Court name
Constitutional Court of Uganda
Judgment date
26 July 2018

Male Mabirizi & Ors v Attorney General (Constitutional Petition-2017/) [2018] UGCC 4 (26 July 2018);

Cite this case
[2018] UGCC 4
Coram
Owiny-Dollo, DCJ
Kasule, JA
Kakuru, JA
Musoke, JA
Barishaki, JA

 

THE REPUBLIC OF UGANDA

IN THE CONSTITUTIONAL COURT OF UGANDA AT MBALE

CONSTITUTIONAL PETITIONS Nos. 49 of 2017, 3 of 2018, 5 of 2018, 10 of 2018, and 13 of 2018.

 

CORAM:

Hon Mr. Justice Alfonse C. Owiny – Dollo, D.C.J./PCC

Hon Mr. Justice Remmy Kasule, J.A./JCC

Hon Mr. Justice Kenneth Kakuru, J.A./JCC

Hon Lady Justice Elisabeth Musoke, J.A./JCC

Hon Mr. Justice Barishaki Cheborion, J.A./JCC

 

1. CONSTITUTIONAL PETITION NO. 49/ 2017

MALE H. MABIRIZI …………………............................................... PETITIONER

 

VERSUS

        ATTORNEY GENERAL …………………......................................... RESPONDENT

 

 

2.  CONSTITUTIONAL PETITION NO. 03/ 2018

 

UGANDA LAW SOCIETY ……………….......................................... PETITIONER

 

VERSUS

 

ATTORNEY GENERAL ………………........................................... RESPONDENT

 

 

3.  CONSTITUTIONAL PETITION NO. 05/2018

 

1. HON GERALD KAFUREEKA KARUHANGA }

2. HON JONATHAN ODUR                            }  

3. HON. MUNYAGWA S. MUBARAK      }} :::::::::::::::::::::::: PETITIONERS

4. HON. ALLAN SSEWANYANA                      } 

5. HON. SSEMUJJU IBRAHIM NGANDA          }   

6. HON. WINIFRED KIIZA                              } 

VERSUS

ATTORNEY GENERAL .............................................................. RESPONDENT

 

 

  1. CONSTITUTIONAL PETITION NO. 10/ 2018

 

1. PROSPER BUSINGE             }   

2. HERBERT MUGISA             }} :::::::::::::::::::::::::::::::::::::::::::::::: PETITIONERS

3. THOMAS MUGARA GUMA }   

4. PASTOR VINCENT SANDE }  

 

VERSUS

ATTORNEY GENERAL …………………………............................... RESPONDENT

 

  1. CONSTITUTIONAL PETITION NO. 13/ 2018

 

         ABAINE JONATHAN BUREGYEYA ………….................................. PETITIONER

 

VERSUS

ATTORNEY GENERAL …………………........................................ RESPONDENT

 

JUDGMENT OF HON. JUSTICE ALFONSE C. OWINY – DOLLO; DCJ/PCC

 

Introduction:

The five Constitutional Petitions captioned herein above were severally lodged in this Court pursuant to the provisions of Article 137 (1) & (3) of the 1995 Constitution of the Republic of Uganda; and, as well, Rules 3, 4, 5, and 12 of the Constitutional Court (Petitions and References) Rules. The Petitions each seek, and plead for, various reliefs from this Court by way of orders and declarations; and these reliefs prayed for, are set out in full detail here below. 

Background:

In 2017, Hon Raphael Magyezi, a member of the 10th Parliament of the Republic of Uganda, representing Igara County West Constituency, Bushenyi District, moved a motion in Parliament seeking leave to table a private member’s Bill to amend the Constitution. Leave was granted as prayed; and so, he introduced Constitutional (Amendment) Bill No. 2 of 2017 in accordance with the provisions of Articles 259 and 262 of the Constitution of the Republic of Uganda; seeking to amend Article 102 of the Constitution by lifting the Presidential age limit provision there from. The stated objectives of the Bill were:

(i)     To provide for the time within which to hold Presidential,         Parliamentary and Local government council elections under    Article 61,

(ii)    To provide for eligibility requirements for a person to be         elected as President or District Chairperson under Articles       102 (b) and 183 (2) (b),

(iii)   To increase the number of days within which to file and determine a presidential election petition under Article 104         (2) and (3).

(iv)   To increase the number of days within which the Electoral       Commission is required to hold a fresh election where a      Presidential election is annulled under Article 104 (6); and,

(v)    For related matters.   

In the course of the passage of the Bill in Parliament, more specifically at the stage of the second reading of the Bill, when the House was sitting as a Committee of the whole House, two separate motions were moved to amend the Bill. The first motion sought to amend the Constitution by extending the tenure of Parliament and Local Government Councils from five to seven years; with a rider provision that the amendment would be effective from 2016 when each of the two legislative organs assumed office. The other motion sought to reinstate the Presidential term limit, which a previous Parliament had lifted from the Constitution. Parliament passed the Bill as amended by the aforestated motions; and it was sent to the President for his constitutionally required assent, which he did. The Bill then became the Constitution (Amendment) Act (No. 1) of 2018. 

Aggrieved by the passing of the Bill by Parliament, which became Constitution (Amendment) Act (No. 1) of 2018 upon the Presidential assent thereto, the five consolidated Constitutional Petitions named herein were severally lodged in this Court; each challenging the validity of specific provisions of the Constitution (Amendment) Act (No. 1) of 2018. However, when they came up for hearing, and owing to the fact that in many respects the five Petitions address common issues, this Court consolidated them to enable a joint hearing; which, as it turned out, was quite prudent since this afforded both convenient and expeditious hearing of the Petitions.

THE RELIEFS THE PETITIONERS HAVE SOUGHT:

1.      Constitutional Petition No. 49 of 2017

This petition sought the following reliefs; namely that:  

(i)     The action of the respondent and his agents to claim that the term of office of the current president expires in the year    2021, after expiration of 5 years is inconsistent with and in      contravention of Articles 102 (b) and 102 (c) of the       Constitution as they were in the year 2016, when the current         President was elected into office, which peg the qualification   of the President to those of a Member of Parliament and hence   when s/ he ceases to possess the qualification of being below 75 years, such president ceases to be eligible to be so and new elections must be conducted.

 (ii)   The actions of Parliament to prevent members of the public,    with proper identification documents to access the     Parliament’s gallery during the seeking of leave and     presentation of the   Constitutional Amendment Bill No. 2 of         2017 was inconsistent with and in contravention of Articles 1,         8A and 79 of the Constitution which require Parliament to   only act in the name of the people, in conformity with the Constitution, laws and the rules of   Parliament.

(iii)   The actions of the combined forces of the Uganda Police Force         and the Uganda People’s Defence Forces to invade Parliament       and beat up, torture and arrest members of Parliament on 26th         September 2017 was inconsistent with and in contravention of    Articles 1, 8A, 79, 208 (2), 209, 211 (3) and 212 of the   Constitution which require Parliament to only act in the name of the people, in conformity with the Constitution, laws and      the rules of Parliament and require the said forces to be non-      partisan.

(iv)   The actions of Parliament to reconvene on the same day and    in the same place where the combined forces had beaten up,      tortured and arrested Members of Parliament was inconsistent with and in contravention of Articles 1, 2, 8A and 79 of the   Constitution which require Parliament to only act in the name        of the people, in conformity with the Constitution, laws and    the rules of Parliament.

(v)    The actions of Parliament to consider and grant leave to Hon. Raphael Magyezi to table a Private Member’s Bill entitled The        Constitutional (Amendment) Bill, No. 2 of 2017, when the       Leader of Opposition, Opposition Chief Whip and other       Opposition Members of Parliament were not in  Parliament was    inconsistent with and in contravention of Articles 1, 8A, 69         (1), 69 (2) (b), 71, 74, 75, 79, 82A, and 108A of the    Constitution which guarantee a multi-party dispensation        and creates two sides for government and opposition in     Parliament.

(vi)   The actions of the Speaker of Parliament to allow ruling party members of Parliament to cross the floor and sit at the        opposition side during the presentation of the Bill was      inconsistent with and in contravention of Articles 1, 8A, 69   (1), 69 (2) (b), 71, 74, 75, 79, 82A, 83 (1)(g), 83 (3) and 108A of the Constitution which guarantee a multi- party dispensation         and creates two sides for government and opposition in   Parliament.

(vii)  The action of Parliament to entertain presentation and grant    of leave of a Private Member’s Bill which had the effect of   charging money from the Consolidated Fund was inconsistent         with and in contravention of Article 93 (a) (ii), 93 (a)(iii) and 93     (b) of the Constitution which restricts Parliament not to make    such legislations from private members.

(viii) The action of Parliament to entertain and allow 8 new       members on the Legal and Parliamentary Affairs Committee       of Parliament almost when the same Committee had finished   hearings from   the public about the Bill and allowed them to        sign the Committee Report as if they had attended the         Committee Sessions was   inconsistent with and in   contravention of Articles 44 (c), 90 (1) and 90 (2) of the      Constitution which makes fair hearing a  must     and requires     Committees of Parliament to work subject to the         Constitution.

(ix)   The action of Parliament to entertain the Chairperson of the     Legal Affairs Committee, Hon. Oboth–Oboth, on 18th     December 2017 to present the majority Committee Report on        the Bill when the Leader of Opposition, Opposition Chief Whip       and other opposition Members of Parliament were not in         Parliament was         inconsistent with and in contravention of         Articles 1, 8A, 69 (1), 69 (2) (b), 71, 74, 75, 79, 82A and 108A        of the Constitution; each of which   guarantees a multi-party   dispensation and creates two sides in Parliament; one for   government and the other for the Opposition.  

(x)    The actions of the Parliament’s Legal and Parliamentary   Affairs Committee to include in the Bill items concerning:

        (a)    the extension of the term of Parliament from 5 to 7 years;                and

        (b)    the restoration of Presidential term limits;

– which were neither in the Bill laid before Parliament and sent to the Committee, nor presented before the Committee in a memoranda from the people interviewed – were inconsistent with and in contravention of Articles 1, 8A, 44 (c), 79, 90 and 94 of the Constitution, which require Parliament to act in the name of the people, and in conformity with the Constitution, relevant laws, and rules of Parliament, before enacting any law.

(xi)   The action of Parliament to purport to have waived the rule      requiring a minimum of three sittings from the tabling of the    Committee Report on the Bill before the Report could be       debated    by Parliament, yet the motion tabled by the Deputy       Attorney   General, Hon. Mwesigwa Rukutana, was not         seconded by any Member of Parliament was inconsistent         with and in contravention of Articles 1, 8A, 44 (c), 79 and 94 of the    Constitution requiring Parliament to only act in the     name of    the   people, in conformity with the Constitution, laws, and     the   rules of Parliament before enacting any law.

(xii)  The action of the Speaker of Parliament to close the debate on the Bill before each and every Member of Parliament could debate and present the views of their constituents concerning     the Bill was inconsistent with and in contravention of Articles 1, 2, 8A, 44 (c), 79 and 94 of the Constitution which require     Parliament to only act in the name of the people, in conformity with the Constitution, laws and the rules of     Parliament before enacting any law.

(xiii) The failure by the Speaker of Parliament to close all the doors to the Chambers to Parliament before voting on the 2nd reading of debate on the Bill and during voting was inconsistent with and in contravention of Articles 1, 2, 8A, 44 (c), 79, and 94 of    the Constitution which require Parliament to only act in the       name of the people, in conformity with the Constitution, laws and the rules of Parliament before enacting any law.

(xiv)  The failure by the Speaker of Parliament to separate the 2nd      and 3rd readings of the Bill by at least 14 sitting days of      Parliament was inconsistent with and in contravention of    Article 263 of the Constitution which require Parliament to    separate the 2nd and 3rd readings by at least 14 sitting days of         Parliament.

(xv)   The decision of the current Parliament to extend its own term for two more years, under the Bill was inconsistent with and in    contravention of Articles 1, 2, 77 (3) and 77 (4) of the Constitution which are clear that the current Parliament was         elected for 5 years and its term can only be extended by only six months at a time and only when there is a state of war.

(xvi)  The action of the President to assent to the Bill is inconsistent         with and in contravention of Articles 1, 2, 8A, 44 (c), 79, 91,    94, and 263 (2) (a), of the Constitution; which require        Parliament and the President to only act in the name of the        people, in conformity with the Constitution, laws and the         rules of Parliament before enacting any law and to have   complied with Chapter 18 of the Constitution.

