THE REPUBLIC OF UGANDA
IN THE CONSTITUTIONAL COURT OF UGANDA
AT KAMPALA

CORAM:         HON. MR.	JUSTICE S.T.   MANYINDO,   DCJ.
HON.	MR.	JUSTICE G.M.   OKELLO,   JA.
HON.	MR.	JUSTICE J.P.   BERKO,   JA.
HON.	MR.	JUSTICE S.G.   ENGWAU,   JA.
HON.	MR.	JUSTICE A.   TWINOMUJUNI,   JA.

CONSTITUTIONAL PETITION NO.5 OF  1999

1.	DR.   JAMES  RWANYARARE	   )
                              					)   :::::::::::::::::   PETITIONERS
2.	HAJI BADRU KENDO WEGULO    )

VERSUS

ATTORNEY GENERAL   ::::::::::::::::::::::::::::::::   RESPONDENT   

JUDGMENT OF TWINOMUJUNI,   J.A.

The first petitioner is a member of a political party known  as Uganda Peoples Congress and is currently the chairman of the  party's Presidential Policy Commission. The second petitioner is  also a member of the party and currently its National Chairman.  The petitioners brought this petition under Article 137(1)   and.  (3)    of   the   Constitution   of   Uganda   seeking   declarations   and  redress  contained  in paragraph 20 of the  amended petition  as-  follows:-

20 (a) A declaration that the choice of a "political system"  through a referendum or an election under article 69  of the Constitution is inconsistent with and  contravenes articles 20,21,29(1) (a), (b), (d) , (e) ;  3 8 (2) , 7 0 (1) (d) ,71 (f) ;72 (1) and 7 5 of the Constitution.

(b)	A declaration that there is already in the  Constitution an elaborate and non-discriminatory  political system of governance and accordingly the  "Movement" and "Multiparty" are not political systems.

(c)	A   declaration   that   the   active   involvement   of   the  judiciary in framing the referendum question under  section 4(2) of the Referendum and Other Provisions  Act No.2 of 1999 is inconsistent with and contravenes  articles 28 and 128 of the Constitution.
(d)	A declaration that regulations to be made under  article 73(1) which derogate from articles 29(1)(e)  and 43 would be inconsistent with and contrary to  articles 20 and 21 of the Constitution and would not  be demonstrably justifiable in a free and democratic  society.
(e)	A declaration that Section 21(3) (4) (5) (6) and (7)  of the Referendum and other Provisions Act No. 2 of  1999 are inconsistent with and contravenes the  provisions of article 69 of the Constitution and are  null and void.
(f)	A declaration that Sections 4(l)(d), 10 13(2) & (3)  and 26 of the Referendum and other Provisions Act No. 2  of 1999 is inconsistent with and contravenes the  provisions of article 29(1)(a) of the Constitution and  are null and void.
(g)	A declaration that Article 269 of  the Constitution is inconsistent with and	contravenes	Articles 20, 21, 29(1)(a),(b) , (d) ,(e) ;     38(2)     and    75    of     the Constitution.

(h)	IN THE ALTERNATIVE a declaration that a referendum  under articles 271(3) of the Constitution would not be  free and fair and would be discriminatory and  inconsistent with and contravene articles 20,21 and 69  of  the Constitution.
(i)	IN THE FURTHER ALTERNATIVE a declaration that no free  and fair referendum can be held while article 269 of  the Constitution is still in force.
(j) An order prohibiting the Minister responsible for  Public Elections from referring the matter of a  referendum question to the Chief Justice.
(k) An order prohibiting the Chief Justice from appointing  a panel of three Judges to frame the referendum  question.
(l) An order prohibiting the panel of Judges from framing  the referendum guestion(s).
(m) An order prohibiting the Treasury Office of Accounts  from disbursing funds from the consolidated fund or  any other source of from in any way facilitating the  Electoral Commission facilitate the holding of the  referendum on political systems.
The petition was supported by the affidavits of the two  petitioners sworn on 7th March 2000.
A brief background to the circumstances which gave rise to  the petition, as can be gathered from the petition and affidavits  of the petitioners which are almost  identical,   is as follows :-
An organisation known as National Resistance Movement  captured state power in January 1986 and henceforth prohibited  the then existing political parties, including that of the  petitioners from active engagement in open political activities  like recruitment of members, opening and operating branch  offices, holding public rallies or holding delegates conferences.  In October 1995 a Constituent Assembly enacted a Constitution for  Uganda which contained Article 269 which re-enforced the  restrictions that were imposed on political parties in January  1986  and which article is still  in force.
After the promulgation of the Constitution in October 1995,  the then National Resistance Movement transformed itself into the  Movement system articulated in Article 70 of the Constitution.  In 1997, the Parliament of Uganda enacted the Movement Act No.7  of 1997 whereby every adult Ugandan was conscripted into the  Movement through his or her Local Council. The following persons  were not only conscripted as members but by law became members  of various movement organs:-
All    members    of    Parliament,     all    Resident    District  Commissioners,   all   District  Chairpersons,   all  Chairpersons  of Sub-county Councils, or Town Councils, all Chairpersons of County  Councils and all members of City Councils, all members of City  Divisions Councils, all members of Municipal Councils and all  members of Parish Councils.
Article 69 of the Constitution provides that the people of  Uganda shall have the right to chose and adapt a political system  of their choice in a free and fair elections or referenda. The  choice is to be between:-
(a)	The Movement political system,
(b)	The Multiparty political system,  and
(c)	Any   other   democratic   and   representation   political  system.

Article 271(3) provides that during the last month of the forth  year of the term of the first Parliament elected under the 1995  Constitution, a referendum shall be held to determine the  political system the people of Uganda wish to adopt. In  preparation for the referendum and other future similar  referenda, Parliament enacted the Referendum and Other Provisions  Act No.2 of 1999 which the petitioners contend contravenes the  Constitution in many respects enumerated in the petition.

Before the hearing of this petition on merits, a number of  preliminary objections were raised by both parties to this  petition and were ruled on by this court and the Supreme Court.  It  is  not  necessary to go into the details  of  the preliminary  objection except one, in which the respondent objected to this  court entertaining the petition on the grounds that it did not  contain any matter requiring Constitutional Interpretation under  Article 137 of the Constitution. The majority ruling of this  court resulted into the rejection of most matters raised in the  petition as being speculative or falling outside the jurisdiction  of this court except matters seeking declaration and redress in  the petition contained in paragraph 20(a) , (e) and (f) . Following  this ruling, the parties agreed on issues to be determined in the  petition and framed them as follows:-
(a)	Whether S.4(2) of the Referendum and Other Provisions  Act 1999 is inconsistent with and contravenes Articles  28 and 128 of the Constitution.
(b)	Whether S.21(3) to 7) of the Referendum and Other  Provisions Act contravenes Article 29(1) (a) of the  Constitution.
(c)	Whether S.4(l)(d) S.10, S.13(2) and (3) and S.26 of  the Referendum and Other Provisions Act are  inconsistent and contravene Article 69 of the  Constitution.

Before I go into the merits of this petition, let me first  state the principles of Constitutional interpretation that must  guide me. These principles were admirably summarised in the  judgment of Manyindo, DCJ. in the case of Major General David  Tinyefuza vs. Attorney General, Constitutional Petition No.1 of  1996,  as follows:-

"But perhaps I should first and briefly  address   my   mind   to   the   principles   that

govern the interpretation of the  Constitution. I think it is now well  established that the principles which govern  the construction of statutes also apply to  the construction of Constitutional  provisions. And so the widest construction  possible in its context should be given  according to the ordinary meaning of the  words used, and each general word should be  held to extend to all ancilliary and  subsidiary matters. See Republic -vs- El-  Mann [1969] EA 357 and Uganda -vs- Kabaka's  Government [1965] EA 393. As was rightly  pointed out by Mwendwa, CJ. (as he then was)  in El-Mann (supra) , in certain contexts a  liberal interpretation of Constitutional  provisions may be called for. In my opinion  Constitutional provisions should be given  liberal construction, unfettered with  technicalities because while the language of  the Constitution does not change, the  changing circumstances of a progressive  society for which it was designed may give  rise    to    new    and    fuller    import    to    its meaning.       A Constitutional provision containing a fundamental right is a  permanent provision intended to cater for  all time to come and, therefore, while  interpreting such a provision, the approach  of the court should be dynamic progressive  and liberal or flexible, keeping in view  ideals of the people, social-economic and  political-cultural values so as to extend  the benefit of the same to the maximum  possible.

In other words,  the role of the court should

be to expand the scope of such a provision  and not to extenuate it. Therefore the  provision in the constitution touching on  fundamental human rights ought to be  construed broadly and liberally in favour of  those on whom the rights have been confirmed  by the Constitution."     [Emphasis mine]

In the  case of Attorney General -vs Momodou Jube   [1984]   AC  689 which was an appeal to the Privy Council from the Court of Appeal  of Gambia Lord Diplock said at page 700:-

"A Constitution and in particular that part  of it which protects and entrenches  fundamental rights and freedoms to which all  persons in the state are to be entitled is  to be given generous and purposeful  construction."

In R Vs Big M. Drug Mart Ltd. [1985] DLR 4th  321, 395 - 6th the Supreme Court of Canada  (per Dickson,   J.)   stated;-

"The interpretation should be generous  rather than a legalistic one, aimed at  fulfilling the purpose of the guarantee and  securing for individuals the full benefit of  the charters protection".

In Unity Dow -vs-  Attorney General  of Botswana   (1992)   LRC 623  it was stated that a generous construction means -

                             		"	   that  you must   interpret   the provisions of the Constitution in such a way  as not to whittle down any of the rights and  freedom unless by very clear and unambiguous  provisions such interpretation is  compelling. "

In interpreting our Constitution this court must not lose  sight of our chequered history on human rights. The framers of  the constitution had this in mind when they stated in the  preamble:-

"Recalling our history which has been  characterised by political and  Constitutional instability;

Recognising our struggle against the forces  of tyranny,  oppression and exploitation;

Do hereby, in and through this Constituent  Assembly solemnly adopt,   enact and give  to ourselves and our posterity, this Constitution    of    the    Republic    of    Uganda       

In De  Clerk &  Snot   -vs-  Du Plassis  & Anor  91990)   6  BLR  124 at p.128 the Supreme Court of South Africa no doubt bearing in mind  their own past chequered history of human rights abuses stated:-

"When interpreting the Constitution and more  particularly the bill of rights it has to be  done against the backdrop of our chequered  and repressive history in human rights  field.      The     state     by     legislative     and administrative  means   curtailed  the human rights of most of its citizens in many  fields while the courts looked on powerless  Parliament and Executive reigned supreme. It is this malpractice which the bill of rights  seeks to combat. It does so by laying down  ground rules for state action which may  interfere with the lives of its citizens.  There is now a threshold which the state may  not cross. The Courts guard the door."  [Emphasis mine]

This case was cited with approval in Major General Tinyefuza vs  Attorney General Constitutional Appeal No. 1 of 1997 (Supreme  Court)  per Oder,   JSC.
Lastly, the powers of this court in statutory interpretation  are not limitless or absolute. The limits were expounded by  Wallen, CJ. in the Supreme Court of the United States in Troop  vs Dulles 356 US 2L Ed.  785 at 590   [1956]:-

"In concluding as we do that the eighth  Amendment forbids congress to punish by  taking away citizenship. We are mindful of  the gravity of the issue inevitably raised  whenever the Constitutionality of an Act of  the National Legislature is challenged. No  member of the Court believes that in this  case the statute before us can be construed
to avoid the issue of Constitutionality. The   issue confronts us, and the task of  resolving it is inescapably ours. The task  requires the exercise of judgment, not the  reliance 
on personal preferences. Courts  must not consider the wisdom of statutes but  neither can they sanction as being merely  unwise that which the constitution forbids.

We are oath bound to defend the  Constitution.  This obligation requires that  congressional enactments be judged by the  standards of the Constitution. The judiciary  has the duty of implementing the  Constitutional safeguards that protect  individual rights. When the government acts  to take away the fundamental rights of  citizenship, the safeguards of the  constitution, should be examined with  special diligence.

The provisions of the constitution are not  time worn adages or hollow shibboleths. They  are vital, living principles that authorise  and limit government powers in our nation.  They are rules of government. When the  constitutionality of an Act of congress is  challenged in this court, we must apply  these rules. If we do not the words of the  constitution become little more than good  advice.

When it appears that an Act of congress  conflicts with one of those provisions, we  have no choice but to enforce the paramount  demands of the Constitution. We are sworn to  do no less. We cannot push back the limits  of the Constitution merely to accommodate  the challenged legislation. We must apply  these limits as the constitution prescribes  them, bearing in mind both the broad scope  of legislative discretion and the ultimate  responsibility of Constitutional  Adjudication."

These remarks were cited with approval by this court in Major  General David Tinyefuza   (supra)   and this court concluded thus:
"We would respectfully agree that it is the  duty of this court to enforce the paramount  commands of the Constitution. The current  thrust of highly persuasive opinions from  courts in the Commonwealth is to apply a  generous and purposive construction of the  constitution that gives effect to and  recognition of fundamental human rights and  freedoms. We believe that this is in harmony  with the threefold injunctions contained in  Article 20(2) commanding the respect of;  upholding and promoting human rights and  freedoms of the individual and groups  enshrined in chapter 4 by all organs and  agencies of government and by all persons.  To hold otherwise, may be to suggest that  Article 20(2)   is idle and vain."

Now guided by the above principles, I propose to address the  arguments of counsel on each of the issues and to pronounce on  each issue in the order in which they appear above.
The first issue is whether the involvement of the judiciary  in the drafting of the referendum question as provided by S.4(2)  of the Referendum and Other Provisions Act is an infringement of  the independence of the Judiciary and contravenes Articles 28 and  128 of the Constitution.
On this issue, Mr. Peter Walubiri, learned counsel for the  petitioners submitted that S.4(2) of the Referendum and Other  Provisions Act contravenes Art. 28 of the Constitution because  if after the referendum is finished, complaints arose regarding  the process or contents of the referendum question, the  complainants could not get a fair hearing from courts. The judges  who framed the question are potential witnesses and even accused  persons. They cannot enjoy judicial immunity which is only  available to one exercising judicial power but not in this case  where judges are being called upon to perform an executive  function to frame a political  question.
Mr. Walubiri argued further that S.4(2) of the Act  contravenes Article 128 because it compromises the independence  of the judiciary as it authorises a Minister to direct the Chief  Justice to appoint judges. The Chief Justice has no discretion  to refuse and the judges so appointed have no choice but to  comply. In his view this contravenes Art. 128 which empowers the  judiciary not to be under the direction and control of any person  or authority. Even the time frame within which the judges must  frame the referendum question is such that it puts them under  pressure in performing the task.	
Mr. Byamugisha-Kamugisha, a Senior State Attorney, who  appeared for the respondent, did not agree with these  submissions. His general complaint, which applies to all the  three framed issues is, that there was no evidence to support all  the allegations raised to support the issues. In his view the  affidavits of the petition contained were unsubstantiated  allegations.
On the first issue, Mr. Byamugisha-Kamugisha submitted that  there was nothing essentially wrong for the law to require judges  to frame referendum question, even if it is a political exercise.  He was of the view that they could do this and still remains  impartial. On the question of a fair hearing,  he submitted that  the three judges need not hear any disputes arising from the  referendum because there are many other judges who can hear them  and the question of an unfair hearing could not arise.
On whether the independence of the Judiciary guaranteed  under Article 128 was violated by S . 4 of the Act, Mr. Byamugisha-  Kamugisha dismissed this and submitted that the law only required  the Minister to refer the matter of framing the referendum  question to the Chief Justice. He is not required to direct the  Chief Justice. It is the law which directs the Chief Justice to  appoint the judges but once appointed the panel acted  independently. Though they were required to consult, yet this did  not amount to control or direction from any quarter and could not  compromise the independence of the judiciary.

In conclusion he submitted that this was not the first time  judges have been required under the law to perform special  duties. He cited the example of section 15 of the Local  Government Act.

