Court name
Constitutional Court of Uganda
Judgment date
6 June 2000

Zachary Olum and Anor v Attorney General (Constitutional Petition-1999/6) [2000] UGCC 3 (06 June 2000);

Cite this case
[2000] UGCC 3
Short summary:

HR, Receive information

THE REPUBLIC OF UGANDA

IN THE CONSTITUTIONAL COURT OF UGANDA

AT KAMPALA

 

 

CONSTITUTIONAL PETITION NO.6/99

 

 

CORAM: HON. MR. JUSTICE S.T. MANYINDO, DCJ,

HON. MR. JUSTICE G. M. OKELLO, JA;

HON. LADY JUSTICE A. E. N. MPAGI BAHIGEINE, JA.

HON. MR. JUSTICE J. P. BERKO, JA

HON. MR. JUSTICE A. TWINOMUJUNI

 

 

HON. ZACHARY OLUM & } PETITIONERS

HON. RAINER KAFIIRE }

 

 

 

 

VERSUS

 

 

THE ATTORNEY GENERAL RESPONDENT

 

 

 

 

JUDGMENT OF MANYINDO, DCJ

 

 

The petitioners, both members of Parliament, brought this petition, jointly, under Article 137 of the Constitution seeking several declarations. One of the declarations would be to the effect that section 15 of the National Assembly (Powers and Privileges) Act cap 249 which prohibits members of Parliament and certain employees of Parliament from using evidence of proceedings in the Assembly or its Committee elsewhere without the special leave of the Assembly having first been obtained is unconstitutional. At the hearing of the petition the Attorney General objected to its validity or competence on several grounds. In its considered Ruling this court overruled all the objections. The only question for decision is whether S.15 of cap 249 is inconsistent with Articles 41, 43, 28, 44 and 29 (1) (a) and (d) of the Constitution. At the hearing of the petition Prof. Sempebwa, Counsel for the petitioners, stated that he would rely only on Articles 41, 43, 28, 44 and 29(1)(a) and (d). However he made no submission at all in respect of Article 44.

 

 

The background to the petition is very briefly as follows. The first petitioner, Zachary Olum and one Paulo Kawanga Ssemogerere filed a petition( No. 3 of 1999) in this court in 1999, challenging the validity of an Act of Parliament. The second petitioner was a witness for the petitioner. Their Counsel sought leave from the Speaker of Parliament under section 15 of cap 249, for Olum, Kafiire and two other members of Parliament to give evidence in this court regarding proceedings in Parliament and to use a copy of the Hansard as evidence. The evidence would be in connection with the challenged Act of Parliament. Leave was refused. The petitioners now challenge the validity of S.15 of cap 249 which gives Parliament discretion in the matter when Article 41 of the constitution has guaranteed the people the right of access to information in possession of the state.

 

I find it necessary at this stage to set out section 15 cap 249 and the relevant parts of the Articles of the Constitution mentioned above.

S.15 states:

 

 

"15.(1) Save as provided in this 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 said articles of the Constitution state in part, as follows:

 

 

"28 (1) In the determination of civil rights and obligations or any criminal charge, a Right to a person shall be entitled to a fair, speedy and public hearing before an independent and impartial court or tribunal established by law.

 

 

(2) Nothing in clause (1) of this article shall prevent the court or tribunal from excluding the press or the public from all or any proceedings before it for reasons of morality, public order or national security, as may be necessary in a free and democratic society.

 

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

  1. freedom of thought, conscience and belief which shall include academic freedom in institutions of learning;

  2. freedom to practise any religion and manifest such practice which shall include the right to belong to and participate in the practices of any religions body or organisation in a manner consistent with this Constitution.

  3. free to assemble and to demonstrate together with others peacefully and unarmed and to petition; and

 

 

41. (1) Every citizen has a right of access to information in the possession of the State or any other organ or agency of the State except where the release of the information in the is likely to prejudice the security or sovereignty of the State or interfere with the right to the privacy of any other person.

 

 

(2) Parliament shall make laws prescribing the classes of information referred to in clause (1) of this article and the procedure for obtaining access to that information.

 

 

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;

(c) any limitation of the enjoyment of the rights and freedoms prescribed by this Chapter beyond what is acceptable and demonstrably justifiable in a free and

democratic society, or what is provided in this Constitution.

 

 

44. Notwithstanding anything in this Constitution, there shall be no derogation from the enjoyment of the following rights and freedom -

 

 

(a) freedom from torture, cruel, inhuman or degrading treatment or punishment;

(b) freedom from slavery or servitude;

  1. the right to fair hearing;

  2. the right to an order of habeas corpus

 

 

Section 15 of cap 249 has now been incorporated in section 171 of the Rules of Procedure of the Parliament of Uganda which came into force on 30 July, 1996. The only departure is that leave is to be sought not from the Speaker but from the Committee on Rules, Privileges and Discipline. Professor Sempebwa at first submitted that the right of access to information under Article 41 is not absolute as the Article contains restrictions. Therefore, he contended, under section 15 of cap 249 information could be rightly withheld by the state in a case where those restrictions obtain. In his view the instant case is not such a case as the security or sovereignity of the state is not affected by the information sought nor is any right of privacy of an individual involved.

However, the learned counsel later changed course and argued that any law that restricts the right of access to information by an individual is bad and cannot stand the test of Article 41. In his opinion section 15 of cap 249 cannot be maintained on grounds of public interest under Article 43 of the Constitution since the restriction in S.15 goes beyond what is justifiable in a free and democratic society. Learned counsel asked court to strike down S. 15 of cap 249 because of the unconstitutional restriction therein which is untenable under Article 43 of the Constitution.

 

 

Learned counsel also submitted that Section 15 above is unconstitutional in that it permits the withholding of information to a would be litigant with the result that such a person would not have a fair hearing which is guaranteed by Article 28 of the Constitution. He called in aid Constitutional petition No. 3 of 1999 supra, which failed in this court as the evidence that would have supported it was withheld by Parliament under section 15 of cap 249. He argued that in that case section 15 was misused and abused by Parliament with impunity and yet there is no right of appeal against withholding of information under that section.