(xvii)         The presentation, granting of leave to present a private                    members’ Bill, first reading, second reading and third                      reading of the Bill was unconstitutional, null and void ab                     initio.

(xviii)        All the actions of Parliament and the President in relation                 to the Bill are null, and void, ab initio for contravening                        the Constitution.

Affidavit evidence

Petition No. 49 of 2017 was supported by the affidavit of Male H. Mabirizi K. Kiwanuka, the Petitioner.

2. Constitutional Petition No. 3 of 2018

The Petitioner in Constitutional Petition No.3 of 2018 prayed for the following declarations:-

(i)     That Article 8 of the Constitution (Amendment) Act 2018 in      extending the term of the 10th Parliament is unconstitutional and     inconsistent with and in contravention of Articles 1, 8A, 77 (4)   and 96 of the Constitution.

(ii)    That Article 10 of the Constitution (Amendment) Act 2018 which      extends the term of the current local government councils is        unconstitutional and inconsistent with and in contravention of         Articles 1, 8A of the Constitution.

(iii)   That Article 8 of the Constitution (Amendment) Act 2018 in      creating a divergence in the presidential and parliamentary      terms of office and the time for holding the respective elections is unconstitutional and inconsistent with and in contravention of    Articles 1, 8A, 105(1), and 260 (1) and (f) of the Constitution.

(iv)   That Article 3 of the Constitution (Amendment) Act 2018 undermines the sovereignty and civic participation of the people      of Uganda, and is unconstitutional and inconsistent with and in contravention of Articles 1, 8A, 38 and 105(1) of the      Constitution.

(v)    That Articles 8 and 10 of the Constitution (Amendment) Act 2018     and the act of Parliament in proceeding on a Private Member’s      Bill whose effect is to authorize payments to the 10th Parliament         and the current local government Councils after expiry of their    initial five-year term, are unconstitutional and inconsistent with      and in contravention of Article 83(b) of the Constitution.

(vi)   That the actions of the security officers in entering Parliament,         arresting, detaining and assaulting Members are unconstitutional    and contravene Articles 23, 24 and 29 of the Constitution.

(vii)  That the entire process of tabling, consulting, debating and     passing of the Constitution (Amendment) Act 2018 by Parliament      is unconstitutional and inconsistent with and in contravention of         Articles 1, 8A, 29, 38, 69(1), 72(1), 73 and 79 of the Constitution.

(viii) That the inclusion of the extension of the terms of the 10th       Parliament and the current local government councils in the     Constitution (Amendment) Act 2018 without consultation with the electorate and following due process is unconstitutional and        contravenes Articles 1, 8A and 259 (2)(a) of the Constitution.

(ix)   That the passing of the Constitution (Amendment) (No. 2) Bill 2017 at the second and third reading without the separation of at least 14 sitting days is unconstitutional and inconsistent with     Articles 1, 105(1), 260 (2)(b)&(f) and 263 (1) of the Constitution.

(x)    Grant an order that Parliament enacts a law to operationalize    Chapter Eighteen of the Constitution elaborating the procedure     of passing Bills amending the Constitution within 2 years from        the date of Court’s Judgment.

Constitutional Petition No. 05 of 2018

The Petitioners prayed that Court be pleased to make the following declarations, orders and reliefs:

(i)     That the Constitution (Amendment) Act, 2017 be annulled.

(ii)    In the alternative, but without prejudice to paragraph (1), the   following sections of the Constitution (Amendment) Act hereunder listed be annulled;

(iii)   That Section 2 of the Act in so far as it purports to extend the life/ term of the 10th Parliament from 5 to 7 years.

(iv)   That Section 3 of the Act in so far as it purports to lift the       minimum and maximum age qualification of a person seeking to     be elected as President of the Republic of Uganda.

(v)    That Sections 6 and 10 of the Act in as far as they purport to   extend the life/ term of the current Local Government councils         from 5 to 7 years.

(vi)   That Section 7 of the Act in as far as it purports to lift the        minimum and maximum age qualification of a person seeking to     be elected as a District Chairperson.

(vii)  That Section 8 of the Act in as far as it purports to extend the term/ life of the tenure of the 10th Parliament to 7 years.

(viii) That the invasion and/ or heavy deployment at the Parliament by    the combined armed forces of the Uganda People’s Defence   Forces and the Uganda Police Forces and other militia in suing     violence, arresting, beating up, torturing and subjecting the     petitioners and other Members of Parliament to inhuman and    degrading treatment on the day the impugned Constitution         Amendment Bill was tabled before the Parliament amounted to         amending the Constitution using violent and unlawful means,         undermined Parliamentary independence and democracy and as      such was inconsistent with and in contravention of Articles 1, 3,     8A, 20, 24, 29, 79, 208 (2), 209, 211 (3) and 259 of the   Constitution.

(ix)   That the arbitrary action of the armed forces of the Uganda     Peoples Defence Forces, Uganda Police Force and other militia in frustrating, restraining, preventing and stopping some Members   of Parliament from attending and/ or participating in the debate        and/ or proceedings of the House on the Constitution     (Amendment) Bill was inconsistent with and in contravention of         Articles 1, 8A, 20, 24, 28 (1), 79, 208 (2), 211 (3) and 259 of the         Constitution of Uganda.

(x)    That the actions of the armed forces of the Uganda Peoples      Defence Forces, the Uganda Police Force and other militia to invade the Parliament while in plenary and thereby inflicting      violence, beating, torturing several Members of Parliament at the time when the motion seeking leave of Parliament to introduce the Private Member’s Bill, Constitution (Amendment) Bill No. 2 of         2017, was being tabled was inconsistent with and in        contravention of Articles 1, 3, 8A, 20, 24, 29, 79, 208 (2), 209,    211 (3) and 259 of the Constitution.

(xi)   The actions of the armed forces of the Uganda Police in beating,         torturing, arresting and subjecting several Members of    Parliament while in their various constituencies to consult the   people on the Constitution (Amendment) Bill, 2017 was      inconsistent with and in contravention of Articles 1, 3, 8A, 20,      24, 29, 79, 208 (2), 209, 211 (3), 259 and 260 of the Constitution.

(xii)  That the arbitrary decision of the Inspector General of the       Uganda Police Force of restricting several Members of Parliament         to their respective constituencies in their bid to consult their       electorates on the Constitution (Amendment) Bill No. 2 of 2017        was inconsistent with and in contravention of Articles 1, 3, 8A,   20, 24, 29, 79, 208 (2), 209, 211 (3) and 259 of the Constitution.

(xiii) That the process leading to the enactment of the Act was against     the spirit and structure of the 1995 Constitution enshrined in        the Preamble of the Constitution, the National Objectives and   Directive Principles of State Policy and other Constitutional   provisions and as a result was inconsistent with and in         contravention of Articles 1, 2, 3, 8A, 79, 91 and 259 of the       Constitution of Uganda.

(xiv)  That the actions of Parliament to prevent members of the public      with proper identification documents to access the Parliament’s      gallery during the seeking of leave and presentation of the Act     was inconsistent with and in contravention of Articles 1, 8A and   79 of the Constitution of Uganda.

(xv)   That the procedure and manner of passing the Act was flawed         with illegality, procedural impropriety and the same was a       violation of the Rules of Procedure of Parliament and therefore inconsistent with and in contravention of Articles 79, 91, 94 and 259 of the Constitution.

(xvi)  That the actions of the Speaker in entertaining and presiding   over the debate on the Bill when the matter on the same was         before Court was a violation of rule 72 of the Rules of Procedure   of Parliament of Uganda and therefore inconsistent with and in    contravention of Articles 79, 91, 94 and 259 of the Constitution   of Uganda.

(xvii) That the delay by the Committee of Legal and Parliamentary     Affairs to consider and report on the Bill within the mandatory        45 days violated rule 128 (2) and 140 (1), (2) of the Rules of      Procedure of Parliament therefore inconsistent with and in   contravention of Articles 79, 91, 94 and 259 of the Constitution     of Uganda.

(xviii) That the actions of Parliament to include in the Bill items       concerning the extension of the life/ term of Parliament and      Local Government Councils from 5 to 7 years and restoration of presidential term limits which were not part of the original Bill at         the time it was tabled before Parliament for the first time was   inconsistent with and in contravention of Articles 1, 8A, 79, 90,       91, 94 and 259 of the Constitution.

(xix)  That the arbitrary actions of the Speaker of Parliament to         suspend the 1st, 2nd, 3rd, 4th and 5th petitioners who were in    attendance in the Parliamentary proceedings on the 18th day of December 2017, a sitting of Parliament where the two reports on the Bill were to be debated was a violation of rules 87 and 88 of         the Rules of Procedure of Parliament of Uganda therefore in         contravention of Articles 28, 42, 44, 79, 91, 94 and 259 of the Constitution of Uganda.

(xx)   That the actions of the Speaker of Parliament to close the debate      on the Bill before each and every Member of Parliament could     debate and present the views of their constituencies concerning the Bill was a violation of rule 133 (3) (a) of the Rules of     Parliament and therefore in contravention of Articles 79, 91, 94    and 259 of the Constitution.

(xxi)  That the actions of Parliament in waiving rule 201 (2) requiring a         minimum of three sittings from the tabling of the Committee   Report on the Bill was in contravention and inconsistent with the Constitution and therefore in contravention of Articles 79, 91, 94 and 259 of the Constitution of Uganda.

(xxii) That the actions of the Committee of Parliament on Legal and         Parliamentary Affairs on arrogating itself the mandate and duty       of entraining, considering and making recommendations to Parliament to consider extending number of years of the term of         the President from 5 to 7 years contravened Articles 1, 8A, 79,         91 and 94 of the Constitution of Uganda.

(xxiii) That the purported decision of the Government of Uganda to make an illegal charge on the consolidated fund to facilitate the    Bill which was tabled as a Private member’s bill was inconsistent with and in contravention of Articles 93 and 94 of the       Constitution of Uganda.

(xxiv) That the purported decision of the Government of Uganda to issue a certificate of compliance in regard to the Bill was     inconsistent with and in contravention of Articles 93 and 94 of      the Constitution of Uganda.

(xxv) That the actions of the President of Uganda to assent to the Act       was inconsistent with and in contravention of Articles 1, 2, 8A,      44 (c), 79, 91, 94 and 259 of the Constitution.

(xxvi) A permanent injunction restraining the respondent, his agents       and all persons, agencies or bodies claiming and/ or acting         through him from enforcing any of the provisions of the Act.

(xxvii) An award of general damages to the petitioners due to the         psychological torture, mental anguish, inconvenience and pain         occasioned to them arising out of the actions complained of in        the Petition.

(xxviii) Any other relief that this Honourable Court deems fit in the         circumstances.

(xxix)        An award of costs of this Petition to the petitioners.

(xxx) An award of interest at the rate of 25% per annum on 22 and 24       above from the date of filing this Petition till payment in full.

Affidavit evidence

The Petition was supported by the affidavits of Hon. Karuhanga Kafureeka Gerald, Hon. Munyagwa S. Mubarak, Hon. Ssewanyana Allan, Hon. Ssemujju Ibrahim and Hon. Winfred Kizza and others.  

Constitutional Petition No. 10/ 2018

(i)     Declare that the Constitutional (Amendment) Act No. 1 of 2018,       is null and void for having been passed in contravention of the procedural requirements laid down in the Constitution,     particularly in Article 93 read together with Section 10 of the         Budget Act and section 76 of the Public Finance Management Act 2015 and Article 262; and

(ii)    or, in the alternative, declare that the following provisions of the said Act are inconsistent with and in contravention of the     Constitution:

(iii)   Sections 2, 6 and 8 of the Act contravenes Article 93 read        together with Section 10 of the Budget Act on certificate of    financial implications; Article 77 (4) on the circumstances for     enlarging the term of office of Parliament; Article 79 (1) on the     functions of Parliament/ limits on Parliament’s legislative         powers; National Objective & Directive Principle of State Policy        No. II read together with Articles 1 and 79 (3) on democratic      governance; National Objective & Directive Principle of State     Policy No. XXVI on eradication of corruption and abuse of office         by leaders; Chapter 14 of the Constitution read together with    Part III of the Leadership Code Act plus other related Articles.