I wish to first deal briefly with Mr. Byamugisha's general  submission that there was no sufficient evidence in the  affidavits of the petitioners to support the allegations which  are the subject matter of the three framed issues. We ruled on  a similar preliminary objection before trial that there was  sufficient evidence. In absence of any affidavit evidence from  the respondent challenging the facts alleged in the petitioners  affidavits, the evidence remains unchallenged and it is  sufficient. This complaint is not valid and is therefore  rejected.
On the first issue, whether section 4(2) of the Referendum  and Other Provisions Act contravenes Article 28 of the  Constitution, I do not agree with Mr. Walubiri's argument that  because of the possibility that the same judges appointed to  draft the referendum question will preside over a court to hear  disputes arising from the referendum, there will be bias. In fact  it is most unlikely that the three judges would ever be asked  to preside over such a court. It would of course be embarrassing  if any of the judges became a witness or an accused person but  in my view this would not be enough to constitute a contravention  of the right to fair hearing of the citizens. I also do not agree  with his argument that S.4 of Referendum Act constitutes  "direction and control" of the judiciary in contravention of  Article 128 of the Constitution. In my view the major question  -involved in this issue is whether Parliament has the power to  direct that a panel of three judges be constituted to perform  function that do not fall in their judicial mandate.  Unfortunately this aspect of the issue was not adequately,  addressed by counsel.
Judicial mandate  is provided for in Article  126(1)   of  the  Constitution which provides:-

"Judicial power is derived from the people  and shall be exercised by the courts  established under this Constitution in the  name of the people and in conformity with  the law and with the values, norms and  aspiration of the people."
Article 128(1)   provides:-

"In the exercise of Judicial power the  courts shall be independent and shall not be  subject to the control or direction of any  person or authority."

It is now pertinent to examine what the expression "judicial  power" means. The expression is defined in Justice Millers "ON  THE CONSTITUTION 314(1891) as the power "of courts to decide and  pronounce a judgment and carry it into effect between persons and  parties who bring a case before it for decision." In Waterside  Workers Federation -vs- Alexander (1) (1918) 25 CLR 434 at 463  per Isaacs and Rich JJ, it was stated that "judicial power is  concerned with declaration and enforcement of rights and  liabilities as they exist, or are deemed to exist at the moment  the proceedings are instituted."
In Muskarat -vs- United States 219 US 346 (1911), the court  defined judicial power as "the right to determine actual  controversies arising between adverse litigants duly constituted  in courts of proper jurisdiction." Closely linked with the  expression "judicial power" is jurisdiction. This has been  defined as the authority of a court to exercise judicial power  in a specific case and a prerequisite to the exercise of judicial  power, which is the totality of powers a court exercises when it  assumes jurisdiction and hears and decides a case." The  jurisdiction to exercise judicial power under Article 126(1) of  the Constitution is only vested in courts established under the  Constitution.   Such courts  are mentioned in Article  129  of  the
Constitution as:-
(a)	The Supreme Court of Uganda;
(b)	The Court of Appeal of Uganda;
(c)	The High Court of Uganda;  and
(d)	Such subordinate courts as Parliament may by law establish.
Under our Constitution, the courts are given jurisdiction to  exercise judicial power and nothing else. In a famous United  States case of Marbury -vs- Madison 1 Ch 137 (1803) the US  Supreme Court held that since the original jurisdiction (of the  Supreme Court) is derived from the Constitution, it follows  logically that congress can neither restrict it nor enlarge it.  In Uganda the sole source of the jurisdiction is the  constitution. It therefore logically follows the jurisdiction can  only be restricted, reduced, or enlarged through an amendment to  the constitution and not otherwise. Parliament is empowered to  create courts, tribunals panels etc., but if they are constituted  by judicial officers, Parliament has no power to vest in them  jurisdiction that goes outside the exercise of judicial power.
In the instant case section 4(2) of the Referendum and Other  Provisions Act provides:-

"Where a referendum is held under this  section, the Minister shall refer the matter  to the Chief Justice who shall appoint a  panel of three judges to frame the question  in consultation with the sides to the  referendum. "
There is no doubt that under the Constitution, Parliament  has power to create "panel of three judges". What is at stake in  this issue is whether Parliament can vest into the panel  jurisdiction that is outside legitimate exercise of judicial  power. It is common ground that the framing of a referendum  question is certainly not an exercise of judicial power. It  follows logically therefore that to ask a panel of three judges  to perform functions outside the exercise of judicial power would  tantamount to enlargement of the jurisdiction of the judiciary  which in my opinion Parliament has no power to do.
Assuming that I am correct in this analysis, how would this  contravene the provisions of Articles 28 and 128 of the  Constitution? The Constitution sets up three organs through which  the powers of governance in Uganda are exercised, namely the  Executive, the legislature and the judiciary. Each organ of state  is allocated its powers. There is an attempt to implement the  doctrine of separation of powers but all too often the powers of  the legislature and the Executive overlap. However, the powers  vested in the judiciary are distinct and are not vague. I have  attempted to show that judicial power is the adjudication of  disputes or controversies between parties. This must be done in  accordance with principles set out in Article 126(2) which are  that:-
(a)	justice shall be done to all,
(b)	justice shall not be delayed,
(c)	adequate compensation shall be awarded  to victims of wrongs.
(d)	reconciliation between parties should be promoted,
(e)	substantive justice shall be administered without  undue regard to technicalities.
In the present case the Chief Justice is asked to constitute  a panel of three judges. They are asked to frame a referendum  question which is clearly a political matter. There is no doubt  that in performing that function they will be doing it on behalf  of the judiciary and not as individuals. The referendum itself  is a political issue. It involves a lot of controversial matters  that any independent judiciary would not want to get involved in.  Whatever the nature of the referendum question that is framed,  controversies and disputes are bound to end up in our courts . Can  the same judiciary that framed the referendum question determine  the disputes arising therefrom without taking the risk of being  accused of being judges in their own cause? That is what Art 28  of the Constitution was designed to prohibit. It provides that  people who come to court to have their disputes resolved are  entitled to a fair hearing. In the context of this case, it means  that the judiciary should not be a judge in its own cause. The  framers of our Constitution regarded the right to a fair hearing  to be so fundamental and made it non-derogable in Article 44(c) .  To ask the judiciary to perform non judicial duties involving  controversies where its decision may be challenged in courts is  a derogation of the citizen's right to a fair hearing and  contravenes the Constitution. That is exactly what S.4(2) of the  Referendum and Other Provisions Act provides. In my opinion it  contravenes Art. 28(1) of the Constitution. It is therefore void.
In the same vain, I hold the opinion that S.4(2) of the  Referendum and Other Provisions Act contravenes Article 128 of  the Constitution, already quoted above. The article states that  in exercise of judicial power, the courts shall be independent.  Under a written constitution that provides for the separation of  powers of the judiciary from those of the executive or the  legislature, it is a violation of the independence of the  judiciary to shift non-judicial functions on to the judiciary  when they properly belong to the executive and legislative  function. The courts in many Commonwealth countries where  separation of powers are provided for in their national  constitution have upheld this principle time and again in order  to preserve the independence of their judiciaries. One such a  decision was made in the case of Attorney General of Australia  vs Reginum and Boilermakers Society of Australia and Others  [1957] 2 All ER 45. In that case, Australia had an Arbitration  Act whose primary purpose was settlement of industrial disputes  by conciliation and arbitration. The Act set up an Arbitration  court as a Supreme Court of record and vested in it original  " jurisdiction to alter standard hours of work, basic wages and  other matters. Thus there were vested in the court functions of  an administrative, arbitral and executive character. The court  was also given judicial powers to enable it to order compliance  with its awards, and to punish for default and contempt. The  court handed out an order against the respondents which they  challenged on the ground that the provision of the Act that  purported to give the court combined jurisdiction on judicial and  non   judicial   matters   was   repugnant      to   the   constitution   of
Australia and therefore invalid. The dispute went up to the Privy  Council where it was held that there was nothing in the  constitution of Australia that justified judicial and non-  judicial functions being united in one body and therefore the  provisions complained of were repugnant to the Constitution and  were invalid. The reasoning was that under the Australian  Constitution, a body vested with jurisdiction to exercise  judicial powers cannot at the same time perform non-judicial  functions. The Privy Council cited with approval the following  passage in the judgment of the High Court of Australia:-

"There is, of course, a wide difference -  and probably it is more than of degree -  between denial on one hand of the  possibility of attaching judicial powers  accompanied by necessary curial and judicial  character to a body whose principal purpose  is non-judicial in order- that it may better   accomplish or affect that non-judicial  purpose and, on the other hand, a denial of  the possibility of adding to the judicial  powers of a court set up as part of national  judicature some non-judicial powers that are  not ancillary but are directed to a non-  judicial purpose. But if the latter cannot  be done clearly the former must be then  completely out of question."

The Privy Council put the reasons behind the objection to  conferring non-judicial functions on the judiciary as follows:-

"For it has by many been thought unwise  practice to try to anticipate judicial  decisions  extra judiciary by obtaining the  opinion or advice of the judges the reason  being that it is regarded as tending to sap  their independence and impartiality. More  serious objection may, for the same reason,  be taken to vest in them powers which, if  exercised by another, would be open to  challenge on all grounds that are available  to a citizen who thinks his rights have been  impinged, for it is their own executive act  which they may be invited judiciary to  examine."

In my humble opinion, the involvement of the judiciary in  framing of the referendum question will, in the eyes of the  public, group the judiciary together with the executive and the  Electoral Commission both of which have since 1962 been regarded  as not credible in matters of free and fair elections. The  framers of Article 128 of the Constitution clearly wanted the  judiciary to be free of such an image.	

Finally on this  issue,  Article 128(4)   provides:-

"A person exercising judicial power shall  not be liable to any action or suit for any  act or omission by that person in exercise  of judicial power."   [Emphasis mine]

There was no dispute at the trial that framing of the referendum  question is not an exercise of judicial power. All agreed that  it is a political function. This means that the judges appointed  to carry out the exercise will loose the judicial immunity while  performing that task. Surely, in my opinion, any law which  requires a sitting judge to loose his constitutional  immunity,  even if it is temporary, contravenes Article 128(4) and must be  null and void. Section 4(2) of the Referendum and Other  Provisions Act is such a law and it should be condemned  accordingly.
The second issue is whether Section 21(3) up to (7) of the  Referendum and Other Provisions Act contravene Article 29(1) (a)  of the Constitution.  The relevant sections of the Act provide as
follows:-

S.21	(3)   No  person  shall,   during  canvassing,   print,
publish or distribute, a newspaper, circular or  pamphlet containing an article, report, letter or  other matter commenting on any issue relating to the  referendum unless the author's name and address, or  the authors' names and addresses, as the case may be,  are set out at the end of the article, report, letter  or other matter or, where part only of the article,  report, letter or matter appears in any issue of a  newspaper, circular, pamphlet or letter, at the end of  that part.

(4)	Subject to the following provisions of this  section, an agent may use electronic media for  canvassing.
(5)	No person shall, during canvassing, use  electronic media to do any of the following acts  against another side or their agent---
(a)	making statements which are known by the" maker to be  false or in respect of which  he or she is reckless whether they are  true or false;

				(b)	making malicious statements;

(c)	making statements containing sectarian words or allusions;

(d)	making abusive or insulting or derogatory statements;

(e)	making exaggerations or using caricatures of the agent or using words of ridicule;

(f)	using derisive or mudslinging words against a side or their agent;
				(g)	juxtaposition of words or statements with any of the effects described in the foregoing  paragraphs;
				(h)	using songs, poems and images with any of the effects described in the foregoing paragraphs

(6)   The proprietor or operator of  electronic  media  shall  not use  the media or  allow  it  to be used  to do any of the acts prohibited in subsection  (5)   of  this  section.
           (7)  Any person who contravenes any of the  provisions of subsections (2),(3),(5) and (6) of this  section commits an offence and is liable on  conviction:-

(a)	in the case of an offence under subsection
(2)   or   (3)   to a fine not exceeding fifteen  currency      points      or      imprisonment      not  exceeding three months or both,   and

(b)	in any other case to a fine not exceeding
twenty five currency points or  imprisonment not exceeding six months or  both.

(8)	In this section electronic media includes  television, radio, internet and email and any other  similar medium.
In contrast,  Article 29(1)(a)   of the Constitution provides:-  "29(1)  Every person shall have the right to-

(a) freedom of speech and expression,  which shall include freedom of  press and other media."

Mr. Peter Walubiri submitted that the above provisions of the Act  are inconsistent with the constitution. He contended that S.21(3)  of the Act prohibits people who may want to publish their view  anonymously.   He  argued  that   in  a   free  and democratic   society  there may be many good reasons why a person may wish to give his
view but remain anonymous. He cited examples of the clergy, the  judges, civil servants and other similarly positioned people in  society who may not wish to publically identify themselves with  controversies and yet would like their view known. He contended  that to stifle their view is to interfere with their  constitutional rights of free speech and expression. In his view  there was no justification for such provisions. He pointed out  that S.20(3) was made a subject of criminal sanction under  S.20(7) which had the combined effect of stifling freedom of the  press contrary to Article 29(1)(a)   of the Constitution.

Mr. Walubiri also attacked the provisions of S.21(5) of the  Act. In his view, it contained unreasonable restrictions on  electronic media which contravened the same Article 29(1) (a) . Mr.  Walubiri submitted that the restrictions were unjustified because  this country had laws of libel and defamation which could  protect whoever is injured as a result of the exercise of freedom  of speech, expression or press and other media. In his view  political debate should be free and not restricted in a manner  S.21(3),(5) and (7) seeks to do. He invited us to declare the  section utra vires.	
In reply Mr. Byamugisha-Kamugisha argued that under Article  79 of the Constitution, Parliament had power to make laws on any  matter for peace, order, development and good governance. Under  Article 43, all fundamental human rights are restricted in  certain circumstances . He contended that it is in spirit of these  two Articles that S.21(3) and (5) of the Act were enacted. In his  view they do not  restrict or take away the freedoms guaranteed  in Article 29(1) (a) but they only regulate them. He argued that  if everyone was left free to say or publish what one wants, there  would be chaos. He submitted that Article 29' should be read  together with Article 43 which should result into this court  holding that S.21(3)   and  (5)  do not contravene the Constitution.
Now I turn to the merits of these submissions. In our  Constitution, provisions for protection and promotion of  fundamental and other human rights and freedoms are to be found  in chapter four of the Constitution. Article 20 thereof  provides:-

"(1) Fundamental rights and freedoms of the  individual are inherent and not granted by  the state.

(2) The rights and freedoms of the  individual and groups enshrined in this  chapter shall be respected, upheld and  promoted by all organs and agencies of  Government and by all persons."

Article 29 is one of the provisions of chapter four. It is very  clear then, that fundamental rights and freedoms are not granted  by the state. They are inherent and they are enjoyed as a birth  rights. The state therefore has no right to take them away except  as authorised by the Constitution. The only restriction or  derogation to the enjoyment of the fundamental rights and  freedoms under Chapter Four are to be found in Article 43 of the  Constitution which provides:-

" (1)    In   the   enjoyment   of   the   rights   and  freedoms prescribed in this chapter, no  person shall prejudice the fundamental or  other human rights and freedoms of others or  the public interest.

(2) Public interest under this article shall  not permit  -
(a)	political persecution
(b)	detention without trial
(c)	any limitation of the enjoyment  of the rights and freedoms  prescribed by this chapter beyond  what is acceptable and  demonstrably justifiable in a  free and democratic society, or  what is provided in this  Constitution."

Now, since fundamental human rights and freedoms are inherent and  not granted by the state, it is the duty of the state or any one  else who wishes to restrict the enjoyment of a human right or  freedom granted in Chapter Four to prove that the enjoyment of  the human right or freedom will prejudice:-
(a)	a   fundamental   or   other   human   right   or   freedom   of  others	.
(b)	public interest

Where a restriction is claimed on the grounds of public interest,  the restriction will not be allowed to stand if it permits:-
(a)	political persecution
(b)	detention without trial
or
(c)     limits the enjoyment of the rights and freedoms  beyond -
(1)	what  is  acceptable  and demonstrably  justifiable  in a free and democratic society.  OR

(2)	what is provided in this Constitution.