 

 

Professor Sempebwa also contended that section 15 conflicts with Article 29 (1) (a) and (d) which guarantee freedom of speech and assembly. In his view a member of Parliament should be free to address a meeting in his or her constituency or elsewhere for that matter and refer to proceedings in Parliament except proceedings which were held in camera. He wrapped up his arguments in a rather dramatic way when he submitted that section 15 is harmless and therefore serves no purpose since the Hansard which contains the record of proceedings is a public document which can be obtained freely from Book Shops and other places. It follows that a member of Parliament can use it in evidence albeit through another person who is not covered by S.15 of cap 249.

 

 

The Attorney General was represented by Mr. Barishaki Chebrion, Commissioner for Civil Litigation. His position was that section 15 cannot be bad law simply because it contains a restriction since the constitution itself imposes restrictions. He cited Articles 41, 43 as examples. In his view section 15 merely lays down the procedure to be followed by a person wishing to use records of parliamentary proceedings in court or elsewhere. Article 43 protects the rights of other persons and the public interest in the enjoyment, by an individual, of the rights and freedoms conferred in chapter 4 of the Constitution. Mr. Chebrion submitted that section 15 is meant to protect the dignity and immunity of Parliament.

 

 

I think it is not disputed that section 15 above contains a restriction. The question is: does the restriction or condition render the provision unconstitutional? I think not. In my opinion the total import of Articles 41 and 43 of the Constitution is that the fundamental rights and freedoms conferred on individuals in chapter 4 of the constitution have to be enjoyed subject to the law of Uganda, in so far as such law imposes reasonable restrictions.

 

The doctrine of access to information or "the right to know" as it is sometimes called, has of necessity constitutional and other limitations especially where it touches the question of national sovereignity and the protection of sensitive defence and classified information, among other things. This is exactly what Article 41 does. It carries with it the necessary restrictions. There are very few absolute rights, that is rights whose enjoyment can never be restricted. For example the European Convention for the Protection of Human Rights and Fundamental Freedoms recognises only two such rights, the right not to be tortured (Article 3) and the right not to be held in slavery (Article 4)

 

 

In Uganda Article 44 seems to provide for such rights. In my view Section 15 of cap 249 does not contain a bar to access and use of information. It only imposes a restriction, that is, the requirement of leave of Parliament by specified persons to use certain information emanating from Parliament. Both under Article 41 of the constitution and Section 15 of cap 249 the burden is on the state to show that the information is classified and thus restricted in the public and other interests. Individual rights are honourable but they can never override the public interest, state security and sovereignity in my view. I think it is generally accepted that laws may restrict actions, including actions which involve the exercise of constitutionally protected rights, which harm others.

 

 

It was argued by Professor Sempebwa that the withholding of information means that a litigant will not have a fair trial which is guaranteed by Article 28 of the Constitution. I take fair hearing to be the same as fair trial. A fair trial includes, inter alia, public hearing, presumption of innocence in a criminal matter and the right of a litigant to have all the necessary evidence to enable him or her prosecute or defend the action properly. As for the evidence, it must be available and admissible in law. Clearly restricted evidence is neither available nor admissible in a trial.

 

 

It is quite remarkable that even under the Constitution the right to a fair hearing is restricted. For example, under Article 28 (2) a court or tribunal may exclude the press or public from proceedings before it. Also while under Article 28 (3) (a) a person on a criminal charge shall be presumed to be innocent until proved guilty or until he or she pleads guilty to the change, under Article 28(4) any law that imposes on the accused the burden of proving particular facts cannot be inconsistent with the constitution. These are necessary restrictions. It follows that the restriction under section 15 of cap 249 is not a derogation from a fair trial.

 

 

In my judgment the petitioners' complaint should be not that section 15 is a bad law but that Parliament wrongly withheld the information which was sought by the petitioners. This would be a matter of enforcement of the constitution, to be taken and argued in a competent court. There the petitioners would have to show that the restrictions did not apply to the case, that is, that the release of the information would not hurt the state or someone. This is what happened in Photo v Attorney General F1994J3 LRC 506 which was cited by Professor Sempebwa. The case concerned the right of access to information which is guaranteed in the post apartheid Constitution of South Africa. Under Section 23 of that constitution every person has a right of access to information if it is "required" for the exercise ' or protection of any of his rights. The provision is not quite the same as our Article 41. Phato was charged with criminal libel. In order to prepare his defence he sought from the police the relevant information to the charge. The police declined to release any information; they relied on the common law privilege of protecting information in Government hands.

 

 

Phato took the matter to the Supreme Court of South Africa (Eastern cape Division) for a declaration that the refusal to release the information was unconstitutional. The Supreme Court held that Phato required the information in the police docket, particularly the witnesses' statements, in order to prepare for his trial.

 

 

Tinyefuza v Attorney General, Constitutional Petition No. 1 of 1996 (Court of Appeal) was overruled by the Supreme Court on appeal. It is therefore doubtful whether this court would be in order to stick to its decision in that case. But the real question in that case was whether a head of a government department could withhold information under section 121 of the Evidence Act. This court made this observation:

 

"What must be protected under section 121 of the Evidence Act are official records relating to any affairs of state. In our opinion to invoke section 121, one must be satisfied that the document in question is an official record relating to affairs of state. If it is not an official record, section 121 cannot be invoked ... The constitution has determined that a citizen shall have a right of access to information in state hands. It has determined the exceptions in a manner that is inconsistent with the application of section 121 of the Evidence Act. It is no longer for the head of Department to decide as he thinks fit. That unfettered discretion has been overturned by Article 41 of the Constitution. And now, it is for the court to determine whether a matter falls under the exceptions in Article 41 or not. And to do this the State must produce evidence upon which the court can act. It has not done so in this instance. "

 

The objection by the Attorney General on the admissibility of the document in question was overruled. On appeal to the Supreme Court (Wambuzi, CJ) stated that he could not fault the above reasoning of this court and the decision to overrule the objection. The learned Chief Justice went on to say:

"I am unable to accept the Solicitor General's submission that as it was common ground that Exhibit P2 related to state security it was not necessary to go further and prove that release of the information would cause prejudice. The Constitutional Court found it was necessary so to prove and I agree. "

 

And so, Tinyefuza (Supra) does not nullify section 121 of the Evidence Act. It merely holds that the section will be invoked only when the court is satisfied that the information in question is exempted under Articles 28, 41, 43 and 44. In my view the question of this court departing from its earlier decision does not arise.

