Satya v Attorney General (Constitutional Petition No. 36 of 2012) [2016] UGCC 5 (9 February 2016)

e) The costs of this petition be provided for by the respondent.

f) Any other further remedy that this honorable court deems fit in circumstances” (sic)

The Petition is supported by an affidavit sworn by Satya Peter Chapa, the petitioner on 26^th June 2012.

The respondent filed an answer to the petition which is supported by an affidavit of Patrick. K. Mutabwire, an acting Permanent Secretary of the Ministry of Local Government deponed on 21^st August 2012 as well as an additional affidavit in reply dated 21^st July 2015 sworn by Cherotwo Joseline, the Speaker of Kween District Council.

Background

The background of the Petition, as can be discerned from the Pleadings of both parties is briefly that the original Kapchorwa District was subdivided into the current districts of Bukwo, Kween and Kapchorwa.

The District of Kween was created on the 4^th May 2010, by the Parliament of Uganda pursuant to the Provisions Article 179(l)(a) and (b) of the Constitution of Uganda when it altered the boundaries of Kapchorwa District and named Binyiny Trading Center as the Headquarters of the district .

There was a dispute on the choice of Binyiny Trading Center as the headquarters of the district.

The petitioner was dissatisfied with the location of Kween District Headquarters at Binyiny Trading Centre instead of Chepsikunya Trading Centre, hence this Petition.

The Petition alleges that the acts of Parliament and of the Minister of Local Government in tabling a motion for the location of Kween District Headquarters at Binyiny Trading Centre instead of Chepsikunya Trading Centre which had been the expressed choice of the people of Kween violate/contravene Articles 176 (2), (a), (b), (c), (e), 179 (1), (b) (4), 79(1), (3), 1(1), 3(4), 38(1), 29 1(1) and 29, of the Constitution as well as Sections 2(a),(b) (c), 9, 95 and 99(1) of the Local Government Act, Cap, 243 of the Laws of Uganda (as amended).

Representation

At the hearing of the Petition, the petitioners were represented by learned counsel, Mr. Omalla Deogratius who appeared together with learned counsel Mr. llukor Emmanuel (Counsel for the petitioner).

Mr. Bafirawala Elisha, a Senior State Attorney from the Attorney General's Chambers, (Counsel for the respondent) appeared for the respondent.

Issues

The petitioner and the respondent had framed different issues but at the hearing of the Petition, it became clear that there were only two issues argued namely:

1. Whether the Constitutional Petition raises issues for constitutional interpretation.

2. Whether the acts of the Minister of Local Government and Parliament in not considering and adopting the position chosen by Local Council 111 of the now Kween District when locating the headquarters of Kween District at Binyiny Trading Centre instead of Chepskunya Trading Centre inconsistent and/or in contravention of Art 176(2), (a),(b),(c), (e) 179 (1) (b) (4) 38 (1), and 29 of the Constitution as well as Sections 2(a), (b), (c), 95 and 99 (1) of the Local Governments Act, Cap. 243 (as amended).

Submissions of counsel for the petitioner.

Counsel, for the petitioner submitted that the act of the Minister of Local Government and the resolution of Parliament of 4^th May 2010 naming Binyiny Trading Centre as the District Headquarters for Kween District, without regard to the wishes of the people of Kween County and those of Kapchorwa District Council, are in contravention of and or in consistent with Articles 176, 2(a), (b), (e) and 179 of the Constitution.

Counsel conceded that Parliament had the mandate to create new districts but contended, it was bound to seek and take into account the views of the people and failure to do so contravened the Constitution. Counsel prayed Court to grant the prayers stated in the Petition.

Submissions by counsel for the respondent

Counsel for the respondent submitted that the Petition raised no issues for constitutional interpretation and should be struck out with costs.

According to him, the petitioner had not shown how the articles of the Constitution and the provisions of the Local

Governments Act cited had been infringed or contravened by the actions of the Minister of Parliament and, therefore, the Petition raised no matters for interpretation and or adjudication by the Constitutional Court.

Counsel submitted that Parliament has the power under the Constitution to alter boundaries or to create new Districts but there was no provision in the Constitution dealing with the location of district headquarters.

He further submitted that in the instant case, Parliament acted within its powers to create Kween District. The issue of District Headquarters was a matter for an administrative decision and not one for the Constitutional Court to handle by way of interpretation of the Constitution or otherwise.

