THE REPUBLIC OF UGANDA
IN THE SUPREME COURT OF UGANDA
AT MENGO
(CORAM: ODOKI CJ, ODER, TSEKOOKO, KAROKORA, MULENGA,
KANYEIHAMBA, J.J. S.C, AND OGOOLA, AG. JSC)
CONSTITUTIONAL APPEAL NO.3 OF
2004
BETWEEN
THE ATTORNEY GENERAL :::::::::::::::::::::::::::::::::::::::::::::
APPELLANT
AND
| 1. | PAUL K.
SSEMOGERERE} |
| 2. | HON ZACHARY OLUM
}:::::::::::::::::::::::::::::::::::::
RESPONDENTS |
(An appeal from the decision of the Constitutional Court of Uganda at
Kampala (Okello, Mpagi-Bahigeine, Engwau, Twinomujuni and Kitumba
JJA,) dated
25th June 2004, in Constitutional Petition No. 3 of 2000)
JUDGMENT OF THE COURT
This is an appeal against the decision of the Constitutional Court of Uganda
dated 25th June 2004, whereby the petition filed by the respondents
challenging the validity of the Referendum (Political Systems) Act 2000,
was
granted, and the Act was declared void.
The respondents alleged in the petition that they were affected and aggrieved
by the following matters being inconsistent with the
Constitution:
"(a) That the Referendum (Political Systems) Act 2000 (the Act) declared
passed by the Parliament of Uganda on 7th June, 2000, was
passed in
contravention of Article 90 (1) and (3) (a) and (e) of the Constitution of
Uganda and Rules 99 and 100 of the Rules Procedure
of the Parliament of Uganda
in that the Bill was neither discussed by the relevant Committee of Parliament
or were recommendations
thereon duly made.
(b) That Section 2 of the Act is calculated to confer power upon Parliament
to make the Political Systems Referendum law outside the
time prescribed under
Article 271 (2) of the Constitution thus effecting an amendment of Article 271
(2) without following the Constitutional
Procedures laid down in Articles 259,
260 and 261 and as such the provisions of Section 2 are in contravention of
those Articles
of the Constitution.
(c) That the passing of the Act on 7th June, 2000 being just about one year
before the expiry of the term of the first Parliament
elected under the 1995
Constitution, was in contravention of Article 271 (2) of the Constitution, and
deprives the voters including
the petitioners of their right thereunder.
(d) That in contravention of Article 75 of the Constitution, the Act promotes
and establishes one political party, the Movement, to
the extent that the Act
failed to comply with Articles 73 of the Constitution but instead incorporated
the Electoral Commission Act,
No. 3 of 1997 and the Parliamentary Election
(Interim Provisions) Statute No. 4 of 1996 which deny political parties
recognised under
Article 269 in the referendum prescribed under Article 271 of
the Constitution and in consequence the Act is inconsistent with, and
is in
contravention of, Articles 20, 21, 29 (1) (a), (b), (d) and (e), 43 (2) (a), and
(c), 73 and 269, of the Constitution and clauses
(iv), (v) and (vi) of the
National Objectives and Directive Principles of State Policy.
(e) That the omission by Parliament to enact the Political Organisations Bill
under Article 269 allowing political party activities
has so thoroughly
corrupted the democratic process that the fundamental right to free and fair
elections cannot be provided in the
Referendum in contravention of Article 69 of
the Constitution.
(f) That Section 27 and the whole Act is inconsistent with Article 271 of the
Constitution in that contrary to the Provisions of Article
271 the Act is
parallel to the Referendum and Other Provisions Act, 1999 which by the 7th June,
2000 was still on the Statute books
of Uganda unrepealed by Parliament
(g) That to the extent that the Act has the intendment to nullify the
decisions of the Supreme Court of Uganda in Constitutional
Appeal No. 1 of 2000
between the Petitioners and the Attorney General and to interfere with the trial
of Constitutional Petition
No. 3 of 1999 between the same parties, the Act was
passed in contravention of Articles 28, 92 and 128 (2) of the
Constitution.