 

 

 

 

For the reasons stated above I find no merit in the petition. Section 15 of cap 249 is not inconsistent with Articles 28, 29, 41, 43 and 44 of the Constitution. I would dismiss the petition with costs to the respondent. However, the decision of the court, by majority, is that this petition is allowed with costs to the petitioners.

 

JUDGMENT OF G.M. OKELLO, JA.

In this petition, the petitioners who are both Members of Parliament sought from this Court a declaration:-

 

 

"that section 15 of the National Assembly (Powers and Privileges) Act Cap 249 is in consistent with Articles 41, 43, 44, 21, 28 and 29 (1) (a) and (d) of the Constitution."

 

The petition was accompanied by the affidavits of both petitioners sworn on 17 September, 1999. The Attorney General duly filed his answers to the petition denying all the allegations therein. His answers were supported by the affidavit of Christopher Gashirabake, a Senior State Attorney in the Attorney General's Chambers sworn on 27/9/99.

This petition had sought a number of declaratory orders. When it was called for hearing on 27/10/99 several objections were raised challenging its competence. In opposing these objections, counsel for the petitioners submitted that he was concerned only with the constitutionality of section 15 of the National Assembly Act (supra). That narrowed down the issue in the petition to only one. In its ruling upon those objections, this court held inter alia that the petition was competent in its allegation that section 15 of Cap 249 was inconsistent with certain articles of the constitution. Accordingly, the petition was heard to determine that issue. Hence this judgment.

 

 

The gist of Prof. Fredrick Sempebwa, learned counsel for the petitioners submissions, was that section 15 of the National Assembly (Powers and Privileges) Act Cap. 249 is inconsistent with article 41 because it denies Members and Employees of Parliament access to and use of information in the possession of the state. Though he conceded that the guarantee under article 41 was not absolute as under it, the information can be withheld if:-

(a) it prejudices the security of the state or;

(b) is prejudicial to the privacy of an individual.

 

 

Prof. Sempebwa complained that under Section 15, Parliament has wider power and could with hold the information for any reason. He criticised the requirement of special leave of Parliament enshrined in the section as unnecessary for it gives to Parliament unfettered power to withhold the information for reasons other than those stated in article 41 or even for none at all. He cited and relied on Phato Vs. A.G. [1994] 3 LRC 503, Supreme Court of South Africa. He argued that although section 15 and the whole of Cap 249 were designed to protect the sovereignity of

Parliament and the immunity and dignity of its members and officers, that purpose of the Act was negatived by those restrictions in the section.

 

 

According to Prof. Sempebwa, the restrictions in that section were unfair as they apply only to members and employees of Parliament when any member of the public could access the information (Hansard) at a cost and might use it in evidence without similar restrictions. He further submitted that the unfairness of the section was aggravated by its failure to make provision for Parliament to subscribe reasons for its refusal to grant the leave sought and provision for appeal against such refusal. In counsel's view the section can not for those reasons be justified in a free and democratic society provided in article 43 (2) ( c ) of the constitution.

 

 

Learned counsel further challenged the section as being inconsistent with article 28 (1) of the Constitution. He argued that the section can be used to prevent members and officers of Parliament to adduce all evidence necessary for his/her trial. In his view that is contrary to the fair hearing guaranteed in article 28 (1). He again relied on Phato (supra).

 

Finally, Prof. Sempebwa criticised the section for being inconsistent with article 29 (1) (a) and (d). He argued that in restricting members and officers of Parliament from giving evidence regarding the contents of proceedings in Parliament, the section is in conflict with the freedom of speech and assembly guaranteed in those articles. On those premises he prayed that the court declares that the section is inconsistent with the stated articles.

Mr. Cheborian Barishaki, Commissioner for Civil Litigations in the Attorney General's chambers who appeared for the respondent did not agree with the views expressed by Prof. Sempebwa. He contended that section 15 which is also incorporated in rule 171 of Rules of Procedure of the Parliament of Uganda, made pursuant to Cap. 249 was not inconsistent with all the articles referred to. It merely lays down the procedure to be followed to access the information in possession of Parliament. It is not absolute. In his view, all the articles referred to have restrictions which section 15 only goes to ensure compliance with them.

 

 

As regard the argument that the section is unfair, Mr. Cheborion submitted that the section rightly applies to Members and officers of Parliament because these are the people who have knowledge of the information in the record of Parliamentary proceedings. He emphasised that the section is meant to protect the immunity and dignity which Parliament need to carry out its duty. It applies to Committees of Parliament as well. He reasoned that Phato's case supra also recognises that access to information in the possession of the state is not absolute. There must be checks and balances.

 

Having outlined the submissions of counsel for both sides, it is now necessary to set out the articles and the section referred to for ease of reference.

"Article 41:

(1) Every citizen has a right of access to information in the possession of the state or any other organ or agency of the state except where the release of the information is likely to prejudice the security or sovereignty of the state or interfere with the right to the privacy of any other person

(2) Parliament shall make laws prescribing the classes of information referred to in clause (1) of this article and the procedure for obtaining access to that information.

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.

  2. Nothing in Clause (1) of this article shall prevent the court or tribunal from excluding the press or the public from all or any proceedings before it for reasons of morality, public order, or national security as may be necessary in a free and democratic society.

(3)

(4)

(5)

(6)

(7)

(8)

(9)

(10)

(11)

(12)

 

 

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.

  1.  

  2.  

(d) freedom to assemble and to demonstrate

together with others peacefully and unarmed and to petition;

43:

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

  2. Public interest under this article shall not permit: (a)

(b)

(c) any limitation of the enjoyment of the rights and freedoms prescribed by this chapter beyond what is acceptable and demonstrably justifiable in a free and democratic society or what is provided in this constitution.

Notwithstanding anything in this constitution, there shall be no derogation from the enjoyment of the following rights

and freedom:

(a)

(b)

(c) the right to fair hearing

(d) "

 

Section 15 of the National Assembly (Powers and Privilege) Act Cap. 249 reads thus:- 15:

  1. Save as provided in this Act, no member or officer of the Assembly and no person employed to take minute 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, (emphasis added)

  2. The special leave referred to in sub-section (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,

 

Rule 171 of the Rules of Procedure of the Parliament of Uganda, reads thus:-

"No member or officer and no person employed to take minutes of evidence before a committee shall give evidence elsewhere or of any manuscript or documents presented to Parliament or la 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 Disciplines."