The decision of the Court:

The first issue in the instant Petition, which is whether or not the petition raises questions for constitutional interpretation, is very important .it raises the question of the jurisdiction of this court which jurisdiction is derived from Article 137 of the constitution. The article provides 137.questions as to the interpretion of the constitution.

1. Any question as to the interpretation of this Constitution shall be determined by the Court of Appeal sitting as the constitutional court.

2. ...

3. A person who alleges that-

1. An Act of Parliament or any other law or anything in or done under the authority of any law; or

2. Any act or omission by any person or authority, is inconsistent with or in contravention of a provision of this Constitution may petition the constitutional court for a declaration to that effect, and for redress where appropriate.

4. Where upon determination of the petition under clause (3) of this article the constitutional court considers that need for redress in addition to the declaration sought, the constitutional court may-

1. Grant an order of redress; or

2. Refer the matter to the High Court to investigate and determine the appropriate redress.

5. ...

1. ...

2. ...

6. ...

(7)...

It is now well settled that not every violation of a right provided for in the Constitution requires constitutional interpretation. To move this Court under Article 137 supra, the petitioner must allege that the matters put before the Constitutional Court require interpretation of the Constitution and must specify the articles of the Constitution violated or threatened to be violated. In process, the court may, grant redress as may be appropriate; Once those requirements are satisfied, the Court has jurisdiction to entertain the matter presented before it by the petitioner, irrespective of whether or not he/she may eventually succeed at the conclusion of the Courts’ consideration of the Petition.

In Phillip Karugaba vs. the Attorney General, Constitutional Petition No. 11 of 2002, this Court held inter alia:-

“...It is necessary to internalize the jurisdiction of this court under Article 137 of the Constitution in order to decide whether Rule 15 is unconstitutional as alleged.

The Supreme Court and this Court have held that the jurisdiction of this court under Article 137 of the Constitution is to interpret the constitution and not grant redress See Ismael Serugo Vs. Kampala City Council and Another Constitutional Appeal No. 2 of 1998 and the Attorney General of Uganda Vs. David Tinyefunza Constitutional Appeal No. 1 of 1998,

Charles Kabagambe Vs. Uganda Electricity Board Constitutional Petition No. 2 of 1999.

In its ruling on the preliminary objection Constitutional Petition No. 2 of 2001, Joyce Nakachwa Vs. The Attorney General and Two Others this Court dwelt at length on the subject Quoting from the decisions of the Supreme Court and its own decision.

This Court reaffirmed that its jurisdiction under article 137 is to interpret the Constitution:

“First we deal with the issue of jurisdiction. This Court has recently pronounced itself on this matter in the case of Alenyo Vs. The Attorney General and 2 Others (supra) in which we followed the Supreme Court decisions in Serugo (supra) and David Tinyefuza (supra). We stated:-

“Article 137 (1) provides: Any question as to the interpretation of this Constitution shall be determined by the Court of Appeal sitting as the Constitutional Court.

The Constitution does not define the word “interpretation” However, Article 137 (3) gives a clear indication of what the word means. It states:

137(3) a person who alleges that:-

1. An act of parliarment or any other anything in or done under the authority of any law, or

2. Any act or omission by any person or authority is inconsistent with or in contravention of a provision of this Constitution, may petition the Constitutional Court for a declaration to that effect, and for redress where appropriate.

We hold the view that the allegations made to the Constitutional Court, if they are in conformity with article 137(3), give rise to the interpretation of the Constitution and the Court has the jurisdiction to entertain them.

In the instant petition, the petitioner alleges that the Law Council is guilty of commissions and omissions, which are inconsistent with or in contravention of the Constitution. He has petitioned this court for a declaration to that effect. In our judgment these are the type of actions envisaged by Article 137 (3)(b). He is not stating as a fact that he has a definite right that should be enforced. He is alleging that the conduct of the Law Council has violated his right guaranteed by specified provisions of Constitution and this court should so order to do that the Court must determine meaning of the specified provisions of the

Constitution allegedly violated and whether the conduct complained of has actually violated those provisions. The carrying out of the exercise by the court is an interpretation of the Constitution. It is not an enforcement of rights and freedoms. The Court is being called upon to interpret the Constitution. It can make a declaration and stop there or it can grant redress if appropriate. Whether the alleged acts and omissions of the Law Council contravene or are inconsistent with the Constitution is not relevant to the issue of jurisdiction. It is what the court is called upon to investigate and determine after it has assumed jurisdiction. It is not relevant either, that there is a remedy available to the petition somewhere else. That alone cannot deprive the Court of the jurisdiction specifically conferred on it by Article 137⁹⁹ (sic), (underlining mine)