(iv)   Section 5 of the Act is null and void as Parliament exceeded its         Constitution amendment powers under Chapter 18 of the         Constitution and contravened Articles 260 (2) (a) on the       procedure to amend entrenched provisions of the Constitution as well as Article 105 (1) on the Presidential term of office.

(v)    Section 9 of the Act is null and void as it is inconsistent with and         contravenes Article 105 (1) on the Presidential term of office and     Article 260 (1)(f) on the procedure to amend the Presidential       term of office. In enacting the said provision, Parliament again   exceeded its Constitutional amendment powers under Chapter   18 of the Constitution rendering it null and void.

(vi)   Sections 3 and 7 of the Act contravene and are inconsistent with     the key anti–discrimination provisions in the Constitution    particularly under Articles 21 (3) and (5) read together with the         limits on fundamental rights envisaged in Articles 43 and 44 as    well as many existing Constitutional Articles with age limit         provisions such as Article 144 on judicial service and that on the         retirement age in the civil service.

(vii)  An order of redress that Government should constitute a         Constitutional Review Commission to put in effect the     recommendations of the Supreme Court in Presidential Election    Petition No. 1 of 2016 plus other constitutional amendments in a        proper manner.

(viii) Any other consequential orders and remedies that may be       deemed fit by the Honourable Court to redress the matter.

Affidavit evidence

The Petition was supported by the affidavits of Prosper Businge, the 1st petitioner; Herbert Mugisa, the 2nd petitioner; Thomas Mugara Guma, the 3rd petitioner; and Pastor Sande Vincent Sande, the  4th petitioner.

Constitutional Petition No. 13 of 2018

Sought grant of a declaration that:

(i)     Article 8 of the Constitution (Amendment) Act 2018 in extending      the terms of the 10th Parliament is unconstitutional and inconsistent with and in contravention of Articles 1, 8A, 61 (2)       and (3), 77 (4), 96, 289 of the Constitution.

(ii)    Article 6 of the Act amending Article 181 of the Constitution    increasing the term of all Local Government Councils from 5 to 7      years is in contravention of and inconsistent with Article 181 (4)      of the Constitution and is in breach of the amendment         principles.

(iii)   Article 10 of the Act which extends the term of the current      Local Government Councils is unconstitutional and   inconsistent with Articles 1 and 8A, 61 (2) and (3) of the    Constitution.

(iv)   Article 8 of the Act in creating a divergence in the    Parliamentary   terms of office and the time for holding the       respective elections is unconstitutional and inconsistent with     and in contravention of    Articles 1, 8A, 105 (1) and 260 (1) (f) of the Constitution.

(v)    Article 3 of the Act undermines the sovereignty and civil         participation of the people of Uganda, and is unconstitutional      and inconsistent with Articles 1, 8A, 38 and 105 (1) of the Constitution.

(vi)   Articles 8 and 10 of the Act and the act of Parliament in   proceeding on a private Member’s Bill whose effect to       authorise payments to the 10thParliament and the current         Local Government Councils after expiry of their initial five–       year term are    unconditional and inconsistent with and in         contravention of Article 93 (b) of the Constitution.

(vii)  The inclusion of the extension of the terms of the 10th      Parliament and the current Local Government Councils in the        Act without consultation with the electorate and following due     process is unconstitutional and contravenes Articles 1, 8A and     259 (2) (a) of the Constitution.  

        Affidavit evidence

The Petition is supported by the affidavit of the Abaine Jonathan Buregyeya, the petitioner, and that of Mutyaba Mohammed, a voter who avers that he was not consulted before Parliament increased its term from 5 to 7 years.

  1.  

Except for Male Mabirizi Kiwanuka, the Petitioner in Constitutional Petition No. 49 of 2017, who appeared and argued his own Petition, the other Petitioners were each represented by learned legal counsel. These Counsel were Wandera Ogalo, the most senior learned Counsel on the side of the Petitioners, who represented the Petitioners in Petition No. 003 of 2017. Learned Counsel Byamukama James represented the Petitioners in Petition No. 10 of 2018; while learned Counsel Erias Lukwago, Ladislaus Rwakafuzi, Luyimbaazi Nalukoola, and Yusuf Mutembuli appeared for the Petitioners in Petition No. 005 of 2017; then learned Counsel Kaganzi argued the case for the Petitioner in Petition No.13 of 2018.

For the Respondent, learned Counsel Mwesigwa Rukutana (Deputy Attorney General), assisted by learned Counsel Francis Atoke (Solicitor General) learned Counsel Christine Kahwa (Ag. Director of Civil litigation), learned Counsel Martin Mwambutsya (Commissioner Civil Litigation), learned Counsel Henry Oluka and Elisha Bafirawala (Principal State Attorneys), learned Counsel Richard Adrole (Senior State Attorney), and then learned Counsel Genevieve Kampiire, Suzan Apita Akello, Johnson Kimera Atuhire, Jackie Amusugut, and Imelda Adong (each a State Attorney).

Issues for determination

The issues agreed upon by the parties to the Petitions, and were adopted by Court, are as follows:

1.      Whether sections 2 and 8 of the Act extending or enlarging of the      term or life of Parliament from 5 to 7 years is inconsistent with    and/ or in contravention of Articles 1, 8A, 7, 77 (3), 77 (4), 79 (1),        96, 233 (2) (b), 260 (1)  and 289 of the Constitution.

2.      And if so, whether applying it retrospectively is inconsistent with      and/ or in contravention of Articles 1, 8A, 7, 77(3), 77(4), 79(1), 96          and 233 (2)(b) of the Constitution.

3.      Whether sections 6 and 10 of the Act extending the current life of      Local Government Councils from 5 to 7 years is inconsistent with      and/ or in contravention of Articles 1, 2, 8A, 176 (3), 181 (4)        and   259 (2) (a) of the Constitution. 

4.      If so, whether applying it retroactively is inconsistent with and/ or   in contravention of Articles 1, 2, 8A, 176 (3), 181 (4) and 259 (2) (a)     of the Constitution.    

5.      Whether the alleged violence/ scuffle inside and outside Parliament          during the enactment of the Act was inconsistent and in     contravention of Articles 1, 2, 3 (2) and 8A of the Constitution. 

6.      Whether the entire process of conceptualizing, consulting, debating and   enacting the Act was inconsistent with and/ or in          contravention of Articles of the Constitution as here-under:-

(a)     Whether the introduction of the Private Member’s Bill that led to the Act was inconsistent with and/ or in contravention     of Article 93 of   the Constitution.

(b)     Whether the passing of sections 2, 5, 6, 8 and 10 of the Act are           inconsistent with and/ or in contravention of Article 93 of the Constitution.

(c)     Whether the actions of Uganda Peoples Defense Forces and       Uganda           Police in entering Parliament, allegedly assaulting           Members in the           chamber, arresting and allegedly detaining   the said Members, is           inconsistent with and/or in contravention of Articles 24, 97, 208 (2) and 211 (3) of the      Constitution.

(d)     Whether the consultations carried out were marred with restrictions and violence which were inconsistent with and/ or         in contravention of Articles 29 (1) (a),(d),(e) and 29(2)(a) of the    Constitution.

(e)     Whether the alleged failure to consult on sections 2, 5, 6, 8       and 10 is inconsistent with and/ or in contravention of           Articles 1 and 8A of     the Constitution.

(f)      Whether the alleged failure to conduct a referendum before     assenting to the Bill containing sections 2, 5, 6, 8 and 10 of        the Act was inconsistent with, and in contravention of Articles    1, 91 (1) and 259 (2), 260 and 263 (2)(b) of the Constitution.

          (g)     Whether the Amendment Act was against the spirit and                                 structure of the 1995 Constitution.

7.      Whether the alleged failure by Parliament to observe its own Rules   of Procedure during the enactment of the Act was inconsistent with      and in contravention of Articles 28, 42, 44, 90 (2), 90 (3) (c) and 94    (1) of the Constitution.

          (a)     Whether the actions of Parliament preventing some members                      of the public from accessing Parliamentary chambers during                          the presentation of the Constitutional Amendment Bill No. 2 of                2017 was inconsistent with and in contravention of the                                        provisions of Articles 1, 8A, 79, 208 (2), 209, 211 (3), 212 of                           the Constitution.

          (b)     Whether the act of tabling Constitutional Bill No. 2 of 2017, in                              the absence of the Leader of Opposition, Chief whip and other                              opposition members of Parliament was in contravention of                          and/ or inconsistent with Articles 1, 8A, 69 (1), 69 (2)(b), 71,                           74, 75, 79, 82A, and 108A of the Constitution.

          (c)     Whether the alleged actions of the Speaker in permitting                                        Ruling Party Members of Parliament to sit on the opposition                        side of Parliament was inconsistent with Articles 1, 8A, 69                              (1), 69 (2)(b), 71, 74, 75, 79, 82A, 83 (1)(g), 83 (3) and 108A of                             the Constitution.

          (d)     Whether the alleged act of the Legal and Parliamentary                                Affairs Committee of Parliament in allowing some committee                      members to sign the Report after the public hearings on                               Constitutional Amendment Bill No. 2 of 2017, was in                                     contravention of Articles 44          (c), 90 (1) and 90 (2) of the                                Constitution.

          (e)     Whether the alleged act of the Speaker of Parliament in                                allowing the Chairperson of the Legal Affairs Committee, on                       18th December 2017,           in the absence of the Leader of                                   Opposition, Opposition Chief Whip, and other Opposition                              members of Parliament, was in contravention of and                                       inconsistent with Articles 1, 8A, 69 (1), 69 (2) (b), 71, 74, 75,                         79, 82A and 108A of the Constitution.

          (f)      Whether the actions of the Speaker in suspending the 6 (six)                         Members of Parliament was in contravention of Articles 28,                        42, 44, 79, 91, 94 and 259 of the Constitution.

          (g)     Whether the action of Parliament in:-

(i)      waiving the requirement of a minimum of three sittings   from the tabling of the Report yet it was not seconded;

(ii)     closing the debate on Constitutional Amendment Bill No.          2 of           2017 before every Member of Parliament could      debate on the said Bill;

(iii)    failing to close all doors during voting;

(iv)    failing to separate the second and third reading by at     least fourteen sitting days;

                   are inconsistent with and/ or in contravention of Articles 1,                        8A, 44 (c), 79, 94 and 263 of the Constitution. 

8.      Whether the passage of the Act without observing the 14 sitting         days of Parliament between the 2nd and 3rd reading was inconsistent     with and/ or in contravention of Articles 262 and 263 (1) of the      Constitution.    

9.      Whether the Presidential assent to the Bill allegedly in the absence    of a valid Certificate of compliance from the Speaker and      Certificate of the Electoral Commission that the amendment was    approved at a referendum   was inconsistent with and in          contravention of Article 263 (2) (a) and (b) of the Constitution.    

10.    Whether section 5 of the Act which reintroduces term limits and        entrenches them as subject to referendum is inconsistent with and/ or in contravention of Article 260 (2)(a) of the Constitution. 

11.    Whether section 9 of the Act, which seeks to harmonise the seven       year term of Parliament with Presidential term is inconsistent with      and/ or in contravention of Articles 105 (1) and 260 (2) of the          Constitution.    

12.    Whether sections 3 and 7 of the Act, lifting the age limit without        consulting the population are inconsistent with and/ or in    contravention of Articles 21 (3) and 21 (5) of the Constitution. 

13.    Whether the continuance in Office by the President elected in 2016   and   remains in office upon attaining the age of 75 years   contravenes Articles    83 (1) (b) and 102 (c) of the Constitution of       the Republic of Uganda. 

14.    What remedies are available to the parties?

COURT'S DETERMINATION OF THE ISSUES FRAMED

  •  

(i)       The Remit Of The Constitutional Court:

Because of the importance of jurisdiction, and the danger of lack of it, in any judicial undertaking, it is crucial that a Court before which a matter has been brought, determines whether or not it is seized with jurisdiction in such a matter. A Court may proceed on a matter that is entirely, or in part, outside of its remit; and thereby wasting much resources and effort for no good reason. The jurisdiction of the Constitutional Court of Uganda derives from the provision of Article 137 of the 1995 Constitution; which states as follows:

"137.        Questions as to the interpretation of the Constitution.

(1)    Any question as to the interpretation of this Constitution shall be determined by the Court of Appeal sitting as the Constitutional Court.

(2)    ... ... ...