 

To determine the constitutionality of a section of a statute or Act of Parliament, court has to consider the purpose and effect of the impugned statute or section thereof. If its purpose does not infringe a right guaranteed by the Constitution, the court has to go further and examine the effect of its implementation. If either its purpose or the effect of its implementation infringes a right guaranteed by the Constitution, the impugned statute or section thereof shall be declared unconstitutional.

 

 

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

 

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

 

"The task of this Court in this regard is to determine the Constitutionality of section 7 of the Act. In discharging this task, the Court, in my view, has to consider the purpose and effect of the Act. The decision in the Canadian Case of the Queen Vs Bis Drugmart Ltd. (other intervening) [1986] LRC (Const) 332 is relevant in this connection."

 

 

I propose to adopt the same principle in this case.

 

 

Parliament has power under article 79 (1) of the Constitution to make laws "on any matter for peace, order, development and good governance". The laws so made must conform with the constitution (See article 2 (2) ). CAP. 249 (supra) is an existing law which must under article 273 (1):

 

 

"be construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring it into conformity with the constitution".

 

Section 15 of Cap 249 essentially relates to evidence. It lays down procedure to access the information in the possession of the state. Mr. Barishaki argued that article 41 (1) guaranteed only access to but not use of the information in the possession the state. I do not agree. I think access to information without use of it would be empty. The framers of the Constitution could not have intended that. In my view, access and use must go together. That was the view held by this Court in its ruling in Major General David Tinyefunza Vs The Attorney-General, Constitutional Petition No. 1 of 1996.

 

Article 41 itself prohibits release of information in the possession of the state where :-

  1. it is likely to prejudice the security or sovereignty of the state or;

  2. likely to interfere with the right to the privacy of any other person.

 

 

This Court had in Major General David Tinyefuza Vs The Attorney General (supra) considered articles 41 (1), 28 (1) and 44 of the Constitution in relation to Section 121 of the Evidence Act. In that case, objection was raised by the state to the admissibility of Ex.P2 citing section 121 above as its authority. This section gave to the Head of Department unfettered power to release or not to release information in the possession of the state as he/she thinks fit. It was argued for the petitioner that that section was inconsistent with articles 41, 28 (1), and 44 (c) for derogating on the right to a fair hearing.

 

The Court used the Constitutional interpretation principle of harmonisation and considered articles 41, together with articles 28 (1) and 44 (c) as they are all on the same issue and held that under article 41 which is a new innovation in the history of our Constitution, the Head of Department no longer had a final say on whether or not a document is restricted. It is now the Court which is the final arbiter on the matter.

The state has only to give evidence to prove that the document falls within the restrictions contained in article 41 and the court will decide. The Supreme Court upheld that decision. In fact Wambuzi, CJ in this respect said:-

 

"I am unable to accept the Solicitor-General's submission that as it was common ground that Exhibit P2 related to state security it was not necessary to go further and prove that release of the information would cause prejudice. The Constitutional Court found it was necessary so to prove and I agree."

 

On the principle of Stare decisis et non quieta movera, which applies to our system, it is expected that this Court follows its earlier decision on apparently similar case particularly when that earlier decision has been adopted and confirmed by a superior Court. It becomes binding on the Court and a departure from it would call for explanation for example by distinguishing the two cases. The importance of stare decisis needs no emphasis. It ensures predictability, uniformity and fairness which are corner stones in our judicial system.

 

 

The instant case is on all fours with the point raised in the preliminary objection in Tinyefuza case Supra. Section 121 of the Evidence Act which was alleged in that case to be inconsistent with articles 41 (1), 28 (1) and 44 (c) of the Constitution is similar to section 15 of Cap. 249 which is alleged in the instant case to be inconsistent with the same articles of the Constitution. Both sections give unfettered power to an authority over the release of information in the possession of the state for use as evidence. This Court having taken a reasoned position which was upheld by the Supreme Court, is bound to follow that position in apparently similar subsequent cases unless it can distinguish the two cases. For me, I find no material distinction between the two cases to justify departure from that earlier decision.

 

 

The Constitutional interpretation principle of harmonisation adopted by this Court in Tinyefunza's case supra is a well known Constitutional construction principle. Manyindo, D.C.J observed of the principle in Tinyefuza case as follows:-

 

 

"...the entire Constitution has to be read as an integrated whole and no one particular provision destroying the other but each sustaining the other. This is the rule of harmony, rule completeness and exhaustiveness and the rule of paramountcy of the Constitution."

 

On appeal (Attorney General Vs. Tinyefuza supra) Oder J.S.C. expressed the same view in this way:

 

 

"Another important principle governing interpretation of the Constitution is that all provisions of the Constitution concerning an issue should be considered all together. The Constitution must be looked at as a whole."

 

Indeed all the provisions of the constitution concerning an issue should be considered together. In doing so, sight must not be lost of the spirit of our Constitution which is the establishment and promotion of a just, free and democratic society. In line with the above principle, article 28 (1) must be read together with article 44 which prohibits derogation from the enjoyment of amongst others "the right to fair hearing."

 

This Court had in its Ruling in Tinyefuza Vs Attorney General (supra) defined "fair hearing" thus:-

 

"Fair hearing connotes that in accordance with the law a party is given the necessary opportunity to canvass all such facts as are necessary to establish his case."

 

The Court then held in that ruling that the right to fair hearing was "not derogable". What that meant is that as regards the right to fair hearing, even those restrictions contained in article 41 (1) are derogations and are therefore over ridden by article 44 (c). Similarly, the requirement of a special leave of Parliament entrenched in section 15 is a derogation prohibited by article 44 (c). To subject the exercise of that right of the Members and officers of Parliament to the permission of Parliament can not be consistent with articles 28 (1) read together with article 44 (c). The exercise of the right would be rendered illusory.

 

 

If the state thinks that the information sought to be used by a member or officer of Parliament as evidence is within the restrictions of article 41 (1), it can raise objection to its admissibility and adduce evidence to prove that it is so. Then the Court would decide on it. The burden is on the state as it is the one seeking to take away the guaranteed right.

 

 

It was further argued for the petitioners that section 15 is inconsistent with article 29 (1) (a) and (d) of the Constitution. This article guaranteed the right to freedom of speech and expression and freedom to assemble and to demonstrate together with others peacefully and unarmed and to petition. I do not find this relevant as the information restricted by section 15 is only that to be used as evidence. Perhaps where the freedom of speech and expression relate to giving the evidence that the restriction in section 15 might be relevant. But this has not been shown so.

