THE REPUBLIC OF UGANDA
IN THE CONSTITUTIONAL COURT OF UGANDA
CORAM: HON. JUSTICE G.M. OKELLO, JA;
HON. JUSTICE A.E.N. MPAGI-BEHIGEINE, JA
HON. JUSTICE S.G. ENGWAU, JA
HON. JUSTICE A. TWINOMUJUNI, JA
HON. JUSTICE C.N.B. KITUMBA, JA
Miscellaneous Application No.3 of 2002 (Arising from Constitutional Petition No.7 of 2002)
ATTORNEY GENERAL APPLICANT/RESPONDENT
DR. JAMES RWANYARARE }
HAJI BADRU KENDO WEGULO }
HON. YUSUF NSUBUGA NSAMBU }
HON. KEN LUKYAMUZI }
JAMES GARUGA MUSINGUZI } RESPONDENTS/
MAJOR RUBARAMIRA RURANGA } PETITIONERS
FRANCIS GUREME }
KARUHANGA CHAAPA }
HUSSEIN KYANJO }
10.DR. JOHN JEAN BARYA }
RULING OF THE COURT:
There is, pending before this court, Constitutional Petition No.7 of 2002 between the above parties in which Dr. Rwanyarare and 9 others are petitioners and the Attorney General is the respondent. Before the petition could be heard, the Attorney General tiled this application requesting that his contention, which was raised in his defence to the petition, that the petition was time barred, be heard first, as a decision of this court in his favour would have the effect of disposing of the whole petition.
In the petition itself, the petitioners are seeking various declarations to the effect that the Political Parties and Organizations Act 2002 is inconsistent with and contravenes various provisions of the Constitution of the Republic of Uganda. It is common ground that: -
(a) The Political Parties and Organisaitons Bill was assented to by the President on 2nd June 2002. (b)The Act was published in Uganda Gazette on 17th July 2002, the same date which was designated as the commencement date of the Act. (c)The respondents/petitioners became aware of the legal existence of the law on 23rd July 2002. (d)The respondents/petitioners filed Constitutional Petition No.7 of 2002 on 31st July 2002.
Hon. Francis Ayume, the learned Attorney General of Uganda, argued this application on behalf of the applicant. He relied on the provisions of rule 4 of the Modifications to the Fundamental Rights and Freedoms (Enforcement Procedure) Rules, 1992, Directions, 1996 (Legal Notice No.4 of 1996) which states: -
"The petition shall be presented by the petitioner by lodging it in person, or, by or through his or her advocate, if any, named at the foot of the petition, at the office of the Registrar and shall be lodged within thirty days after the date of breach of the Constitution complained of in the petition." [Emphasis supplied.]
Hon. Francis Ayume submitted that the Political Parties and Organisations Act became law on 2nd June 2002 being the date on which the President signified his assent on it. He cited section 20 of the Acts of Parliament Act (Act 16 of 2000) to support this proposition. In his view, it is on that date that the thirty days provided for in Legal Notice No.4 of 1996 began to ran. In order to avoid being time barred, the petitioners should have filed Petition No.7 of 2002 by 2nd July 2002. Failure to do that meant that the petition was time barred (since it was filed on 31st July 2002) and therefore incompetent. He emphasised that the provisions of Rule 4 of Legal Notice No.4 of 1996 were mandatory. He cited the cases of Rwanyarare & Another vs. The Attorney General, Constitutional Petition No.11 of 1997 and Hajji Nasser Sebbagala vs. The Attorney General, Constitutional Petition No.1 of 1999 both decisions of this court in which
The Court held that a Constitutional Petition is incompetent if it is brought out of the time limit prescribed by Legal Notice No.4 of 1996, unless the time has been extended. Hon. Ayume submitted further that even where the petitioner does not know that there was a breach of the Constitution, the thirty days would begin to run from the date the Act of Parliament complained of became law.
His final submission was that this court has no jurisdiction to enlarge time which is fixed by law as in this case. He cited the case of Makula International Ltd. vs. Cardinal Nsubuga (1982] H.C.B. 11 in support of this proposition. He prayed that Constitutional Petition No.7 of 202 be dismissed with costs to the applicant.
In reply Mr. Peter Walubiri, learned counsel for the respondents/petitioners, conceded that no attempt was made to apply for extension of time to file the petition, because it was not necessary as the petition was filed in time. He submitted that section 15 of the Acts of Parliament Act 2000 provided that an Act of Parliament becomes law on the date designated by the Act itself or the date when it is published in the Uganda Gazette. In this case, the Political Parties and Organisations Act became law on the 17th July 2002, the designated commencement date, which was also the same date when it was gazetted. In his view, this was the earliest time the 30 days limitation would start to run. Therefore the petition which was filed on 31St July 2002 was within the time of limitation.