(3)    A person who alleges that –

(a)    an Act of Parliament or any other law or anything in or done   under the authority of any law; or

(b)    any act or omission by any person or authority,

is inconsistent with or in contravention of a provision of the Constitution, may petition the Constitutional Court for a declaration to that effect, and for redress where appropriate."

Two points of importance clearly come out of this provision. First, is that pursuant to the provision of Article 137(1) of the Constitution, the Constitutional Court is not a standing Court; but only a conversion of the Court of Appeal to sit as a constitutional Court. Second, is that the jurisdiction of the Constitutional Court is limited to the interpretation or construction of provisions of the Constitution; and determining whether an impugned provision of an Act of Parliament contravenes a provision of the Constitution; or whether a person, or institution has acted in a manner that violates a provision of the Constitution. Pursuant to this clear provision of the Constitution, WAMBUZI CJ succinctly and authoritatively expressed in Ismail Serugo vs Kampala City Council & Anor.; Constitutional Appeal No. 2 of 1998, that:

"In my view, for the Constitutional Court to have jurisdiction, the petition must show on the face of it that the interpretation of the Constitution is required. It is not enough to allege merely that a constitutional provision has been violated."

In Attorney General v Tinyefuza; Constitutional Appeal No. 1 of 1997, the Supreme Court in a panel comprising seven was unanimous, and unmistakably clear, in holding that the Constitutional Court's jurisdiction is exclusively derived from Article 137 of the Constitution. Thus, it has no jurisdiction in any matter not involving or requiring the interpretation of a provision of the Constitution. The Court further held that for the Constitutional Court to have jurisdiction, the petition must show on the face of it that the interpretation of a provision of the Constitution is required. Hence, an application for redress can be made to the Constitutional Court, only in the context of a petition brought under Article 137 Constitution; and principally for the interpretation of the Constitution.

In S vs Marwane 1982 (3) SA 717 (AD), at p.745, MILLAR JA of the Appellate Division of the South African Supreme Court stated, with regard to acceptable approach to interpretation of a Constitution, as follows:

"... whether our courts were to regard an Act creative of a Constitution as it would any other statute, or as an Act sui generis, when construing a particular provision therein, they would give effect to the ordinarily accepted meaning and effect of the words used and would not deviate therefrom unless to give effect to the ordinary meaning would give rise to glaring absurdity; or unless there were indications in the Act – considered as a whole in its own peculiar setting and with due regard to its aims and objects – that the legislator did not intend the words to be understood in their ordinary sense. ... ... ...

For so long as this Constitution stands, the right to challenge the validity of legislation passed by the legislative authority will remain, as will the Supreme Court's power – and its duty, when properly called upon so to do – to test the validity of the challenged legislation by reference to the provisions of the Constitution."

The Constitutional Court, like any other Court, has the mandate bestowed upon it under the provisions of Article 126 of the Constitution, to act in the name and in accordance with the aspirations of the people in whom power vests. In the exercise of its oversight role, this Court has to ensure that whatever amendment or alteration the Constitution is subjected to, is in accord with clear provisions of the Constitution in that regard. Thus, with regard to the several petitions before us for determination, it is incumbent on this Court to determine whether, or not, the impugned amendments to the Constitution, contravened the respective provisions of the Constitution, as are alleged by the respective petitioners.

As judicial officers, upon whom this Constitutional remit is bestowed, we exercise the responsibility with a clear sense of purpose; and do so in the full knowledge that it is a noble duty we exercise in the name, and for the good, of the people of Uganda in whom ultimate power vests. This is pursuant to the provision of Article 1(1) of the Constitution, which states that 'all authority in the State emanates from the people of Uganda; and the people shall be governed through their will and consent.' This also applies to the Courts of judicature, since the Judiciary is one of the three arms of government. As a complementary provision to the provision of Article 1 of the Constitution reproduced above, Article 126 of the Constitution, which is more specific on the role and function of the Courts of Judicature in the administration of justice, provides as follows:

"126. Exercise of judicial power.

        (1)    Judicial power is derived from the people and shall be exercised by the Courts established under this Constitution in the name of the people and in conformity with law and with the values, norms and aspirations of the people."

BURDEN OF PROOF

As is the case with all other matters brought before Court, the burden to prove each of the grounds raised in a Constitutional Petition, that an impugned provision of a statute offends some provision of the Constitution, rests on the person challenging the validity of the enactment. There is only a shift of evidential burden onto the Respondent upon the Petitioner either raising a prima facie case necessitating adverse proof by the Respondent; or where the evidence required to determine the matter before Court is either in the possession, or only within the knowledge, of the Respondent. This is in accordance with the provisions of section 106 of the Evidence Act (Cap. 6, Laws of Uganda 2000 Edn.) which states as follows: –

"106.        Burden of proving, in civil proceedings, fact especially within knowledge.

In civil proceedings, when any fact is especially within the knowledge of any person, the burden of proving that fact is upon that person."

RULE OF CONSTITUIONAL CONSTRUCTION OR INTERPRETATION

One of the principles in constitutional construction or interpretation is that of presumption of constitutionality. In Zimbabwe Township Developers (Pvt) Ltd. vs Lou's Shoes (Pvt) Ltd 1984 (2) SA 778 (ZSC) Telford Georges CJ stated at p.782 that the 'presumption of constitutionality':

"... is a phrase which appears to me to be pregnant with the possibilities of misunderstanding. Clearly, a litigant who asserts that an Act of Parliament or a regulation is unconstitutional must show that it is. In such a case the judicial body charged with deciding that issue must interpret the Constitution and determine its meaning and thereafter interpret the challenged piece of legislation to arrive at a conclusion as to whether it falls within that meaning or does not. The challenged piece of legislation may, however, be capable of more than one meaning. If that is the position, then, if one possible interpretation falls within the meaning of the Constitution and others do not, then the judicial body will presume that the lawmakers intended to act constitutionally and uphold the piece of legislation so interpreted. This is one of the senses in which a presumption of constitutionality can be said to arise.

One does not interpret the Constitution in a restricted manner to accommodate the challenged legislation. The Constitution must be properly interpreted, adopting the approach accepted above. Thereafter the challenged legislation is examined to discover whether it can be interpreted to fit into the framework of the Constitution. ... ... ... Even where the Constitution does not make it clear where the onus lies, as the Zimbabwe Constitution does, the onus lies on the challenger to prove that the legislation is not reasonably justifiable in a democratic state, and not on the state to show that it is. In that sense, there is a presumption of constitutionality."

It is a well–established rule of interpretation that the words of an Act of Parliament should be construed with reference to the context in which it is used. This means an Act of Parliament should be considered as a whole; for the language of one provision therein may affect the construction of another in the same legislation. This presupposes that a word is used in an Act of Parliament to mean one thing; and not to mean something else. Similarly, nor are different words used in an Act of Parliament intended to mean the same thing. As was pointed out in Giffels & Vallet vs The King [1955] DLR 620, at p.630:

"It is not to be forgotten that the first inference is that a word carries the same connotation in all places when it is found in a statute."

This rule of construction applies to the Constitution as with an Act of Parliament. In interpreting or construing any provision of the Constitution, care must be taken to ensure that it is not considered in isolation from the other provisions of the Constitution. The Constitution must be considered in its entirety; taking cognizance of the fact that each provision of the Constitution is an integral part of the whole. This holistic approach to constitutional construction or interpretation avoids giving different, and at times opposite or adverse, meanings to the same word that has been used in various parts of the Constitution.

Thus, in the exercise of its constitutional oversight role, it is incumbent on this Court to apply the rule of construction and interpretation, to determine whether any person exercising an official power or function has, either through improper motive, or through inadvertence, acted in violation of the Constitution. The Court can then interfere and render rectificatory remedy when it establishes that such a wrong, as is complained of, has indeed been occasioned. Such wrong may include mala fide motive, or even when the powers – otherwise lawfully conferred upon any person or institution – are exercised in a capricious, or arbitrary manner; hence, done ultra vires the law conferring such power on the person or institution.

 

(ii)     The Constitution as a fountain of the rule of law.

Before giving due consideration to each of the issues framed, I consider it most important to illuminate and make it abundantly clear, the special place, and importance, of the Constitution in the life of the people and the future of the country. The Constitution is not an ordinary document, it is a sacred legal instrument, which is the fundamental and supreme law of the country. It is the embodiment of the expression of the people's vision, values, will, and aspirations. It governs the three arms of government or State – namely the Executive, Legislature, and the Judiciary – as much as it governs the ordinary individual and the society at large within its jurisdiction.

In Legislative Drafting (Universal Law Publishing Co. (Third Edition), 1994), B.R. Atre states at p.166 as follows:

"Every political community, and thus every national State, has constitution, at least in the sense that it operates its important institutions according to some fundamental body of rules. In this sense of the term, the only conceivable alternative to a constitution is a condition of anarchy.  Even if the only rule that matters is the whim of an absolute dictator, that may be said to be the constitution. The constitution of a nation is therefore composed, in the first place, of the principles determining the agencies to which the task of governing the nation is entrusted and their respective powers."

(ii)    The nature and character of the Constitution

In Understanding Statutes (Cavendish Publishing Ltd., 1994), Crabbe V.C.R.A.C. (the Parliamentary Counsel who was placed in the unenviable position of drafting the 1966 pigeonhole Constitution of Uganda) describes the Constitution, at p.129, as the fundamental law; and so it:

  • "contains the principles upon which the government is established;
  • regulates the powers of the various authorities it establishes;
  • directs the persons or authorities who shall or may exercise certain powers;
  • determines the manner in which the powers it confers are to be confined or exercised; and

specifies the limits to which powers are confined in order to protect individual rights and prevent the abusive exercise of arbitrary power." 

In the book, Legislative Drafting (supra), the learned author states at p.286 that:

"However, it is not so much that a Constitution of a country determines its nature and character. It is a mode in which a stage is constituted or organized which determines its fiscal nature or character and which ultimately determines a country's health, strength and vitality.

It is therefore, of utmost importance that the Legislators of a given country understand the constitutional document which governs their country and through which they are able to represent their constituencies in Parliament. A country is more than a collection of people with patriotic feelings. A country is kinsfolk or kindred. A country is the friendly feelings to which such kindred give birth. A country is the feeling of confidence that people have when sharing similar habits and customs." 

Due to the sanctity it is clothed with, the Constitution deserves to be accorded utmost deference and veneration. It must enjoy a sufficient degree of permanence and stability. As was opined by Hyatali CJ in Harrikissoon vs Attorney General of Trinidad and Tobago [1981] AC 265, it is unwise; and can only lead to undesired consequence when:

        "... the Constitution as the supreme law is treated with little     sympathy or scant respect, or is ignored without strong and         compelling reasons." 

The treatment or regard we accord the Constitution, as is attested to by our post independence experience following the abrogation of the Independence Constitution, has direct bearing on what we consequently harvest or reap as a country. The old adage that one reaps what one sows is quite pertinent here. We either reap the fortune of enjoyment of peace, development, and prosperity, or the misfortune of instability and peril that would certainly plague our country. Owing to the pivotal place the Constitution occupies in the life of the people, and the crucial role it plays in determining the direction or fate of the country, it is a compulsory requirement for every person holding a public office of national importance to take the oath binding him or her to preserve, protect, and defend the Constitution.

In the Indian public interest case of Pandey & Anor vs State of West Bengal [1988] LRC 241; an urban authority had been challenged for alienating part of land hosting a zoo, for the construction of a five–star hotel. Article 48A of the Indian Constitution, which set out a Directive Principle, provided as follows: 

"The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country."     

Article 51A(g) of that Constitution stated the fundamental duty of every citizen as follows:

"... ... to protect and improve the natural environment including forests, lakes, rivers, and wild life; and to have compassion for living creatures." 

Chinnappa Reddy J.; reproduced, at p. 245 paragraph 'f' of his judgment, an impressive speech made by an American Red Indian Chief of Seattle to the representative of the government in Washington who had sought to acquire land from the Red Indians by purchase. In declining the request, the wise Red Indian Chief made the following response:

" ... ... ... You must teach your children that the ground beneath their feet is the ashes of our grandfathers. So that they will respect the land. Tell your children that the earth is rich with the lives of our kin. Teach your children what we have taught our children, that the earth is our mother. Whatever befalls the earth befalls the sons of the earth. Man did not weave the web of life: he is merely a strand in it. Whatever he does to the web he does to himself. Even the white man, whose God walks and talks with him as friend to friend, cannot be exempt from the common destiny.