 

The next is article 43 (2) which places general limitation on the rights and freedom to within what is "acceptable and demonstrably justifiable in a free and democratic society" or what is provided in the Constitution.

 

 

The phrase in a "free and democratic society" has been considered by courts in other jurisdictions. In Canada, the Supreme Court in The Queen Oakes [1987] (Const) 477 at 498 - 9 said:

 

 

 

 

"A second contextual element of interpretation of (section 1) is provided by the words "free and democratic society". Inclusion of these words as the final standard of justification for limits on rights and freedoms refers the court to the very purpose for which the charter was originally entrenched in the Constitution of Canadian society is be free and democratic. The court must be guided by the values and principles essential to a free and democratic society which I believe embody to name but a few, respect for inherent dignity of human rights, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity and faith in social and political institutions which enhance the participation of individual and groups in society. The underlying values and principles of a free and democratic society are the genesis of the rights and freedoms guaranteed by the charter and the ultimate standard against which a limit on a right or freedom must be shown, despite its effect to be reasonable and democratically justified."

 

The general features in the definition of the phrase "free and democratic society" are that it is 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. That is a free and democratic society. In my view, in such a society section 15 cannot be justified because it derogates on the right to fair hearing. Subjecting the exercise of a guaranteed right to the permission of another authority is derogation. It is prohibited by article 44 (c) of the Constitution.

 

 

In the result, I would allow the petition. I would declare that section 15 of the National Assembly (Powers and Privilege) Act Cap. 249 is inconsistent with articles 28 (1), 41 (1), 43 (2) (c) and 44 (c) of the Constitution.

Dated at Kampala this 6th day of June 2000

 

 

 

 

 

 

 

G.M. OKELLO

JUSTICE OF APPEAL

 

 

 

JUDGMENT OF BERKO, JA.

 

I had the privilege of reading, in draft, the Judgment of Manyindo, DCJ and I agree with his conclusions that there is no merit in the petition, and what follows is by way of marginal addenda.

 

 

In my opinion S. 15 of the National Assembly (Powers and Privileges) Act Cap. 249 is meant to protect the dignity and immunity of Parliament and to prevent irresponsible and indiscriminate disclosure of what transpires within the walls of the House. In my view the section does not bar access and use of information. All that it does is to impose a restriction on those specified persons who want to use the information emanating from Parliament to obtain leave of Parliament to do so. Indeed all the articles of the Constitution relied upon by the petitioners contain some kind of restrictions. I agree with the observation of the Hon. The Deputy Chief Justice that there are few absolute rights whose enjoyment can never be restricted.

 

 

In my view the section has a legitimate role to play in the democratic governance of this country, and consequently I do not subscribe to the argument that it should be struck out. I would rather advocate for its legitimacy to be tested on case by case basis. With the result that where a refusal is made, as in the instant case, the applicant would be at liberty to take action in any competent court to challenge the refusal. The onus would therefore be upon the Attorney General or Parliament to show that the information to be excluded came within the perview of the exceptions listed in clause 1 of article 41 of the Constitution which provides: "41(1) Every citizen has a right of access to information in the possession of the State or any other organ or agency of the State except where the release of the information is likely to prejudice the security or sovereignty of the State or interfere with the right to the privacy of any other person. That would enable the Court to make a pronouncement on it, so that the Court, and not Parliament, would have a final say in the matter. For there might be instances in which a refusal might be justified. Those circumstances are clearly set out in the Constitution.

 

 

In my humble view S. 15 of Cap. 249 is not inconsistent with articles 28, 29, 41, 43 and 44 of the Constitution. I would dismiss the petition with costs to the respondent.

 

 

Dated at Kampala this 6th day of June 2000.

 

 

J.P. Berko

Justice of Appeal.

 

 

JUDGMENT OF HON. A.E.N. MPAGI-BAHIGEINE, JA.

Hon. Zachary Olum and Hon. Juliet Rainer Kafiire being aggrieved filed this petition against the Attorney General seeking the following declarations under Article 137(1) of the Constitution:

  1. that the refusal by parliament to grant the petitioners and other members of Parliament special leave to give evidence and use the Hansard in this Court in Constitutional Petition No. 3/99 is inconsistent with and contravenes Articles 1(1) and (3); 3(1) and (2); 20(1) and (2); 28(1); 29(1)(a) and (d); 41; 43(1)(c) and 44(c) of the Constitution;

  2. that Section 15 of the National Assembly (Powers and Privileges) Act Cap. 249, is inconsistent with the

Articles of the Constitution herein before mentioned and

 

(c) that Rule 17(2) of the Rules of Procedure of the Parliament of Uganda is inconsistent with Articles 88 and 89 of the Constitution.

 

 

At the commencement of the hearing of this petition, a number of preliminary points of objection were raised by the respondent. In the ruling of this court dated 3/12/1999 all the objections were resolved in favour of the petitioners, thus leaving the petition to proceed only on the sole issue of whether section 15 of the National Assembly (Powers and Privileges) Act Cap. 249 is inconsistent with or in violation of articles 28(1), 29, 41, 43(1)(c) and 44(c) of the Constitution.

 

For the respondent it was averred that the section only requires special leave to be obtained before evidence of the proceedings of Parliament is given outside the House. It was contended that the Section is essential as it seeks to protect and maintain the dignity, immunity, sovereignty and effectiveness of parliament. It does not contravene nor is it inconsistent with the alleged Articles of the Constitution. It states:

 

 

"15(1) Save as provided in this 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 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".

 

 

The articles which section 15 is alleged to be in conflict with are:-

 

 

41 which guarantees a citizen's right of access to information:-

 

 

"(1) Every citizen has a right of access to information in the possession of the state or any other organ or agency of the state except where the release of the information is likely to prejudice the security or sovereignty of the state or interfere with the right to the privacy of any other person.

(2) Parliament shall make laws prescribing the classes of information referred to in clause(1) of this article and the procedure for obtaining access to that information."

 

43 which provides for a general limitation on fundamental and other human rights and freedoms:-

 

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

 

 

(2) Public interest under this article shall not permit-

 

 

(a)

(b)

(c) any imitation 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".

 

 

44 states:-

"Notwithstanding anything in this Constitution, there shall be no derogation from the enjoyment of the following rights and freedoms:-

  1.  

  2.  