A careful reading of S.21 of the Referendum Act will reveal that  it contains very wide and far reaching restriction on the  freedoms contained in Article 29(1) (a) of the Constitution.  Unless they are shown to be justified under Article 43 of the  Constitution, they cannot be permitted to stand as they would  conflict with Article 29. The burden is on the state which in the  instant case seeks to restrict the freedoms guaranteed in that  Article, to prove the justification. Apart from Mr. Byamugish-  Kamugisha's general submission that the restrictions were made  in the spirit of Articles 79 and 43 of the Constitution, the  state did not attempt any other justification of the draconian  measures contained in S.21 of the Referendum Act. Both Articles  79 and 43 are subject to other provisions of the Constitution.  They are not absolute. It is not enough to say that the measures  objected to are permitted by Article 43. It must be shown which  part of the article and how it permits the restriction sought.  In my opinion, the representative of the respondent failed  entirely to discharge the burden.
There is another very disturbing diamention to these  draconian restrictions to the freedom of speech and expression.  I have already noted that they are very comprehensive and very  far reaching. Most of them are however very vague and not capable  of any precise definition. This applies to both S.21(3) and 21(5)  of the Act. For example, if during the referendum campaigns, I  picked up a newspaper, read it after which I passed it to a  friend, I face three months imprisonment for failing to notice  that there was in the newspaper a letter or an article on the  referendum which was not signed by the writer. I face the same  penalty if the name of the author was written at the top of the  article because the section requires the name and address of the  author to be printed at the end of the article. A street vender  of the newspaper faces the same penalty if he fails to notice the  offending letter or article and distributes the paper, even if  he is not capable of reading it.

In respect of S.21(5)   of the Act,   it prohibits making malicious statements statements containing sectarian words or delusions  abusive,   insulting or derogatory statements  exaggerations or words of ridicule,  derisive and mudslinging words etc.
All these crimes are not defined in the Act and yet the provision  is criminalised and attracts a  punishment of six months  imprisonment. Yet in my view these criminal sanctions can only  be applied, in practice at least, to only one side of the  referendum question. It should be remembered that there are at  present only two sides to the referendum question i.e. the  Movement side and the Multiparty side. All the security agencies,  all administrative agencies, central and local, from the grass  root up to the President, are by law members of the Movement side  through the operation of the Movement Act 1997. It is very  unlikely in our present setting that they would arrest a member  of the Movement side for violation of S.21 of the Referendum Act.  I think this section is just intended to harass and intimidate  the other side. In my opinion there are enough measures in our  law of libel and defamation to protect the rights of other  individuals. Strangely S.14 of the Referendum Act also  criminalises the acts covered under the law of defamation and  makes them punishable with two years imprisonment. This is not  to mention the giant stick in the hands of the Movement side in  the form of Article 269 of the Constitution. Section 21(3),(5)  and (7) contravene Article 29(1)(a) of the constitution and in  my judgment it should go.   It is null and void.
The third and final issue is whether S.4(l)(d), S.10,  S.13(2) and (3) and S.26 of the Referendum and Other Provisions  Act are inconsistent with and contravene Article 69 of the  Constitution.

Section 4(1) (d) of the Act provides that a Referendum shall  be held to give effect to Article 271 of the Constitution, and  S.26 of the Act.  Article 271 provides as "follows:

"271 (1) notwithstanding the provisions of  Article 69 of this Constitution, the first  presidential, parliamentary, local  government and other public electronics  after the promulgation of this Constitution  shall be held under the Movement political  system.

(2)    Two years before the expiry of  the term of
the first Parliament elected under this  Constitution, any person shall be free to  canvass for public support for a political

system of his or her choice for purpose of  a referendum.

	(3)	During the last month of  the  forth year of  the term of Parliament referred to in Clause  (2)   by  this   article  a  referendum  shall  be  held  to determine  the political  system the  people of Uganda wish to adapt.

	(4)	Parliament shall make laws to give effect to  the provisions of this article."

Section 26 of the Referendum Act states:-

"26(1) The (electoral) Commission shall  for the purpose of Clause (3) of  Article 271 of the Constitution  appoint and publish in the  Gazette a date falling within the  period 3rd day of June to 2nd day  July in the year 2000 on which a  referendum shall be held to  determine the political system  that the people of Uganda wish to  adapt.

(2)	The notice appointing the date  shall state the issue on which  the referendum is to be held.
(4) On or after the 2nd day of July,  1999, any person shall be free to  canvass for public support for  the purpose of a referendum under  this section."

Section 10 of the Referendum Act provides that:-

"the   Act   shall   be   read   as   one   with   the  Electoral Commission."

Section 13(2)  and  (3)  of the Act provides:-

"13(2) For purposes of the referendum under  Clause (3) of Article 271 of the  Constitution the side shall consist of  individuals and organised groups who  subscribe to the multiparty system or the  Movement system, or any other political  system as the case may be.

(3) The Individuals and groups subscribing  to the political systems referred to in  subsection (2) shall, in respect of each  political system to which they subscribe,  establish a national referendum Committee  consisting of no more than twenty members  and submit the details of the committee to  the Commission by such a date as the  Commission shall prescribe."

Finally Article 69 of the Constitution provides:-

"69(1) The people of Uganda shall have the  right to choose and adapt a political system  of their choice through free and fair  elections or referenda."
(2)      The   political   system   referred   to   in  Clause   (1)   of  this Article shall  include  -
(a)	the movement political system
(b)	the multiparty political  system and
(c)	any other democratic and representation  political  systems."
Mr. Walubiri submitted that the Referendum and Other  Provisions Act does not provide for a free and fair referendum  as acquired by Article 69 of the Constitution because, firstly  S.4(l) of the Act states the circumstances when referenda shall  be held but the list does not include an election under Art. 69.  In his view whatever referenda that are held under the Act need  not be free and fair.

Secondly S.10(2) of the Act applies to the referendum the  Parliamentary Elections (Interim Provisions) Statute 4 of 1996  which has unfair provisions. He complained that S.51 of that  statute prohibits the use of party symbols and colours which is  unfair to the multipartists . In his view the parties are the body  cells of the multiparty side and should be free to come out and  identify themselves during the referendum. He also complained  that S.50 of the statute, which is reproduced in S.21 of the  Referendum Act, is unfair as it stifles the freedom of speech and  expression.
Thirdly, he contended that S.13 (2) and (3) of the Act only  recognise the National Referendum Committees as the only  organisers   of   the   campaigns.   He   submitted   that   whereas   the
Movement side is organised under the Movement Act 1997, which  makes it easy to form its National Referendum Committee, there  is no such a law to organise multiparty supporters to legally  form such a committee. He complained that on the contrary the  parties have not been allowed to operate since 1986 and are  legally incapable of forming the National Referendum Committee  to support the cause of multipartism. In his view the exercise  is a one sided affair.
Fourthly, S.26 of the Act only refers to a referendum under  Article 271 which need not be free and fair. For the above  reasons Mr. Walubiri submitted that the above mentioned  provisions of the Referendum Act contravenes the provisions of  Article 69 of the Constitution and he asked this court to declare  them void.

In reply Mr". Byamugisha-Kamugisha submitted that Article 271  of the Constitution must be read together with Article 69.  Therefore the requirement of a free and fair referendum in  Article 69 must be read into Article 271. He further argued that  Article 61 of the Constitution enjoins the Electoral Commission  to organise only free and fair elections or referenda. In his  view, since the forthcoming referenda is to be organised by the  Commission,   it cannot be anything but  free and fair.
On S.10(2) of the Act, he submitted that there was nothing  in it that contravened Article 69. He said that the section was  necessary to avoid repetition of the provisions of Statute 4/96  in the Act. He stressed that the key phrase in the section were  that the Statute would apply "with necessary multifications and  so far as may be necessary and practical." On S.51 of the Statute  Mr. Kamugisha submitted that it only applied to Parliamentary  elections and did not apply to the forthcoming referendum. On  S.50 of the Statute which is reproduced in section 23 of the  Referendum and Other Provisions Act, he submitted that the  legislature had constitutional powers to place such restrictions  on freedom of speech in light of Article 269 and to challenge the  section would tantamount to challenging Art. 269 which this court  ruled out in a majority ruling at the beginning of this trial.
Finally, Mr. Byamugisha-Kamugisha submitted that  individuals and parties are allowed to campaign in their own  right. He averred from the bar that they had in fact already  formed a National Referendum Committee which is busy campaigning  on behalf of the multipartists. He invited this court to hold  that there was nothing in the Referendum and Other Provisions Act  that contravened Art 69 of the Constitution and to dismiss the  petition with costs to the respondent.
I wish now to deal with these points one by one. I do not  agree with Mr. Walubiri that S.4(1) of the Referendum and Other  Provisions Act contravenes Art.69 of Constitution merely because  that Article is not mentioned in the section. The first purpose  of the Act is stated to be "to make provisions for the holding  of referenda in pursuance of the provisions of Article 74 and 76  of the Constitution." Article 76 of the Constitution provides:

"Parliament may, subject to the provisions  of this Constitution, enact such law as may  be    necessary    for    the    purpose    of    this
chapter, including laws for registration of  voters, the conduct of public election and  referenda and, where necessary, making laws  for voting by proxy."   [Emphasis mine]

The expression "for the purpose of this chapter" includes Article  69 of the Constitution and therefore any referendum held under  Article 271 as stipulated by S.4(l) (d) of the Act must comply to  the requirement of being free and fair in Article 69. I agree  with Mr. Byamugisha-Kamugisha that Article 61 of the Constitution  requires that all elections or referenda organised by the  Electoral Commission be free and fair. Whether that is in reality  what happens is a different matter.
On whether sections 50 and 51 of the Parliamentary Elections  (Interim Provisions) Statute which are applied to the "referendum  by the Referendum and Other Provisions Act are so unfair as to  contravene Article 69, I have already made my observation in  relation to section 21(3) of the Act which is similar to S.50 of  the Statute when I was discussing the; second issue of this  petition. I have held that it contravenes the freedom of speech  and expression guaranteed under Article 29 (a) of the  Constitution. It follows in my view that no free and fair  referendum can be carried out when the population is under  intimidation of  the kind imposed by these restrictions.

Regarding the restrictions imposed by section 51 of the  Statute, Mr. Walubiri's complaint is that political parties  should be left free to adorn their party colours and symbols and  if they are prevented, it is a restriction which violates the  requirement of a free and fair exercise required under Art.69.  Mr. Kamugisha says that that section applied to the Parliamentary  elections but is not applicable in the referendum. This was a  statement from the bar and I am not at all sure whether the  Electoral Commission would permit it. However for purposes of  this referendum, I do not think prohibition of exhibition of  party colours and symbols during canvassing would per se  constitute a derogation to the requirement of a free and fair  conduct of referenda. In my judgment, both sides to the  referendum question should only be allowed to have a symbol by  which the population can identify them sufficiently. Symbols like  the bus and the dove are sufficiently identifiable as long as the  sides to the referendum question are legally and legitimately  constituted into National Referendum Committees. I would  therefore dismiss this objection to S.51 of the Statute.
A more substantial objection, in my view, is raised by Mr.  Walubiri against the provisions of section 13(2) and (3) of the  Referendum Act. Those provisions require that each side to the  referendum question establishes a National Referendum Committee  of no more than twenty people whose duty shall be to organise the  canvassing for its side and to appoint agents for the purposes  of canvassing and voting. The petitioners deponed in their  affidavits that since 1986, political parties were restricted  from political activity and are therefore unable to organise  themselves. Mr. Walubiri submitted that political activity by  political parties are restricted and therefore the parties are  incapable of forming a National Referendum Committee.  In effect,
Mr. Walubiri argues that S.13 of the Act creates a one sided  contest because only the Movement side, which is organised under  a law called the Movement Act 1997, is able to form a National  Referendum Committee but not the political parties which are  restricted. The two questions which must be faced and answered  are: -
(a)	Can a free and fair referendum under Article 271 be  held without the involvement of political parties?
(b)	Are political parties in fact free and capable of  participating in the formation of the National  Referendum Committee under S.13(2) and (3) of the  Referendum Act?

To the first question, in my judgment the answer must be in  the negative. Article 29(e) of the constitution guarantees the  freedom of association including the freedom to form and join  political parties. Article 72 which is outside the chapter on  fundamental human rights and freedoms repeats this right and  states that subject to the Constitution, the right to form  political parties is guaranteed. Article 75 states that  Parliament shall have no powers to enact a lav; establishing a one  party state. It is clear beyond any doubt that the provisions of  our constitution intended that Uganda would be a multiparty  democracy. The constitution in Article 69, however provides that  Ugandans, could instead of political parties opt for a movement  type of political system or any other democratic and  representative political system and would in a free and fair  referendum make their choice. How then could such a choice be  free and fair without involvement of the political parties when  their future  is at  stake?

Are the political parties then free to participate in the  referendum? The petitioners complain about Article 269. That  because of it, the parties are not allowed to organise and  canvass for their side. Mr. Walubiri stated that because of the  restrictions on political parties, including internal  organisation of the parties, they are unable to participate in  the formation of the referendum committee.

Article 269 provides:-

"On the commencement of this Constitution  and until Parliament makes laws regulating  the activities of political organisations,  in accordance with Article 73 of this  constitution, political activity may  continue except -

			(a)	opening and operating branch offices;
(b)	holding delegate conference;
(c)	holding public rallies;
(d) sponsoring  or offering a platform to or in -any  way campaigning for or against a candidate for  any public elections;	.       -
(e) carrying on any activity that may interfere with  the movement political system for the time being  in force."

It is common knowledge that this was a continuation of the ban  on political parties that had been on since 1986. I do not see  how a party or any organisation for that matter, that cannot hold  a meeting of  its main organs   (like a delegates conference)   for  fourteen years can be expected to legally select representatives  to  constitute  a  National  Referendum  Committee  as  required  by section   13   of   the   Referendum  and  Other   Provisions  Act.   In  my judgment, the political parties are legally incapable of  participating in any exercise to form the referendum Committees  and will remain so for as long as Article 269 remains an interim  provision of our Constitution. It is not clear when the interim  period will expire but in my view, reading of Article 271(2)  (supra) and section 26(1) of the Referendum and Other Provisions  Act, suggests that it should have expired by 2nd July 1999 when  everyone was freed to participate in canvassing for the  referendum. No free and fair referendum can be held under such  a bondage.    The framers of the Constitution could not have intended such a monstrous result.

In the result, I would hold that as long as Article 269  remains in force, then S.13(2) and (3) of the Act creates a one  sided contest in the referendum and contravenes Article 69 of the  Constitution.

In the result I would allow this petition with costs to the  petitioners.

Dated at Kampala this 6th  day of June 2000

A. TWINOMUJUNI
JUSTICE OF APPEAL

JUDGMENT OF MANYINDO, DCJ

The two petitioners are leaders of a political party. They brought this  petition through their Counsel Mr. Walubiri, against the Attorney - General.  The petitioners are opposed to the holding of the referendum on political  system in June of this year. In the petition they seek the following  declarations:

(a)	that the choice of a political system through a referendum or an election  under article 69 of the Constitution is inconsistent with and contravenes  articles 20,21, 29 (1) (a), (b), (d) and (e); 38 (2); 70 (1) (d); 71 (f); 72 (1)  and 75 of the Constitution,
(b)	that there is already in the Constitution an elaborate and non -  discriminatory political system of governance and accordingly the  Movement and Multiparty are not political systems, 
	(c)	that the active involvement of the judiciary in framing the referendum  question under section 4(2) of the Referendum and Other Provisions Act  (no 2 of 1999) is inconsistent with and contravenes articles 28 and 128  of the Constitution,
	(d) that regulations to be made under article 73 (1) which derogate from  articles 29 (1) (e) and 43 would be inconsistent with and contrary to  articles 20 and 21 of the Constitution and would not be demonstrably  justifiable in a free and democratic Society,	
(e)	that section 21 (3), (4), (5), (6) and (7) of the Referendum and Other  Provisions Act is inconsistent with and contravenes the provisions of  article 69 of the Constitution,
(f) that sections 4 (1) (d); 10; 13.(2) and (3) and 26 of the Referendum and  Other Provisions Act are inconsistent with and contravene the provisions  of article 29 (1) (a) of the Constitution,
(g)	that article 269 of the Constitution is inconsistent with and contravenes  articles 20, 21, 29(1) (a), 9b), (d) and (e) 5 38 (2) and 75 of the  Constitution,
(h)	in the alternative, that a referendum under article 271 (3) of the  Constitution would not be free and fair and would be discriminatory and inconsistent with and in contravention of articles 20, 21 and 69 of the  Constitution and
(i) in further alternative, that no free and fair referendum can be held while  article 269 of the Constitution is still in force.