We may be brothers after all. We shall see. One thing we know, which the white man may one day discover – our God is the same God. You may think now that you own Him as you wish to own our land; but you cannot. He is the God of man, and his compassion is the same for the red man and the white. This earth is precious to Him, and to harm the earth is to heap contempt on its Creator. The white too shall pass; perhaps sooner than all other tribes. Contaminate your bed and you will one night suffocate in your own waste ..." 

I find this remarkably powerful speech of great significance as it metaphorically illustrates the point regarding the sanctity of the Constitution; and its special place in our life. To appreciate, and fully understand the relevance and import of this speech to our situation as a people, we need to substitute the word 'Constitution', which is at the centre of our life, for the word 'land' which is the imperative point of reference in the great speech as the centre of life for the Red Indian race.

One expression of significance, which stands out in the speech, and which we should bear in mind in our treatment of the Constitution, is the caution: "Contaminate your bed and you will one night suffocate in your own waste". This statement is in pari  materia with that in Robert Bolt's 'A Man For All Seasons', cautioning against the threatened cutting down of the forest; advising that the forest is the fortress where one would seek refuge in the event that Hell breaks loose, and the Devil goes on rampage! Therefore, the Constitution is respectively the 'bed', and the 'forest', referred to in the two speeches quoted above. It is thus an exhibition of utter folly, and lamentable foolhardiness, to ignore these priceless words of wisdom; as the resulting ramifications, are predictably the perils that will surely visit us.

The making of the 1995 Constitution was a commendable participatory process. It included the contributions of the handmaidens to the process; such as the Justice Odoki Constitutional Commission comprising eminent Ugandans who consulted widely with the people of Uganda, and the Constituent Assembly elected by universal adult suffrage, which deliberated on the report of, and draft Constitution by, the Commission. Then the President signified the promulgation of the resulting Constitution by appending his hand to the supreme legal instrument. The entire national Constitution making enterprise was characterised by a painstaking, elaborate, exhaustive, and costly, but justifiable and legitimate undertaking.

This owed to the fact that the Constitution making process was conducted against the tragic backdrop of our sad post independence history. We therefore seized and executed this epoch–making endeavour in the knowledge that a grand opportunity had presented itself to us, the people of Uganda, to have a fresh start in building our nation. Indeed we held the firm belief that this would mark a break with our politics of the past, whose hallmark included the high handed and reckless abuse of the Constitution in furtherance of narrow self–interest; resulting in unspeakable repercussion, which manifested itself in the tragic upheavals and incessant haemorrhage that ensued and bedevilled our country.

Further to this, the fresh memory of the protracted and bloody armed struggle, which ushered in the opportunity for a new political dispensation, informed and influenced the Constitution making process. Therefore, we embraced the process with acclaim; in the earnest hope that this had ushered in the much–desired dawn to a new political dispensation in Uganda. The 1995 Constitution is still in its infancy; it being just a couple of decades old. However, and most unfortunately, before it has sufficiently been tested, or put differently, before the ink with which the promulgation was signed has dried, the Constitution has already been subjected to as many as five amendments.

Given the effort, time and other resources that were invested in the making of the 1995 Constitution, it is not gainsaid that the frequency with which it has been subjected to amendments is disturbing; and is cause for serious and genuine concern. This is so in the light of the fact that many of the laws that stem or derive their authority from, and are therefore subordinate to, the Constitution have not suffered similar scant respect of being subjected to such frequent amendments. Indeed, the frequency with which the Constitution has been amended negates one of the core principles that form the bedrock of the Constitution; which is clearly expressed in the preamble to the Constitution as follows:

"The Preamble

              WE THE PEOPLE OF UGANDA:

            RECALLING our history which has been characterised by political and constitutional instability;

            RECOGNISING our struggles against the forces of tyranny, oppression, and exploitation;

            COMMITTED to building a better future by establishing a socioeconomic and political order through a popular and durable national Constitution based on the principles of unity, peace, equality, democracy, freedom, social justice and progress;

            EXERCISING our sovereign and inalienable right to determine the form of governance for our country, and having fully participated in the Constitution-making process;

            NOTING that a Constituent Assembly was established to represent us and to debate the Draft Constitution prepared by the Uganda Constitutional Commission and to adopt and enact a Constitution for 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.

FOR GOD AND MY COUNTRY” (emphasis added).

Owing to the peoples' desire to have a popular and durable Constitution for themselves and posterity, it is justified for them to seek to know the compelling change that has occurred in our aspiration and values, so soon after the promulgation of the Constitution, to merit the extravagant alterations to the Constitution at the infant stage of its life span. The people harbour legitimate concern over the apparent deviation from our earlier desire and chosen direction declared in the Constitution itself; namely to have a durable Constitution that would ensure a just socio and political order. We are justified in being apprehensive of what the future holds with regard to the nature and substance of our Constitution by the time we celebrate the silver jubilee of its historic promulgation.

Indeed, whether acting by themselves, or through their representatives in Parliament, the people must always keep in mind that in exercising their constitutional right to amend the Constitution, it may not be sufficient justification that such amendment or alteration is in fact clothed with legality. It is more important that amendments or alterations of the Constitution reflect the popular will of the people; thereby enjoying legitimacy alongside, or over, legality. The Constitution is not made for the present generation alone; but is also intended to ensure that we, of the present generation, bequeath a worthy and stable country to future generations. In this regard, I find it apt to cite an African saying of the wise, on the importance of land; owing to its central place as a pillar in our lives.

Expressed in paraphrase, the African idiom is that the land we occupy and cultivate, and thus it is our source of living is – contrary to well–established belief – not our inheritance from our elders and ancestors; but rather, what we owe future generations from whom we have borrowed the land! It is, thus, incumbent on us to use the land to our benefit; but we should do so, cognizant of the fact that we are beholden to future generations who are the true owners, and are under duty to hand the land 'back' to them as the true owners! Therefore, it is incumbent on us to ensure that the Constitution does not suffer such maltreatment as we did witness in the immediate post independence period; as this would sadly force the country to glide back to a repeat of the tragedy to which we resoundingly resolved "never again" to go through, when we gave ourselves this Constitution.

It would otherwise be most unfortunate and lamentable, in view of the still fresh, and indelible, memory of the repercussions that resulted from the failure of the immediate post independence political leaders to nurture the Constitution, to enable the rule of law to prevail. Instead, they sacrificed the rule of law on the altar of political expedience, in some instances for petty advantage; and for which we have, as a people, paid a dear price, and continue to do so, as the consequences are still reverberating to date. Should we fail to rise up to the occasion, and take the necessary action in the protection, defence, and preservation of the Constitution, then for sure, posterity, which we owe a duty, and must always have in mind in all we do, will be irreconcilably unforgiving of our generation.

Future generations will justifiably hold us complicit, either by our explicit or implicit action, in letting our country again sink into the chaos, turbulence, and mayhem, we have had a nasty experience of; and swore to ourselves never to go through again when we made this Constitution. They will be furious and extremely harsh in their judgement over us, for having bequeathed unto them a tragedy, which we had the power and means to avert or avoid; but failed to do it due to the lack of will and courage to do so. The Nandala Mafabi motion on the restoration of Presidential term limit, to which I shall shortly advert, is a classical case justifying the need to treat the Constitution with due respect; and subject it to alteration sparingly, and only in very deserving circumstances.

Parliament scrapped the Presidential term limit; but even when the conditions that purportedly necessitated the scrapping of that provision have not changed, Parliament has overwhelmingly voted to reverse this decision, and have the provision restored in the Constitution. This is evidently a sharp rebuke and indictment of Parliament for having scrapped the provision from the Constitution in the first place, apparently without any justifiable reason; as is manifested by its immediate reinstatement. This vindicates the voices of reason, which had concertedly objected to, and expostulated against, the lifting of the provision from the Constitution. 

Issue No. 6 (g):    Whether the Amendment Act was against the spirit and                               structure of the 1995 Constitution.

Because this issue is on common ground with, and is crosscutting in its application to, most of the other issues framed in the consolidated Petitions before this Court for determination, I consider it advisable and appropriate to deal with it first, before delving into the determination of the other issues.

 

Submission by Counsel:

The Basic Structure Doctrine:

In his support for this doctrine, learned Counsel Erias Lukwago cited the case of Saleh Kamba & others v Attorney General & others; Constitutional Petition No. 16 of 2013, for the principle of constitutional interpretation requiring an understanding of the history of the country. He referred to the Indian situation where the Constitution provides for the basic structure doctrine; which is a principle curtailing the power of Parliament to amend the Constitution by excluding the power to abrogate or change the identity of the constitution or its basic features. He surveyed the development of the doctrine, beginning with the case of Minerva Mills Ltd & others v Union of India (UoI) & others AIR 1980 SC 1789, where the Supreme Court unanimously applied it to invalidate the provision of section 55 of the Act, which had removed all limitations imposed on Parliament in the exercise of its power to amend the Constitution; thereby conferring upon it the power to amend and destroy the Constitution’s essential features or basic structure. The Court reasserted and secured the constitutional limitations on Parliament’s power to amend the Constitution by holding that Parliament could not enlarge the limited amending power conferred unto it by the Constitution, into an absolute power.

Counsel cited authorities from various jurisdictions where the doctrine has been applied; and this includes the Bangladesh case of Anwar Hossain Chowdry v Bangladesh 41 DLR 1989 App. Div. 165, in which the Supreme Court identiofied the central pillars in a Constitution; and declared an amendment that had curtailed the judicial review jurisdiction of the Supreme Court, unconstitutional and void. Counsel also cited the Pakistani case of Al-Jehad Trust v Federation of Pakistan PLD 1996 SC 367, where the Supreme Court recognised the need to interpret the Constitution as a whole; taking into account the spirit and ‘basic features of the Constitution’. Counsel cited the Kenyan case of Njoya & others v Attorney General & others [2004] LLR 4788; where the High Court rejected the contention that Parliament's power to amend the Constitution includes power to make changes, which amount to the replacement of the Constitution.

He also cited the South African authority of Premier KwaZulu- Natal and President of the Republic of South Africa 1996 (1) SA 769 (CC); where the Supreme Court held that even where Parliament has followed the procedures and requirements laid down for amending the Constitution, nevertheless such amendment could be struck down as being invalid for "radically and fundamentally restructuring and reorganising the fundamental premises of the constitution". Counsel cited another South African case of Executive Council of the Western Cape Legislature v the President of the Republic 1995 10 BCLR 1289 (CC); where Court pointed out that "there are certain fundamental features in a Parliamentary democracy which are not spelt out in the Constitution but which are inherent in its very nature, design and purpose"; hence, these features are protected against amended by Parliament.

He cited the Tanzanian case of Rev. Christopher Mtikila v Attorney General 2006 (10 of 2005) [2006] TZHC 5; in which the High Court of Tanzania stated that ‘it  may of course sound odd to the ordinary mind to imagine that the provisions of a Constitution may be challenged for being unconstitutional’; but, however, it expressed itself that ‘this Court may indeed declare some provisions of the Constitution, unconstitutional’. This, Counsel submitted, raised judicial activism a notch higher. He then urged Court to appreciate the philosophy upon which the 1995 Constitution of Uganda is anchored; and to apply that doctrine in the instant case before this Court. He contended that the impugned Act substantially changed the Constitution to the extent that a resurrected member of the Constituent Assembly would today unable to recognise the 1995 Constitution; and, so, would disown it!

He also cited the authority of Saleh Kamba (supra), where Kasule, JCC, in his dissenting judgment, manifested the basic structure doctrine of our Constitution; as reflected in the preamble, to the 1995 Constitution. The learned Kasule JCC concluded, upon reviewing the history of the country, that owing to the historical perspective compelled that the Constitution be interpreted in a manner that promotes the growth of democratic values and practices; while at the same time doing away or restricting those aspects of governance that are likely to return Uganda to a one party State and/or make in–roads in the enjoyment of the basic human rights and freedoms of conscience, expression, assembly and association.

It was thus Counsel's contention that the extension of the term of Parliament, that of the President, and the lifting of the age–limit, negate and vitiate the spirit of the Constitution which was intended to create a stable Uganda. He urged this Court to find that the will of the people to give consent on who governs them, under Article 1 (4) of the Constitution, had been violated by Parliament's extension of its term by two years; meaning that there shall be no elections until 2023, and thereby in effect disenfranchising the people. He argued further that the issue of age–limit was a safeguard against anyone entrenching himself or herself as life President. He urged Court to take judicial notice of the fact that in the past, some people have expressly declared themselves life President; but that others could do so it by manipulating the legal processes.

