules o[ procedure in Parliament and its committees. They might as rvell have been prescribed by ordinarlr legislation or even rules of Parliament. However, in so far as they are intended to be substitutes for the present conslihrtional provisions iI Arricles 88, 89 afld 90 artd were uot enacted in accordance ',vith the procedure prescribed by the Constirution, they are null and void. The appellartts' pctition bcforc thc Corlstitutional Court cont:rinecl , ir-tter olitt, contplaint I(c) rvhiclt rvas fra-n1e d as lollor.vs: "section 3 introducing a neut prouision (1) and section 6 introducing a neLD prouision 257A of the Constifutio n (Arnendntent) Act 2OOO, clre u nconstitutiona I Jo. being inconsistent uith Articles BB and 737, particularlg of clauses (7) ancl (3) of the Constifru tiott in tltctt the sections do ftot oftlg prouide for the irttagirtary past uiolations of the Constitrrtio n in ntatters oJ fonnal procedure t ( but theg ttlso tay cr foundation for future uioto.tions too, uthere the nternbers of Parliament mag, utithout d quor-un'L' Dote oft ctng ques-tion proposed for a decision oJ Parliament bg using a 'voi'ce uote- of "Ages" and "Noes" which, bg reason of the a-rnendntent-s cannot be stbjected to the scrutiftg of courts when it is the courts' solemn dutg lo interpret and protect the Constihttion uni", the unarnended Articte 728(1), (2) and (3) of the Constitution and clause I of the Nattonal Objectiues and Directive Principles of State Policg." This complaint is reproduced in each o[ the .ludgments o[ the learneci Justices of the coll stitu tion a.l court, However, none or the learned Justices makes a decision on the ma arcl 2u I 1;r'or iclt:. intcr ali.ct, lhat a btll Ior rrrr ,\t-t o 1 e a of Parliament seel,ong to amend any of the provisrons o[ the Constifr-rtion shall not be taken as passed unless it is supported at the second and third readr.ngs by the votes o[ not less Lh an "two thirds of all members ol Pariiament". This contrasts witlr the provisions of Article 89 rvhich prescribe the procedure for passing ordinary bills arrd making other decisions. [t is provided there that e:(cept as otherwise prescribed b1 rhe Constifution or arly law consistent with it, any question proposed for decision of Parliament shall be determincd by a majoriry of votes of tl'le members "present and voting". For the foregoing reasons, I regard Article 2'cT A referred ro in section 6 of the Constitution (Amendment) Act of 2000, ro be superfluous and of no constitutiona_l or legal consequences. I am constrained to statc rn the clearest of ter nts that the procedural rules and mode of ascertainilg majorities for effecting constitutrona] amendments are not. founcl in the Constitution (Amendment) Act I3 of 2OOO but in the provisions of the Uganda Cor.rstitution of 1995 itsell. It is evider-rt therefore that the trvo thirds ma.lority of all members ol parliament requrred for the scconcl and third readings of a tti.ll to amerrd the constitutior-t cattnot bc arscertaincd bv voice r otrrrg rrnde r [he [)arlritn]e ll taJy practicr-' of u si:-rg shouts of ',1\_r,.cs, or. ,,Noes. tcr irrclLcieLc cotrscnt or. tiisscnt, resltcclrvely. ln nly vlc\!, [or constiLutional nnre nclmcnt, the voting in I)ar lrrrnent sl-ror-rlcl bc clcter rrinccl br' ',lre Irc:rcl counl of nrernbcrs rn [.rvoLrr oI iLn d alrainsI the a-nrerrc]nrcnI iit thc second aJ] cl thirci re :rtlirrg i:y lobby clivrsion or srtch cltlrcr rrrotlc as car ascer-taln r.htrt tht: sLlllpor.tcrs I ( of the arnendrnent are two ttrirds of the total number of Members of Parliament. In my opinion, it is the s[rict observance of the constitutiona-l rules of procedure for determining the uriil of the majong in Parliament that will create arrd nurture a culture oi belief rn Ugandans that tfey are truly and democratically represented and governed. All rn all, I would a-l lor,r this appeal. I would make the follou.rng declaration and orders: That t.I-e ConsLitution (Amendment) Act 13 of 20OO is unconstitutional and should be struck dorvn as null and void. I would aiva.rd costs to the appella,nts in this court and in the ConstituLional Court. 3 I would certify two counsel for the appellalts. Dated at Mer-rgo th is ,/q l-f 1.,/"1. day of Januarv , 2OO4. II{AN4BA o I 2 o JUSTICE OII THD SUPRDN{D COI-IRT For these reasons, I would allorv ground 5 of the appeaJ. \EW,-J(A I ( I'LJI} t,lc RN MEC IN TI{ Petition No-7 of 2000) 'lll E ESU ilE I], C)li UG o FUG AI'{D o I 5 @ o o o o. "' o.2 I ^ :.'ffi Jf,'ii { f .' ii f ,' #ii l3 X; 1l f ; "'' yg797't61' JSc; K I CO NS TI o NAL AP PEAL BETWEEN 1. PAIILK. SSEMOGERERE 2. ZACEARY OLTM 3. JULIET RAI].TER KAIIRE: : ::: : : : : AND O NO .10 F2 002 : :: : :: : :: : : :: :: :APPELLANTS t0 l5 A'T,f ORNEY-GENERN,: : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : :RIISPONDENT Q4ppea!front llte nttiority Jtttlgtrrurl of thc Cortstiluliotnl Courl of t)ganda sittitt! at I{atnpala on lhe l/t' tlpril' 2002(l']ul''rsl- l(ikonyogo'l)C'l' l(rto' l(iturtrl'ra .lJA;) ruitlr Mplgi- ilahigaittc ctrrl'frvittotttu'juni J IAi rlbscntitrt) irr Cottslilutiontl O 20 .tt)l) AJVTU GMIiN 'r'oF BY GIS I l;\. I ,.r . JSC ATMENGO ( !t , I had the benefit of rcading in draft lonn rhe Iead jild-gnrent prepared by Kzuryeihanrba lSC. I also read all the draft judgrnents r],at were prepared l;y the lcarned justices oi tlris coLu1. I entirely agree rvirlr qhe conclusions that have bee n arrived at that Act l3 of 2000 is null and voicl. There was substantial non-conrpliance wit]r n-randatory provisions of'tirc Constitution rvith rcqarcl to tlre anrenrirnent of its provisions. Thcsc provisions wcre ably pointed out in the lead judgment. I tircrefore concur that tle appeal orrght to succeed. I also agree with tie declarations that Kanyeihamba JSC has proposed. I have nothing more useful to add. Dated at Mengo thisl&ay o{.Sr.x€O0{. J l t s t l0 l5 As. C Justicc ol the Su reme Cou rt a I