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.

4. 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.

5. 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.

6. 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.

7. 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:-

1. The Movement political system,

2. The Multiparty political system, and

3. 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:-

1. Whether S.4(2) of the Referendum and Other Provisions Act 1999 is inconsistent with and contravenes Articles 28 and 128 of the Constitution.

2. Whether S.21(3) to 7) of the Referendum and Other Provisions Act contravenes Article 29(1) (a) of the Constitution.

3. 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:-

1. The Supreme Court of Uganda;

2. The Court of Appeal of Uganda;

3. The High Court of Uganda; and

4. 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:-

1. justice shall be done to all,

2. justice shall not be delayed,

3. adequate compensation shall be awarded to victims of wrongs.

4. reconciliation between parties should be promoted,

5. 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 -

1. political persecution

2. detention without trial

3. 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:-

1. a fundamental or other human right or freedom of others .

2. public interest

 

Where a restriction is claimed on the grounds of public interest, the restriction will not be allowed to stand if it permits:-

1. political persecution

2. 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 -

1. the movement political system

2. the multiparty political system and

3. 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: -

1. Can a free and fair referendum under Article 271 be held without the involvement of political parties?

2. 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;

2. holding delegate conference;

3. 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 6^th 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:

1. 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,

2. 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:

1. 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,

2. prohibiting the Chief Justice from appointing a panel of three Judges, under section 4(2) of the Act, to frame the referendum question,

3. prohibiting the panel of Judges from framing the referendum question and

4. 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;

2. making malicious statements;

3. aking statements containing sectarian words or allusions;

4. making abusive or insulting or derogatory statements;

5. making exaggerations or using caricatures of the agent or using words of ridicule;

6. using derisive or mudslinging words against a side or their agent;

7. 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-

1. 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.

2. 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-

1. the movement political system;

2. the multi-party political system; and

3. 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:-

 

1. 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;

2. making malicious statements;

3. making statements containing sectarian words or allusions;

4. making abusive or insulting or derogatory statements;

5. making exaggerations or using caricatures of agents or using words of ridicule;

6. 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:-

 

1. 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

2. 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

 

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:-

1. 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;

2. making malicious statements;

3. making statements containing sectarian words or allusions;

4. making abusive or insulting or derogatory statements;

5. making exaggerations or using caricatures of the agent or using words of ridicule;

6. using derisive or mudslinging words against a side or their agent;

7. justaposition of words or statements with any of the effects described in the foregoing paragraphs;

8. 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:-

1. the movement political system;

2. the multi-party political system; and

3. 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 6^th day of June 2000.

 

S.G. Engwau

Justice of Appeal.

 

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:-

 

1. 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;

2. making malicious statement;

3. making statements containing sectarian words or allusions;

4. making abusive, or insulting or derogatory statements;

5. making exaggerations or using caricatures of the agent or using words of ridicule;

6. using derisive or mudslinging words against a side or their agent;

7. juxtaposition of words or statements with any of the effects described in the foregoing paragraphs;

8. 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:

1. political persecution;

2. detention without trial;

3. 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 6^th day of June 2000

 

 

G.M. OKELLO

JUSTICE OF APPEAL.