(c) the right to fair hearing".

(d)

 

 

What constitutes fair hearing is specified under Article 28.

 

 

29 protects freedom of conscience, expression, movement, religion, assembly and association.

I turn back to section 15. It was incorporated in Rule 171 of the Rules of Procedure of Parliament. It was replicated verbatim. These rules of procedure were made pursuant to Cap. 249 as envisaged by Article 94 which provides:

 

"94(1) subject to the provisions of this Constitution, Parliament may make rules to regulate its own procedure including the procedure of its committees."

 

 

These rules of procedure are intended and are primarily for the proper conduct of parliamentary business. However they must be subject to the Constitution. In a parliamentary democracy like the U.K., these rules are the exclusive responsibility of both Houses of Parliament.

 

 

"They would sink into utter contempt and inefficiency without it". (Privileges) Bradlaugh v Gossett (1884) 12 Q.B.D. 271.

 

 

In our Constitutional democracy, however, where Constitutional supremacy is entrenched by Article 2, the courts are the watchdogs of these privileges where they tend to conflict with a citizen's fundamental human rights and freedoms. Smith v Matasa and Another (1990) LRC 87.

Section 15 prescribes a special procedure for accessing information in possession of Parliament, which is sought to be used in evidence outside by members of Parliament or employees. The section requires that leave of the House be obtained before such evidence can be used. Such leave might be granted or rejected. However Article 41 guarantees a citizen's right of access to information except where such information is likely to prejudice state security or sovereignty or the right to the privacy of any other person. It is important to note that ordinarily under Section 121 Evidence Act, it used to be the sole duty and responsibility of the state to grant or reject access to information regarding "affairs of state" which concept covers a wider spectrum than Article 41. The state would therefore withhold information not restricted under Article 41. This court however held in Constitutional Petition No. 1/1997 Major General David Tinyefuza v Attorney General that under the 1995 Constitution it is now the Court to decide whether the information sought falls within the three exceptions prescribed by Article 41 unlike under Section 15. The state has to prove that the information sought is restricted. It was further held that the right of access to such information should include the right to use it as to hold otherwise would render the right incomplete and meaningless. This Court adheres to the principle of stare decisis unless it is of the opinion that its earlier decision is erroneous or found to be so by a Superior Court. In my view this Court's Ruling in the Tinyefuza Petition involving these points is good law as it has not been overruled. It is clear therefore that Section 15 is in conflict with Article 41.

 

 

Considering the general restrictions placed on the enjoyment of the fundamental and other human rights and freedoms by Article 43(c), these restrictions may not be applied beyond what is acceptable and demonstrably justifiable in a free and democratic society or what is provided in the Constitution. This concept is not capable of precise definition as it is a new development. However the underlying principle is that the restrictions must have regard for a "proper respect for the rights and dignity of mankind". This is no longer a question of the political and policy process to determine as Section 15 stipulates. The restrictions are inherent in the judicial process under the Constitution. It is now the supreme function of the judge to recognise and determine whether the restrictions are reasonably justifiable in a democratic society having a proper respect for the rights and dignity of mankind. The test is objective and it is the supreme function of the judge to apply it in accordance with the relevant laws made for the purpose. The rights together with the restrictions have to be examined to ensure that expression is given to the values expressed in the Constitution which is the supreme law of the land against which all law or conduct is to be tested and every exercise of power justified. All the articles under consideration 41, 43, 44(1) 28 and 29 are relevant to one another in their bearing to the right of a fair trial. A right to information in terms of the Constitution cannot be limited by requiring a citizen to obtain leave of Parliament before accessing it - Phato v Attorney General & Another (1994) 3 L R C. 506 (SO. Also see MTN Pty Ltd v NBN Ltd v The State (Papua New Guinea) (1988) LRC (Const) 348. In this regard it can hardly be said that section 15 conforms with these innovations as it tends to give arbitrary powers to Parliament to decide on a fundamental right of a citizen whether he is entitled to fair hearing.

 

Regarding Articles 44(c) and 28(1) which prescribe the right to fair hearing, this right is non derogable. There cannot be any restriction upon or derogation from any of the fundamental human rights recognised or existing as non derogable nor can they be recognised to a lesser extent. By prescribing a special procedure of access requiring leave to obtain evidence, Section 15 is recognising this right to a lesser extent, whether the applicant decides to appeal against that decision or not as the case may be. The citizen has unimpeded access to court and where sensitive information is involved, this can be protected under Article 28(2) - See Tinyefuza's Petition (Supra) where the public was excluded from Court when the admissibility of ExP2, an alleged sensitive document on which the applicant's case hinged was being considered. In that case this court held:

 

"We hold that this document is admissible the court should hold the hearing that relates to it in camera as it touches on the security of the state. We have noted that the state did not adduce evidence in this regard. But it was conceded by Mr. Lule, SC on the 27th February 1997 that this was a matter of state security."

 

 

The court examined the document and conceded that some matters therein related to state security. It was therefore ordered that the proceedings relating to the document be held in camera and so it was done.

 

It is therefore well entrenched in the legal system that the state may not derogate from its obligations to ensure that a citizen has a fair trial, which entitles him an opportunity to avail himself of all necessary material in support of his case. Section 15 therefore is in conflict with Article 28 and 44(c) when it leaves the decision to grant leave to obtain information to Parliament.

Article 94(1) stipulates that the rules Parliament makes to regulate its own procedure including the procedure of its committees must be subject to the provisions of the Constitution.

 

 

It was held in Smith v Mutasa and Another (Supra)

 

 

" and when privileges, immunities and powers

claimed by the House of Assembly were in conflict with the provisions of the Constitution, the courts would resolve the conflict in favour of the

fundamental rights of the citizen.

 

 

In view of the foregoing it clearly appears to me that Section 15 has long been overtaken by Constitutional development and democracy. It conflicts with and violates Articles 41, 43, 44(c), 28 and 29 of the Constitution.

 

 

I would therefore allow this Petition with costs to the 20 petitioners.

 

 

Dated at Kampala this 6th day of June 2000.

 

 

 

 

 

 

A.E.N. Mpagi-Bahigeine
Justice of Appeal.

 

 

 

 

 

 

JUDGMENT OF TWINOMUJUNI, J.A.

 

The two petitioners who are both members of Parliament, filed this petition seeking for a declaration that section 15 of the National Assembly (Powers and Privileges) Act Cap 249 is inconsistent with and contravenes Article 28,41,43 and 44(e) of the Constitution.