They also sought orders:
(a)	prohibiting the Minister of Justice and Constitutional Affairs who under  the Act is the Minister responsible for public elections, from referring  the matter of the referendum question to the Chief Justice, under section  4(2) of the Act,
(b)	prohibiting the Chief Justice from appointing a panel of three Judges,  under section 4(2) of the Act, to frame the referendum question,
(c)	prohibiting the panel of Judges from framing the referendum question  and  
(d)	prohibiting the Treasury officer of Accounts from disbursing funds from  the consolidated fund or any other source or in any other way facilitating  the Electoral Commission to hold the referendum.	
These matters are contained in paragraph 20 of the petition. When the  petition came up for hearing several points of objection were made for the  petitioners and the Attorney-General. On the part of the petitioners the  main complaint was that the Attorney-General's Answer to the petition was  time-barred. The Attorney General contended that he had not been properly  served with court process we agree with him. The Attorney General then  raised three objectives, namely, that the petition
 (a) was timebarred, (b) was not accompanied by evidence and (c) did not  raise any point or matter requiring the interpretation of the Constitution.

The objections were overruled except the one on jurisdiction which was  allowed only in part and to the extent that this court had jurisdiction to hear  the petition in respect of the declarations sought in paragraph 20 (c) (e) and  (f) above. The petition proceeded on that basis. Accordingly, the agreed  issues between Mr. Walubiri and Senior State Attorney Kamugisha -  Byamugisha were:

(i)	whether section 4(2) of the Referendum and other Provisions Act, 1999  is inconsistent with and contravenes articles 28 and 128 of the  Constitution,
(ii)	whether section 21 (3), (4), (5), (6) and (7) of the Act contravenes article  29 (1) (a) of the Constitution and
(iii)	whether "sections 4 (i) (d); 10; 13 (2) and (3) and 26 of the Act are  inconsistent with and contravene article 69 of the Constitution.

Mr. Walubiri's submission on the first issue can be summarised broadly as  follows. First, the involvement of the Judges in framing the referendum  question, which is a political question, derogates from the independence of  the judiciary. According to Mr. Walubiri, under section 4(2) of the Act the  Minister of Justice and Constitutional Affairs directs the Chief Justice to  appoint a panel of Judges. The Chief Justice has no discretion in the matter.  Once appointed, the Judges must operate under the supervision and  direction of the Minister.  They have no discretion in matter.  They must

frame the question within a given time and cannot even extend the time. It  follows that by participating in the exercise the three Judges and the  Judiciary as a whole would have lost their independence. The judiciary  would have "crossed over" to the executive side of government. Therefore  section 4(2) above which allows for this situation is unconstitutional as it  violates article 128 (1) which provides :

128 (1) In the exercise of judicial power, the courts shall be independent  and shall not be subject to the control or direction of any person or  authority."

Second, if Judges are involved in framing the referendum question and the  question is later challenged in their court, they would hear the case and this  would not only embarrass those Judges" but would offend the rules of natural  justice. The petitioners or plaintiffs would not receive a fair hearing which  is guaranteed to them by article 28 of the Constitution which states:

"28 (1) 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. "

In reply Mr. Kamugisha-Byamusisha submitted that under section 4(2) of  the Act the Minister has no powers to direct the Chief Justice or to control  the Judges appointed to frame the referendum question. There is no room  for ministerial or executive interference. The Judges concerned would deal  with the matter in the same way as they deal with other political issues in  cases that go before them. He argued that even in the instant petition many  of the issues to be determined are of a political nature. Therefore the  participation of Judges in framing the referendum question would not affect  the independence of the judiciary.

As for the right to a fair trial, he thought that the reference to article 28 was  misplaced or even misconceived since section 4(2) deals with the framing of  the referendum and not the trial of cases by courts. He contended that in  any case the point raised is hypothetical and speculative as it is in the future.

At this juncture I find it necessary to set out the provision of section 4 (2) of  the Act. It states:

4.(2) where a referendum is to be held under this section, the Minister  shall refer the matter to the Chief Justice who shall appoint a panel of three  Judges to frame the question in consultation with the sides to the  referendum. "

The Referendum and Other Provisions Act is said to have been made,  pursuant to articles 271; 74(change of political system), 76 ( which requires  Parliament to make laws on public elections and referenda); 255 ( requiring  Parliament to make laws for citizens to demand referenda) and 259 (which  deals with amendments to the Constitution requiring a referendum). Article  271 provides :
"271 (1) Notwithstanding the provisions of article 69 of this  Constitution, the first presidential, parliamentary, local government  and other public elections after the promulgation of this Constitution  shall be held under the movement political system.
(2)	Two years before the expiry of the term of the first Parliament  elected under this Constitution, any person shall be free to  canvass for public support for a political system of his or her  choice for purposes of a referendum.
(3)	During the last month of the fourth year of the term of Parliament  referred to in clause (2) of this article, a referendum shall be held  to determine the political system the people of Uganda wish to  adopt.
(4)	Parliament shall enact laws to give effect to the provisions of this  article ".

It is now necessary to interpret section 4(2) of Act No. 2 of 1999 to find out  whether it places the Chief Justice and the Referendum question Judges  under the executive direction and control of the Minister of Justice and  Constitutional Affairs. The first principle of interpretation is that words  should be given the meaning they ordinarily bear in English, and technical  terms their ordinary meanings in the branch of science, or profession, or  trade in question. The second principle is that words must be read in their  context and given a meaning which makes sense in that context, and makes  sense of the sentence; paragraph or section.   In interpreting statutes there  are various presumptions; one of them is that injustice, inconvenience, or  absurdity is not intended.

I find that section 4(2) is couched in very plain language. It simply states  that where a referendum is to be held, the Minister shall inform the Chief  Justice accordingly and ask or request him to appoint the judges to frame  the referendum question. I cannot agree with Mr. Walubiri that the word  "refer" has the same meaning as "direct". In the Concise Oxford  Dictionary, 8th Edition the word "refer" is defined as :

"commit, hand over (oneself, question for decision) to person etc. "

In the same Dictionary, the word "direct" is defined, inter alia, as;  "control, govern the movements of "

It seems plain to me that the Minister can not direct the Chief Justice. He is  only required to hand the matter over to him. The Chief Justice must then  comply with the law and appoint the Judges. I do not see in section 4(2)  any power for the Minister to direct or control the Judges who are appointed  to frame the referendum question in the course of their business. The  Judges are only allowed to consult the sides to the referendum. It would be  absurd to read into the section a power of ministerial direction and control.

My understanding of article 128(1) is that it protects the independence of  judicial officers in exercise of their judicial powers. It is common  knowledge that in framing the referendum question the judges  would not be exercising a judicial function, which is the adjudication upon  the rights of litigants. Judicial function is done in judicial proceedings, that  is, causes are taken before courts, tribunals or persons, having by law power  to bear, receive and examine evidence given on oath. It follows, in my  judgment, that on a strict interpretation, the protection under Article 128  does not apply to the panel of judges to frame the referendum question. The  judges in question would not be exercising any jurisdiction, that is the  power or authority of a court or judge to entertain an action, petition or  other proceeding and to decide such matters.

I cannot see how the independence of the judiciary, as an institution, can be  affected adversely by the mere participation of three of its judges in a non-  judicial exercise. Instances abound in this country of judges performing  non-judicial functions. For example, the Amnesty Commission established  by section 7 of the Amnesty Act, 2000 and the National Community Service  Committee (established by section 11 of the Community Service Act, 2000)  are chaired by High Court Judges. Under Article 82(5) of the Constitution  the election of Speaker of Parliament is presided over by the Chief Justice  or a Judge designated by the Chief Justice. It seems to me that it is because  of the independence and high reputation the Uganda Judiciary enjoys that its  judges are often called upon to perform those important non-judicial  functions. I think this is healthy. I cannot comprehend the argument that the  judiciary would be vilified by the public as the referendum question is likely  to displease one of the sides to the referendum. Once there are two or more  sides to a question, the answer may not please all of them. By their training  and calling Judges are not supposed to care about who will be hurt or  pleased by the decision taken. All that is required is that the judge should  act impartially.

I turn to the second leg of the first issue, namely, that in the event of a  dispute, the referendum question Judges would be judges in their own  cause and so the complaints would not have a fair trial or hearing. I see no  merit in this rather bizzare contention. In my view it is inconceivable that a  judge would be assigned, let alone take on, a case in which his or her own  decision is challenged, for both common sense and the rules of natural  justice dictate against such a course of action. In any case there is nothing  in section 4(2) of the Act requiring a referendum question judge to entertain,  in his or her court a dispute if any, regarding the question. If there was such  a provision then it would be inconsistent with article 28 of the Constitution.

i now turn to the second issue, whether section. 21 (1) (a) of the Act violates  the petitioner's freedom of speech and expression which is permitted by  article 29 (1) (a) of the Constitution which provides:

"-29. (1) Every person shall have the right to -

(a) freedom of speech and expression, which shall include freedom of the  press and other media; "

The challenged part of section 21 of the Act states thus:
"21. (3) No person shall, during canvassing, print, publish or  distribute, a newspaper, circular or pamphlet containing an article,  report, letter or other matter commenting on any issue relating to the  referendum unless the author's name and address, or the authors'  names and addresses, as the case may be, are set out at the end of the  article, report, letter or other matter or, where part only of the  article, report, letter or matter appears in any issue of a newspaper,  circular, pamphlet or letter, at the end of that part.
(4)	Subject to the following provisions of this section, an agent may  use electronic media for canvassing.
(5)	No person shall, during canvassing, use electronic media to do  any of the following acts against another side or their agent-
		      (a)	making statements which are known by the maker to be false or in  respect of which he or she is reckless whether they are true or  false;
(b)	making malicious statements;
(c)	aking statements containing sectarian words or allusions;
(d)	making abusive or insulting or derogatory statements;
(e)	making exaggerations or using caricatures of the agent or using  words of ridicule;
(f)	using derisive or mudslinging words against a side or their agent;
(g)	juxtaposition of words or statements with any of the effects  described in the foregoing paragraphs;
      (h) using songs, poems and images with any of the effects described  in the foregoing paragraphs.
(6)	The proprietor or operator of electronic media shall not use the  media or allow it to be used to do any of the acts prohibited in  subsections (5) of this section.
(7)	Any person who contravenes any of the provisions of subsections  (2), (3), (5) and (6) of this section commits an offence and is liable  on conviction-
(a)	in the case of an offence under subsection (2) or (3), to a fine not  exceeding fifteen currency points or imprisonment not exceeding  six months or both.
(b)	in any other case to a fine not exceeding twenty five currency  points or imprisonment not exceeding six months or both ".

Mr. Walubiri's complaint is that it is wrong to criminalise the referendum  campaign; that people should be free to write or speak without disclosing  their identity; the press and media should not be obliged to disclose the  identity of the contributors of articles and that in matters political, like the  referendum, people must be free to tell lies, exaggerate, insult and or  ridicule their opponents. It is for the listening or reading public to decide  who to believe or follow. Mr. Walubiri also attacks the provision in section  21(5) as discriminatory in that it targets only the electronic media and not  the other media such as the print media. Finally, he argues that there was no  need to provide for the criminal offences and penalties since laws already  exist to deal with the matters in question. He cited the law on defamation  and sedition as examples. For the state, it was submitted that the restrictions  in question are permitted by article 43(1) of the Constitution which requires  that the enjoyment of the rights and freedoms shall be without prejudice to  the rights and freedoms of other persons or the public interest and that any  limitation in public interest must not go beyond what is acceptable and  demonstrably justifiable in a free and democratic society , or what is  provided in the Constitution. Therefore, it was argued, it is necessary to  know who is speaking or writing in case you have to take him to court for  violating your human rights. It was also argued that the law in question was  necessary to ensure peace and order during the campaigns. With regard to  the special restriction on the electronic media, it was contended that the  provision was necessary because with electronic media, things move so fast  that there may be no time to prevent damage.

I cannot accept the argument that in debates over political matters people  should be given free reign to abuse, ridicule and mudsling others in the  name of free speech and expression. To allow such a situation would  amount to licensing chaos and anarchy. Even in a free and democratic  society, rights and freedoms must not be enjoyed at the expense of other  members of that society. Certainly in political debates there should be some  room for exaggerations and under statements, for as Mr. Walubiri pointed  out, it may not be wise for a politician to praise his opponent while at the  same time trying to defeat him. But that is different from indulging in  offensive conduct which could lead to a breach of the peace. That is why  article 79. (1) of the Constitution empowers Parliament to make laws on any  matter for the peace, order, development and good governance of this  country.
It may well be that the matters covered by section 21 can be dealt with  under other existing laws, but then a repetition or even consolidation of  those laws under the Referendum and Other Provisions Act cannot make the  Act unconstitutional. It can be said that tolerating offensive conduct and  speech is one of the prices to be paid for a reasonably free and open society.  Therefore in my view, the function of the law, and particularly criminal law,  should be to exclude from the range of individual choice those acts which  are incompatible with the maintenance of society and the safety and rights  of its individuals.

In my opinion where there are no constraints on freedom of expression, the  difficulty would arise that one of the objects of upholding free expression -  truth - would be defeated. It is therefore important to regulate or limit the  extent to which this can happen. Article 43 of the Constitution is alive to  this point. I find that the restrictions in section 21 are necessary and  reasonable. Clearly the democracy interest cannot be seen to require that  political activists may make demonstrably untrue and damaging statements  in an attempt to carry favour with the electorate. There cannot be a trade off  between the demands of truth and fair play and the demands of democracy.

Even the European Convention on Human Rights accepts that the right of  free expression carries with it responsibilities, and restrictions on it are  necessary in order to give effect to the responsibilities. Article 10 thereof  states:
"(1) Everyone has the right to freedom of expression. This right shall  include freedom to hold opinions and to receive and impart information and  ideas.

(2) The exercise of these freedoms, since it carries with it duties and  responsibilities, may be subject to such formalities, conditions,  restrictions or penalties as are prescribed by law and necessary in a  democratic society, in the interest of national security, territorial  integrity or public safety, for the prevention of disorder or crime, for the  protection of health or morals, for the protection of the reputation or  rights of others, for preventing the disclosure of information received in  confidence, or for maintaining the authority and impartiality of the  judiciary. "

This is exactly what section 21 above seeks to achieve. It prohibits illegal  and criminal conduct under the cover of anonymity. It prohibits the  electronic media from publishing damaging materials given the nature of  that media. It calls for sober and rational debates during the referendum  campaign. It does not allow for the commission of crimes. I think that is  what freedom and democracy should be about. My understanding of section  21(3) is that it covers only the owners of print media and those who resort to  it to campaign. In view of the above, my answer to the second issue is that  section 21 of the Act is not inconsistent with Article 29 (1) (a) of the  Constitution.
I will now address the last issue, whether sections 4(1) (d); 10; 13 (2) (d)  and 26 of the Act are inconsistent with Article 69 of the Constitution.. The  contention of the petitioners is that the Act does not provide for a free and  fair referendum as is required by Article 69 which states:

"69.(1) The people of Uganda shall have the right to choose and  adopt a political system of their choice through free and fair elections  or referenda.
(2) The political systems referred to in clause (1) of this article  shall include-
(a)	the movement political system;
(b)	the multi-party political system; and
(c)	any other democratic and representative political system ".

According to Mr. Walubiri, since section 4(1) of the Act does not refer to  Article 69, it can only be dealing with a referendum other than that   envisaged by Article 69. Section 4(1) (d) is concerned with a referendum  under article 271 and section 26 of the Act. I cannot agree. Article 69  empowers the people of Uganda to choose and adopt a political system of  their choice through free and fair elections or referenda. Article 271 (2) and  (3) requires that two years before the expiry of the first term of Parliament  elected under the Constitution, Ugandans shall be free to canvass for public  support for a political system of their choice for purposes of a referendum to  be held during the last month of the fourth year of the first term of  Parliament. It is clear to me that both Articles 69 and 271 are about the  choice of a political system which must be held about now. Section 26 of  the Act merely enjoins the Electoral Commission to appoint and publish in  the Gazette the date on which the referendum is to be held. In my view the  referendum must be conducted in a free and fair manner because that is  what Article 69 demands. That Article has to be read with Article 61 which  commands the Electoral Commission, among other things, (a) to ensure that  regular, free and fair elections are held and (b) to organise, conduct and  supervise elections and referenda in accordance with the Constitution.  Clearly the Commission has to conduct referenda in accordance with article  69 of the Constitution. The mere fact that that article is not cited in the  preamble to the Referendum and Other Provisions Act does not and cannot  render the article redundant or inapplicable.

