THE REPUBLIC OF UGANDA
IN THE SUPREME COURT OF UGANDA
AT MENGO
(CORAM: ODOKI, CJ; ODER,
TSEKOOKO, KAROKORA, MULENGA, KANYEIHAMBA & KATO, JJ.SC.)
CONSTITUTIONAL APPEAL No.2 OF
2003
BETWEEN
ATTORNEY GENERAL
......................................................... APPELLANT
AND
| 1. | DR. JAMES
RWANYARARE ] |
| 2. | HAJI BADRU
KENDO WEGULO ] |
| 3. | HON.
YUSUF
NSAMBU-NSUBUGA. ] |
| 4. | HON.
KEN.
LUKYAMUZI ] |
| 5. | JAMES.G.
MUSINGUZI ] ...
RESPONDENTS |
| 6. | MAJOR RUBARAMIRA
RURANGA ] |
| 7. | FRANCIS
GUREME ] |
| 8. | KARUHANGA
CHAAPA ] |
| 9. | HUSSEIN
KYANJO. ] |
| 10. | DR. JOHN
JEAN BARYA. ] |
["Appeal from the Ruling of the Constitutional Court at Kampala
(Okello, Mpagi-Bahigeine, Engwau, Twinomujuni and Kitumba, JJ.A) dated
5TH November, 2002 in Miscellaneous Application No.3 of
2002].
JUDGMENT OF THE COURT: This is an interlocutory appeal arising
from the ruling of the Constitutional Court which rejected the Attorney
Genera|,s objection
to the competence of Constitutional Petition No.7 of 2002.
The Attorney General is the respondent in the petition.
The background to
this appeal is brief. In May 2002, the Parliament of Uganda enacted the
Political Parties and Organisations Act,
2002 (hereinafter referred to as the
PPOA). The President assented to it on 2/6/2002. It was gazetted on 17/7/2002.
Dr. James Rwanyarare
and the other nine respondents felt aggrieved by some of
its provisions. So on 31/7/2002, they instituted the petition in the
Constitutional
Court seeking for a variety of declarations. The main ground of
the petition was that the PPOA is inconsistent with and in contravention
of the
Constitution. The Attorney General filed an answer to the petition and in that
answer raised some points of law concerning
the competence of the petition. In
the Constitutional Court, the Attorney General filed a notice of motion
(Miscellaneous Application
No.3 of 2002), under Rules 4 and 13 of the Rules of
the Constitutional Court (Petitions For Declarations Under Article 137 of the
Constitution) Directions, 1996 and Order 6 Rules 27 and 28 and Order 48 Rule 1
of Civil Procedure Rules (CPR). By the motion, the
Attorney General moved the
court to hear and determine legal issues he raised in his answer, the substance
of which was that the
petition was filed out of time.
The Attorney
General anticipated that if the preliminary points of law were upheld by the
Constitutional Court, the petition would
be disposed of without hearing it on
merit.
The Constitutional Court heard and dismissed the application on grounds that
the petition filed on 31/7/2002 was filed in time and
that, therefore, the
petition was competent. The Attorney General appealed against that ruling and
his memorandum of appeal contains
three grounds.
The respondents filed a Notice of Grounds for Affirming the Decision of the
Constitutional Court pursuant to Rule 87 of the Rules
of this Court. Mr. Joseph
Matsiko prosecuted the appeal on behalf of the Attorney General. The
respondents' lead counsel was Mr.
Peter Walubiri. He was assisted by Messrs.
Kiyemba -Mutale, J. Matovu and Yusuf Nsibambi. The three grounds of appeal
revolve around
one and the same point namely whether or not the petition was
filed in time. However the learned Principal State Attorney argued
the grounds
separately. The first and the second grounds which can conveniently be
considered together are framed this way: -
| 1. | The learned Judges
of the Constitutional Court erred in law and in fact in holding that the thirty
days of limitation under Legal
Notice No.4 of 1996 begin to run from the date of
perception of the breach of the Constitution complained
of: |
| 2. | The learned Judges of the
Constitutional Court erred in law and in fact in holding that the Constitutional
Petition No.7 of 2002 was
not time
barred. |
When arguing these two grounds,
Mr. Matsiko submitted substantially the same arguments which were raised by the
Attorney General and
his team in the court below. Mr. Matsiko referred to the
Acts of Parliament Act (Cap 2) and to Legal Notice No.4 of 1996 whose Rule
4
provides that a petition shall be filed within 30 days. He opined that a Bill of
Parliament becomes law on the day it is assented
to by the President, but not
when it becomes operational. He therefore contended that PPOA became law when it
received Presidential
Assent on 2/6/2002 and not on 17/7/2002 when it was
gazetted and submitted that the period of 30 days began to run from 2/6/2002
which was the date of the breach of the Constitution complained of. He
maintained that if the PPOA breached the Constitution, it
did so upon becoming
law. He also contended that breach of the Constitution and perception of a
breach of the Constitution are two
different things. He argued that Rule 4 of
Legal Notice No.4 of 1996 does not curtail human rights. We understood him to
also submit
that the petitioners did not plead, as required by Order 7 of the
Civil Procedure Rules, circumstances which show that the petition
is exempt from
the 30 days limitation period.
