THE REPUBLIC OF UGANDA
IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA
CONSTITUTIONAL PETITION NO. 3/99
THE FUNDAMENTAL RIGHTS AND FREEDOMS (ENFORCEMENT PROCEDURE RULES, 1992 DIRECTIONS 1996)
Legal Notice No. 4/96
PAUL K. SSEMOGERERE)
ZACHARY OLUM )... PETITIONERS
(On 23 September, 1999, S.T.Manyindo, DCJ; C.M.Kato, JA; A.E.Mpagi-Bahigeine, JA; J.P.Berko, JA& C.N.B.Kitumba, JA delivered the following ruling)
RULING OF THE COURT.
Paul K. Ssemogerere, the leader of the Democratic Party and Hon. Zachary Olum, Member of Parliament for Nwoya county, to whom we shall refer as "the Petitioners", filed this petition in this court on the 30th day of July 1999. The petition did not cite any particular person or organisation as the respondent. The Attorney General was, however, served with a copy of the petition by the Registrar by virtue of the provision of rule 5(2) of. Legal Notice No. 4 of 1996. In the petition they alleged that: -
the Referendum and Other Provisions Act No. 2 of 1999 declared passed by the Parliament of Uganda on 1st July 1999 under the purported authority of the Constitution of Uganda was not validly passed by Parliament, in that, at the time of taking the decision to pass that Act there was not in the House a quorum as prescribed by Article 88 of the Constitution and that the report of the committee of the House which was adopted by the plenary of the House was invalid because the proceedings of the committee were invalid for lack of Statutory quorum and as such the Act was in contravention of the Constitution.
The acts of the Speaker of Parliament in:
(i) permitting Parliament to continue to debate the Referendum Bill;
(ii) declaring that the Act had been passed despite the absence of a quorum in the committee of the House and in the plenary of the House at the material time had been brought to his attention by a member of Parliament pursuant to
the Rules of Procedure of Parliament of Uganda and
(iii) adopting a wrong procedure on that particular occasion to ascertain the quorum in the House, which procedure constituted a breach of the Rules of Procedure of Parliament of Uganda made pursuant to Article 94(1) of the Constitution of Uganda;
were inconsistent with, and in contravention of Articles 79, 88 and 89 of the Constitution.
(c) the Referendum and Other Provisions Act No. 2 of 1999 is unconstitutional in that it was enacted after the expiry of the time stipulated in the 1995 Constitution for its enactment.
By reason of the matters set out above the petitioners alleged that the Referendum and Other Provisions Act No. 2 of 1999 (a) was passed by a body or group not empowered by the Constitution to pass laws under the authority of Article 79 of the Constitution and (b) was also passed in contravention of Article 271(2) of the Constitution. They then prayed for the following reliefs:-
(a) Declarations that:
(i) the decision the Speaker took and the method adopted, to ascertain the quorum by examining the attendance register or record of that day's attendance, instead of taking a physical head count of the Members of Parliament there and then sitting in the House and voting, was inconsistent with rules 17 and 150 of the Rules of Procedure of Parliament of Uganda and in the result, led to a contravention of Articles 79, 88 and 89 of the Constitution
(ii) The Referendum and Other Provisions Act No. 2 of 1999 is void because it did not obtain the Constitutional majority at the stages of its final deliberations and passing;
(iii) The Referendum and Other Provisions Act No. 2 of 1999 purported to have been passed by Parliament is void for being enacted in contravention of Article 271(2) of the Constitution and
(iv) The Act must be struck down as void as being in contravention of Articles 79, 8 8 and 89 of the Constitution.
The petitioners also prayed for costs of the Petition to be paid out of public funds.
The petition is supported by affidavits of the two petitioners and two other affidavits sworn to by Hon. Juliet Rainer Kafire, a Member of Parliament for Kibuku county, Pallisa District and Hon. Daniel Omara Atubo, Member of Parliament for Otuke, Lira District.
In answer to the Petition, the Attorney General has contended that:-
(i) the petition is misconceived as it raises no question as to the interpretation of the Constitution. It is therefore incompetent and not properly before the court and should be dismissed;
(ii) The Referendum and Other Provisions Act No. 2 of 1999 was duly passed by a properly constituted Parliament and is good law;
(iii) there was quorum at all stages of passing of The Referendum and Other Provisions
(iv) the Chairman of Committee of the House did not breach Articles 79, 88 and 89 of the Constitution;
(v) the Chairman of the committee of the House ascertained the quorum and denies any breach of the Rules of Procedure.
(vi) In the alternative, it was contended that any irregularity in the proceedings of Parliament, which is not admitted, is not a matter for determination by this court;
(vii) The Referendum and Other Provisions Act, 1999 was passed within time and, that
(viii) The internal procedures of Parliament are not a subject of Judicial review.