In the instant Petition, the petitioner alleges that the the Minister of Local Government and that of Parliament naming Binyiny Trading Centre instead of chepskunya Trading Centre as the Headquarters of Kweene District contrary to the expressed wish of the people and the local councils of the concerned area, were inconsistent with and in contravention of Articles 176(2)(a),(b)(c) and (e), 179(l),(b),(4),79(l)(3), 1(1) and 29 of the Constitution and Sections 2(a)(b) (c) and 95 and 99(1) of the Local Government Act.

He prays Court to make declarations and orders of redress

that:

1. the said acts of the Minister for Local Government and Parliament Contravene the named articles of the Constitution and the Local Government Act specified above.

2. the resolution of Kapchorwa District Council of the 19^th September 2009 naming Chepskunya Trading Centre as the Headquarters of Kweene Districts is lawful and binding and that chepskunya is the lawful District Headquarter of Kween District.

Given the above circumstances of their Petition, we conclude that the carrying out of the above exercise by this Court as requested by the petitioners amounts to an interpretation of the Constitution. The court is not being merely asked to enforce rights.

The petitioner also seeks orders of redress although that aspect of his petition is not relevant to the jurisdiction of this Court.

In the Ismail Sserugo vs Kampala City Council and Another, Constitutional Appeal No.2 of 1998 as cited in the later case of Baku Raphael Obudra and Obigia Kania Vs. The Attorney General, Constitutional Petition No.l of 2003 the then Chief Justice. J.B. Odoki, held:

“I agree with the opinion of Mulenga, JSC in that case, that a petition brought under Article 137 (3) of the is Constitution sufficiently discloses a cause of action if it describes the act or omission complained of and shows the provision of the Constitution with which the act or omission is alleged to be inconsistent or which is alleged to have been contravened by the act or omission and pray for a declaration to that effect”.

On the basis of the above authorities, we find instant Petition raises questions for interpretation as envisaged under Article 137 (3) (b) of the Constitution. This Court, therefore, has jurisdiction to entertain the matters laid before it in the instant Petition

We accordingly answer the first issue covered in ground one, in the affirmative.

Issue 2

The gist of this issue is the petitioners complaint that the minister of Local Government did not consider the wishes of the people concerned when naming Binyiny Trading Centre the Headquarters of Kween District instead the peoples’ preferred choice of Chepskunya Trading Centre and that this was inconsistent with or in contravention of Articles

176(2)(a), (b), (c), (e); 179 (1) (b) (4); 79(1), (3); 1(1); 38(1)

and Article 29 of the Constitution and Sections 2 (a), (b),

3. , 95 and 99(1) of the Local Governments Act, Cap 243 (as amended).

That court should name Chepskunya Trading Centre the lawful District Headquarters of Kween District.

The Petition does not show, how the act of locating Kweene District Headquarters at Binyiny Trading Centre

Contravenes or is inconsistent with any of the articles of the

Constitution. When Article 179 of the Constitution is carefully looked at, although it comes nearest to the petitioner’s complaint, is not in any way contravened by the acts complained of. Parliament is not in any way required to act in the manner the petitioner’s contentions suggest. The Constitution does not in any of the cited provisions require the minister of Local Government to merely endorse or act in accordance with the recommendations of the people or Local Government Councils concerned.

We, therefore, find in the negative, in respect of issue 2.

Issue 3

This issue relates to costs of the petition.

We have considered this to be a public interest litigation Constitutional Petition. We, in our discretion, therefore, consider it appropriate to order that each party bears their own costs.

In the result, this Petition only partly succeeds in that raises matters for constitutional interpretation but the rest of its aspects.

We, therefore, decline to make any of the declarations and orders of redress sought by the petitioner. Each party shall bear its own cost.

We so order.

Dated at Kampala this 9^th day of Feb 2016

S.B.K KAVUMA

DEPUTY CHIEF JUSTICE

Hon. Justice Remmy Kasuule

JUSTICE OF THE CONSTITUTIONAL COURT

Hon. Justice Eldad Mwangusya

JUSTICE OF THE CONSTITUTIONAL COURT

Hon.Justice Richard Buteera

JUSTICE OF CONSTITUTIONAL COURT

Hon Justice F.M.S.Engonda Ntende

Justice of the constitutional court