Court name
Constitutional Court of Uganda
Case number
Constitutional Petition-2006/21
Judgment date
3 April 2007

Rubaramira Ruranca v Electoral Commission and Anor (Constitutional Petition-2006/21) [2007] UGCC 3 (03 April 2007);

Cite this case
[2007] UGCC 3

THE REPUBLIC OF UGANDA

IN THE CONSTITUTIONAL COURT OF UGANDA

AT KAMPALA

 

 

CORAM: HON MR. JUSTICE G.M OKELLO, JA HON LADY JUSTICE A.E.N MPAGI-BAHIGEINE, JA HON MR. JUSTICE S. G ENGWAU, JA HON LADY JUSTICE C.K BYAMUGISHA, JA HON MR. JUSTICE SBK KAVUMA, JA

 

 

CONSTITUTIONAL PETITION NO. 21 OF 2006

 

 

 

BETWEEN

 

RUBARAMIRA RURANCA :::::::::::::::::::::::PETITIONER

AND

 

1. ELECTORAL COMMISSION ::::::::::: RESPONDENTS

 

2. THE ATTORNEY GENERAL

 

 

JUDGEMENT OF THE COURT

Rubaramira Ruranga, the petitioner, is the Secretary for Electoral Affairs in the Forum for Democratic Change Party. He brought this petition under Article 137 (3) of the Constitution and the Constitutional Court (petitions and references) Rules (SL N0.091) 2005, to challenge the constitutionality of certain provisions of the Local Governments Act, (LGA), the National Women's Council Act, (NWCA), the National Youth Council Act, (NYCA) and the Regulations made under these Acts.

The petition also challenged the constitutionality of the guidelines issued by the first respondent in respect of local council. Women council, and Youth council elections under the impugned laws and regulations.

 

In this petition, the petitioner sought the following reliefs:-

 

(a) A declaration that section 160 of the Local Governments Act, regulation 12 of Statutory instrument (S1) 318 - 1 and regulation 12 of S1 319 -1 contravene Articles 1(4) and 61(l)(g) of the Constitution.

 

(b) A declaration that section 161(4) of the Local Governments Act, regulations 14(3) of S 318-1 and regulation 14(3) of SI 319-1, contravene and are inconsistent with Articles 1 (4) and 61 (l)(a) of the Constitution.

 

(c) A declaration that section 161(2) of the Local Governments Act, regulation 14(1) of SI 318 - I and regulation 14(1) of SI 319-1 are inconsistent with Article 1(4) of the Constitution.

 

(d)A declaration that sections 46(l)(c) and 160 of the Local Governments Act, 6(1) of the National Women Council Act, 6(1) of the National Youth Council Act, regulation 12(1) of SI 318-1 and regulation 12(1) of S.I 319-1 are inconsistent with Articles 1(4) and 61(l)(a) and (e) of the Constitution.

(e) A declaration that regulation 3, 6(a), 7, 8, 9, and 11, (3) of SI 319-1 are inconsistent with and"contravene Articles 1 (4) and 62 of the Constitution.

 

 

(f) A declaration that regulation 23(3) of SI 318-1 is inconsistent with Articles 68(1), 61(l)(a) and 1(4) of the Constitution.

 

 

(g) A declaration that regulation 25 of SI 319-1 is inconsistent with and contravenes Articles 1(4), 61(l)(a) and 68(1) of the Constitution.

 

(h) A declaration that sections 46(c) of the Local Governments Act, 6(1), 2(2) and 5(2) of the National Women's Council Act and 6(1), 2(2) and 6(7) of the National Youth Council Act contravene and are inconsistent with Articles 29(b) and (e), 38(2) and 71(f) of the Constitution.

 

 

(i) A declaration that regulations 23 and 22(6) of SI 319-1 and SI 318-1 respectively are inconsistent with Article 1(4) of the Constitution.

 

 

(j) A declaration that the guidelines issued by the first respondent contravene Articles 1(4), 72(4), 176(3), 180(3) and 292(1) of the Constitution.

 

(k)A permanent order restraining the respondents from conducting the Local Council, Women Council and Committee, Youth

Council and committee elections using the legal frame work herein above mentioned.

 

(l) Make such orders as would reflect a multiparty political system in the aforesaid elections.

 

 

(m) An order that each party hears its own costs".

 

 

The petition was accompanied by an affidavit sworn by the petitioner on the 24th day of July, 2006.

 

 

The respondents filed a joint answer in which they denied every allegation contained in the petition. They stated that the impugned provisions of the stated laws and regulations are neither inconsistent with nor contravene any provisions of the Constitution. They pointed out that the first respondent has already suspended the elections for the women's councils and committees as well as the youth councils and committees. According to them, a press statement to that effect (annexture 'A' to the answer to the petition) was issued on 21/7/2006, The answer was supported by the affidavit of Elisha Bafirawala, a State Attorney in the second respondent's chambers.

 

At the scheduling conference that was held inter-partes before the Registrar of this court, the parties agreed on the following issues to be determined by this court:-

 

 

1. Whether section 160 of the Local Governments Act, regulation 12(1) of the National Women's Council (Women's Councils and Committees) Elections Regulations and regulation 12 of the National Youth Council (Councils and Committees) Elections Regulations contravene Article 61 (l)(g) of the Constitution.

  1. Whether section 161 (4) of the Local Governments Act, regulation 14(3) of the National Women's Council (Women Councils and Committee) Elections Regulations and regulation 14(3) of the National Youth Council (Councils and Committees) Elections Regulations contravene Article 1(4) of the Constitution.

