CORAM: HON. S.T. MANYINDO, DCJ;
HON. C.M. KATO, J.A. HON. G.M. OKELLO, J.A.
HON. A.E. MPAGI BAHIGEINE, J.A.
HON. J.P. BERKO, J.A.
CONSTITUTIONAL PETITION NO. 8 OF 2000
This petition is brought under articles 3 (4) and 137 (1) and (3) of the Constitution of the Republic of Uganda, 1995 and The Modification To The Fundamental Rights and Freedoms (Enforcement Procedure) Rules, 1992, Directions 1996, (Legal Notice No. 4 of 1996) challenging the Constitutionality of the Constitutional (Amendment) Act No. 13 of 2000.
When the petition was called for hearing before us, Mr. Denis Berieje, Commissioner for Civil Litigation in the Attorney General's Chambers and leading counsel for the respondent, raised a preliminary objection on three grounds regarding the competence of the petition. Firstly, that the first petitioner did not sign its petition as required by rule 3 (5) (b) of Legal No. 4 of 1996. He argued that the first petitioner, being a corporate body, can not personally sign its petition. It has to be signed by
somebody, i.e., its President or Secretary for and on its behalf. Yet, in the instant case, the petition was signed by an individual as the first petitioner not for and on behalf of the corporate body. Learned counsel submitted that as the individual who signed the petition did not disclose his name and the capacity in which he signed it, the petition is incompetent as it was not signed by the first petitioner. It should be dismissed on that account.
On the other hand, Mr. John Matovu, leading counsel for the first petitioner, submitted that rule 3 (5) (b) cited by Mr. Berieje does not require a petitioner to sign his/her petition. According to him, the first petitioner's petition was properly signed as it was signed by Mr. Ayena Odongo, the Secretary of the first petitioner. Counsel relied on paragraphs 1 and 2 of the affidavit sworn by Mr. Ayena Odongo in support of the petition.
Rule 3 (5) (b) of Legal Notice No. 4 of 1996 provides as follows:
"At the foot of the petition shall be stater
(b) a note signed by the petitioner giving the name of the petitioner's Advocate or stating that the petitioner acts for himself or herself."
Clearly, that provision does not require a petitioner to sign his or her petition. It only requires him or her to sign a note at the foot of the petition giving the name of the petitioner's advocate or stating that the petitioner acts in person. It is interesting to note that even rule 6 of the Legal Notice, which deals with answers of the respondent to the petition, does not also require a respondent to sign his/her answers. It merely requires the respondent to furnish the Registrar with a written document signed by him/her or by his or her advocate giving address for service of any document relating to the proceedings on the petition to the respondent.
There is therefore clearly a lacunae in the Rules relating to signing of pleadings in Constitutional Petitions. However, rule 13 of the Legal Notice provides that "subject to the provisions of these rules, the practice and procedure in respect of a petition shall be regulated, as nearly as may be, in accordance with the Civil Procedure Act and the Rules made under that Act relating to the trial of a suit in the High Court with such modifications as the court may consider necessary in the interest of justice and expedition of the proceedings."
It follows that where the Modification To the Fundamental Rights and Freedoms (Enforcement Procedure) Rules, 1992, Directions, 1996 is lacking on a particular point, the court may resort to the Civil Procedure Rules (CPR) made under the Civil Procedure Act Cap. 65. In the instant case, the rules in Legal Notice No. 4 of 1996 do not provide for the signing of pleadings in constitutional petitions. Order 6 r25 of the CPR however, requires that "every pleading shall be signed by an advocate or by the party if he sues or defends in person." The first petitioner's petition was signed by an individual as the petitioner. Mr. Matovu submitted that it is deponed in paragraphs 1 and 2 of the affidavit of Mr. Ayena Odongo sworn in support of the petition that the deponent signed the petition as Secretary of the first Petitioner.
Those paragraphs are couched as follows:
"(1): That I am the Secretary of the Uganda Law Society, the first petitioner herein, and as such I am authorised and competent to depone to these presents on behalf of the first petitioner
(2): That pursuant to its powers under the Uganda Law Society Act, Cap. 259 Laws of Uganda, the Council of the Uganda Law Society resolved to file a petition to challenge the Constitution (Amendment) Act No 13 of 2000."