Mr. Walubiri for the respondents,
supported the decision of the Constitutional Court. According to him, the
critical issue to address
in this appeal is whether under Rule 4(1) of the Legal
Notice, 30 days begin to run from the date of presidential assent to the bill
or
from the date of publication of the bill in the Uganda Gazette. Learned counsel
referred to passages in the ruling of the Constitutional
Court and to various
sections of Cap 2 which set out a scheme of how a law is made in Uganda. He
pointed out that under Article 91(8)
of the Constitution, publication of an Act
of Parliament is a constitutional requirement. Under section 19(2) of Cap. 2,
any Act
of Parliament is judicially noticed upon being gazetted and in this case
the PPOA was gazetted on 17/7/2002 which is the date of
its commencement. He
argued that therefore by filing the petition on 31/7/2002, the Respondents
lodged it in court within the prescribed
time.
With respect, we are not at all persuaded by the arguments of the learned
Principal State Attorney. Article 91 (8) of the Constitution
and the provisions
of Cap 2 and of PPOA support the proposition that the petition was indeed
instituted in time.
In the ruling from which this appeal arose, the
Constitutional Court posed the question. "When does perception
that an Act of Parliament has breached the
Constitution take place?"
The court then put forward the following
five possible alternative answers: -(a). As soon as the President assents to
the bill; (b).
On the date designated by the Act itself as the commencement
date. (c). On the date the Act is gazetted.
(d). On the day the petitioner actually becomes aware of the existence of
the law; and
(e). On the day the petitioner actually becomes aware that the law breaches
the constitution.
The learned Justices of the
Constitutional Court then held correctly, in our opinion, that in the instant
case, section 15 (now S.14)
of Cap 2 provides the answer. The section is
produced later in this judgment. Before dismissing the objection, the Court
cited that
section and concluded its ruling with the following words: -
"In the instant case and on its own facts, we hold that the petitioners
ought to have perceived of the breach of the constitution
allegedly posed by the
Political Parties and Organisations Act on 17th July, 2002. They had
up to around 16th August, 2002 to file the petition. On 31st July,
2002 when they filed the petition they were clearly in time and the petition is
therefore competent."
We are unable to find any
fault with this conclusion and we find no sound foundation upon which Mr.
Matsiko contended that the court
erred when it held that the petitioners ought
to have perceived the breach on 17th July, 2002.
Article 91 regulates the exercise of legislative power. In terms of clause
(8) of the Article,
"A bill passed by Parliament and assented to by the President shall be
an Act of Parliament and shall be published in the Gazette."
This provision shows that the process of gazetting an Act of Parliament is a
constitutional requirement. The purpose and reasons for
gazetting an Act of
Parliament are set out in Cap.2. In its various sections, Cap 2, in Part II
thereof, sets out forms of Acts of
Parliament and Bills. In Part III, it sets
out the procedure to be followed in passing Bills. Subsections (1) and (2) of
section
14 refer to the commencement of an Act. These read as follows: -
"(I) Subject to this section, the commencement of an Act shall be
such date as is provided in or under the Act, or where no date is provided,
the date of its publication as notified in the Gazette.
(2) Every Act shall be deemed to come into force at the first moment of
the day of commencement." (Underlining
supplied).
Clearly, according to
these provisions, an Act of Parliament passed following the normal parliamentary
law enacting process, becomes
a law when it is assented to by the President.
However, we understand subsection (2) to imply that a law remains dormant until
the
day upon which it becomes enforceable and that day is the date of
commencement which may be set out in the Act itself or upon publication
of the
Act in the Gazette. Needless to say a dormant law cannot breach the
constitution, because it is ineffective. In our view,
the provisions of
subsections (4) and (5) further clarify the time of commencement of an Act of
Parliament for these provisions state:
-
(4) When an Act is made with retrospective effect, the
commencement of the Act shall be the date from which it is given or deemed to be
given that effect.