Section 10 of the Act was attacked on two fronts. First, that it permits the  use of the Parliamentary Elections (Interim Provisions) Statute, 1996 with  necessary modifications, yet the Minister concerned has not made the  modifications by Statutory Instrument or otherwise. I find this argument  untenable. The necessary modifications can only be made by court,  according to the requirements of the case before it, in the course of trial. The  Minister has nothing to do with the matter. Secondly, that even if that  Statute could be properly invoked, it does contain unfair provisions. For  example, section 51 thereof prohibits the use of party colours and symbols  during the referendum campaign. According to Mr. Walubiri, if you are  going to campaign for the multiparty political system, then you must come  out in your party colours and symbol for identification purposes. If you are  not allowed to do that then the campaign cannot be fair. I do not see merit in  this argument either.    The forthcoming referendum is not about what  political party should be elected but what political system of governance  should be adopted. If the multiparty political system is adopted then during  the next Parliamentary elections the various political parties will be free to  come out in their individual colours and campaign for election to  government. Political parties cannot engage in active political activities as  that is prohibited by article 269. I think it is because of this constitutional  prohibition that section 13 of the Act was put in place, allowing any person  or group of persons to campaign for their support of his or her or its chosen  political system through a National Referendum Committee or a similar  structure - As the constitution has deactivated political parties, there is no  way the Referendum and Other Provisions Act or the Parliamentary  Elections (Interim)Provisions Statute could reactivate them.

For the foregoing reasons I decline to make the declaration sought. I find  that the challenged laws are not inconsistent with the Constitution. I would  dismiss the petition with costs to the respondent. And so the decision of the  Court is that sections 4(1) and (2); 10; 13 (2) and (3), 21 (3), (4), (5) (6) and  (7); and 26 of the Referendum and Other Provisions Act are not inconsistent  or contravene articles 28, 29 (1) 69 and 128 of the Constitution.

According to majority opinion, the three issues in the petition are answered  in the negative and petition is dismissed with costs to the respondent.
Dated at Kampala this 6th day of June 2000.

S.T. MANYINDO
DEPUTY CHIEF JUSTICE

JUDGMENT OF HON. J.P. BERKO, JA.

The two petitioners, namely Dr. James Rwanyarare and Haji  Badru Kendo Wegulo, in their amended petition, sought a number  of declarations. Following our ruling of 2/5/2000, the following are  the issues left for determination by this court: -

1.	a declaration that the active involvement of the  Judiciary in framing the referendum question  under section 4(2) of the Referendum and Other  Provisions Act. No. 2 of 1999 (hereinafter referred  to simply as the Act.) is inconsistent with and  contravenes articles 28 and 128 of the Constitution.
2.	a declaration that sub-sections (3), (4) (5), (6) and  (7) of section 21 of the Act are inconsistent with  and contravene the provisions of article 29(1)(a) of  the Constitution and are null and void.
3.	a declaration that sections 4(1) (d), 10, 13(2) and (3)  and 26 of the Act are inconsistent with and  contravenes the provisions of article 69 of the  Constitution and are null and void.

With regard to the first issue, it was the contention of Mr.  Walubiri, learned counsel for the petitioners, that section 4(2) of  the Act which authorises the Minister responsible for public  elections and referenda to request the Chief Justice to appoint a  panel of three judges to frame the referendum question in  consultation with the sides to the referendum, is inconsistent with  and contravenes articles 28 and 128 of the Constitution and is  therefore unconstitutional.

The first part of the argument of Mr. Walubiri is that the  section contravenes the right to fair hearing enshrined in article 28  of the Constitution.   His argument was that if the referendum  question framed by the judges was challenged and if the matter  came before the same judges, there could not be a fair hearing as  the judges would be potential witnesses. Besides, as the question  to be framed is a political one, there was bound to be  disagreement between the sides as to the content of the question.  The aggrieved side would accuse the judges and for the same  judges to determine the matter would, in the eyes of the public, be  contrary to the principles of natural justice.

The second part of Mr. Walubiri's argument was that the  section compromises the independence of the Judiciary within the  provisions of article 128 of the Constitution. According to Mr.  Walubiri, the section enjoins the Minister responsible for public  elections and referenda to direct the Chief Justice to appoint  judges to frame the referendum question. The Chief Justice has  no discretion in the matter. The judges are told to consult the  sides and frame the question and they have to do so. The judges  are given time within which to complete the exercise and they have  no right to extend time. The judges would therefore work under  the control of the Minister. They would, as a result, cease to work  independently. They would have lost their judicial independence.

Finally, it was contended by Mr. Walubiri that after framing  the referendum question, those who agree with the question would  be happy; those not in favour would be unhappy and would be  pointing accusing fingers at the judges concerned. The exercise  would have drawn the judges from their true judicial role and put  them in murky political waters.   That, according to Mr. Walubiri,  does not auger well for the constitutional development of the  country.

On behalf of the Attorney General, Mr. Kamugisha -  Byamugisha has contended that section 4(2) of the Act does not  impair the right to a fair hearing and therefore cannot be said to be  inconsistent with article 28 of the Constitution. On the question of  bias in case of dispute arising from the referendum question, Mr.  Kamugisha - Byamugisha has argued that there is no provision for  challenging the referendum question. It is the result of the  referendum that can be challenged by a petition to the High Court  and that petition can be handled by any judge other than the  judges who framed the referendum question. He submitted that  the section does not offend article 28 of the Constitution as there  is no relationship between the section and the article.

With regard to the second leg of Mr. Walubiri's argument  about the section being inconsistent with article 128 of the  Constitution, Mr. Kamugisha Byamugisha has contended that it  has not been pleaded in the petition that the involvement of the  judiciary in framing the referendum question would compromise  the independence of the judiciary and therefore should not be  entertained. In any case, the section, according to counsel, does  not in any way affect the independence of the judiciary. The time  within which the judges are to frame the referendum question is  not fixed and therefore the issue concerning extension of time  does not arise. He contended that the choice of the judges is done  by the Chief Justice. The Minister does not direct the Chief Justice  whom to appoint and once appointed, the judges are not under the  control of the Minister.

According to Mr. Kamugisha Byamugisha this is not the first  time judges have been called upon to perform non-judicial function.  Under section 15(4) of the Local Government Act, 1997, judges  constitute Tribunals to investigate allegations for removal of District  Chairpersons. The carrying out of such assignment does not  undermine the independence of the judiciary.

With regard to involving judges in political matters, Mr.  Kamugisha Byamugisha has contended that judges have  jurisdiction to entertain all matters. The issues raised in the  petition are political matters. Therefore there is nothing wrong in  involving judges in political matters. Accordingly the mere fact  that the referendum question might be political does not make the  section unconstitutional.

He finally argued that the mere fact that all the sides might  not agree with the question the judges would frame, has no effect  on the independence of the judiciary. Judges are appointed to  resolve disputes among parties. In discharging that sacred duty a  judge cannot please both sides.

In reply, Mr. Walubiri has submitted that the Minister  responsible for public elections and referenda is required by  section 30 of the Act to make regulations for carrying into effect  the provisions of the Act and therefore the judges would work

under the Minister. He also submitted that Act itself envisages  disputes and referred to section 22 of the Act.

He contended that the petition was not challenging the  involvement of individual judges in the framing of the referendum  question, but the judiciary as an institution. The Judiciary should  not be involved in political matters. The judges would not be  exercising a judicial function when framing the question and  therefore would not be bound by the rules of natural justice.  Besides the question so framed cannot be challenged until after  the referendum.

He contended finally that the role of judges under section  15(4) of the Local Government Act is to find whether or not a prima  facie case for removal of Chairperson has been made. That,  according to Mr. Walubiri, is a quasi - judicial function. The same  cannot be said about the framing of a referendum question.

To resolve the first issue, I propose to set out the alleged  offending provisions of the Act and the relevant provisions of the  Constitution said to have been contravened. Section 4(1) of the  Act sets out the circumstances in which referenda can be held.

Section 4(2) provides:

"4(2) Where a referendum is to be held under this  section, the Minister shall refer the matter to the  Chief Justice who shall appoint a panel of three  judges to frame the question in consultation with  the sides to the referendum.
4(3) Any question submitted to a referendum  under this section shall be framed so as to enable  the voters to make a choice.
4(4) In a referendum the voting may be on one  question or on a series of questions".

The relevant part of article 28(1) provides:

"In the determination of civil rights and obligations  ....a person shall be entitled to a fair, speedy and  public hearing before an independent and impartial  court or tribunal established by law".

The relevant part of article 128 of the Constitution provides:

"128(1) In the exercise of judicial power, the court  shall be independent and shall not be subject to  the control and direction of any person or  authority.

(2) No person or authority shall interfere with the  courts or judicial officers in the exercise of  their judicial functions ".

With due respect to, I do not accept Mr. Walubiri's argument that  the framing of the referendum question by a panel of three judges  means that the whole institution of the judiciary is involved in the  exercise. The framing of the question will be the act of the three  judges concerned and they take responsibility for their action.

There is no provision under the act for challenging the  question the judges would frame. Their action can only be  challenged either directly or indirectly when a registered voter is  challenging the results of the referendum. That can be done under  section 22 of the Act by a petition to the High Court. Only one of  the three judges who have been appointed to frame the  referendum question is a judge of the High Court. That means  that apart from that particular judge, the other judges of the High  Court can hear and determine any petition challenging the results  of the referendum. A person aggrieved by the decision of the High  Court on hearing a petition under section 22 of the Act, can  appeal to the Court of Appeal. There are eight justices of the  Court of Appeal. Only one of them was involved in the framing of  the referendum question. The remaining seven can hear and  determine any such appeal. Every judge knows that he has to  disqualify himself in any matter in which his impartiality might  reasonably be questioned. Therefore the remaining judges of the  High Court and Justices of the Court of Appeal cannot be said to  be judges in their own cause. In my view, the section does not  contravene article 28 of the Constitution.

With regard to the section alleged to compromise the  independence of the Judiciary, my view is that the argument of Mr.  Walubiri did not have regard to the provisions of article 128 of the  Constitution. The article is concerned with the exercise of judicial  power or function. He agrees that the framing of the referendum  question is not a judicial function. It is therefore wrong to argue  that the framing of the referendum question would compromise the  independence of the Judiciary, as the judges concerned would not  be exercising a judicial function. Accordingly, the section does not  contravene article 128 of the Constitution.

It was contended in paragraph 14 of the petition that sub-  sections (3)(4)(5)(6) and (7) of the section 21 of Act are  inconsistent with and contravene article 29(1) a of the  Constitution. To appreciate the arguments of counsel, it would be  appropriate to reproduce the relevant provisions of section 21 of  the Act and article 29(1) a of the Constitution.

Section 21 provides:-

"(1) Agents of each side shall be given equal access to  and opportunity to use State-owned  communication media.

(2) Subject to any other law, while canvassing, any -  agent may, either alone or in common with others,  publish canvassing materials in the form of books,  booklets, pamphlets, leaflets, magazines,  newspapers or posters intended to solicit votes  from voters but shall, in any such publication,  specify particulars to identify the agent or agents  concerned.
	(3)	No person shall, during canvassing, print publish or
distribute, a newspaper, circular.	 containing
an article commenting on any issue relating to the  referendum unless the author's name and address  are set out at the end of the article	
(4)	Subject to the following provisions of this section,  an agent may use electronic media for canvassing.
(5)	No person shall, during canvassing, use electronic  media to do any of the following acts against  another side or their agent:-

(a)	making statements which are known by  the maker to be false or in respect of  which he or she is reckless whether they  are true or false;
(b)	making malicious statements;
(c)	making statements containing sectarian  words or allusions;
(d)	making abusive or insulting or  derogatory statements;
(e)	making exaggerations or using  caricatures of agents or using words of  ridicule;
(f)	using derisive or mudslinging words  against a side or their agents.
(g)	Juxtaposition of words or statements  with any of the effects described in the  foregoing paragraphs;
(h)	using songs, poems, and images with  any of the effects described in the  foregoing paragraphs.
(6)	The proprietor or operator of electronic media shall  not use the media or allow it to be used to do any  of the acts prohibited in subsection (5) of this  section.
(7)	Any person who contravenes any of the provisions  of subsections (2), (3), (5) and (6) of this section  commits an offence and is liable on conviction:-

(a)	in the case of an offence under  subsection (2) or (3) to a _ fine not  exceeding fifteen currency points or  imprisonment not exceeding three  months or both; and
(b)	in any other case to a fine not exceeding  twenty five currency points or  imprisonment not exceeding six months  or both.

(8)	In this section electronic media includes television,  radio, internet and email and any other similar  medium."
Article 29(1) provides. "Every person shall have the right to:-
(a) freedom of speech and expression,  which shall include freedom of the  press and other media".

The argument of the petitioners is that the effect of the  provisions subsection (3) of section 21 is that you cannot, when  canvassing print, publish or distribute a newspaper on any issues  relating to the referendum without disclosing your identity.  According to Mr. Walubiri there are many reasons why people may  wish to publish articles without disclosing their names. He cited,  for example, religious leaders, who, for fear of dividing their  followers, might want to publish articles without disclosing their  identities. Judges should be able to express views on political  matters without disclosing their identities. It was contended that  the requirement to disclose name and address infringes the  provisions of article 29(1)(a) which guarantees freedom of speech  and expression and it is therefore unconstitutional. It was further  contended that the provisions of subsection 5 is discriminatory as  it affects only electronic media and not other media. It also  contravenes freedom of the press and other media.

According to Mr. Walubiri referendum issues are political  matters. Therefore it is difficult to say with precision that the  statement you are making relating to the referendum is false,  derogatory or insulting to your opponent. There are many  variables in political debate and therefore if you criminalise debate,  then you are stifling political mind. It was contended that in a  democratic society the public is entitled to hear all sides of the  debate and make up its mind. According to Mr. Walubiri there are  laws on the statute books dealing with sedition, defamation, and  other kindled offences and so there is no need to add more  criminal offences that have even not been defined.

On behalf of the Attorney General Mr. Kamugisha  Byamugisha has contended that section 21 of the Act is in the  spirit of article 43 of the Constitution which provides that in the  enjoyment of rights and freedoms under the Constitution, no  person shall prejudice the fundamental rights and freedom of  others or the public interest. He argued that Parliament has power  under article 79 of the Constitution to make laws on any matter for  the peace, order, development and good governance of the  country. The Act was made under that article. He contended that  if agents of sides are allowed to do any of the acts prohibited under  sub-section (5). against another side or the agent during the  referendum campaign, there would be breach of peace. He found  nothing wrong in grouping the various offences under the Act.

According to Mr. Kamugisha - Byamugisha, the reason for  making special provision for electronic media is that that medium is  instantaneous. In his view subsection 7 only gives a right to an  aggrieved party to seek redress if his rights are infringed.
He finally submitted that article 29 should be read together  with article 43. If that was done, it would be found that subsections  3, 5, 6 and 7 of section 21 do not contravene article 29(1) a of the  Constitution.

Though paragraph 14 of the petition referred to section 21  subsections (3), (4), (5) (6) and (7) of the Act, we were not  addressed on subsections (4) and (6). Mr. Walubiri addressed us  on subsections (3), (5) and (7) only.

What subsection (3) requires is that if during canvassing in  the referendum a person wishes to print, publish or distribute a  newspaper, circular or pamphlet containing an article commenting  on any issue relating to the referendum, the author of the article  must give his name and address. The intention really is to know  the identity of the individual responsible for the publication and to  discourage anonymous publication. This requirement affects only  printed materials. It does not affect whatever is said orally at  campaign rallies. In my humble view, I do not see how such a  -requirement affects freedom of speech.. It is only those with  sinister motive or have something to hide who would fear to  disclose their identity. Judges are prevented by their code of  conduct from engaging in political activities. Therefore any judge  who engages in such activities either overtly or covertly would be  contravening the Judicial code of conduct. That example is with  respect, therefore not apt. I find it rather remarkable that the  petitioners have no quarrel with subsection (2) of section 21 which  also requires agents to identify themselves in publications intended to solicit votes from voters, as if that also does not affect freedom  of speech and expression.