Mr. Walubiri, however, submitted that his case was that the petitioners did not know that the Bill had been signed into law until on 23rd July 2002 when they obtained a copy of the Gazette of 17th July 2002. Therefore according to decisions of this court, the petitioners did not perceive of the breach of the Constitution until 23rd of July 2002 and that was the day the thirty days began to run. The petitioners were well within the law when they filed the petition on 31st July 2002, just seven days after they perceived of the breach of the Constitution. He relied on the cases of Zachary Olum & Anor. Vs. Attorney General Constitutional Petition No.6 of 1999, Mugerwa Kikugwe & 2 others vs. Attorney General Constitutional Petition No.2 of 2000 and Joyce Nakachwa vs. Attorney General & 2 others,
Constitutional Petition No. 2 of 2001 in which this court has held that the thirty days of limitation only began to run from the date the breach of the Constitution was perceived and not from the date when the Act (or act) complained of became law or took place. Mr. Walubiri invited us to dismiss the Attorney General's objections with costs to the petitioners and to order that Constitutional No.7 of 2002 proceeds on its merits.
In exercise of the right of reply, Mr. Cheborion Barishaki, learned counsel for the applicant/respondent, requested this court not to follow the cases of Zachary Olum (supra) and Mugerwa Kikugwe (supra) in light of the Supreme Court decision in the case of Eridadi Otiabong Waimo vs. Attorney General Supreme Court Civil Appeal No.6 of 1991. He also requested us not to follow the case of Nakachwa (supra) in which the court was considering "acts" of the respondents, and not an "Act" of Parliament as in the instant case.
Recently, we have made a number of decisions on this issue which we hoped had put this issue to rest. Apparently we did not succeed. We must now make another attempt in the hope that we shall succeed this time. But first, a short review of the application of Rule 4 of Legal Notice No.4 of 1996 in this court since its inception is called for.
In the infancy days of this court, we decided in a number of cases that a Constitutional Petition filed outside the thirty days of limitation was incompetent. We held that the thirty days began to run the date (in case of an Act of Parliament) when it became law and in case of any other "act" from the date it occurred. This was the holding in the cases of James Rwanyarare (supra), Hajji Sebbagala (supra), Sarapio Rukundo (supra) and Ismail Serugo (supra). Almost all these cases were decided in 1997. However, the Constitutional Court began to realise the problems being caused by the traditional literal interpretation of the thirty days rule especially the hardship it caused in its application to human rights and freedoms cases. A debate began within the court on the following issues: -
Whether the continued dismissal of petitions because of Legal Notice No.4 1996 (Rule 4) was not hindering access to the Constitutional Court.
Whether the practice could be sustained in light of the fact that a mere Statutory Instrument was being applied to deny access to constitutionally guaranteed rights and freedoms.
Whether or not Rule 4 of Legal Notice No.4 1996 was not in fact unconstitutional.
In the meantime, the Supreme Court of Uganda deliberated on the matter, but did not authoritatively dispose of it. In Ismail Serugo vs. KCC and Another Constitutional Appeal No.2 of 1997 the validity of our earlier decisions on the matter was questioned. Hon. Justice Mulenga, JSC expressed his concern in the following words: -
"Before leaving this case I am constrained to express concern about the rule on limitation of time for the lodging of petitions for declarations under Article 137 of the Constitution. In its judgment the Constitutional Court in an effort to explain the rationale for the rule, cites, with approval, from its earlier decision in Serapio Rukundo vs.
Attorney General Constitutional case No.3/97. Their Lordships said:
'We considered this matter in Rukundo (supra and stated thus:
"The above rule provides that a petition shall be lodged within thirty days after breach of the Constitution complained of The purpose of this rule is not hard to find. It takes into account among others the importance of the Constitutional cases which must be attended to expeditiously and seeks to cut out stale cases. We do not therefore agree with Mr. Kayondo SC that in constitutional mattes there is no time limit He did not give us any authority for that proposition. We think that this petition offended against the said Rule 4(1). We therefore, uphold the first objection." We still hold the same view'.