He also noted that moving the guiding principles of State policy and national objectives from the preamble to the Constitution to become Article 8A thereof means it is now a justiciable provision. He implored Court to make history, by applying the doctrine of Basic Structure of the Constitution in our jurisdiction; so that whoever seeks to entrench themselves in power, will find difficulty in doing so. It is this, Counsel contended, that will create constitutional stability; and thereby guaranteeing political stability for this country, so that we do not revert back to the turbulent days of the past.                                                                                                                                                                                                                                                           

The Case for the Respondent

The learned Deputy Attorney General, Hon Rukutana Mwesigwa, relied on the  submissions he had made with regard to Issues 1– 4; wherein, on the issue of doctrine of basic structure he had cited the Tanzanian case of Rev. Christopher Mtikila v Attorney General Misc. Civil Cause No. 10 of 2005; in which the respondent had filed an application challenging the prohibition of independent candidates from contesting for presidential, parliamentary and civic elections introduced by the Constitution Amendment Act. The Act had compelled such candidates to be members of, and be sponsored by, a political party. The trial Judge declined to declare the Act unconstitutional; holding that such candidates could still contest as independents. On a 2nd appeal, the three judges of the Court unanimously upheld the decision of the High Court; stating therein that they could not clothe themselves with legislative powers. They explained that:

                “we are definite that the courts are not the custodian of the will of the people, that is the property of elected members of parliament”, so if there are two or more articles or portions of articles which cannot be harmonised then it is parliament which will deal with the matter and not the court unless power is expressly given by the constitution”.

On the doctrine of ‘basic structure’ of the Constitution, the Court held in that case that:

                “We agree with Prof. Kabudi that that doctrine is nebulous, (meaning it is misty, it is cloudy, it is hazy according to the dictionary) as there is no agreed yardstick of what constitutes basic structure of a constitution.”

Learned counsel relied on that case for his contention that the Constitution simply has safeguards as is in Article 260; and not necessarily a basic structure. It concluded that the matters that could be regarded as the basic structure were those that Parliament could not amend; but still, they were amendable. He pointed out that the learned Judges concluded that in their opinion, the basic structure doctrine does not apply to Tanzania; and further that they could not apply Indian authorities, which were merely persuasive when considering the Tanzanian Constitution. He argued that the Indian Constitution had the basic structure entrenched. However, in the case of Uganda the basic structure is contained in a number of Articles of the 4Constitution, which are not affected by the impugned Act; and that in carrying out their constitutional duty, the elected representatives of the people act with the mandate of the people.

Court's Determination of Issue No. 6 (g):

The Spirit and Character of the 1995 Constitution:

Article 2 of the 1995 Constitution provides as follows:

"2.     Supremacy of the Constitution.

(1)    This Constitution is the supreme law of Uganda and shall have binding force on all authorities and persons throughout Uganda.

(2)    If any other law or any custom is inconsistent with any of the provisions of this Constitution, the Constitution shall prevail, and that other law or custom shall, to the extent of the inconsistency, be void."

Thus, the Constitution is the supreme legal instrument in our jurisdiction; and therefore the bedrock of constitutional governance. The power the people have conferred on the Legislative arm of government to make laws for good order and good governance is enshrined in it. Accordingly then, any law passed by the Legislature that is inconsistent with, or is in contravention of, thus not in consonance with, the Constitution, is void to the extent of the inconsistency or contravention. Put differently, because the Constitution is the repository of the will and aspiration of the people, all laws are made there under; and are therefore subordinate to it. Accordingly then, where any law is in conflict, or is incompatible, with the Constitution, it is the Constitution that prevails; and such provision of the law that is in violation of the Constitution is invalid.

Admittedly, the Constitution is liable to amendment or alteration; but, owing to its special character as the sovereign legal instrument, for any amendment or alteration thereto to be justified, there has to be compelling reason for doing so; and the amendment must be done in strict compliance with the manner expressly provided for in Chapter Eighteen of the Constitution itself. As was succinctly stated by Lord Diplock, who delivered the decision of the Privy Council in Attorney–General of Trinidad and Tobago & Anor vs McLeod [1985] LRC 81, at p.84:

"Although supreme, the Constitution is not immutable. As was pointed out in the majority judgment of the Judicial Committee in Hinds and Others vs Regina [1977] AC 195 at p.214, constitutions on the Westminster model ... ... ... provide for their future alteration by the people acting through their representatives in the parliament of the state. In constitutions on the Westminster model, this is the institution in which the plenitude of the state's legislature is vested."

Crabbe, in Understanding Statutes (supra), states at p.56 as follows:

"Not all of the provisions of the Constitution are justiciable, but fundamentally the Constitution creates authorities and vests certain powers in these authorities. It gives certain rights to persons as well as to bodies of persons. It imposes obligations in much the same way as it confers privileges and powers. ... ... ... A written Constitution thus lays down certain mechanics of enactment which a Parliament under that Constitution must obey. The Constitution establishes the fundamental maxims by which the authorities it creates must guide their conduct. It thus controls alike those who govern and those who are governed. It sets the standard by which the duties are measured, the obligations, the powers, the privileges and the rights it has conferred, or imposed." 

Nonetheless, a sovereign legal instrument – that is the embodiment and reflection of our collective values and aspirations as a people – such as the Constitution is, ought not to be treated like a garment; the use of which is determined by the weather! It must instead enjoy utmost respect and due regard as a central pillar of our life; and must at all times be characterised by substantial stability, which then naturally and directly translates into, and manifests itself in, the much desired and deeply cherished stability, peace, and development,  of the country. It is thus important for, and incumbent on, the people and leaders of our country to take cognizance of this imperative; and so ensure that we do not lose sight of the need to pursue the path that will lead us to become a prosperous people, at peace with ourselves. 

The Basic Structure Doctrine 

This doctrine, which applies exclusively to constitutional amendments, is a judicial principle with its roots and origin in India; and is founded on the proposition that the Constitution of India has, expressly enshrined therein, certain basic features that Parliament has no power to alter or destroy through amendments. Court is, therefore, under duty to review and strike down constitutional amendments effected by Parliament; but which conflict with or seek to alter the "basic structure" of the Constitution. What constitutes the basic structure of the Constitution has not been conclusively settled; hence, whether or not any particular feature of the Constitution amounts to a "basic" feature, is left to Court to determine. In doing so, Court must ascertain and be guided by the character of the Constitution in issue. 

In Sajjan Singh v State of Rajasthan 1965 AIR 845, where this doctrine was first considered by the Supreme Court of India, Mudholkar J. stated in his dissenting judgment as follows:

            “It is also a matter for consideration whether making a change in a basic feature of the Constitution can be regarded merely as an amendment or would it be, in effect, rewriting a part of the Constitution;…”

The Indian Supreme Court's initial position on constitutional amendments was that no part of the Constitution was saved from amendment. It supported the proposition that by passing a Constitution Amendment Act in compliance with the requirements of Article 368, Parliament could amend any provision of the Constitution; including the provisions on Fundamental Rights, and Article 368. In Shankari Prasad Singh Deo v. Union of India (AIR. 1951 SC 458), the Supreme Court unanimously held that:

            "The terms of article 368 are perfectly general and empower Parliament to amend the Constitution without any exception whatever.”

Later, in Golaknath v. State of Punjab 1967 AIR 1643, a Coram of eleven judges of the Supreme Court deliberated on whether any part of the Fundamental Rights provisions of the Constitution could be revoked, varied, or limited by amendment of the Constitution. By a majority of 6 to 5, the Court held that an amendment of the Constitution is a legislative process, and that an amendment under Article 368 is "law" within the meaning of Article 13 of the Constitution; and therefore, if an amendment "takes away or abridges" a Fundamental Right conferred by Part III, it is void. Article 13(2) reads, "The State shall not make any law which takes away or abridges the right conferred by this Part and any law made in contravention of this clause shall, to the extent of contravention, be void."

The Court also ruled that Fundamental Rights included in Part III of the Constitution have a "transcendental position" under the Constitution; and are beyond the reach of Parliament. It held further that the scheme of the Constitution and the nature of the freedoms it granted barred Parliament from modifying, restricting, or impairing the Fundamental Freedoms provided for in Part III of the Constitution.

In Kesavananda Bharati v. State of Kerala AIR 1973 SC 1461, a Coram of thirteen Judges reviewed the decision of the Court in Golaknath v. State of Punjab (supra); and considered the validity of the 24th, 25th, 26th, and 29th Amendments. By a majority of 7 to 6, the Court held that no part of the Constitution, including Fundamental Rights, was beyond the amending power of Parliament; thus departing from its decision in the Golaknath v. State of Punjab case (supra). However, it held that the "basic structure of the Constitution could not be abrogated even by a constitutional amendment." In Minerva Mills v. Union of India, AIR 1980 SC 1789, the matter in issue was the 42nd Amendment, which the Parliament had passed to counter the Court's decision in Kesavananda Bharati case (supra); thus, it limited the Supreme Court's power in the exercise of judicial review of constitutional amendments.

The Supreme Court seized the occasion of the Minerva Mills case, to declare sections 4 and 55 of the 42nd Amendment as unconstitutional. The Court ruled that Parliament could not, in the exercise of its power to amend the Constitution, convert the limited power it has, into an unlimited power, as it had purported to do through the 42nd amendment. On section 55 of the amendment, Yeshwant Vishnu Chandrachud CJ stated as follows:

            “Since the Constitution had conferred a limited amending power on the Parliament, the Parliament cannot under the exercise of that limited power enlarge that very power into an absolute power. Indeed, a limited amending power is one of the basic features of our Constitution and therefore, the limitations on that power cannot be destroyed. In other words, Parliament cannot, under Article 368, expand its amending power so as to acquire for itself the right to repeal or abrogate the Constitution or to destroy its basic and essential features. The donee of a limited power cannot by the exercise of that power convert the limited power into an unlimited one.” (emphasis added).

Thus, the Indian Supreme Court’s position, as is laid down in a handful of its judgments, is that Parliament can amend the Constitution; but any amendment that destroys the Constitution's ‘basic structure’ is invalid. As has been sufficiently brought out by learned Counsel Elias Lukwago, Courts in various jurisdictions have, one way or the other, adopted the Indian proposition of law on the doctrine of basic structure of the Constitution.

As to what amounts to a basic structure of the Constitution, it is for the Court before which the issue arises, to decide; depending upon the facts of each case. In India, Sarv Mittra Sikri CJ, who delivered the majority decision in the Kesavananda case (supra), spelt out that the basic structure of the Constitution consists of the following:

            “The supremacy of the constitution.

  • A republican and democratic form of government.
  • The secular character of the Constitution.
  • Maintenance of the separation of powers.
  • The federal character of the Constitution.”

The basic structure principle has been expressed in alternative ways; but referring basically more or less to the same thing.

In Uganda, Kasule JA/JCC, in his dissenting judgment, considered the issue of basic structure of the Constitution in Saleh Kamba & others v Attorney General & others; Constitutional Petition No. 16 of 2013; where he stated as follows:

“Therefore from the historical perspective, the Constitution is to be interpreted in such a way that promotes the growth of democratic values and practices, while at the same time doing away or restricting those aspects of governance that are likely to return Uganda to a one party state and/ or make in-roads in the enjoyment of the basic human rights and freedoms of conscience, expression, assembly and association.” 

I have gone to considerable length to review these selected decisions on the issue of basic structure doctrine in the interpretation of provisions of the Constitution, to demonstrate a number of things. First, is that the doctrine is still at a nascent stage of its development; and so it has not yet gained universal appeal. Second, is that even in India, where it originated and has come up for consideration several times, the matter has not been authoritatively or conclusively settled; as is manifested by the ambivalence discernible in the decisions of the Indian Supreme Court on the matter. Third, is the narrow or thin margin – in the for and against decision – of the Indian Supreme Court on both occasions when the matter was placed before a panel constituting the highest number of judges; pointing to the fact that the Court's decision could have gone either way on both occasions. 