I find nothing wrong with sub-sections (5) and (7). As Mr.  Walubiri rightly said there are already laws on the statute book  dealing with the prohibited matters and therefore I find nothing  wrong in collecting them from the various statutes and re-enacting  them in the Act, so that those who would be involved in the  referendum exercise would easily know what they are permitted to  do and what they cannot do.

It is generally accepted that politics is a dirty game. But  there are limits one can go. The intention of sub-section (5) is to  define those limits and to prevent intemperate language and  mudslinging beyond what is acceptable and demonstratively  justifiable in a free and democratic society, it would be the  responsibility of the courts to determine what has to be proved to  sustain a conviction in a prosecution under sub-section (7) of the  Act. Accordingly I do not agree that subsections 21(3) (5) and (7)  of section 21 of the Act are inconsistent with and contravene  article 29(1)(a) of the Constitution.	

The third and the last issue is that sections 4(1)(d), 10, 13(2)  and (3) and 26 of the Act are inconsistent with and contravene  article 69 of the Constitution. This is the subject of the prayer in  paragraph 20(f). The complaint of the petitioners is that the above  sections of the Act do not provide for a free and a fair referendum.  For example subsection (d) cites article 271 of the Constitution  under which a referendum can be held.   The section does not  include article 69 that deals with a free and fair referendum and so  we might have a referendum that would not be free and fair. That  would not be a referendum envisaged by article 69 of the  Constitution.

Again section 10 of the Act has introduced Parliamentary  Elections (Interim Provisions) Statute 1996, Statute No. 4, as part  of the laws to govern a referendum. According to Mr. Walubiri  Statute No. 4 contain unfair provisions. He referred, in particular,  to section 51(1) which prohibits the use of political party colours or  symbols in a campaign. Sub-section (2) makes it an offence to  use political party colour or symbol in a campaign. He contended  that during the campaign in the referendum, each party should be  at liberty to use its colours and symbols. That is the only way you  can choose a multi-party system.

He also referred to section 50(2) and (3) which makes it an  offence to publish campaign materials without the name and  address of the author. He further referred to section 13 sub-  sections (2) and (3) of the Act which recognise National  Referendum Committees as the only medium for organising a  referendum campaign. According to him that would be possible as  far as the movement system is concerned because it has a  Movement Act under which it could constitute its National  Referendum Committees. The same cannot be said of the  different political parties which are not allowed to function and  therefore cannot form National Referendum Committees.  Consequently, a referendum held in such circumstances cannot be  free and fair.
He finally referred to section 26 which authorises the  Electoral Commission to appoint a date for the holding of a  referendum under article 271(3) of the Constitution. It was  contended by Mr. Walubiri that as the words "free and fair" are  not mentioned in article 271(3) a referendum held on a date  appointed under section 26, where only one side is facilitated,  would not be free and fair. That would be against the spirit of  article 69 of the Constitution and would be unconstitutional. He  therefore invited us to hold that sections 4(1)(d), 10, 13(2) and (3)  and 26 of the Act are consistent with and contravene article 69 of  the Constitution.

For the Attorney General, Mr. Kamugisha - Byamugisha has  contended section 4(1)(d) of the Act gives effect to article 271 of  the Constitution and section 26 of the Act and has argued that  failure to mention article 69 of the Constitution in section 4(1)(d)  does not mean that article 69 of the Constitution, which makes  provision for the choice of political system, should not be obeyed.  The first parliamentary election was held under article 271(1) of the  Constitution. The choice of a political system through a  referendum is provided for by clause (3) of article 271 which  should be read together with article 69. Article 61(a) enjoins the  Electoral Commission to ensure that regular, free and fair elections  are held. Section 5(1) of the Act requires the Electoral  Commission to conduct all referenda under the Act or any other  written law. Article 69 is part of the written law and accordingly the  Electoral commission is obliged to follow its provisions.   It follows  that the failure to mention article 69 in section 4(1)(d) of the Act  would not make the referendum held under it free and fair.

With regard to section 10(2) of the Act, it was the contention  of Mr. Kamugisha - Byamugisha that Statute No. 4 of 1996 was  put in to cater for electoral provisions that are not provided for in  the Act. For example, national register of voters' register and  voters' rolls, the appointment of returning officers and other  election officers, voting and voting procedures, ballot papers,  counting of votes and announcement of results. These matters  are not provided for in the Act.

According to Mr. Kamugisha Byamugisha, section 50(2) and  (3) of Statute 4 is irrelevant as it apply to candidates in  Parliamentary elections. Section 51 of the Statute 4 cannot apply-  to a referendum as its provision's have been taken care of in  section 6(2) of the Act which authorises the Electoral Commission,  in consultation with the sides, to select symbols which shall be  used on ballot papers in a referendum. The relevant symbols have  already been selected and gazetted. The symbol for the  Movement political system is a Bus and that for the Multi-party  political system is a Dove.

Mr. Kamugisha Byamugisha concedes that under sub-  section (2) and (3) only National Referendum committees are the  only medium for organising referendum campaign. He, however,  did not find anything wrong with that as those in favour of the  movement political system and those for the multi-party political  system have National Referendum Committees.   In his view, the  sub-sections do not prohibit political parties from canvassing as the  Act gives a right to every person or group of persons to campaign  in the referendum. According to him nothing prevents the main  stream political parties from joining those advocating for multi-party  political system and campaigning for that system. Consequently,  sub-sections (2) and (3) of section 13 are not inconsistent with  article 69 of the Constitution.

With regard to the argument of the petitioners that their party  is not funded, it was the contended by Mr. Byamugisha that that  argument was not true as both the Movement Political system and  Multi-party system are facilitated. In any event, such complaint  should come from the National Referendum Committee of the  multi-party side and not the petitioners.

Mr. Kamugisha-Byamugisha finally submitted that section 26  of the Act is not inconsistent with article 69 of the Constitution as it  merely sets the date for the holding of the referendum.

He prayed that the declaration sought in 20(f) should be  rejected. He finally prayed for the dismissal of the petition with  costs to the Attorney General.

With regard to the argument that a referendum held under  section 4(1 )(d) of the Act would not be free and fair as the section  failed to mention article 69 of the Constitution, I do not agree that  the mere omission of the article would prevent the Electoral  Commission from holding a free and fair referendum. In the first  place, article 61(a) of the Constitution obliges the Electoral Commission to ensure that a regular, free and fair elections are  held. I agree that the above provision deals with parliamentary  election and not a referendum. However article 61(b) requires the  Electoral Commission "to organise, conduct, and supervise  elections and referenda in accordance with this Constitution".  It follows that the Electoral Commission has to take cognisance of  the provisions of article 61(a) when conducting referenda and to  ensure that they are free and fair. Secondly, section 5(1) of the  Act gives authority to the Electoral Commission "to organise,  conduct and supervise all referenda under the Act or any  other written law". Article 69 of the Constitution is part of the  written law. Consequently, the commission cannot hold a  referendum without regard to its provisions. Therefore the  argument of Mr. Walubiri concerning section 4(1)(d) of the Act is,  with due respect, not tenable.

I agree with the argument of Mr. Kamugisha Byamugisha  that section 10(2) of the Act has made the provisions of the  Parliamentary Elections (Interim Provisions) Statute 1996,  applicable to a referendum as they apply to elections with  modification to cater for those electoral processes that are not  provided for in the Act. The prohibition of the use of party colours  and symbols under section 51(1) of Statute 4 applied to the first  Parliamentary elections held under article 271(1) of the  Constitution. The referendum to choose a political system is under  clause 3 of article 271. That section cannot apply in view of the  provisions of section 6(2) of the Act which has made provisions for  the symbols to be used on ballot papers in the referendum. The  symbols for both sides that have been selected and gazetted. The  arguments under section 50(2) and (3) of Statute No. 4 of 1996  have been covered under issue No. 2. I find it unnecessary to  repeat what I had said.

There is no dispute that under section 13 subsections (2)  and (3) of the Act each side may form a referendum committee  and it is the duty of the National Referendum Committee to  organise the canvassing for its side. It is also true the movement  political system has in place the Movement Act, 1997 that has  created the organs under the movement political system and  defined their roles Consequently it is easy for those in favour of  the movement political system to form a National Referendum  Committees. The same cannot be said of multi-party advocates  as the political parties are not under one umbrella. Even though  the activities of political organisations are put on hold by article 269  of the Constitution they have not been proscribed. Article 270 of  the Constitution has preserved political parties or organisations,  like that of the petitioners, that existed immediately before the  coming into force of the constitution and they can operate in  conformity within the provisions of the Constitution. The  referendum exercise to determine the political system the people  of Uganda wish to adopt is within the provisions of the Constitution.  Therefore political parties or organisations that advocate for a mult-  party political system can organise and form national referendum  committees to canvass during the referendum. It is common  knowledge that the muti-party political system adherents have  done so and are in fact being funded by the Electoral Commission.  In politics it is organisation and not what one perceives as  obnoxious laws that decides, otherwise the Republic of South Africa would still be under the yoke of apartheid. I therefore do not  see any merit in the argument of Mr. Walubiri regarding section  13(2) and (3) of the Act.

Section 26 of the Act has been covered in my holding on  section 4(1) (d). In the result I find that sections 4(1)(a), 10, 13(2)  and (3) and 26 of the Act are not inconsistent with and do not contravene article 69 of the Constitution.

In the result I would dismiss the petition with costs to the  respondent as the motivation for the litigation was obviously  political.

Dated at Kampala this 6th day of June 2000.

J.P. Berko  
Justice of Appeal

JUDGMENT OF ENGWAU, JA.	

The petitioners are leaders of a political party known as  Uganda Peoples Congress (UPC). They brought this petition  against the Attorney General because they are opposed to the  holding of the referendum on political system scheduled in June  this year. When the petition came up for hearing several  objections were raised by both sides. The petitioners complained  that the Attorney General's Answer to the petition was time-barred.  On the other hand, the Attorney General said that the petition (i)  was time-barred, (ii) was lacking affidavit evidence and (iii) did not  raise any matter requiring interpretation of the Constitution.

The above objections were overruled except the one relating  to jurisdiction. The declarations sought are in paragraph 20(c);  (e) and (f) of the petition.

Paragraph 20(c) reads:
"A declaration that the active  involvement of the judiciary in framing the  referendum question under section 4(2) of the  Referendum and Other Provisions Act No. 2  of 1999 is inconsistent with and contravenes  articles 28 and 128 of the Constitution."
Paragraph 20(e) reads:
"A declaration that section 21(3) (4) (5)  (6) and (7) of the Referendum and Other  Provisions Act No. 2 of 1999 is inconsistent,  with and contravenes the provisions of article  29(1)(a) of the Constitution and null and  void."
Paragraph 20(f) reads:
"A declaration that sections 4(1)(d); 10;  13(2) and (3) and 26 of the Referendum and  Other Provisions Act No. 2 of 1999 are  inconsistent   with    and    contravene    the

provisions of article 69 of the Constitution  and are null and void."

On the first issue, the petitioners are contending that section  4(2) of the Referendum and Other Provisi9ons Act is inconsistent  with and contravenes articles 28 and 128 of the 1995 Constitution.

Section 4(2) provides:

"Where a referendum is to be held under this  section, the Minister shall refer the matter to the  Chief Justice who shall appoint a panel of three  Judges to frame the question in consultation with  the sides to the referendum."

Article 28		(1) provides:	.

"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."

Article 12		8(1) provides:

"In the exercise of judicial power, the courts  shall be independent and shall not be subjected to  the control or direction of any person or authority".
	(2)	No person or authority shall interfere with the courts or judicial officers in the exercise of  their judicial functions."

The petitioners contend that the involvement of the judiciary  in framing the referendum question under section 4(2) of the Act, is  inconsistent with and contravenes articles 28 and 128 of the  Constitution and repugnant to the principles of independence of  the judiciary and separation of powers. Mr. Walubiri, learned  counsel for the petitioners, submitted that under article 28(1), a  person is entitled to a fair and speedy trial by a competent court,  but if judges are involved in framing a referendum question and  there arises a complaint subsequently about the process of  framing questions before the same judges, there cannot be a fair  hearing because those judges would be either potential witnesses  or potential accused persons.

Learned counsel also submitted that a referendum question  is a political question which one side might disagree with its  content. The side which will not agree will inevitably blame the;  judiciary, as an institution. In his view, even if different judges are  appointed to hear a dispute arising from the referendum, that in  itself would not, in the eyes of the public, be seen to be fair  because those judges equally belong to the judiciary as an  institution. The petitioners would not receive a fair hearing as  envisaged by article 28 of the Constitution,

As regards article 128(1) of the Constitution, Mr. Walubiri  submitted that in the exercise of judicial power, courts are  supposed to be independent and shall not be subject to the control  or direction of any person or authority. The danger however in  section 4(2) of the Act is that it compromises the independence of  the judiciary. According to counsel, the Minister responsible for the  referendum directs the Chief Justice to appoint a panel of three  judges. The Chief Justice has no discretion, he has to appoint  such judges. The judges so appointed have to frame questions.  They have no choice over the matter. After consultation with the  sides to the referendum, the judges are to complete the exercise  within a given time. Even if they needed more time, the judges  really have no choice and they must complete the exercise without  any right to extend time. It follows therefore that the Chief Justice  and the judges so appointed are under the control of the Minister  which means that they cease to act independently. They are now  under the control of the Executive. They will have been drawn  away from their independent judicial role to the murky waters of  politics which is not good for constitutional development in this  country. If the judiciary merged with the Executive that would  offend article 128 of the Constitution,

Mr. Byamugisha-Kamugisha for Attorney General submitted  that section 4(2) of the Act does not contravene articles 28 and  128 of the Constitution. He contended that the section talks about  holding a referendum which does not in any way impair the right to  a fair hearing enshrined in article 28 or the independence of the  judiciary guaranteed by article 128. The section therefore is not  unconstitutional. Learned counsel argued that in paragraphs 14  and 19 of the petitioners' affidavits respectively, it is alleged that  the petitioners fear that the Chief Justice will appoint a panel of  judges and that would be inconsistent with and contravene articles  28 and 128 of the Constitution. But the affidavits do not show in  what way the appointment of judges would contravene the  Constitution. Therefore the petition lacks supporting evidence.

Mr. Byamugisha submitted further that the section merely  requires the Minister to refer the matter to the Chief Justice who in  turn appoints judges. It does not empower the Minister to direct  the Chief Justice to do so and it is not true that the Chief Justice  has no choice over the matter. The section allows judges to frame  the question in consultation with the sides to the referendum. After  consultations, the judges have free mind to frame questions  without having directives from the Executive on the matter. In the  event of any dispute over the framing of referendum questions,  different judges would handle the matter. In any case, involvement  of the judges in framing questions is not pleaded in the petition and  not alluded to in the affidavits. Therefore, it is an extraneous  matter which cannot be accepted outside the pleadings.

Be that as it may, Mr. Byamugisha submitted that the  jurisdiction of judges is unlimited and therefore framing questions  of a political nature does not erode the independence of the  judiciary. This is not the first time judges have been called upon to  carry special duties outside court rooms. It should not be seen as  a merger between the Judiciary and the Executive nor should it be  seen as an erosion of the independence of the judiciary. The  section does not undermine article 28 of the Constitution which  talks about a fair and speedy trial of a person before a competent  court nor does it offend article 128 which talks about the  independence of the judiciary as envisaged therein. There is  therefore no evidence to show that the judiciary will be  compromised when judges are asked to frame the referendum  question.