The Attorney General therefore prayed that the declarations sought should not be granted and that the Petition should be summarily struck out and/or dismissed with costs.
The answer to the petition was supported by an affidavit sworn to by Hon. Francis Joash Ayume, Speaker of Parliament of Uganda. But in view of the events that took place when the petition came up for hearing, we do not think it is necessary to set out, in detail, the contents of the various affidavits for and against the petition. We shall only refer to relevant
portions as may be necessary.
The following is a brief account of what led to the petition. Article 271(3) of the Constitution of Uganda provides that during the last month of the fourth term of Parliament a referendum shall be held to determine the political system the people of Uganda wish to adopt. Parliament was given power to enact laws to give effect to the provision of the Article. Pursuant to the Article, the Referendum and Other Provisions Bill of 1999, to give effect to the provisions of the Article, was put before Parliament and passed into law on the 1st of July 1999. As already noted, it is the contention of the petitioners that the Bill was passed when there was no quorum in the House as required by Article 88 of the Constitution to transact business of the House. It was alleged that there was also no quorum when the Bill was debated in the committee of the House. Consequently the Referendum and Other Provisions Act No. 2 of 1999 is void because it did not obtain the Constitutional majority at the stages of its final deliberations and of its passing. These allegations have been denied by the Speaker of Parliament in his affidavit in support of the answer to the petition.
When the petition came up for hearing on the 31st August 1999, Mr. Peter Kabatsi, the Solicitor General, who appeared on behalf of the Attorney General, raised four preliminary points of objection to the petition. The first point of objection was that the Petition was incompetent, in that it was not supported by evidence as required by law. The petition was supported by four affidavits. The deponents were Paul Ssemogerere, Hon. Zachary Olum, Hon. Juliet Rainer Kafire and Hon Daniel Omara Atubo. Apart from Paul Ssemogerere, the remaining three deponents are members of Parliament of Uganda. Mr. Kabatsi contended that the affidavits of the members of Parliament were inadmissible, in that members of Parliament require special leave of Parliament under Section 15(1) of the National Assembly (Powers and Privileges)Act (Cap. 249) before they can give evidence in court about proceedings in Parliament. As no such leave was obtained by the Honourable members of Parliament, their affidavits could not be relied upon. He cited and relied upon Constitutional Petition No. 4 of 1998. Jim Muhwezi Katugugu and 2 others v Attorney General, unreported. With regard to the affidavit of Paul Ssemogerere, Mr. Kabatsi submitted that it was not sufficient in itself to support the petition. In the first place, Mr. Paul Ssemogerere's source of information of what transpired in Parliament was based on what, he termed, written press, and electronic media. The information he gathered from those sources was not disclosed. In any event, it was hearsay evidence. He cited and relied on the Constitutional Appeal No. 1 of 1997: Major General Tinyefuza v Attorney General, Supreme Court. In the second place, Paul Ssemogerere relied on oral reports of Members of Parliament who participated in the discussion of the Bill in the House. The contents of those reports were not disclosed. The alleged oral reports were equally hearsay and inadmissible.
For those reasons Mr. Kabatsi submitted that the petition was incompetent as it lacked supporting evidence.
Mr. Lule, on behalf of the petitioners, responded that Section 15(1) of cap. 249 was not contravened as the Members of Parliament obtained leave of Parliament to use the relevant Parliamentary proceedings in court. He relied on a letter, (ExhP1), in support of his contention. We shall revert to it later in the ruling. As regards the affidavit of the first petitioner, Mr. Lule submitted that the affidavit was admissible as it was based on knowledge and belief and what the members of Parliament had stated in their affidavits. He conceded, however, that the written press and electronic media reports were hearsay.
It is now necessary to consider Section 15(1) of Cap.249 which provides:
"Save as provided in the Act, no member or officer of the Assembly and no person employed to take minutes of evidence before the Assembly or any committee shall give evidence elsewhere in respect of the contents of such minutes of evidence or of the contents of any document laid before the Assembly or such committee, as the case may be, or in respect of any proceedings or examination held before the Assembly or such committee, as the case may be, without the special leave of the Assembly first had and obtained.
(2) The special leave referred to in subsection (1) of this section may be given during a recess or adjournment by the Speaker or, in his absence or other incapacity or during any dissolution of the Assembly, by the Clerk."
The Section prevents Members of parliament from giving evidence about Parliamentary proceedings in court or elsewhere without first obtaining special leave of Parliament. It is meant to protect proceedings and evidence given before Parliament from being used as evidence out side Parliament without prior leave of Parliament. It is intended to protect the dignity and immunity of Parliament. The Section covers all proceedings of Parliament and its committees.