(h) That the Act is further unconstitutional in that it violates the
obligations of Uganda to respect the Fundamental Rights to free
speech, free and
fair elections, freedom of association and freedom of assembly embodied in
various International Human Rights Convention
to which Uganda is a party or with
which Uganda is otherwise obligated to comply and in the premises the Act is in
contravention
of Articles 20, 52 (h) and 286 of the Constitution and Clause
XXVIII of the National Objectives and Directive Principles of State
Policy of
the Constitution."
The respondents stated further that by reason of the matters stated in
paragraph 1 (a), (b), (c), (d), (e), (f), (g), and (h) above,
the Referendum
(Political Systems) Act 2000 is unconstitutional and must be struck down as null
and void.
The respondents prayed for the following declarations:
"(i) That the passing of the Referendum (Political Systems) Act 2000 by
Parliament in one day, 7th June, 2000, without first referring it to
the relevant Standing Committee of Parliament was inconsistent with Article 90
(1) and
(3) of the Constitution.
(ii) That the enactment of a Political Systems Referendum law which denies
political parties of the Constitutional right to participate
in the referendum
to choose a political system under Article 271 but instead institutes the
'Movement' as the only recognised political
system before the Referendum is held
and in contravention of Articles 20, 21, 29, 73, 75 and 269 of the Constitution
is null and
void and ineffectual.
(iii) That Parliament was incompetent to enact the Referendum (Political
Systems) Act 2000 upon expiry of the time prescribed by the
Constitution and
thereby reduce the time allowed for canvassing, the law so enacted is null and
void.
(iv) That the passing of the Referendum (Political Systems) Act 2000 was
outside the competence of Parliament to the extent it was
calculated to alter
the judgment or decisions of the Courts between the petitioners and the
Government.
(v) That the Referendum (Political Systems) Act 2000 is a colourable
legislation whose objectives and effect is to outlaw Political
Organisations
permanently except the Movement political organisation and institute a one party
State and consequently the Act is
in contravention of the
Constitution."
The petition was accompanied by affidavits sworn by each of the
respondents and one other affidavit sworn by Hon. Daniel Omara Atubo,
in support
of the petition.
The appellant filed an answer to the petition in which he stated that both
the Referendum (Political Systems) Act 2000 and the referendum
which was held
pursuant to the Act were enacted and organised in accordance with the
Constitution. The answer to the petition was
supported by the affidavits sworn
by Mr. Joseph Matsiko, Senior State Attorney and the Rt. Hon. Edward K.
Ssekandi, Speaker of Parliament.
The petition, which was filed on 22nd June 2000, was not heard until
28th April 2004, over three years after the referendum on political
systems had been held on 29th June 2000. At the hearing of the
petition, the following issues were framed for determination:
"1. Whether or not the Referendum (Political Systems) Act, 2000 is law and
can be challenged.
2. Whether or not the procedures applied in enacting the Referendum
(Political Systems) Act 2000 were consistent with the procedures
prescribed
under the Constitution of Uganda.
3. Whether or not the Act was made in contravention of Article 271 of the
Constitution of Uganda.
4. Whether or not the absence of a law regulating the activities of
political organisations as provided under Article 269 of the Constitution
contravened Article 69 by perpetuating a political environment under which the
people of Uganda could not make a free and fair choice
of the political system
as to how they should be
governed.
5. Whether or not any relief should be
granted."
After hearing the petition, the Constitutional Court, by a unanimous decision
allowed the petition with costs to respondents and made
the following
declarations:
"(a) The passing of the Referendum (Political Systems) Act 2000 by
Parliament on 7th June 2000 was in contravention of Articles 89, 90
(1) and (3) of the Constitution for failure to follow the voting procedure set
out in Article 89 and failure to refer the Bill to the relevant Standing
Committee of Parliament as prescribed in the Constitution.
(b) Holding the referendum under the Referendum (Political Systems) Act
2000 before passing a law under Article 269 to set free Political
Organisations:
contravened Article 69.
(c) Parliament had no authority to pass the Referendum (Political Systems)
Act 2000 after the expiry of the period stated in Article
271 (2), without first
amending that provision of the
Constitution."
The appellant
being aggrieved by the above decision has appealed to this Court on fourteen
grounds of appeal.
During the hearing of this appeal, the appellant was represented by Hon.