With regard to the 1995 Constitution of Uganda, this Court has to consider and determine a few matters; amongst which is the approach to adopt in giving meaning to provisions of the Constitution. While the issue of the basic structure doctrine is one that cannot be avoided in constitutional construction, maybe the proper approach is not to be bogged down in semantics or terminology in applying rules of interpretation; but rather focus on the meaning of phrases used in the Statute in issue. As Shakespeare was wont to say, there is nothing in a name. Calling anything by a different name does not change the identity of that thing! It seems to me that the term 'basic structure' is restrictive, as it could on the face of it be understood to refer to the fundamental physical fabric or cords that hold the Constitution together; and the removal of any of which would noticeably alter or affect the character of the Constitution.

I think the approach by the Supreme Courts of Bangladesh and South Africa has a wider catchment area; and is more accommodative. In the Anwar Hossain Chowdry case (supra), Justice B.H. Chowdhury stated thus:

                “Call it by any name- ‘basic feature’ or whatever, but that is the fabric of the Constitution which cannot be dismantled by an authority created by the Constitution itself – namely the Parliament ... Because the amending power is but a power given by the Constitution to Parliament, it is a higher power than any other given by the Constitution to Parliament, but nevertheless it is a power within and not outside the Constitution.”

Justice Shahabuddin Ahmed, for his part, reasoned in the same case that the people alone have the ‘constituent power’ to make a Constitution; so the constitutional power that is vested in Parliament is a ‘derivative’ power and thus limited. He listed a number of constitutional principles, such as the people’s sovereignty, supremacy of the Constitution, democracy, unitary state, separation of powers, fundamental rights, and judicial independence, which he contends are the structural pillars of the Constitution; and are therefore beyond the amendment power conferred on Parliament by the Constitution. He contended that if the exercise of the amendment power by Parliament transgresses its limits, it is in the power of the Court to strike down such an amendment even if it is a constitutional amendment.

In Premier KwaZulu- Natal and President of the Republic of South Africa 1996 (1) SA 769 (CC), in a judgment with which the other members of the Court concurred, Mohamed DP clarified thus:

                “There is a procedure which is prescribed for the amendment to the Constitution and this procedure has to be followed. If that is properly done, the amendment is constitutionally unassailable. It may perhaps be that a purported amendment to the Constitution, following the formal procedures prescribed by the Constitution, but radically and fundamentally restructuring and reorganising the fundamental premises of the constitution, might not qualify as an ‘amendment’ at all.”

In Executive Council of the Western Cape Legislature v the President of the Republic 1995 10 BCLR 1289 (CC), Justice Sachs pointed out that:

                “There are certain fundamental features of Parliamentary democracy which are not spelt out in the Constitution but which are inherent in its very nature, design and purpose. Thus, the question has arisen in other countries as to whether there are certain features of the constitutional order so fundamental that even if Parliament followed the necessary amendment procedures, it could not change them. I doubt very much if Parliament could abolish itself, even if it followed all the framework principles mentioned above. Nor, to mention another extreme case, could it give itself eternal life - the constant renewal of its membership is fundamental to the whole democratic constitutional order. Similarly, it could neither declare a perpetual holiday, nor, to give a far less extreme example, could it in my view, shuffle off the basic legislative responsibilities entrusted to it by the Constitution.”  

In the Kenyan case of Njoya & others v Attorney General & others [2004] LLR 4788, the High Court, applying the basic structure doctrine, rejected the contention that Parliament's power to amend the Constitution includes power to make changes which amount to the replacement of the Constitution. It found that  ‘the [amendment] provision ..... plainly means that Parliament may amend, repeal and replace as many provisions as desired provided the document retains its character as the existing Constitution’; and further that ‘alteration of the Constitution does not involve the substitution thereof with a new one or the destruction of the identity or the existence of the Constitution altered’. Basing on the Indian ‘basic structure’ doctrine, the Court held that fundamental constitutional change could only be made by the exercise of original constituent power.

In Rev. Christopher Mtikila v Attorney General 2006 (10 of 2005) [2006] TZHC 5, Court was construing the import of a constitutional amendment that had banned the participation of noparty (independent) candidates in the general elections. The High Court of Tanzania stated that ‘it  may of course sound odd to the ordinary mind to imagine that the provisions of a constitution may be challenged for being unconstitutional’; but, however, it expressed itself that ‘this Court may indeed declare some provisions of the Constitution, unconstitutional’.

It would appear that both concepts of basic structure, and basic or fundamental features, as was expressed by the Bangladeshi and South African Courts, and have a very thin line dividing them, apply to the 1995 Constitution of Uganda. The principal character of the 1995 Constitution, which constitute its structural pillars, includes such constitutional principles as the sovereignty of the people, the Constitution as the supreme legal instrument, democratic governance and practices, a unitary state, separation of powers between the Executive, Parliament, and the Judiciary, Bill of Rights ensuring respect for and observance of fundamental rights, and judicial independence.

In the fullness of their wisdom, the framers of the 1995 Constitution went a step further in clearly identifying provisions of the Constitution, which it considers are fundamental features of the Constitution. They carefully entrenched these provisions by various safeguards and protection against the risk of abuse of the Constitution by irresponsible amendment of those provisions. The safeguards contained in the provisions entrenched in the Constitution either put the respective provisions completely and safely beyond the reach of Parliament to amend them, or fetter Parliament's powers to do so and thereby deny it the freedom to treat the Constitution with reckless abandon. Article 259 of the Constitution offers the provision signifying the safeguards to the Constitution; by providing as follows:

"(1)   Subject to the provisions of this Constitution, Parliament may amend by way of addition, variation, or repeal, any provision of this Constitution in accordance with the procedure laid down in this Chapter.

(2)    This Constitution shall not be amended except by an Act of Parliament–

(a)    the sole purpose of which is to amend this Constitution; and

(b)    the Act has been passed in accordance with this Chapter."

Article 75 of the Constitution prohibits Parliament from enacting a law establishing a One Party State; meaning, in essence, that it is only the people who can do so pursuant to the provision of Article 1(4) of the Constitution. Article 260 of the Constitution lists provisions in the Constitution, the amendment of which Parliament can only recommend; but can only become law upon the approval of the people in a referendum. Similarly, Articles 69 and 74(1) of the Constitution provides for the requirement of a referendum to determine whether there should be a change in the political system to be applicable in Uganda at a given time. Other provisions, such as Articles 260, and 262, require special majority; to wit, two –thirds majority of the entire membership of Parliament in the second and third readings of the Bill for the amendment of provisions referred to under Articles 260 and 261 of the Constitution.

It is only such provision of the Constitution as is referred to under Article 262, which Parliament may amend under the general powers conferred on it to make laws as is envisaged under the provision of Articles 79 and 259 of the Constitution. Otherwise, for amendment of the provisions of the Constitution covered under Articles 260 and 261 of the Constitution, as exceptions to the general rule, there is, respectively, the mandatory requirement of approval by the people in a referendum, and ratification by the specified proportion of District Councils. In addition, Article 263 provides that the votes required in the second and third readings referred to in Articles 260 and 261 of the Constitution must be separated by at least fourteen sitting days of Parliament.

Article 77 (4) for its part, as I will discuss at length below, restricts the extension of the tenure or life of a serving Parliament to six months at a time; which can only be necessitated by either a situation of war, or emergency, rendering holding an election impossible. Furthermore, in addition to the requirement for satisfying the threshold of the stated special majority, and fourteen sitting days space between the second and third readings of the Bill, Article 260 provides that the provisions entrenched therein can only be amended after the people have positively pronounced themselves thereon in a referendum. These provisions, for the people to exercise their original constituent power in the amendment of the Constitution, are clear manifestation of the safeguards inbuilt within the Constitution to secure the provision of Article 1 of the Constitution; which recognises that ultimate power vests in the people.

Then there is the special provision of Article 44 of the Constitution; which prohibits any form of derogation whatever from the human rights and freedoms specified therein; as follows:

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

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

(b)    freedom from slavery or servitude;

(c)     the right to fair hearing;

(d)    the right to an order of habeas corpus."

It is these non–derogable provisions, protecting fundamental human rights, with respect to which the phrase 'tojikwatako' (do not touch it) – which gained notoriety during the Constitution amendment process, urging members of Parliament not to touch the Constitution – would have been most relevant.

Issues Nos.1 – 4.  Whether the extension of the tenure of Parliament and that                                of the Local Government Councils contravened the various                                provisions of the Constitution; and whether their                                                retrospective and retroactive operations equally contravened                            the various provisions of the Constitution also stated.

Submissions Of Counsel:

The case for the Petitioners:

Mr. Dan Wandera Ogalo, learned counsel for the petitioner in Petition No. 3 of 2018, led the case for the petitioners owing to his seniority at the Legal Bar. With regard to the principles of constitutional interpretation he cited Constitutional Petition No.16 of 2013 Saleh Kamba and Others v Attorney General; wherein the principles are restated by Court. He reminded Court of the constitutional and political instability, which has plagued this country since independence; and urged that in interpreting the Constitution, that history should be taken into account. He submitted that the Constitution should be interpreted in a manner that promotes democratic values and practices, while at the same time disregarding or avoiding those aspects of governance that are likely to return us to the past. He thus implored Court to give an interpretation that is progressive and giving effect to democratic principles.

Issues 1 and 2

Counsel submitted that the increase of the term of parliament from five to seven years under Section 2 of the Constitution (Amendment) Act No. 1 of 2018, was inconsistent with Article 8 (A) of the Constitution; which, he argued, imports the Directive Principles of State Policy into, and makes them part of, the Constitution. He cited Constitutional Appeal No. 1 of 2015; Theodore Ssekikuubo & others v Attorney General & others, where the Supreme Court in interpreting the Constitution, imported and relied on the democratic principles enshrined in the directive policy. Court stated that one of the principles of democracy is the doctrine of separation of powers; hence, in the interpretation of the Constitution, it would take into account that doctrine because it is a principle of democracy. He prayed that the same doctrine guides this Court in establishing whether Section 2 of the impugned Act is constitutional or not.

Counsel noted that the essence of rule of law is simply that everyone, regardless of the power they may hold or not, must obey the law. He argued that in enacting and increasing its term from five to seven years, Parliament had not followed the law; hence, it contraveed the rule of law. He therefore invited Court to use the principle of rule of law to hold that the enlargement was unconstitutional. He observed that Article 93 of the Constitution gives power to Parliament to make its own Rules of Procedure; and submitted that these Rules cannot be equated to Statutory Instruments or Regulations since they emanate from an Act of Parliament. He cited Biti & Anor v Minister of Justice, Legal and Parliamentary Affairs & Anor (2002) AHRLR 266 (Zw SC 2002), where Court referred to Section 57 of the Constitution of Zimbabwe under which Parliament makes its Rules of Procedure; and for which Court held that having made such a law, Parliament cannot ignore it.  

With regard to Hon. Magyezi's Bill, counsel observed that the long title thereto contained three major provisions; namely:

(i).    Provisions providing for time within which to hold Presidential,         Parliamentary and Local Government elections.

(ii).   Eligibility of a person to be elected President and District         Chairperson.

(iii).  Matters relating to Presidential elections petitions and holding         bi-elections in case of fresh elections.

He noted that Rule 121 of the Rules of Procedure of Parliament allows it to accept and debate new clauses in the Bill, if the amendments are relevant to the subject matter of the Bill. He argued further that Parliament can only introduce a new amendment to the Bill if it is relevant to the subject matter of the Bill as is contained in the long title. He thus faulted Parliament for the enlargement of its term from five to seven years; something that Hon. Magyezi's Bill did not cater for, but was only introduced during the Committee of the whole House stage after the Second reading of the Bill; yet the enlargement of the term of Parliament had no relevance to the subject matter of the Bill.

Counsel invited Court to take into account the persuasive Zimbabwean authority to find that Parliament contravened Rules 104(1), 105(2), 121(2) and 123(4) of its Rules of Procedure; and thereby disregarded the principle of rule of law required under Article 8A of the Constitution. As such, he contended, the enactment of Section 2 of the impugned Act is unconstitutional. He added that it was important that there is a check on Parliament so that it does not make laws in contravention of the law.

Regarding the question of which Rules were applicable at the time of the passing of the Act, counsel pointed out that at the time leave was sought to present the Bill, the Rules in force was that, which came into force on 21st May 2012. However, on 10th November 2017, new Rules of Procedure of Parliament came into force. Counsel argued that Rule 123 (4) of those Rules provides that the House should consider only those amendments presented to the committee and rejected; or where the mover, for reasonable cause, did not present the amendments to the committee but instead presents them to the plenary, he or she should give reasons why they did not. However, he submitted, this was not the case here. In this case, leave was sought on 27th September 2017, and the Bill was presented before Parliament on 3rd October 2017.