The involvement of the judiciary, as far as I am concerned, in  framing the referendum question under section 4(2) of the Act, is  per se not inconsistent with and does not contravene articles 28  and 128 of the Constitution. The section calls upon the Minister  responsible for public elections or referenda to refer the matter to  the Chief Justice who shall appoint a panel of three judges to  frame the question in consultation with the sides to the  referendum. This is a special duty outside court rooms distinct  from a judicial function vested upon the judges. The Minister only  refers the matter to the Chief Justice. He does not direct the Chief  Justice to appoint such judges. The judges so appointed are the  choice of the Chief Justice. They frame a referendum question in  consultation with the sides to the referendum. In the event of any  complaint in respect of the process of framing the question,  different judges shall be appointed to handle the matter. This does  not, in my view, affect in any way a fair and speedy trial of a  person by a competent court as envisaged by article 28 of the  Constitution nor does it erode the independence of the judiciary as  an institution under article 128. The principle of natural justice  does not permit the judges who framed the referendum question to  be judges in their own cause. Therefore, the section in question  does not offend articles 28 and 128 of the Constitution.
On the second issue, the petitioners contend that section  21(3) (4)(5)(6) and (7) of the Referendum and Other Provisions Act  No. 2 of 1999 is inconsistent with and contravenes article 29(1)(a)  of the Constitution.
Section 21(3) provides:
No person shall, during canvassing, print,  publish or distribute, a newspaper, circular or  pamphlet containing an article, report, letter or  other matter commenting on any issue relating to  the referendum unless the author's name and  address, or the authors' names and addresses, as  the case may be, are set out at the end of the  article, report, letter or other matter appears in any  issue of a newspaper, circular, pamphlet or letter,  at the end of that part.
(4)	Subject to the following provisions of this  section, an agent may use electronic media  for canvassing.
(5)	No person shall, during canvassing, use  electronic media to do any of the following  acts against another side or their agent:-
(a)	making statements which are known by  the maker to be false or in respect of  which he or she is reckless whether they  are true or false;
(b)	making malicious statements;
(a)	
(c)	making statements containing sectarian  words or allusions;
(d)	making abusive or insulting or  derogatory statements;
(e)	making exaggerations or using  caricatures of the agent or using words  of ridicule;
(f)	using derisive or mudslinging words  against a side or their agent;
(g)	justaposition of words or statements  with any of the effects described in the  foregoing paragraphs;
(h)	using songs, poems and images with  any of the effects described in the  foregoing paragraphs.
(6)	The proprietor or operator of electronic media  shall not use the media or allow it to be used  to do any of the acts prohibited in  subsections (5) of this section.
(7)	Any person who contravenes any of the  provisions of subsections (2), (3), (5), and (6)  of this section commits an offence and is  liable on conviction:-
(a) in the case of an offence under  subsection (2) or (3), to a fine not  exceeding fifteen currency points or  imprisonment not exceeding three  months or both; and

(b)   in any other case to a fine not exceeding  twenty    five    currency    points    or  imprisonment not exceeding six months  or both.  Article 29(1)(a) provides:-
"Every person shall have the right to freedom of  speech and expression, which shall include freedom of  the press and other media;

Mr. Walubiri submitted that the offending section 21(3)  requires that any person who during canvassing, prints, publishes  or distributes, a newspaper, circular or pamphlet containing an  article, report, letter or other matter commenting on any issue  relating to the referendum, must have his name and address  published in the same article. Learned counsel contended that it is  -a criminal offence under section 21(7) to publish such matter  without the author's name and address and the penalty is a fine or  an imprisonment or both. In counsel's view this means that you  cannot publish anonymously. You have either to keep quiet or  disclose your name and address. He submitted that there are  reasons why some people do not want their identities disclosed, for  example, a church leader who does not like to see his followers  divided; a judge may wish to express his view on a political matter  without disclosing his name; a civil servant may wish to be  anonymous for fear of loosing his job. It was contended that the  requirement to disclose name and address violates article 29(1)(a)  which guarantees freedom of speech and expression. Therefore, it  is unconstitutional.

Mr. Walubiri contended further that section 21 (5) of the Act is  discriminatory because it affects the electronic media and not other  media. He contended that all these restrictions are not only vague  but also contravene the freedom of speech and expression and the  freedom of the press and media as envisaged by article 29(1)(a) of  the Constitution.

Mr. Walubiri submitted that issues pertaining to the  referendum are political matters. The restrictions imposed by the  offending section ignores the fact that the debate about the  referendum should not be treated with mathematical precision but  rather as a political debate. In political matters it is difficult to say  with precision that a statement is false or exaggerated or  derogatory or insulting. Whether a statement is said to be true,  false, insulting or derogatory depends on which side you take.  According to counsel, if you criminalise a debate then you are-  stifling freedom of speech and expression. There should be  freedom of public debate so that people can be free to hear the  truth and make their minds on issues being debated. It is the  public however which eventually determines whether a statement  is true or false and whether it is exaggerated or not. Laws relating  to sedition, libel and defamation are in place. Therefore, there is  no need to enact more criminal offences under the Referendum  and Other Provisions Act. Accordingly, section 21 (3)(4)(5)(6) and  (7) offends article 29(1)(a) of the Constitution.

Mr. Byamugisha-Kamugisha does not agree. He submitted  that section 21(3) up to (7) of the Referendum and Other  Provisions Act does not stop any person from expressing himself

11
except that your identity must be known. The section was enacted  in line with the spirit of article 43 of the Constitution which provides:

43(1). "In the enjoyment of the rights and freedoms  prescribed in this chapter, no person shall  prejudice the fundamental or other human rights  and freedoms of others or the public."

According to counsel, under article 79 of the Constitution,  Parliament can make a law to promote peace and development to  avoid anarchy in the country. The restrictions imposed under  section 21 (5) of the Referendum and Other Provisions Act are  incorporated from article 43 of the Constitution. The section is not  discriminatory at all against the media. Counsel submitted that  even if libel and sedition laws are in place, but the laws here are  for the purposes of holding a referendum. Therefore, Church  leaders, Judges and civil servants who would like to publish any  article in respect of the referendum, are free to do so provided they  make their identity known so that courts can give an aggrieved  person redress under section 21 (7).     

Mr. Byamugisha submitted further that under article 271(2) of  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.

Article 271(1) provides:
"Notwithstanding   the   provisions   of  article  69  of this  Constitution,   the first
presidential, parliamentary, local government  and other public elections after the  promulgation of this Constitution shall be  held under the movement political system.
(2)	Two years before the expiry of the term of the  first Parliament elected under this  Constitution, any person shall be free to  canvass for public support for a political  system of his or her choice for purposes of a  referendum.
(3)	During the last month of the fourth year of the  term of Parliament referred to in clause (2) of  this article, a referendum shall be held to  determine the political system the people of  Uganda wish to adopt.
(4)	Parliament shall enact laws to give effect to  the provisions of this article."
The Referendum and Other Provisions Act was enacted persuant  to the provision in article 271(1) of the Constitution. Counsel  submitted that article 29 should be read together with article 43 of  the Constitution. In his view, it is not true that the debate is being  criminalised but rather that it should be conducted in a sober  manner without stepping on the toes of one's opponent. He  submitted therefore that section 21(3)(4)(5)(6) and (7) complained  of does not violate article 29(1)(a) of the Constitution in any way.

I cannot accept Mr. Walubiri's argument that people debating  political matters should be free to abuse, mudsling and ridicule  their opponents under the guise of freedom of speech and  expression. Certainly this would create chaos and anarchy.  Article 79(1) gives Parliament power to enact laws for the sake of  peace, order, development and good governance in Uganda.  Unless a printer or a publisher of an article or pamphlet has a  sinister motive, I do not see anything wrong for his or her identity to  be made known.

In any game, there must be fair play and this can be  achieved through following the rules of the game. In my view,  insulting or mudslinging statements cannot achieve fair play during  the referendum campaigns. In fact under section 21(2) of the  Referendum and Other Provisions Act, it is provided that:

21 (2). "Subject to any other law, while canvassing,  any agent may, either alone or in common  with others, public canvassing materials in  the form of books, booklets, pamphlets,  leaflets, magazines, newspapers or posters  intended to solicit votes from voters but  shall, in any such publication, specify  particulars to identify the agent or agents  concerned."

Clearly, the section permits any agent, either alone or in  common with others, to publish canvassing materials including  books, booklets, pamphlets e.t.c. for the purposes of soliciting  votes from voters provided the identity of the agent or agents  concerned are published. I do not see why the petitioners never complained about the above section. Therefore, section  21(3)(4)(5)(6) and (7) of the Act, in my view, does not violate article  29(1)(a) of the Constitution because there is freedom of speech  and expression and the freedom of the press and media allowed to  the extent that you do not step on the toes of your opponent.

On the third and final issue, the petitioners contend that  sections4(1)(d); 10; 13(2)(3) and 26 of the Referendum and Other  Provisions Act are inconsistent with and contravene article 69 of  the Constitution.
Section 4(1)(d) reads: to give effect to article 271 of the  Constitution and section 26 of this act; and  Section 10(2) reads: The Parliamentary Elections (Interim  Provisions), Statute, 1996 and any  amendment to it or any enactment replacing  it, shall, with necessary modifications and  so far as may be necessary and practical,  apply to a referendum as it applies to an  election.,

Section 13(2) reads: For purposes of the referendum  under clause (3) of article 271 of the  Constitution the side shall consist of  individuals and organised groups who  subscribe to the multiparty system or the  movement system, or to any other political  system as the case may be.  (3) The individuals and groups subscribing to  the political systems referred to in  subsection (2) shall, in respect of each  political system to which they subscribe,  establish a national referendum committee  consisting of not more than twenty  members and submit the details of the  committee to the Commission by such date  as the commission shall prescribe; and Section 26(1) reads:      The Commission shall, for the purposes of clause (3) of article 271 of the  Constitution, appoint and publish in the  Gazette, a date falling within the period 3rd  day of June to 2nd July in the year 2000 on  which a referendum shall be held to  determine the political system that the  people of Uganda wish to adopt.
(2)	The notice appointing the date shall state the  issue on which the referendum is to be held.
(3)	The   Commission   shall   provide   for   the referendum to be held everywhere on the  same day in the whole of Uganda unless it  is impracticable so to do; and in that case,  the referendum may be held on different  dates in different places as is practicable.  (4) On and after the 2nd day of July, 1999 any  person shall be free to canvass for public  support for a political system of his or her  choice for the purpose of a referendum  under this section.

Article 69 provides:-
(2)
The people of Uganda shall have the right  to choose and adopt a political system of  their choice through free and fair  elections or referenda.  The political systems referred to in clause  (1) of this article shall include:-
(a)	the movement political system;
(b)	the multi-party political system;  and
(c)	any     other    democratic     and  representative political system.

The gist of the complaint is that the Act does not provide for  a free and fair referendum as envisaged by article 69. Therefore,  as article 69 was not mentioned the elections will not be free and  fair.

Mr. Byamugisha-Kamugisha does not agree. He submitted  that section 4(1)(d) gives effect to article 271 of the Constitution  and section 26 of the Act. The section does not offend article 69  which calls for a free and fair referendum because article 271(1)  provides for a referendum under the movement political system.  Under article 61 (a), the Electoral Commission must ensure that the  elections are free and fair. Under section 5(1) of the Act, the  Electoral Commission is under duty to hold a referendum in  accordance with the law in force. Mr. Kamugisha submitted that  there should therefore be no fear on the part of the petitioners.
The people of Uganda have a right under article 69 of the  Constitution to choose and adopt a political system of their choice  through free and fair elections or referenda. Failure to cite article  69 in the Act, in my view, does not mean that the referendum will  not be free and fair or unconstitutional. It is my considered view  that that argument cannot stand in view of article 76 of the  Constitution which incorporates article 69. Article 76 reads:-

"Parliament may, subject to the provisions of this  Constitution, enact such laws as may be necessary for the  purposes of this Chapter, including laws for the registration of  voters, the conduct of public elections and referenda and,  where necessary, making provision for voting by proxy.

As regards section 10(2) of the Act, Mr. Walubiri submitted  that it applies The Parliamentary Elections (Interim Provisions)  Statute, No. 4 of 1996 which contains unfair provisions. For  example, section 51(1) thereof restricts the use of party colour or  symbol during the campaign. He submitted that in order to  campaign effectively for a multi-party political system, the parties  supporting that system should be allowed to come out in their true  colours and symbols. It follows that this restriction does not allow  for a free and fair referendum.

Secondly, section 50(2) and (3) thereof makes it an offence  for a person to publish any referendum material anonymously.  That is without disclosing his or her name and address.
Mr. Byamugisha-Kamugisha submitted that section 10(2) of  the Act provides that the Parliamentary Elections (Interim  Provisions) Statute shall apply to a referendum with the necessary  modifications. The restrictions are necessary in view of article 269  of the Constitution which has put political party activities on hold.  Learned counsel submitted however, that section 6(2) of the Act  provides that for purposes of a referendum, the Commission shall  in consultation with the sides, select symbols to be used on the  ballot paper to facilitate the exercise of a choice by voters. Each  side is allowed only one symbol and under section 6(3) of the Act,  symbols chosen shall be gazetted. Now there are two symbols, a  bus for movement system and a dove for multi-party system for  the purposes of their identification.

It is my well considered view that the complaint raised under  section 10(2) of the Act, has been overtaken by events in the field  in that the movement and multi-party political systems have  chosen symbols which have already been gazetted. Both sides  are on board soliciting for votes during the referendum. It is a  statutory duty for the Electoral Commission to ensure that the  referendum is conducted in a free and fair manner. Article 269 of  the Constitution is still valid law. I do not see how multi-party  political system can operate under individual political party banner  in breach of article 269.

As regards section 13(2) and (3) of the Referendum and  Other Provisions Act, Mr. Walubiri submitted that it only recognises  National Referendum Committees as the medium of organising  campaigns for referendum. This may be fair to the movement but  it will not be fair for different political parties. The movement  political system is a creation of legislation, The Movement Act,  1997. The scenario is that the leaders of the movement system  can organise themselves to form a National Referendum  Committee down to the village level. On the other hand, leaders  of multi-parties are not allowed to do the same. Clearly, this  offends article 69 of the Constitution which calls for free and fair  referendum.

Mr. Byamugisha submitted that the section does not offend  article 69 of the Constitution. It provides a mechanism in place for  either the multi-party system or the movement system or any other  political system as the case may be, to organise as individuals or  groups to form a National Referendum Committee for purposes of  canvassing the referendum. Both the multi-party and the  movement systems have formed their National Referendum  Committees in place and they are already campaigning for the  referendum.	_ -

It is the duty of a National Referendum Committee to  organise the campaigning for its side, and to appoint agents for the  purposes of canvassing and voting. A National Referendum  Committee is free to organise at national and local levels. Every  person or group of persons have freedom of expression and  access to information during the exercise of a referendum. It  follows that restrictions imposed by the section for the purposes of  holding a referendum, in my view, do not violate article 69.
In the result, I would dismiss the petition with costs to the  respondent.

DATED AT KAMPALA this 6th  day of June 2000.

S.G. Engwau
Justice of Appeal.

JUDGMENT OF G.M. OKELLO, JA.
I have read in draft the judgment of Twinomujuni, JA and respectfully  agree with it. I have only few points to add. After all the preliminary  objections on points of law were disposed of, the petition was heard to  determine three issues, namely:-
1.	Whether section 4 (2) of the Referendum and Other  Provisions Act 1999 is inconsistent with and contravenes  articles 28 (1) and 128 (1) of the Constitution.
2.	Whether section 21 (3-7) of the same Act contravenes  article 29 (1) (a) of the Constitution; and
3.      Whether sections 4 (1) (d), 10, 13 (2) and (3) and 26 of the  same Act contravene article 69 of the Constitution.

The one common issue in all the above questions is the constitutionality  of those impugned sections of the Referendum and Other Provisions Act.  One of the principles applicable to determining the constitutionality of a  section of an Act of Parliament is the "purpose and effect". Under this  principle, the court has to consider the purpose and effect of the  impugned section of the Act. If its purpose does not infringe on a right  guaranteed by the Constitution, the court has to go further and examine  the effect of its implementation. If either its purpose or the effect of its  implementation infringes on a right guaranteed by the constitution, then  the impugned section shall be declared unconstitutional.

This principle was applied in a Canadian case of: The Queen Vs Big M.  Drugmart Ltd. (others intervening) [1986] LRC (Const.) 332 and also in  the American case of MCGowan V Vs Maryland 366 US 420 6LED 393  [1961].

This Court applied it in Salvatori Abuki Vs The Attorney-General,  Constitutional Petition No. 2 of 1997 where the Constitutionality of  Witchcraft Act and certain sections thereof were in issue. On appeal, the  Supreme Court did not question that principle. In fact, it was adopted by  Oder JSC when he said:-

"The task of this court in this regard is to determine the  constitutionality of section 7 of the Act. in discharging  this task, the court, in my view, has to consider the  purpose and effect of the Act.    The decision in The

Canadian case of the Queen Vs Big Drugmart Ltd. (others  intervening) [1986] LRC (Const) 332 is relevant in this  connection".