Amama Mbabazi, Attorney General, assisted by Mr. Joseph Matsiko,
Principal State
Attorney. The respondents were represented by Mr. G.S. Lule, assisted by Mr.
Joseph Balikuddembe.
At the commencement of the hearing Hon. Amama Mbabazi indicated to the Court
that he would abandon the first ground of appeal which
complains that the
learned Judges of the Constitutional Court erred in law and in fact in not
writing a judgment of the court. At
the conclusion of his submissions, Hon
Mbabazi informed the Court that he had already covered ground 12 and he would
not argue ground
13.
These grounds are as follows:
"12. The learned Judges of the Constitutional Court erred in law
and in fact in failing to evaluate the evidence on record and thereby came
to
wrong conclusions, and decisions;
13. The learned Judges of the Constitutional Court erred in law and in
fact being biased against the Respondent and thereby
came to wrong
conclusions."
We think that the learned Attorney General took the right course of action on
these grounds.
The remaining grounds were argued by Counsel for the appellant in five
batches, as follows:
(a) Grounds 2 and 3 together;
(b) Grounds 4, 7 and 8 together;
(c) Grounds 9,10 and 11 together;
(d) Grounds 5 and 6 together; and
(e) The rest of grounds separately.
We heard this appeal from 9th to 11th August 2004 and we reserved our
judgment to be given on notice. In view of the urgency and importance
of the
issues involved in the appeal, we have found it appropriate to announce our
decision in the appeal and reserve the detailed
reasons for our decision, to be
given later on notice.
In rendering our decision we propose to adopt the same approach with regard
to the consideration of the grounds of appeal in batches
as adopted by the
learned Attorney General, with slight variation. We shall also alter the order
of considering the batches by considering
grounds 4,7 and 8, after grounds 5 and
6, and grounds 9, 10 and 11 in that order. Finally we shall deal with the relief
of declaration
separately.
Grounds 2 and 3:
The 2nd and 3rd grounds of appeal state as follows:
"2. The learned Judges of the Constitutional Court erred in law and in
fact in holding that the expired Referendum (Political Systems)
Act, 2000 can be
challenged as being
unconstitutional;
3. The learned Judges of the Constitutional Court erred in law and
in fact in hearing and deciding on a Petition challenging
a non-existing dispute
on the basis of a non-existing law."
The Referendum (Political Systems) Act No.9 of 2000 was enacted as an Act of
Parliament and was in force on 22nd June 2000, when the respondents
filed a petition in the Constitutional Court, alleging that the Act was passed
in contravention of
diverse provisions of the Constitution. The subsequent
expiry of the Act, after its purpose was accomplished, did not erase its
effects,
nor did it extinguish the cause of action to which the enactment gave
rise. The Constitutional Court was seized of a live and existing
dispute and did
not err in holding that the Act can be challenged in Court under Article 137 of
the Constitution. We find no merit
in grounds 2 and 3, which must
fail.
Grounds 5 and 6:
Grounds 5 and 6 are that:
"5. The learned Judges of the Constitutional Court erred in law and in
fact in holding that the Referendum (Political Systems) Act,
2000 was passed in
contravention of Article 271 (2) of the Constitution.
6. The learned Judges of the Constitutional Court erred in law and in
fact in holding that the Referendum (Political Systems)
Act, 2000 amended
Article 271 (2) of the
Constitution."
Under its Transitional Provisions in Chapter 19, the Constitution commands
Parliament under Article 271, to enact laws to give effect
to the provisions in
that Article. The laws to be enacted were to ensure inter alia
that -
• Two years before the expiry of the term of the first Parliament elected
under the Constitution any person is free to canvass
for public support for a
political system of his or her choice for purposes of a referendum, as provided
in clause 2 of that Article;
• During the last month of the fourth year of the term of the first
Parliament, a referendum is held to determine the political
system the people of
Uganda wish to adopt.
The term of the first Parliament commenced on 2nd July 1996 and
expired on 1st July 2001. The time by which every person was to be
free to canvass for a political system of his or her choice, i.e. two years
before
expiry of that term, as provided in Article 271(2), was 2nd
July 1999, and the last month of the fourth year of the said term was June 2000.