(5) Subsection (4) shall not apply to an Act until there is
notification in the Gazette as to the date of its
publication:
and until that date is specified, the Act shall
be without effect." (emphasis is supplied).
These
provisions re-inforce the view that an Act becomes operational either on a date
specified by the Act itself or upon notification
in the Gazette. Where an Act
itself stipulates that it will come into force on the day of presidential
assent, an Act comes into
force on the day on which it receives presidential
assent.
In the present case both the date of presidential assent and
the date of commencement are printed clearly in the Act itself as 2nd
June, 2002 and 17th July, 2002 respectively. Therefore, the
Constitutional Court was right in holding that the petition, which by virtue of
Rule 4(1),
was expected to be filed within 30 days from 17/7/2002 was filed
within time because it was lodged in Court on 31st July, 2002. Mr
Matsiko's contention that the Constitutional Court erred either in law or in
fact in so holding has no foundation.
Art 91(1) of the Constitution and sections
9 (2), 19(2) and 20 (1) of Cap.2 upon which he relied do not support any of his
arguments
that the petition was filed out of time. There was therefore no need
for the respondents to plead circumstances of exemption as required
by Order 7
Rule 6 of CPR. Accordingly grounds 1 and 2 must fail.
This conclusion would dispose of this appeal. We will, however, discuss
ground 3 which is framed this way -
The learned Judges of the
Constitutional Court erred in law and in fact in holding that the petitioners
ought to have perceived the
breach of the Constitution on the date of
publication of the Political Parties and Organisations Act,
2002.
The effect of this complaint is no different from that in
the first ground. Mr. Matsiko referred us to the conclusions of the ruling
of
the Constitutional Court and contended that the court speculated. Earlier in
this judgment we pointed out the substance of Mr.
Walubiri's arguments. In
summary learned counsel supported the reasoning and conclusions of the
Constitutional Court.
We have already reproduced the portion of the ruling of
the Constitutional Court which Mr. Matsiko described as speculative. For the
sake of easy reference we quote it again: -
" In the instant case and on its own facts, we hold that the petitioners
ought to have perceived of the breach of the constitution
allegedly posed by the
Political Parties and Organisations Act on 17th July,
2002."
The description of this passage by Mr.
Matsiko as speculative is, with respect wrong. The provisions of Cap.2 to which
we have referred,
more especially Ss.13 and 14, are clear on the purpose of
publication and on the date of commencement of an Act of Parliament.
The
purpose of publication is to let every body be aware of the contents of the Act,
its number and the date of presidential assent
[ S.13(2) ]. Commencement date
appears either in the Act itself or is notified in the Gazette [S.13 (1) (b)].
The PPOA itself mentions
the date of commencement as 17th July, 2002.
The Act was gazetted on the same day. The presumption is that upon publication
every body becomes aware of the commencement
of the law. So where did the court
err either in law or in fact when it concluded that the petitioners should have
perceived the
alleged breach of the constitution by 17th July, 2002?
Obviously, that is the day when the petitioners are presumed to have become
aware of the existence and the contents of
the law. Or they became aware on
23/7/2002 after reading the Gazette. The Court did not speculate. Ground three
must, therefore,
fail.
Because of the conclusions we have reached on the three grounds, we do not
find it necessary to discuss the contents in the notice
of grounds for affirming
the decision of the Constitutional Court and arguments thereon. In conclusion we
dismiss this appeal and
order that costs of the Appeal will abide the results of
trial of the Petition. The respondent asked for certificate for two counsel.
We
are not persuaded that this is an appeal in which to make such an order. Costs
will be for only one counsel.
We direct that the hearing of the
petition in the Constitutional Court proceeds expeditiously as required by
law.
Dated at Mengo this 21st day of April
2004.
B.J. ODOKI
CHIEF JUSTICE
A.H.O.
ODER
JUSTICE OF THE SUPREME COURT
J.W.N. TSEKOOKO
JUSTICE OF THE SUPREME
COURT
A.N. KAROKORA
JUSTICE OF THE SUPREME
COURT
J.N. MULENGA
JUSTICE OF THE SUPREME
COURT
G.W.KANYEIHAMBA
JUSTICE OF THE SUPREME
COURT