A brief background to this petition is that the first petitioner and Paul Kawanga Ssemogerere filed a petition in this court (No.3 of 1999) challenging the validity of the Referendum and Other Provisions Act (No.2 of 1999). The second petitioner was a witness for the first petitioner. The petitioners' lawyers wrote to the Speaker of Parliament pursuant to the provisions of section 15 of the National Assembly (Powers and Privileges) Act, seeking permission for the petitioners and their other fellow members of Parliament to give evidence regarding proceedings in Parliament and to use a copy of Hansard as evidence. Parliament 'considered the request and declined to grant permission. When that petition came up for hearing, the Attorney General moved the court to dismiss it as incompetent as it was not accompanied by evidence as it must, under rule 4(b) of the Rules of the Constitutional Court (Legal Notice No.4 of 1996). The objection was upheld and the petition was dismissed. The petitioner then filed this petition to challenge the validity of section 15 of the National Assembly (Powers and Privileges) Act in light of Articles 28,41,43 and 44 of the Constitution. This is the only issue for determination.

 

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 contexts 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- Manu [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-Mana (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 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 Constitution."

 

"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" See R -vs- Big M Drug Mart Ltd. [1985] DLR 4th 321, 395-6th (Supreme Court of Canada per Dickson, J.

 

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 [1990] 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 86 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 these principles let me turn to the merits of the petition. Section 15 of the National Assembly (Powers and Privileges Act whose validity is being challenged reads:-

 

"15(1) Save as provided in this Act, no member or officer of the Assembly and no person employed to take minutes of evidence before the Assembly shall give evidence elsewhere in respect of the contents of any document laid before the Assembly or such a 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."

 

The meaning of this provision is very plain. It prohibits

  1. A member of Parliament

  2. Any officer employed by Parliament

  3. Any person employed therein to record minutes of evidence before the Assembly or Committee,

 

from giving EVIDENCE elsewhere relating to:-

  1. Minutes of the Assembly

  2. Contents of documents laid before the Assembly or its Committees

(c) Any proceedings of the Assembly or Committee UNLESS special leave is first obtained from the Assembly.

 

In other words in respect of the above, Parliament has an

absolute discretion to grant the leave or not to grant the leave. Parliament does not have to give any reasons when it declines to grant the leave and there is no right of appeal anywhere against the decision of Parliament. This provision has been defended by the Attorney General. He contended that it is necessary to protect and maintain the dignity, immunity, sovereignty and independence and effectiveness of Parliament. The petitioners contend that the provision is no longer valid since it contravenes the provisions of Article 41 of the Constitution which provides as follows:-

 

Article 41(1) "Every citizen has a right of access to information in possession of the state or any organ or Agency of the state except where the release of the information is likely to prejudice the security or sovereignty of the state or interference with the right to the privacy of any other person."

 

It was contended that this provision wipes out section 15 because it makes it mandatory for all information in possession of the state to be accessible to every citizen except where such a release is likely to prejudice

  1. Security or sovereignty of the state

  2. interfere with the right to the privacy of any person.

 

This court had occasion to interpret Article 41 of the Constitution in the case of Major General Tinyefuza -vs- Attorney General (supra). In that case, the petitioner who was a member of the Military High Command had a secret document which related to matters of the High Command but which he wanted to be admitted in evidence in support of his case. The state objected to the admissibility of the document on the grounds that it was not obtained in accordance with section 121 of the Evidence Act. Section 121 of the Evidence Act provides:-

 

"No one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of state, except with the permission of the office at the head of the department concerned who shall give or withhold such permission as he thinks fit."

 

 

Rejecting the objection this court observed:-

 

"We now turn to the construction of Article 41 of the Constitution. This provision confers on all citizens the right of access to information in possession of the state or any other organ or agency of the state except where the release of the information is likely to prejudice the security or sovereignty of the state or interfere with the right to the privacy of any other person. A citizen, including the applicant is given a right of access to information in possession of the state or any of its organs. This right is restricted only in cases where release of the information is likely to prejudice, as claimed in this case, the security of the state.

 

If the state objects to release of the information it must show that release of the information is likely to prejudice the state. This can only be established by evidence to show the prejudice the security of the state would suffer. No evidence has been adduced to support such claim.

 

Secondly it would appear the mischief is in the release of information to citizens, probably with the consequence that such information may be made public prejudicing the security of the state. If the release is in a limited context, i.e. if it is denied to the public and the press but made available to the court and the parties for determination of issues between the state and such a party, then prejudice to the security of the state is averted. This is possible by holding a hearing in camera as authorised by Article 28(2) of the Constitution. The document in question, it is conceded, is in the knowledge of the petitioner. He was one of the persons intended to receive it, It is upon the state to show how the release of this document would prejudice the security of the state. It is not enough to raise security without more. The exception in Article 41 cannot be said to be consistent with section 121 of the Evidence Act as argued by Mr. Kabatsi. In our opinion, section 121 gives unquestionable power to the head of Department to give or withhold permission as he thinks fit to a person who desires to produce such a document. He is the sole judge of this matter. He does not have to give a reason or be accountable to anybody for the exercise of his power. If applied together with Article 41 of the Constitution it would override a citizen's right of access to information in government hands which is a fundamental right enshrined in chapter 41 of the Constitution. The head of Department could deny a citizen the right of access to information which is not accepted by Article 41; for affairs of state as a term of art is much wider than security of state or sovereignty or interference with the right to privacy.

 

 

As stated in Field's Law of Evidence, at page 5290 there is a long catena or chain of decisions in which warnings have been given by the courts of the menace which the supposed privilege implies to individual liberty and private rights and to the potency of its abuse. It is this menace in our view. that Article 41 sets out to correct. The right of access to information must include the right to use such information in a court of law in support of a citizen's case. We find that section 121 of the Evidence Act is inconsistent with Article 41 of the Constitution. And therefore it cannot bar the admissibility of the document in question." [Emphasis mine]

 

I have cited this landmark decision of this court at great length for two main reasons:-

 

(a) to show how this court has applied the rules of constitutional interpretation to protect a fundamental right guaranteed under the human rights provisions of our constitution.

 

(b) because the decision of this court was upheld on appeal by the Supreme Court in Constitutional Appeal No.1 of 1997 (supra) and is therefore binding on this court.