I do appreciate that any constitutional case is very important and once it is filed it must be attended to expeditiously so that a constitutional issue is not left in abeyance for unduly long. The Constitution expressly commands the Courts concerned to give that priority to such cases. However, to extend that reasoning to the period prior to the filing of a petition, can lead to unintended difficulties. The most conspicuous difficulty is in respect of petitions alleging that an Act of Parliament or other law, is unconstitutional. Apart from the question of the starting day for computing the thirty days, there is the high probability of the inconsistency of such law being realised long after the expiry of the thirty days after enactment. In my view the problem should not be left to be resolved through applications for extension of time, as and when need arises. The appropriate authority should review that rule to make it more workable, and to encourage, rather than appear to constrain, the culture of Constitutionalism." [Emphasis supplied]
Hon. Justice Oder, JSC made similar observations: -
"As regards limitation of time, the complaint in respect of the act of arrest in contravention of the Constitution, the cause of action was not time barred. I also think that the period of limitation of 30 days will have the effect of stifling the Constitutional right to go to the Constitutional Court rather than encouraging the enjoyment of that right. It is certainly an irony that a litigant who intends to enforce his right for breach of contract or for bodily injury in a running down case has far more time to bring his action than the one who wants to seek a declaration or redress under Article 137 of the Constitution. What needs to be done by the authorities concerned is obvious." [Emphasis supplied]
We must observe that the Supreme Court did not resolve this issue because the peculiar facts of that case did not call for a full interpretation of Rule 4 of Legal Notice No.4/96. Since that time neither Parliament nor any other authority has taken any steps to deal with the concerns of the two Supreme Court Justices.
Meanwhile, however, this court has taken steps to modify and mitigate the harmful effects of Rule 4 of Legal Notice No.4/1996. In its decisions in Zachary Olum (1999) Mugerwa - Kikugwe (2000), Alenyo vs. Attorney General (2001) and Nakachwa (2002) this court decided that the thirty days of limitation start to run from the day when the petitioner perceives the breach of the Constitution. This has been our consistent position since 1998. This court has accepted that until Rule 4 of Legal Notice No.4/1996 is successfully challenged in the Constitutional Court, it is good law and must be applied. However, we have interpreted the rule in such a way that the citizens of Uganda are not denied access to the constitutional court on matters they hold so dear as their human rights and freedoms. This has been done to "make the rule workable and encourage, rather than constrain, the culture of constitutionalism."
The issue which then arises is "when does the perception that an Act of Parliament has breached the Constitution take place?" There are five possible alternatives: -
(a) As soon as the President assents to the bill;
(b)On the date designated by the Act itself as the commencement date; (c) On the date the Act is gazetted;
(d)On the day the petitioner [..] becomes aware of the existence of the law; and
(e)On the day the petitioner actually becomes aware that the law breaches the Constitution
In our judgment in the instant case, section 15 of the Acts of Parliament Acts provides the answer. It provides: -
S.15(l) Subject to the provisions of this section, the commencement of an Act shall be such a date as is provided in or under the Act, or where no date is provided, the date of its publication as notified in the gazette. [Emphasis supplied]
(2) Every Act shall be deemed to come into force at the first moment of the day of commencement."
In the Political Parties and Organisations Act, the designated date of commencement and the date of publication in the gazette are the same i.e. 17th July 2002.
It is not possible to supply a fixed formula to the question we have posed above. This court has held in the Nakachwa case (supra) that each decision must be confined to its own peculiar facts. For example, in respect of a mature mentally normal person, it is fair to hold that the date of perception of a constitutional breach by an Act of Parliament is the date it comes into force, not the date the petitioner becomes aware of the breach because, he/she he is presumed to be aware of it from the date the law came into force. Ignorance of the law is no defence. But what about the infants and the unborn children who may grow up to find that the continuing effect of a constitutional breach by an Act of Parliament contravenes their rights and freedoms or even threatens their very existence, for instance, where the Act authorises activities hazardous to the environment which threaten human existence for the future generations. Are they not protected by the Constitution? Part of the Preamble to the 1995 Constitution states: -
"WE THE PEOPLE OF UGANDA:
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 this 22nd day of September, in the year 1995". [Emphasis supplied]
It seems to us that a constitution is basic law for the present and the future generations. Even the unborn are entitled to protection from violation of their constitutional rights and freedoms. This cannot be done if the thirty days rule is enforced arbitrarily. In our view. Rule 4 of Legal Notice No.4.1996 poses difficulties, contradictions and anomalies to the enjoyment of the constitutional rights and freedoms guaranteed in the 1995 Constitution of Uganda. We wish to add our voice to that of the learned Supreme Court
Justices, (Mulenga, JSC and Oder, JSC) that this rule should be urgently revisited by the appropriate authorities.
In the instant case and on its own facts, we hold that the petitioners ought to have perceived of the breach of the Constitution allegedly posed by the Political Parties and Organisations Act on 17th July 2002. They had up to around 16th August 2002 to file the petition. On 31st July 2002 when the filed the petition, they were clearly in time and the petition is therefore competent. The preliminary objection is dismissed. The costs will abide the results of the petition.
Dated at Kampala this 5th day of November 2002.
Hon. Justice G.M. Okello
JUSTICE OF APPEAL
Hon. Justice A.E.N. Mpagi-Bahigeine
JUSTICE OF APPEAL
Hon. Justice S.G. Engwau
JUSTICE OF APPEAL
Hon. Justice A Twinomujuni
JUSTICE OF APPEAL
Hon. Justice C.N.B. Kitumba
JUSTICE OF APPEAL