There can be no doubt that the above paragraphs neither state that the deponent signed the petition nor the capacity in which he signed it. In our view, failure to state who signed the first petitioner's petition and the capacity in which he/she signed it is a matter of technicality which is not fatal in view of article 126 (2) (e) of the Constitution. This article enjoins courts to administer substantive justice without undue regards to technicality.
Mr. Matovu requested this court to find that the signature of Mr. Ayena Odongo on the affidavit in support of the petition is the same as that on the petition. We agree and so find. We accordingly overrule this ground.
Secondly, Mr. Berieje contended that the challenged Act 13 of 2000 when passed and assented to, became part of the Constitution. In his view, this court therefore has no jurisdiction to interpret any provisions of the Act against the other provisions of the Constitution as the court lacks jurisdiction to interpret a provision of the Constitution against another.
For this proposition, Mr. Berieje relied on Dr. James Rwanyarare and Haji Badru Kendo Wegulo Vs The Attorney General, Constitutional Petition No. 5 of 1999. In that petition, this court held by a majority of three to two that it has no jurisdiction to interpret a provision of the Constitution against the other provisions.
The jurisdiction of this court is governed by Article 137 1 and(3) of the Constitution which provides that:
(1) Any question as to the interpretation of this Constitution shall be determined by the Court of Appeal sitting as the constitutional Court.
(3) Any 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 this Constitution, may petition the constitutional court for a declaration to that effect, and for redress where appropriate."
Act 13 of 2000 is an Act of Parliament albeit it amended the Constitution. It is called "The Constitution (Amendment) Act." While we agree that its amendment becomes part of the Constitution, we do not agree that the
Act disappeared the moment the amendment was effected. It remains an Act of Parliament and therefore it can be challenged. Consequently this court has jurisdiction to interprete it. This ground of objection also fails.
Mr. Berieje's third and final point of objection is that the first petitioner as a corporate body has no duty to see to the observance of and respect of the Constitution and the rule of law. According to him, that duty is confined only to individuals and citizens. It does not extend to corporate bodies. For authority he cited articles 3 (4), 9 and 10 of the Constitution.
On the other hand, Mr. Matovu submitted that those articles are irrelevant as they spell out other rights. He argued that article 137 (3) is not confined to only citizens. It empowers the first petitioner to bring the petition as it was created by an Act of Parliament, with capacity to sue and be sued in its corporate name. (See Uganda Law Society Act, Cap. 259.)
For ease of reference, we set out herein articles 3 (4), 9 and 10 of the Constitution :-
"3 (4). All citizens of Uganda shall have the right and duty at all times:
(a) to defend this Constitution, and in particular, to resist any person or group of persons seeking to overthrow the established constitutional order; and
(b) to do all in their power to restore this Constitution after it has been suspended, overthrown, abrogated or amended contrary to its provisions.
Every person who, on the commencement of this constitution, is a citizen of Uganda shall continue to be such a citizen.
The following persons shall be citizen of Uganda by birth:-
Every person born in Uganda one of whose parents or grandparents is or was a member of any of the indigenous communities existing and residing within the borders of Uganda as at the first day of February, 1926 and set out in the Third Schedule to this Constitution; and
Every person born in or outside Uganda one of whose parents or grandparents was at the time of birth of that person a citizen of Uganda by birth."
In our view, reference to the above articles is irrelevant as they create different rights. Article 3 creates a duty to defend the Constitution from any violent or other unlawful means of change other than by the procedure provided for in the Constitution itself. The right to petition the Constitutional Court for interpretation of the Constitution is governed by article 137 (3). The right granted by this article is not limited to only individuals and citizens. It empowers any 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
(c) any act or omission by any person or authority, is inconsistent with or in contravention of a provision of this constitution to petition the Constitutional court for a declaration to that effect, and for redress where appropriate."
We find no merit in this ground as well.
In the result, we overrule the objections. We find that the petition is properly before us. We order, that the hearing of the petition proceeds on merit on a date to be fixed by the Registrar.