 

In the Tinyefuza Case (supra) this court was dealing with section 121 of the Evidence Act vis-avis Article 41 of the constitution. In this appeal we are dealing with section 15 of the National Assembly (Powers and Privileges) Act vis-avis the same Article 41 of the Constitution.

In my judgment, I do not see any difference between S.15 and S.121 of the Evidence Act. In both provisions, it is intended to restrict the right of a citizen from access and use of information in the hands of the state I do not think that it is of any consequence that S.121 affects every citizen whereas S.15 only restricts members of Parliament and officers and employees of the National Assembly, for they are equally entitled to enjoy the rights enjoyed by other citizens. Both provisions do not seem to have any problem with anyone who wants access to the information for any other purpose as long as it is not going to be used as evidence. If the information is to be used in evidence then in both cases clearance is required. In both cases the section grants unfettered power to give permission to use the information or to refuse it. In both cases there is no right of appeal if the clearance is not given and the refusing authority does not have to give any reason at all. In my judgment section 15 must suffer the same fate when interpreted against Article 41. The following powerful holding of this court in the Tinyefuza case (supra) applies with equal force to section 15 of the National Assembly (Powers and Privileges) Act.

"the Constitution has determined that a citizen shall have a right of access to information in state hands. It has determined the exceptions in a manner that is inconsistent with the application of section 121 of the Evidence Act. It is no longer for the Head of Department to decide as he thinks fit. That unfettered discretion, has been overturned by Article 41 of the Constitution. And now it is for the Courts to determine whether a matter falls in the exceptions in Article 41 or not. To do this, the state must produce evidence upon which the court can act." [Emphasis mine]

 

Section 15 of the National Assembly (Powers & Privileges) Act was part of "existing law" which was saved by the Constitution in Article 273(1) of the Constitution. This article enjoins us to construe section 15

 

"With such modifications, adaptations, qualifications and exceptions as may be necessary to bring it in conformity with this Constitution." [Emphasis mine]

 

In my judgment section 15 read together with Art.41 becomes a dead letter. It is inconsistent with that article within the meaning of Article 2 of the Constitution and is therefore void. It cannot be adapted or modified in any way so as to be consistent with Article 41. It has been contended that section 15 should be allowed to exist because it protects and maintains the dignity, immunity, sovereignty, independence and effectiveness of Parliament. In my judgment it does none of these. Parliament of Uganda is not sovereign. It is the Constitution that is supreme. A provision that denies honourable members of Parliament together, with those they represent, access to information that is otherwise readily available to the public cannot enhance the prestige or dignity of Parliament. The contrary is the most likely result.

If however anyone still has a lingering doubt that S.15 should retain some form of life, I do not think it can survive at all when interpreted against Article 44 of the Constitution.

 

This Article provides:-

 

"Notwithstanding anything in this Constitution, there shall be no derogation from the enjoyment of the following rights and freedoms:-

 

(a)

(b)

(c) the right to fair hearing."

 

This Article and Art.28(1) were also considered against section 121 of the Evidence in the Tinyefuza case (supra) by this court which stated:-

 

"If a petitioner is to enjoy a fair hearing which affords him an opportunity to canvass all matters before the court that would support his case, then he ought to be allowed, subject to the law, to put in evidence, all such evidence receivable by this court, that supports or purports to support his case.

Fair hearing connotes that in accordance with the law, a party is given necessary opportunity to canvass all such facts as are necessary to establish his case

Under Article 44 no derogation is permitted from the enjoyment of the rights set out therein and under Article 44(c) is the right to fair hearing. Mr. Kabatsi submitted that Article 44 must be read with Article 41. We do not agree. To accept this argument would be to do violence to the clear language of Article 44.

 

 

It states:-

 

"Notwithstanding anything in this constitution, there shall be no derogation from the enjoyment of the following rights and freedoms:-

 

(a)

(b)

(c) the right to fair hearing" [Emphasis mine]

 

The language is clear. It admits of no other construction. It prohibits any derogation from the enjoyment of the rights set out therein regardless of anything else in the Constitution.

 

It is a complete and full protection of the right to fair hearing. It is important to note that in Article 44, fair hearing does not go alongside speedy and public hearing which are its sisters in Article 28(1) of the Constitution. Speedy and public hearing is not protected under Article 44. This would, in our view, explain the provisions of Article 28 (2) of the Constitution which allow hearing in camera, without the press or the public for reasons of, inter alia, public order or national security. As the right to fair hearing cannot be derogated from, including on grounds of public order or National Security the Constitution, in Article 28(2) allowed the court to exclude the public and the press from a hearing where reasons of public order or national security require. We are therefore not able to agree with Mr. Kabatsi that the right to fair hearing is derogable. It is non-derogable. The Constitution has commanded so. And it is our duty to exact compliance."

 

As I have indicated above the court here was interpreting S.121 of the Evidence Act and Articles 28,41 & 44 of the Constitution. In my judgment Article 15 fairs even worse when interpreted against the same articles. That section, as has been said before, seeks to prevent a member of Parliament, or an officer or staff of the National Assembly from using, or giving evidence orally or otherwise anywhere else on any matter contained in the proceedings of Parliament or any of its committees UNLESS special leave is obtained first. The power to grant the leave is on the Assembly and is totally unfettered. Any member of Parliament or officer or employee of the National Assembly may need access to the information for use in court either in defence or furtherance of his rights and freedoms guaranteed to him under the Constitution or even those of any other person. Yet Parliament can still decline accessibility to and use of the information, as it did to the present petitioner. And that can still be done despite the fact that the information sought is available to the rest of the world.

In my judgment section 15 is inconsistent with Article 28 (1) and 44(c) of the Constitution. It cannot pass the standard set by Article 2 of the Constitution and is therefore totally void.

In conclusion, I would hold that section 15 of the National Assembly (Powers and Privileges) Act cannot be saved because:-

  1. It contravenes Article 41 of the Constitution.

  2. Nothing goes in its favour in Article 43 of the Constitution.

  3. It contravenes Articles 28(1) and 44(c) which are absolutely inviolable and non-derogable.

 

I would declare that it is void in accordance with Article 2(2) of the Constitution. I would allow the petition with cost to the petitioners.

 

 

Dated this 6th day of June 2000.

 

 

A. TWINOMUJUNI
JUSTICE OF APPEAL