According to its long title, the Referendum (Political
Systems) Act No.9 of
2000, was enacted "to make provision for the holding of the referendum
required to be held under article 271". The passing of the Act on
7th June 2000, therefore, was in contravention of, and inconsistent
with Article 271(2) because, contrary to the time prescribed in that
Article,
the Act was passed long after it was due, and it sought to abridge the period
for canvassing for the purposes of the referendum.
The provisions of the Act in
section 2, to give the Act retrospective effect, and in section 29 to validate
actions taken and statutory
instruments made in good faith could not cure the
invalidity of the Act. We therefore hold that the Constitutional Court did not
err in holding that the Act was passed in contravention of Article 271(2) of the
Constitution. Grounds 5 and 6 must also fail.
Grounds 9,10 and 11:
Grounds 9, 10 and 11 are framed as follows:
"9 The learned Judges of the Constitutional Court erred in law and
in fact in holding that a Committee of the whole House is not a Standing
Committee of Parliament;
10. The learned Judges of the Constitutional Court erred in law and in
fact in holding that the passing of the Referendum (Political
Systems)
Act, 2000 contravened Article 90 of the Constitution;
11. The learned Judges of the Constitutional Court erred in law and in
fact in holding that the voting method adopted by Parliament
in passing the
Referendum (Political Systems) Act, 2000 contravened Article 89 of the
Constitution."
We find no merit in ground 9. The Constitutional Court was right in holding
that the Committee of the Whole House is not a Standing
Committee of Parliament.
Though it may be permanent, it does not possess the characteristics of a
Standing Committee as specified
in Article 90 (2) (a) of the Constitution.
Ground 9 therefore fails.
However, there is merit in grounds 10 and 11. First, it is our considered
opinion that the Constitutional Court erred in holding that
the passing of the
Referendum (Political Systems) Act 2000 contravened Article 90 by reason of the
omission to refer the Bill for
that Act, for scrutiny and recommendations by any
Standing Committee. Parliament has power under Article 79 (1) to make laws on
any
matter for the peace, order, development and good governance of Uganda. We
find nothing in Article 90, which makes it mandatory for
Parliament to refer a
Bill to a Standing Committee before exercising that power. In our view, the
provision in Article 90 (3) that
makes it a function of Standing Committees to
discuss and make recommendations on all Bills laid before Parliament, only
empowers
Standing Committee to do so in the course of assisting Parliament to
discharge its functions efficiently. The provision cannot be
construed as a
restriction on, nor as providing a condition precedent for Parliament in the
exercise of its legislative power.
Secondly, with regard to the method of voting in Parliament, we find that the
Constitutional Court erred in holding that Parliament
contravened Article 89 in
passing the said Act. It appears that the Constitutional Court misconstrued the
decision of this Court
in Constitutional Appeal No.1 of 2000:
P.K.Ssemoaerere & Two Others vs. Attorney General. We
reiterate what the learned Chief Justice said therein: -
"....the procedure provided in Article 257 A does not apply to the
amendment of the Constitution where a two-thirds majority of all
Members of
Parliament with voting rights is required to pass such amendment. The procedure
of voting by "Ayes" and "Noes" is incapable
of providing accuracy and certainty
that the necessary numbers of Members of Parliament required to pass such
important legislation
have been obtained. The procedure may be applicable in
deciding questions where only simple majority of Members of Parliament present
and voting is required
in non-contentious matters, as provided under Article 89
(1) of the Constitution." (underlining
supplied)
Accordingly, grounds 10 and 11 succeed.
Grounds 4, 7 and 8:
Grounds 4, 7 and 8 are as follows:
"4. The learned Judges of the Constitutional Court erred in law and in fact
in holding that the Referendum which was held on 29th June, 2000 was
invalid;
7. The learned Judges of the Constitutional Court erred in law and in fact in
holding that the 2000 Referendum on choice of Political
Systems was held in
contravention of Article 69 of the Constitution.
