THE REPUBLIC OF UGANDA

IN THE CONSTITUTIONAL COURT OF UGANDA

AT KAMPALA

CORAM: HON. JUSTICE G.M. OKELLO, JA;

HON. JUSTICE A.E.N. MPAGI-BEHIGEINE, JA

HON. JUSTICE S.G. ENGWAU, JA

HON. JUSTICE A. TWINOMUJUNI, JA

HON. JUSTICE C.N.B. KITUMBA, JA

Miscellaneous Application No.3 of 2002 (Arising from Constitutional Petition No.7 of 2002)

ATTORNEY GENERAL APPLICANT/RESPONDENT

VERSUS

1. DR. JAMES RWANYARARE }

2. HAJI BADRU KENDO WEGULO }

3. HON. YUSUF NSUBUGA NSAMBU }

4. HON. KEN LUKYAMUZI }

5. JAMES GARUGA MUSINGUZI } RESPONDENTS/

6. MAJOR RUBARAMIRA RURANGA } PETITIONERS

7. FRANCIS GUREME }

8. KARUHANGA CHAAPA }

9. HUSSEIN KYANJO }

10. 10.DR. JOHN JEAN BARYA }

RULING OF THE COURT:

There is, pending before this court, Constitutional Petition No.7 of 2002 between the above parties in which Dr. Rwanyarare and 9 others are petitioners and the Attorney General is the respondent. Before the petition could be heard, the Attorney General tiled this application requesting that his contention, which was raised in his defence to the petition, that the petition was time barred, be heard first, as a decision of this court in his favour would have the effect of disposing of the whole petition.

In the petition itself, the petitioners are seeking various declarations to the effect that the Political Parties and Organizations Act 2002 is inconsistent with and contravenes various provisions of the Constitution of the Republic of Uganda. It is common ground that: -

(a) The Political Parties and Organisaitons Bill was assented to by the President on 2nd June 2002. (b)The Act was published in Uganda Gazette on 17th July 2002, the same date which was designated as the commencement date of the Act. (c)The respondents/petitioners became aware of the legal existence of the law on 23rd July 2002. (d)The respondents/petitioners filed Constitutional Petition No.7 of 2002 on 31st July 2002.

Hon. Francis Ayume, the learned Attorney General of Uganda, argued this application on behalf of the applicant. He relied on the provisions of rule 4 of the Modifications to the Fundamental Rights and Freedoms (Enforcement Procedure) Rules, 1992, Directions, 1996 (Legal Notice No.4 of 1996) which states: -

"The petition shall be presented by the petitioner by lodging it in person, or, by or through his or her advocate, if any, named at the foot of the petition, at the office of the Registrar and shall be lodged within thirty days after the date of breach of the Constitution complained of in the petition." [Emphasis supplied.]

Hon. Francis Ayume submitted that the Political Parties and Organisations Act became law on 2nd June 2002 being the date on which the President signified his assent on it. He cited section 20 of the Acts of Parliament Act (Act 16 of 2000) to support this proposition. In his view, it is on that date that the thirty days provided for in Legal Notice No.4 of 1996 began to ran. In order to avoid being time barred, the petitioners should have filed Petition No.7 of 2002 by 2nd July 2002. Failure to do that meant that the petition was time barred (since it was filed on 31st July 2002) and therefore incompetent. He emphasised that the provisions of Rule 4 of Legal Notice No.4 of 1996 were mandatory. He cited the cases of Rwanyarare & Another vs. The Attorney General, Constitutional Petition No.11 of 1997 and Hajji Nasser Sebbagala vs. The Attorney General, Constitutional Petition No.1 of 1999 both decisions of this court in which

The Court held that a Constitutional Petition is incompetent if it is brought out of the time limit prescribed by Legal Notice No.4 of 1996, unless the time has been extended. Hon. Ayume submitted further that even where the petitioner does not know that there was a breach of the Constitution, the thirty days would begin to run from the date the Act of Parliament complained of became law.

His final submission was that this court has no jurisdiction to enlarge time which is fixed by law as in this case. He cited the case of Makula International Ltd. vs. Cardinal Nsubuga (1982] H.C.B. 11 in support of this proposition. He prayed that Constitutional Petition No.7 of 202 be dismissed with costs to the applicant.