Section 15(1) of Cap. 249 has been incorporated in rule 171 of the Rules of Procedure of Parliament of Uganda which came into force on 3 0th July 1996. The rule provides:-
"2 72. No member or officer and no person employed to take minutes of evidence before a committee shall give evidence elsewhere in respect of the contents of the evidence or of any manuscript or documents presented to Parliament or a committee, or in respect of proceedings at the bar of the House or before a committee, without prior leave of the Committee on Rules, Privileges and Discipline".
Mr. Lule has contended that the members of Parliament in this case obtained leave of Parliament to give evidence about the proceedings in Parliament. His reason was that Messrs Balikuddembe and Co. Advocates applied to Speaker of Parliament on behalf of Hon. Zachary Olum MP for Nwoya, Hon. Ken Lukyamuzi MP for Lubaga South and Hon. Juliet Rainer Kafire MP for Kibuku county, Pallisa District for special leave of Parliament to give evidence in respect of matters that took place in Parliament on the 1.7.1999. The letter also requested a copy of the Hansard Proceedings of that day. In response to that request the Clerk to Parliament sent to the advocates a certified copy of the Parliamentary Proceedings of the 1st July 1999 as requested. This letter was admitted in evidence as Exh P1.
It is the contention of Mr. Lule that since Exh P1 was sent to the advocates following their request to the Speaker for special leave for the members of Parliament concerned to give evidence in this court in respect of what happened in Parliament on the 1st July 1999, that letter should be regarded as leave given to the members of Parliament to give evidence about the Parliamentary proceedings of 1st July 1999. Mr. Kabatsi has submitted to the contrary.
To determine the true import of Exh P1 and the message it conveyed, we deem it appropriate to set out the contents of annexture P1 to Hon. Zachary Olum's affidavit and Exh P1. Annexture P1 reads;
Parliament of Uganda,
Re: Hansard Proceedings of 1999 Special Leave under Section 15 National Assembly (Powers and Privileges) Act Cap. 249 and Article 41 of the 1995 Constitution.
Acting on the instructions of our clients Hon. Zachary Olum MP for Nwoya, Hon. Ken Lukyamuzi, MP Lubaga South and Hon. Juliet Rainer Kafire MP Kibuku County, Pallisa District, we hereby seek the special leave of Parliament for our clients to give evidence in respect of the Hansard Proceedings of 1.7.1999 in the Constitutional Court of Uganda at Kampala and we also request that you supply us with a copy of the Hansard Proceedings of that day 1st July 1999.
We shall be grateful to you. Sir, to receive your reply within 2 days.
Balikuddembe £ Company. "
It is clear from the annexture P1 that two requests were made. The first was special leave of Parliament to enable the members of Parliament named to give evidence in respect of the Hansard Proceedings of 1.7.1999. The second was a request for a copy of the Hansard Proceedings of that day.
The relevant part of Exh P1 read:-
"Re: Hansard Proceedings of July 1999; Constitutional Court of Uganda Constitutional Petition No. 3 of 1999 by Paul Ssemogerere and Zachary Olum"
I make reference to your letter No. JB/54/99 of the 17 August, 1999 on the above subject.
Please, receive a certified copy of the Parliamentary Proceedings of the 1st July, 1999, as you requested"
The letter was addressed to Messrs Balikuddembe & Co.
In our view, there is nothing in this letter that can remotely convey the message to the advocates that Parliament had given leave to the members of Parliament concerned to give evidence in court as requested. It merely submitted a certified copy of the Parliamentary Proceedings of the 1st July that was requested for by the advocates. The Clerk to Parliament did not obviously address the issue of special leave in Exh P 1 because he was aware that Parliament had denied the request on the 18th August 1999 and that the Members of Parliament concerned had been notified by Exh D1 dated 19/8/99 which reads:
"Hon. Nobert Mao MP. Gulu Municipality
Hon. John Ken Lukyamuzi MP. Lubaga South Hon. Zachary Olum MP. Nwoya Gulu District
Hon. Rainer Kafiire MP. Kibuka Pallisa District.
MOTION FOR A RESOLUTION OF PARLIAMENT TO GRANT SPECIAL LEAVE TO YOU TO USE PARLIAMENTARY RECORDS IN COURTS OF LAW.
On the 4th August, 1999, I received Notice of Motion referred to above.
The Motion was duly placed on the Order Paper of Tuesday the 10th August, 1999, debate on it ensued but was deferred to Wednesday the 18th August; when it was extensively debated and when put to vote it was defeated.
Consequently, Parliament denied you leave to use its records in the Courts of Law. Accordingly I will not be in position to avail you the records requested for:"
In the result, we are unable to agree with the learned counsel for the Petitioners that Parliament granted leave to the Members of Parliament to give evidence in court touching on the parliamentary proceedings of the 1st of July, 1999. Therefore their affidavits cannot be used to support the Petition.