  2. Whether section 161(2) of the Local Governments Act, regulation 14(1) of the National Women's Council (Women's Council and Committee) Elections Regulations and regulation 14(1) of the National Youth Council (Council and Committee) Elections Regulations contravene Article 1(4) of the Constitution.

  3. Whether sections 46(1)(c) and 160 of the Local Governments Act, section 6(1) of the National Youth Council Act, regulation 12(1) of the National Women's (Council and Committee) Elections Regulations and regulation 12(1) of the Notional Youth Council (Councils and Committees) Elections Regulations contravene and are inconsistent with Articles 61(l)(a) and (e) and 1(4) of the Constitution.

 

 

5. Whether regulations 3,6(a), 7,8,9 and 11(3) of the National Youth Council (Council and Committee) Elections Regulations are inconsistent with and contravene Articles 1 (4) and 62 of the Constitution.

 

  1. Whether regulation 22(3) of SI 319-1 is inconsistent with and contravenes Articles 1(4) 61(1)(a) and 68(1) of the Constitution.

  2. Whether regulation 25 of SI 319-1 is inconsistent with and contravenes Articles 1(4), 61(1)(a) and 68(1) of the Constitution.

  3. Whether section 46(c) of the Local Governments Act, sections 6(1), 2(2), 5(2) of the National Women's Council Act and sections 6 (1) 2(2) and 6(7) of the National Youth Council Act contravene and are inconsistent with Articles 29(h) and (e), 38(2) and 71(J) of the Constitution.

 

  1. Whether regulation 23 of the National Youth Council (Councils and Committees) Elections Regulations and regulation 22(6) of SI 318-1 National Women's Council (Councils and Committees) Elections Regulations contravene and are inconsistent with Article 1(4) of the Constitution.

  2. Whether the guidelines issued by the first respondent in respect of Local, Women and Youth Councils and Committees elections contravene Article 1(4), 72(4), 176(3), 180(3) and 22(1) of the Constitution.

  3. Whether the impugned provisions of the Local Governments Act, the National Youth Council Act, the Women's Council Act, regulations of the National Women's Council (Women's Councils and Committees) Elections Regulations and regulations of the National Youth Council (Councils and Committees) Elections Regulations are protected by the provision of Article, 274 of the Constitution which provides for necessary adaptations and qualifications which bring them into conformity with the Constitution.

 

 

At the hearing of the petition, Mr. Ogalo-Wandera appeared for the petitioner while Mr. Henry Oluka, Senior State Attorney, represented the respondents. Mr. Ogalo-Wandera referred us to certain principles of constitutional interpretation and urged us to he guided by them. They are:

  1. That words used in the Constitution must be given the widest possible consideration according to their ordinary meaning.

  2. Provisions of the Constitution must be given liberal interpretation unfettered with technicalities.

  3. That fundamental rights provisions must be given dynamic, progressive liberal and flexible interpretation.

 

 

(4) We accept those principles. We should add however, that another important principle of Constitutional Interpretation to determine Constitutionality of a statute or any other documents is "purpose and effect".

 

With these principles in mind, we now proceed to consider the arguments of counsel in respect of each issue starting with NO. 1.

 

 

Issue NO. 1

This issue is whether section 160 of the Local Governments Act, Reg. 12(1) of the National Women's (women's council and committee) Elections Regulations and Reg. 12(1) of the National Youth Council (Councils and Committees) Elections Regulations contravene Article 61(l)(g) of the Constitution.

 

On this issue, Mr. Ogalo-Wandera pointed out that Article 61 (1)(g) of the Constitution requires the Electoral Commission (EC) to formulate and implement voters education programmes relating to elections. He complained that section 160 of the Local Governments Act and leg. 12(1) of SI 318-1, National Women's Council (women's councils and committees) Elections (NWCE) Regulations, and reg. 12(1) of SI 319-1 National Youth Council (councils and committees) ( NYCE) Regulations limit the voter's education to the procedure of voting only. He pointed out that even the guidelines (annexure A to C to the petition) that were issued by the first respondent echoed what section 160 of the Local Governments Act and the above regulations have prescribed. He contended that voters education under Article 61(l)(g) was not limited to educating citizens on voting procedure only. It is wider than that. According to him, that article requires the Electoral Commission to formulate the education programme, submit it for public debate, adopt it after the debate and implement it. The progamme must include educating the voters' on the purpose of election so as to create a link between a voter and his/ her representative to enable the voter to hold his/her representative accountable. He stated that without proper knowledge of the purpose of election, a voter may trivialise the criteria for a good candidate to whether or not he/she attends burials, gives out to voters items like sugar, salt, soap, etc. Once a representative met those trivialised criteria, he/she can not be held accountable, by the voters. In counsel's view, that would be a threat to the desired democracy. He submitted that for the voters' education programme under this article to have value, it must be conducted in sufficient time say, two years, before the election is held.

 

 

Mr. Oluka contended that the impugned provisions of the Local Governments Act and NWCF and NYCF Regulations were in existence when 1995 Constitution was promulgated. He invited us to invoke Article 274 to construe them with the necessary modifications and adoptions to bring them within the Constitution.

He submitted that it was unreasonable to expect voter's education to be conducted two years before holding the election.

 

 

Articles 61(1) provides thus:-

"The Electoral commission shall have the following functions":-

 

 

(g) to formulate and implement voters educational programmes relating to election