In reply Mr. Peter Walubiri, learned counsel for the respondents/petitioners, conceded that no attempt was made to apply for extension of time to file the petition, because it was not necessary as the petition was filed in time. He submitted that section 15 of the Acts of Parliament Act 2000 provided that an Act of Parliament becomes law on the date designated by the Act itself or the date when it is published in the Uganda Gazette. In this case, the Political Parties and Organisations Act became law on the 17th July 2002, the designated commencement date, which was also the same date when it was gazetted. In his view, this was the earliest time the 30 days limitation would start to run. Therefore the petition which was filed on 31St July 2002 was within the time of limitation.

Mr. Walubiri, however, submitted that his case was that the petitioners did not know that the Bill had been signed into law until on 23rd July 2002 when they obtained a copy of the Gazette of 17th July 2002. Therefore according to decisions of this court, the petitioners did not perceive of the breach of the Constitution until 23rd of July 2002 and that was the day the thirty days began to run. The petitioners were well within the law when they filed the petition on 31st July 2002, just seven days after they perceived of the breach of the Constitution. He relied on the cases of Zachary Olum & Anor. Vs. Attorney General Constitutional Petition No.6 of 1999, Mugerwa Kikugwe & 2 others vs. Attorney General Constitutional Petition No.2 of 2000 and Joyce Nakachwa vs. Attorney General & 2 others,

Constitutional Petition No. 2 of 2001 in which this court has held that the thirty days of limitation only began to run from the date the breach of the Constitution was perceived and not from the date when the Act (or act) complained of became law or took place. Mr. Walubiri invited us to dismiss the Attorney General's objections with costs to the petitioners and to order that Constitutional No.7 of 2002 proceeds on its merits.

In exercise of the right of reply, Mr. Cheborion Barishaki, learned counsel for the applicant/respondent, requested this court not to follow the cases of Zachary Olum (supra) and Mugerwa Kikugwe (supra) in light of the Supreme Court decision in the case of Eridadi Otiabong Waimo vs. Attorney General Supreme Court Civil Appeal No.6 of 1991. He also requested us not to follow the case of Nakachwa (supra) in which the court was considering "acts" of the respondents, and not an "Act" of Parliament as in the instant case.

Recently, we have made a number of decisions on this issue which we hoped had put this issue to rest. Apparently we did not succeed. We must now make another attempt in the hope that we shall succeed this time. But first, a short review of the application of Rule 4 of Legal Notice No.4 of 1996 in this court since its inception is called for.

In the infancy days of this court, we decided in a number of cases that a Constitutional Petition filed outside the thirty days of limitation was incompetent. We held that the thirty days began to run the date (in case of an Act of Parliament) when it became law and in case of any other "act" from the date it occurred. This was the holding in the cases of James Rwanyarare (supra), Hajji Sebbagala (supra), Sarapio Rukundo (supra) and Ismail Serugo (supra). Almost all these cases were decided in 1997. However, the Constitutional Court began to realise the problems being caused by the traditional literal interpretation of the thirty days rule especially the hardship it caused in its application to human rights and freedoms cases. A debate began within the court on the following issues: -

1. Whether the continued dismissal of petitions because of Legal Notice No.4 1996 (Rule 4) was not hindering access to the Constitutional Court.

2. Whether the practice could be sustained in light of the fact that a mere Statutory Instrument was being applied to deny access to constitutionally guaranteed rights and freedoms.

3. Whether or not Rule 4 of Legal Notice No.4 1996 was not in fact unconstitutional.

In the meantime, the Supreme Court of Uganda deliberated on the matter, but did not authoritatively dispose of it. In Ismail Serugo vs. KCC and Another Constitutional Appeal No.2 of 1997 the validity of our earlier decisions on the matter was questioned. Hon. Justice Mulenga, JSC expressed his concern in the following words: -

"Before leaving this case I am constrained to express concern about the rule on limitation of time for the lodging of petitions for declarations under Article 137 of the Constitution. In its judgment the Constitutional Court in an effort to explain the rationale for the rule, cites, with approval, from its earlier decision in Serapio Rukundo vs.