As regards the affidavits of the First Petitioner, we think that it is inadmissible. As for his source of information from written press, and electronic media, it has already been conceded by Mr. Lule that it was hearsay. With regard to the Oral report of Members of Parliament who participated in the discussion of the Bill in the House, we have already held that they did not have the leave of Parliament to disclose that information outside Parliament.
In the result, we hold that the affidavit evidence accompanying the petition is inadmissible. That leaves the petition unsupported by evidence. The absence of the supporting evidence renders the petition incompetent. See Jim Muhwezi Katugugu and others v Attorney General (Supra). Therefore the first point of objection is upheld.
The second point of objection is that the petition raises no question for the interpretation of the Constitution as required by Article 137 of the Constitution. It was said that the jurisdiction of this court is for interpretation of the Constitution and not for enforcement of the Constitution. Mr. Kabatsi cited and relied on Attorney General v Major General Tinyefuza (Supra) and Ismail Serugo v Kampala City Council and Another. Constitutional Appeal No. 2 of 1998, Supreme Court, (unreported).
According to Mr. Kabatsi, the main complainant in the petition is that at the time Parliament took the decision to pass the Referendum and Other Provisions Act, 19 99, there was not in the House a quorum prescribed by Article 88 of the Constitution and as such the Act was passed in contravention with Article 88 of the Constitution. Article 88 provides that the quorum of Parliament should be one - third of Members of Parliament. That provision requires no interpretation. How to determine the quorum can be found in the Rules of Procedure of the Parliament of Uganda made under Article 94(1) of the Constitution. The complaint of the Petitioners is that the Speaker adopted a wrong procedure to determine the quorum. It is the contention of Mr. Kabatsi that whether the correct procedure was followed or not is not the function of this court. It is a matter of enforcement of the Constitution which can be dealt with by any other competent court.
Mr. Lule, on the other hand, contended that the petition raises issues for the interpretation of the Constitution. The petition is brought under Article 137(3) of the Constitution, which provides:
"Article 137(3) A person who alleges that:-
(a) an Act of Parliament or any other law or anything in or done under the authority of any law; or
(b) any act or omission by any person or authority is inconsistent with or in contravention of a provision of the Constitution, may petition the Constitutional Court for a declaration to that effect, and for redress where appropriate".
According to Mr. Lule, the ingredients of the provisions of Article 137(3) are contained in the petition. For example, the complaint in paragraph 1(a) of the petition is that the Act was passed when there was no quorum required by the Constitution in the House contrary to Article 88. Also paragraph 1(b) listed several acts of the Speaker which were alleged to be inconsistent with and in contravention of Articles 79, 88 and 89 of the Constitution. There is also an allegation in paragraph 1 (c) of the petition that the Act was enacted after the expiry of the time stipulated in the Constitution for its enactment contrary to Article 271(2) of the Constitution. It was the contention of Mr. Lule that the above matters are sufficient to invoke the jurisdiction of this court. He relied on Ismail Serugo (Supra) where, according him, similar allegations were made.
There is no dispute as to the jurisdiction of this court. The dispute about the import of the Supreme Court's decision in Attorney General v David Tinyefuza concerning the
jurisdiction of this court has finally been clarified by the Supreme Court in Ismail Serugo (Supra). It will be sufficient to refer to just three of the judgments of the justices. Mulenga JSC had this to say:
"Although there are a number of issues in that case decided on the basis of majority view, it is evident from a proper reading of the seven judgments in that case, that it was the unanimous holding of the court that the jurisdiction of the Constitutional court was exclusively derived from Article 137 of the Constitution. It was not a holding in any of the judgments that Article 50 of the Constitution confers, on the Constitutional Court, any additional and/or separate jurisdiction to enforce the right and freedoms guaranteed under the Constitution. It seems to me that what Mr. Mbabazi may have misconstrued is the holdin that the Constitutional Court was "a competent court" for purpose of Article 50 to which an application (for redress) may be made when such right or freedom is infringed or threatened. It must be noted, however, that this holding is subject to a rider to the effect that such application for redress can be made to the Constitutional Court, only in the context of a petition under Article 137 brought principally for interpretation of the Constitution. It is provisions in clauses (3), and (4) of Article 137 that empower the Constitutional Court, when adjudicating on a petition for interpretation of the Constitution, to grant redress where appropriate. Clause (3) provides in effect, that when a person petitions for a declaration on interpretation of the Constitution, he may also petition for redress where appropriate. Clause (4) then provides:
"(4) Where upon determination of the petition under Clause (3) of this Article the Constitutional Court considers that there is need for redress in addition to the declaration sought, the
Constitutional Court may