I propose to adopt the same principle in this case too while bearing in  mind the spirit of our constitution which is to establish and promote a  just, free and democratic society.

The gist of the complaint of Mr. Walubiri, learned counsel for the  petitioners in respect of issue No. 1 above, was that section 4 (2) of the  Act is inconsistent with article 28 (1) which guarantees the right to a fair  hearing. He argued that if the Judges are involved in framing the  referendum question under that section and if subsequently a dispute  arising from the question is challenged in court before the same Judge,  there can be no fair hearing. He pointed out that those Judges could be  potential witnesses or even potential accused persons. He submitted that  for the same institution from which the panel of Judges was drawn to  preside over the dispute would not be seen to be fair. It would go against  the rule of natural justice.

This complaint raised a question of partiality or bias in the event that a  dispute arising from the question framed by the panel of judges under  section 4 (2) of the Act is challenged in court before the same judge or  before another judge from the same institution. It was stated in R Vs  Sussex Justice Mcarthy [1924] 1 KB 256 at 529 that it is "settled  principle that justice must not only be done but must be seen to be done.  In R Vs Higgins [1895] 1 QB 563 it was stated that "in considering the  question of bias, court must look at the impression which would be given  to other people.   If the right minded persons would think that in the  circumstances there was real likelihood of bias on the part of the judge,  then he should not sit."

In the instant, Mr. Byamugisha Kamagisha, Senior State Attorney  contended for the respondent that the section does not in away contravene  article 28 (1). He submitted that the section is not related to the article as  the section is about framing question while the article is about fair  hearing. In his view, the right to fair healing would not be violated as the  same judges would not sit to hear any dispute arising from the question.

I set here the impugned section and the article it allegedly violates for  ease of reference.

Section 4 (2):-
"where a referendum is to be held under this section, the   minister shall refer the matter to the Chief Justice who  shall appoint a panel of three Judges to frame the  question in consultation with the sides to the referendum.

Article 28 (1):-

"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."

I agree that the above section and the article appear unrelated. I also  agree that on the face of it, the section does not conflict with that article.  I further agree that if the same judge does not sit to hear any dispute

arising from the question, there would be no violation of that article.  However, as it was stated herein above, in considering the question of  partiality or bias, court looks at the impression that the situation  complained of gives to other people, the on lookers. The question to be  answered in the instant case is what impression does the involvement of  the judges in framing question under that section give to other people, the  onlookers?

My answer is that the impression that is given is that the Judiciary or  Judges framed the question. None would bother to name judges x, y and  z who framed the questions. Judiciary as an institution shall be the torch  bearer. It follows therefore that any other member of that institution that  would preside over the dispute would be considered by other as "one of  those who framed the question." In the eye of other people, the judge  would be a judge in "their own cause."

It has been argued that Judges are oath bound to do right to all manner of  people in accordance with the Constitution, laws and usage of the  Republic of Uganda without fear or favour, affection or ill-will. In my  view, that argument is immaterial as the subjective feeling of the Judge  presiding can not change the impression which that situation has made on  other people. The test is objective. For those reasons, I would hold that  section 4 (2) of the Referendum and Other Provisions Act is inconsistent  with article 28 (1).

Mr. Walubiri also challenged the same section for being inconsistent with  article 128 (1). He argued that the section gives to the Chief Justice no  discretion in appointing the panel of Judges and also no discretion to the  panel of Judges once appointed, in framing the question. They have no  discretion to extend the time within which to complete framing the  question. In his view, the section places the Chief Justice and the panel  of Judges under the control and direction of the Minister. He submitted  that the section compromises the independence of the Judiciary merges it  with the executive contrary to article 128 (1).

Article 128 (1) reads:-

"In the exercise of judicial power, the courts hall be  independent and shall not be subject to the control or  direction of any person or authority."

Mr. Byamugisha-Kamugisha contended firstly, that this point was not  pleaded. Secondly, that even if it were, it was not shown in what way the  independence of the Judiciary is compromised by the section as it does  not require the Minister to supervise the Judges.

While I agree with Mr. Byamugisha-Kamugisha that on the face of it the  section does not conflict with the article, I do not agree that the point was  not pleaded. It was pleaded in paragraph 12 of the Petition which reads:

"That your Petitioners contend that the involvement of  the Judiciary into framing the referendum question  under section 4 (2) of The Referendum and Other  Provisions Act, 1999 is inconsistent with and contravenes  articles 28 and 128 of the Constitution and repugnant to  the principles of independence of the Judiciary and  separation of powers."
It must however, be remembered that under its Constitution of 1995,  Uganda is following the doctrine of separation of powers. Under that  doctrine, the Judiciary, with the other two branches of Government, the  Executive and the Legislature are co-equal. Under that system, certain  areas are inherently within the exclusive jurisdiction of a branch upon  which the other branches cannot encroach. For example, adjudication,  interpretation of the Constitution fall within the exclusive jurisdiction of  the judiciary, while legislation and implementation of the laws are the  preserve of the Legislature and Executive respectively. It means that any  legislation that purports to confer on another branch what is inherently  within the jurisdiction of or conferred on another by the Constitution  would be unconstitutional. For example, a law giving the Cabinet or a  Committee thereof the power to adjudicate on murder or robbery cases  would be unconstitutional because that would be encroaching on the  exclusive jurisdiction of the Judiciary. This principle is well established  in America where the doctrine has been in operation for many years. See  Lindauer Vs Allen, 85 Nev. 430, 456 p. 2nd 851 [Nev. 1969]. I find this  case very persuasive. Judicial power in this country is conferred by  article 126 (1) of the Constitution which provides that:-

"Judicial power is derived from the people and shall be  exercised by the courts established under this  Constitution in the name of the people and in conformity  with laws and with the values, norms and aspirations of  the people."

In the instant case, it was conceded by counsel for both parties that the  exercise of framing referendum question under section 4 (2) is neither a  judicial nor even a quasi, judicial function.  It is purely administrative.
On the principle in Lindauer Supra, a law like section 4 (2) which  purports to direct Judicial officer (court) to carry out function which is in  the exclusive jurisdiction of the executive is unconstitutional on ground  of encroachment. For this reason I hold that the section is inconsistent  with article 128 (1).

This now leads me to issue No. 2 which is whether section 21 (3 - 7) of  the same Act contravenes article 29 (1) (a) of the Constitution.

The thrust of Mr. Walubiri's complaint in this issue was that the  restrictions contained in section 21 (3 -7) are unconstitutional as they  contravene freedom of speech, and expression which includes freedom of  the press and other media enshrined in article 29 (1) (a). He argued that  the requirement that the author gives his name in his article relating to the  referendum as contained in sub-section 3 and the restrictions in sub-  section 5 are inconsistent with that article. In his view, criminalising the  requirement and those restrictions are not in accord with the freedom  guaranteed under that article.

Mr. Byamugisha-Kamugisha did not agree with that view. He contended  firstly that Mr. Walubiri's submission was not supported by evidence.  Secondly, that the requirement of the identity of the author under  subsection 3 and the restrictions in subsection 5 were intended to make  the referendum campaign smooth. He denied that these were  criminalised. In his view, the section does not violate article 29 (1) (a). It  was made in the spirit of article 43 which he urged should be read  together with article 29 (1) (a).
I set here the impugned section and the articles it allegedly contravened  for ease of reference.

Section 21:
"3. No person shall, during canvassing, print, publish, or  distribute, a newspaper, circular or pamphlet containing  an article, report, letter or other matter commenting on  any issue relating to the referendum unless the author's  names and addresses, as the case may be, are set out at  the end of the article, report, letter or other matter or  where part only of the article, report, letter or matter  appears in any issue of a newspaper, circular, pamphlet  or letter at the end of that part.
4.	Subject to the following provisions of this section an  agent may use electronic media for canvassing.
5.	No person shall, during canvassing, use electronic media  to do any of the following acts against another side or  their agent:-

(a)	making statements which are known by the maker  to be false or in respect of which he or she is  reckless whether they are true or false;
(b)	making malicious statement;
(c)	making statements containing sectarian words or  allusions;
(d)	making   abusive,   or   insulting   or   derogatory  statements;
(e)	making exaggerations or using caricatures of the  agent or using words of ridicule;
(f)	using derisive or mudslinging words against a side  or their agent;
(g)	juxtaposition of words or statements with any of  the effects described in the foregoing paragraphs;
(h)	using songs, poems and images with any of the  effects described in the foregoing paragraphs.-

The proprietor or operator of electronic media shall not  use the media or allow it to he used to do any of the acts  prohibited in subsection 5 of this section.

Any person who contravenes any of the provisions of  subsections 2, 3, 5, and 6 of this section commits an  offence and is liable on conviction:

(a) in the case of an offence under subsections 2 or 3 to  a fine not exceeding fifteen currency points or  imprisonment not exceeding three months or both  and;
(b) in any other case to a fine not exceeding twenty-  five currency points or imprisonment not  exceeding six months or both.

Article 29 (1) (a):-
Every person shall have the right to:

(a) freedom of speech and expression, which shall  include freedom of the press and other media.

Article 43:

(1)	In the enjoyment of the rights and freedoms prescribed  in this chapter, no person shall prejudice the  fundamental or other human rights and freedoms of  others or the public interest.
(2)	Public interest under this article shall not permit:
(a)	political persecution;
(b)	detention without trial;
(c)	any limitation of the enjoyment of the rights and  freedoms prescribed by this chapter beyond what  is acceptable and demonstrably justifiable in a free  and democratic society or what is provided in this  Constitution."

Mr. Byamugisha-Kamugisha submitted that there was no evidence to  support the petitioners' allegations in this issue. I do not agree.  Paragraphs 16 & 10 of the affidavits of Dr. Rwanyarare and Haji Wegulo  respectively, provided the necessary evidence. The paragraphs which are  identical reads:-

"That we were advised by our said lawyers and I verily  believe their advise (sic) to be correct that holding of the  said referendum is inconsistent with and contravenes the  provisions of articles 20, 21, 28, 29 (1) (a) (b) (d) (e); 38  (2), 43, 70 (1) (d); 71 (f); 75 and 128 of the Constitution of  the Republic of Uganda, 1995 and that these  inconsistencies and contraventions are continuing up to  today."

Learned Counsel for the respondent further submitted that those  limitations were not criminalised. That is not a serious submission as  sub-section 7 of section 21 above shows. It is further clear from the  provisions of section 21 (3-7_ that the requirement in sub-section 3 and  the restrictions in sub-section 5 were limitations on the rights guaranteed  under article 29 (1) (a). The law on this is clear. As was stated in  Attorney General Vs Morgan [1985] LRC 770 at 797, he who seeks to  take away a right that is guaranteed under the constitution has a duty to  justify his act. Learned Counsel submitted that article 29 should be read  together with article 43. That may be so but the onus is on him to show  by evidence that the limitations are justified under article 43 either on  account of protecting other peoples' rights or on account of public  interest. This was not done. He is also to show by evidence that the  limitations imposed are not beyond what is acceptable and demonstrably  justifiable in a free and democratic society or what is provided in this  Constitution. This burden too was not discharged. It is not enough to  merely state that the limitation is justified under article 43.

A free and democratic society has been defined in other jurisdiction to  mean a society where its government is based upon the consent of  informed citizenry and there is dedication to the protection of the rights of  all. See The Queen Oakes [1987] Const 477 at 498-9. In my view, in  such a society, one would not be restricted under pain of a fine or a term  of imprisonment for printing, publishing or distributing newspaper,  circular which does not contain the name and particulars of the author  while canvassing in a political campaign. The same would also apply to  the restrictions in sub-sections 5 of the section.

The argument that the restrictions apply to both sides is no justifiable  reason for imposing unjustifiable limitations on the rights guaranteed by  the Constitution. Criminalisation of those limitations as shown in sub-  section 7 of section 21 above can only be intended to intimidate the  media contrary to the spirit of article 29 (1) (a). The law of defamation is  sufficient to deal with any media that exceeds the permitted limits. For  those reasons, I hold that section 21 (3-7) is inconsistent with article 29  (l)(a).

Finally, I now turn to issue No. 3 which is whether sections 4 (1) (d), 10  (2), 13 (2)&(3) and 26 of the Act contravene article 69 of the  Constitution.

Mr. Walubiri contended that all these sections are inconsistent with  article 69.  The article guarantees the right of the people of Uganda to  chose and adopt a political system of their choice through a free and fair  election or referendum. Learned counsel complained that failure of  section 4 (1) (d) to cite article 69, rendered the referendum to be held  under article 271 (3) not free and fair since it is not provided for it to be  so. He also challenged section 10 (2) for permitting the application of the  Parliamentary Elections (Interim Provisions) Statute No. 4 of 1996 with  necessary modifications to the referendum. In his view, the statute is a  bad law. He singled out section 51 of the statute as the offending  provision for restricting the use of Party Colours and symbols in the  referendum campaign. According to him, the restrictions deny political  parties identity and that that denial makes it impossible to have a fair  contest in the referendum.

The word 'fair' has not been defined in the Act but according to  Longman Dictionary of Contemporary English, it connotes freedom  from injustice, dishonesty or self-interest. By article 271 (1), the  referendum under article 271 (3) is to be held under the Movement  political system. Under that system, no colour or symbol is used except  for the referendum campaign where multiparty as a group is also  permitted to choose its symbol. The restriction on use of party Colours  and symbols alone in my view does not indicate any injustice or  dishonesty. I do not therefore agree that section 10 (2) is inconsistent  with article 69.

Mr. Walubiri's final complaint was about section 13 (2) & (3) which  recognises only the National Referendum Committee for organising  campaign in the referendum. He contended that whereas the movement  has a legislation under which it operates, the multiparty which is made of  several different political parties has no law within which to operate. He  argued that because the movement is operating under a law, it is easy for  it to organise itself under one leadership and constitute the required  national committee with branches up to the grassroot. He submitted that  this is not possible for the multiparty because with the existence of article  269, the different political parties can not convene their members'  convention to elect their representatives to constitute the required national  referendum committee with branches to the grassroot.

Mr. Byamugisha-Kamugisha did not agree with Mr. Walubiri's  contention. He contended that there was nothing wrong with the national  referendum committee. In his view, the multiparty has already put in  place the committee and that even the individual political parties are free  to campaign for the referendum under section 13 (6).

Section 13 (2) & (3) read thus:

"2. For purposes of the referendum under Clause (3) of  article 271 of the Constitution the side shall consist of  individuals and organised groups who subscribe to the  multiparty system or the movement system, or to any  other political system as the case may be.

3. The individuals and groups subscribing to the political systems  referred to in subsection (2) shall, in respect of each political  system to which they subscribe, establish a nation referendum  committee consisting of not more than twenty members and  submit the details of the committee to the commission by such  date as the commission shall prescribe."

It has not been disputed that there is no corresponding legislation to the  Movement Act No. 7 of 1997 within which the multiparty can operate.  That is a disparity. It means that the organised groups, like the various  political parties which subscribe to the multiparty political system cannot  elect their representatives to send to constitute the national referendum  committee and the branches upto the grassroot since article 269 prohibits  them from convening their members convention. The organised groups  that subscribe to multiparty political system are therefore not given equal  opportunity with those groups that subscribe to the movement to organise  their campaign machinery. The argument that the multiparty side has  already put in place its national referendum committee is irrelevant. The  issue is not whether both sides have constituted their national referendum  committee but rather whether the law as it stands provides to both sides  equal opportunity to organise themselves to constitute their campaign  machinery, the national referendum committee. My answer as shown  above is no. In that circumstance, implementation of section 13 (2) & (3)  will lead to unfair contest in the referendum. For that reason, I would  hold that subsections 2 and 3 of section 13 of the Referendum And Other  Provisions Act are inconsistent with article 69.

In the result, I would allow the petition with costs to the petitioner. I  would declare that (a) section 4 (2), of the Referendum And Other  Provisions Act 1999 is inconsistent with articles 28 (1) and 128 (1) of the  Constitution; (b) section 21(3 -7) of the same Act is inconsistent with  article 29 (1) (a) of the Constitution and (c) section 13 (2) and (3) are  inconsistent with article 69 of the Constitution.

Dated at Kampala this 6th day of June 2000

G.M. OKELLO
JUSTICE OF APPEAL.