8. The learned Judges of the Constitutional Court erred in law and in fact in
holding that the people of Uganda in a referendum held
on 29th June
2000 never adopted a political system under Article 69 of the
Constitution;"
On the face of it, the question whether the referendum held on
29th June 2000 was valid or invalid was not expressly raised in the
petition, which was filed before the referendum was held, nor were
the pleadings
amended at anytime subsequently to expressly include it. Consequently, the
question did not expressly feature among
the framed issues. However, in our
view, it was implicit in the pleading in paragraph 1 (e) of the petition,
wherein it was alleged
that omission to enact a law allowing political party
activity would inhibit the holding of a free and fair referendum and thereby
contravene Article 69. This led to framing of the fourth issue, which reads thus
-
"(d) Whether or not the absence of a law regulating the activities of
political organisations as provided under Article 269 of the
Constitution
contravened Article 69 by perpetuating a political environment under which the
people of Uganda could not make a free
and fair choice of the political system
as to how they should be governed."
Clearly, in answering this issue it was inevitable to consider if the
referendum held on 29th June 2000 contravened Article 69.
Accordingly, we hold that although it was not expressly framed as an issue, the
question was properly
before the Constitutional Court, and that the court was
not in error to consider and make a decision on it.
We have considered if, in absence of a valid law passed pursuant to Article
271(4), the referendum can be construed as validly held
on authority of Articles
69 and 271(3). Article 69 generally entrenches the right of the people of Uganda
to adopt a political system
of their own choice, while Article 271(3) fixed the
period in mandatory terms, when they would for the first time exercise that
right
in a referendum. In our view, it could be so construed if the referendum
was free and fair in compliance with the stipulation in
Article 69. The
Constitutional Court found that because of the legal regime prevailing at the
material time, political parties were
not free to canvass for the multiparty
political system to which they subscribed, and concluded that the referendum
held on 29th June 2000 could not have been free and fair as required
by Article 69. While we would not fault that finding as a postulate, we hold
that it was not a proper basis for granting the relief of the declaration
sought. Notwithstanding the uncontradicted affidavit evidence
of Hon. Zachary
Olum to the effect that he and other members of the Democratic Party were, on a
number of occasions and in diverse
places, prevented by the police from holding
public meetings, the actual conduct of the referendum and the results thereof
were not
challenged nor inquired into to determine if it was, or was not free
and fair. As a consequence of the referendum, the movement political
system was
retained in place, and the affairs of State have been conducted on that basis
for over four years. To declare the referendum
a nullity would have far reaching
consequences. In our view, these were compelling circumstances in respect of
which the Constitutional
Court ought to have exercised its discretion to decline
granting the second declaration. To the extent that grounds 4, 7 and 8 relate
to
the second declaration, they succeed.
Ground 14:
Ground 14 states:
"14 The learned Judges of the Constitutional Court erred in law and in
fact in holding that the doctrine of prospective over-ruling
could not apply to
the petition."
In view of our decision on the foregoing grounds, we do not find it necessary
to give a decision on this ground.
In the result, by unanimous decision, this appeal partially succeeds.
Declarations and orders.
| 1. | In view of our holding on
grounds 9,10 and 11, the first declaration made by the Constitutional Court, to
the effect that the Referendum
(Political Systems) Act 2000 contravened Articles
89 and 90, cannot stand. We set it aside. |
| 2. | In
view of our holding on grounds 5 and 6, the third declaration made by the
Constitutional Court is upheld but we modify it to read
thus:
- |
"The enactment of the Referendum (Political Systems) Act 2000 on
7th June 2000 was inconsistent with provisions of Article 271(2) and
rendered that Act null and void."
3. In view of our holding in respect of grounds 4, 7 and 8 we set aside the
second declaration made by the Constitutional Court to
the effect that the
holding of the referendum contravened Article 69, and substitute it with an
order declining to make a declaration
in that regard.
4. We order that each party bears its costs of this appeal but the
respondents get half of the costs in the Constitutional
Court.
Dated at Mengo this 2nd
day of September 2004.
B J Odoki
CHIEF JUSTICE
A H O Oder
JUSTICE OF SUPREME COURT
J W N Tsekooko
JUSTICE OF SUPREME COURT
A N Karokora
JUSTICE OF SUPREME COURT
J N Mulenga
JUSTICE OF SUPREME COURT
G W Kanyeihamba
JUSTICE OF SUPREME COURT
J M Ogoola
AG JUSTICE OF SUPREME COURT