Counsel cited Constitutional Petition No. 8 of 2014; Oloka Onyango & others v Attorney General; where Court, on pages 20-23, found that because Rule 23 of the Rules of Procedure of the House was contravened, the Act passed was null and void; and held further that enactment of the law is a process, and if any stage is fraudulent, then that vitiates the entire law. Counsel further pointed out that whereas Parliament set out to amend Articles 61, 102, 104 and 183 as is clearly shown in the Memorandum and body of the Bill, it indirectly amended Article 77 (4) by providing under section 8 that the term/ life of Parliament shall expire after seven years from the date of its first commencement. To counsel, by so doing Parliament gave itself two extra years.

He noted that Article 77 (4) deals with the extension of the life of Parliament and it gives the circumstances under which Parliament may extend its term and it could only do that by a resolution supported by not less than two-thirds of all members of Parliament; and for a period not exceeding six months at a time. It was his further argument that Parliament extended its term by two years in the absence of and going against all the tenets provided for under Article 77 (4). He contended that the purpose of that Article was to ensure that Parliaments do not exceed their mandate and that they always should go back for elections when they are due. He referred to the Draft Constitution of the Republic of Uganda that was debated; which provided that only where there existed a state of war or a state of emergency or such other circumstance as would prevent a normal general election from being held, may Parliament extend its life.

He also referred to the Odoki Commission and observed that the Draft Constitution which was debated by the Constituent Assembly provided that Parliament could extend its life during war, emergency or ‘any other circumstance’ but the Constituent Assembly, at the instance of one of the delegates, Hon. Wandera Ogalo, proposed that the phrase ‘or such other circumstances’ be deleted. He explained that this was to clearly provide for the circumstances under which Parliament could extend its life; and not in any other circumstance could it do so. He also noted that in the Report of the Select Committee, the Chairperson emphasised that no other circumstances should be allowed to prevent general elections, since the deleted words could provide room for manipulation; and thus negate the concept of regular elections.

It was thus his contention that the intention was clearly that a member of Parliament must face election, and as such, for Parliament to go round and dodge the 2020-2021 election, went against the intention of the framers of the Constitution. The other justification was that the people did not want the recurrence of what transpired in 1967, 1989 where Parliament always chose to extend their life instead of going back for elections. Counsel noted that Article 77 (3) provides for a term of five years, and Article 96 provides that Parliament shall be dissolved at the expiration of its term. He referred to the affidavit of Francis Gimara where he averred that this Parliament first sat on the 19th of May 2016, meaning that it has to be dissolved on or before 18th of May 2021; and yet the impugned Act, in effect, extended the term to 2023, by infection amending Article 96 of the Constitution.

He referred to Articles 1 and 2 of the Constitution, which provide that people shall be governed through their will and consent, through regular and fair elections. He argued that after 2021, there will be a Parliament but without the will and consent of the people, especially because the people were not consulted on this matter. To him, Section 8 contravened Article 1 and yet the amendment of that Article required a Referendum under Article 260 of the Constitution. He also noted that Section 8 violated the democratic principles of governance that encourage active participation of all citizens in their governance and access to leadership positions. He contended that what Parliament had succeeded to do was ring- fence the available positions to ensure that no one else can contest for a Parliamentary seat after 2021. He cited Constitutional Appeal No. 0001 of 2002; Ssemwogerere v Attorney General where Court at pages 5, 6, 16, 20, 39, 40, 73, 74 and 77, settled the point that where an amendment affects a provision of the Constitution and has an effect of adding to or repealing such provision, whether it expressly says so or not, it has amended it.

Issues 3 and 4:

Counsel adopted his submissions under Issues 1 and 2 and invited this Court, when interpreting the Constitution, to take into account the history of the Country and to interpret the Constitution relying mainly on the democratic principles as he had clearly laid out. On this, he referred to paragraph 26 of the affidavit of Francis Gimara where he stated that Local Government Councils were elected in 2016, and Articles 176 (3) and 184 (6) require elections after every 5 years but now with this law the people will not express their will and consent to be governed in 2021. He adopted the same arguments as laid out in respect of the Articles under Issues 1 and 2.

He cited Ssemwogerere case (supra) to refer to the principle of accountability under Principle No. 26 (ii) which requires that all people holding leadership positions should be answerable to the people. To counsel, accountability for election is done at the time of elections when the Members of Parliament and of Local Government Councils go back to account for their 5 years. He argued that with the removal of 2021 to replace it with 2023, it would mean that there shall be no accountability in 2021 in effect violating the Directive Principles of State Policy. He invited Court to take into account accountability as one of the principles for democracy which is in the Directive Principles of State Policy, and hold that the enactment was in breach of that principle and therefore unconstitutional.

On retrospective application, counsel submitted that when Section 8 amended Article 289 providing that the term of the current Parliament at the time this Article comes into force, notwithstanding anything in this Constitution, shall expire after seven years of its first sitting after the general election, meant that the term of the current Parliament will be seven years from 2016. Counsel disclosed that he was unaware of any particular constitutional provision that forbade retrospective application of legislation; but pointed out that in relation to Article 1, and whereas Parliament has powers under Article 79 to make laws, these should be for the peace, order, development and good governance of Uganda and should be in compliance with and subject to all the relevant provisions of the Constitution.

Mr. Byamukama James:

He associated himself with the substantive submissions of Mr. Wandera Ogalo; and in addition to the submissions on Article 77 (4), he asked Court to take judicial notice of the fact that there was no state of war or emergency in Uganda to justify Parliament’s extension of its life not just by six months but by two years from five to seven years. He noted that the back-dating of the legislation to 2016 had the effect of giving the 10th Parliament a two year extension that clearly violates and makes the seven year extension incurable in terms of Article 77 (4).  Counsel cited the affidavit of the Clerk to Parliament attached to the Answer to Petition No. 10 of 2018, wherein she averred that Parliament was at all times aware of Article 77 (4) of the Constitution but only ‘prescribed’ the term of Parliament but did not extend it.

He argued that the accepted practice when paraphrasing from a law is to use the words used in the law itself. He stated that Article 77 (4) provides for ‘extending’ and as such for Parliament to say that it was ‘prescribing’, that meant that Parliament had now become supreme to the Constitution, a fallacy in his view. He noted that in addition to Article 1 (4), the other provisions violated by the enactment of Sections 2 and 8 included Articles 61 (2) and 289 of the Constitution. It was his contention that the gist of Article 61 (2) is that all these elected offices are born at the same time. He stated that Article 289 made Presidential and Parliamentary offices like twins as it provided that their terms expired on the same date.

Mr. Elias Lukwago:

Counsel submitted that the amendment to extend the tenure of parliament and local councils offended Article 91 on the legislative powers of Parliament. He cited Article 91 (1) which provides that subject to the provisions of this Constitution, the power of Parliament to make laws shall be exercised through bills passed by parliament and assented to by the President. He stated that it was clear from the pleadings and the evidence on record that the issue of the extension of the tenure of Parliament was never provided for in the Bill that was presented before Parliament. It was thus his contention that there was no way Parliament could exercise its legislative power without having a Bill for an Act of Parliament and as such, it was unconstitutional to legislate especially on constitutional matters without a Bill for an Act of Parliament.

He argued that the available Bill was presented to amend Article 102 (b) and never at any time was it intended to amend any provision relating to the extension of the term of Parliament. He also referred to Rule 116 of the Rules of Procedure, which states that all Bills shall be accompanied by an explanatory memorandum setting out the policy and principles of the bill, the defects in the existing law if any, the remedies proposed to deal with those defects and the necessity for the introduction of the bill. It was his submission that those issues were necessary so that the legislators and the people of Uganda understand what they are legislating about, and not for Parliament to exercise its mandate to amend the Constitution in such a casual manner. He noted that in case of any evolutions, there were procedural requirements about evolution as well laid out in the Rule of Procedure.

He further cited Article 94 (2) of the Constitution, and Rule 93 (4) of the 2017 Rules which provides that a member having any interest in any matter  before the House shall declare the nature of his or her interest in the matter and shall not vote on any question relating to that matter. He contended that in this particular case, in inserting a clause in a Constitutional amendment that extended their term, the members of Parliament did what actually benefited them exclusively as it provided for the members in the 10th Parliament. On evolution of legislations, counsel cited and referred to a Kenyan authority of Constitutional Petition No.3 of 2016, Law Society of Kenya v the Attorney General, where at page 80, Court held:

                “Therefore by introducing totally new and substantial amendments to the Judicial Service Act 2011 on the floor of the House, Parliament not only set out to circumvent the constitutional requirements of public participation but, with due respect, mischievously short- circuited and circumvented the letter  and spirit of the Constitution. Its actions amounted to violations of Articles 10 and 118 of the Constitution”.  

Counsel submitted that this fell on all fours with the instant case.

Mr. Lester Kaganzi:

Counsel referred to the date 27th September, 2017 in the Hansard, when the Bill was first laid on the floor of Parliament; seeking leave to table the Bill. He cited the Speaker telling Parliament that in handling that Bill, Parliament should be mindful of the sovereignty of the people under Article 1 of the Constitution and that as such, since the question of who governed them had been settled in February 2016, how to go about the Bill was a matter where the people were so central and it was not an issue Parliament could decide alone. To counsel, this touched the issue of social contract. On the 3rd October 2017, was the first reading of the Bill. The 2nd reading of this Bill was on Tuesday 19th December 2017; and the Speaker pointed out that in the Chairman’s report, there are two matters that were not originally part of the bill, viz:

  1. The issue of term limit we would like to know under whose instructions that part was addressed?
  2. There was also the issue of adjusting the tenure of the President, we would like to know how it was canvassed.

She further noted that there was also the issue of adjusting the term of Parliament and stated:

                “Honourable Members when we give responsibility to a Committee like this, with a Bill, we expect them to address the Bill and do not go into extraneous matters. Therefore, I would like to know from the chairperson to whom the recommendations you made were addressed to and how did they come to be part of your report”

Counsel thus observed that it was the same question being placed before Court as to where these matters that were not originally part of the Bill came from to form part of the same. Moreover, even the Chairperson of the Committee admitted to the Speaker that the issue of extension of Parliamentary term was neither part of the Bill nor the Committee’s Report. Furthermore, the Speaker went ahead to ask whether that should not be the subject of separate Bills on their own right in the House. Counsel further quoted some of the members of the Committee members including Hon. Medard Segona who stated that it was not true to the best of his recollection that they had any memorandum submitted in relation to the seven year term whether of Parliament or the President.

He cited Hon. Muhammad Nsereko who stated that during the Committee sittings, at no single moment did any one appear before them and state clearly that they wanted a seven year term extension of Parliament. Hon. Amoding was quoted saying that she sat in almost all the hearings of the Committee and there was not a day that they received a proposal that Parliament should extend its tenure to seven years. It was thus counsel’s contention that the Committee members’ statements proved that the issue of extending Parliament’s term to seven years was never part of the Bill presented by Hon. Magyezi. Moreso, the fact that the people were never consulted on this issue was proof of the contravention of Article 1 of the Constitution and breach of the social contract. He demonstrated that the impugned amendments were proposed on 20th December by Hon. Tusiime. He prayed that Court finds that Sections 2 and 8 of the Act are unconstitutional as the procedure taken in enacting them was flawed.

Mr. Male Mabirizi Kiwanuka:

Mr. Mabirizi cited Ssemwogere & Anor v Attorney General Supreme Court Constitutional Appeal No. 1 of 2002 where Court emphasised the role of the Constitutional Court in the defense of rights and freedoms of the individual against oppressive and unjust laws and acts. He further cited Citizens United v Federal Elections Commission 558 US 310 (2010) the United States Supreme Court where the Chief Justice of USA observed that judging the constitutionality of an act of congress is the gravest and most delicate duty that the Court was called upon to perform because the stakes are so high. He pointed out to Court that the stakes were so high as their duty was so grave.

On the burden of proof, he referred to Amama Mbabazi vs Museveni & 2 others Supreme Court Presidential Election Petition No. 1 of 2016 where the Court held that the burden of proof is an imperative or duty on a party to produce or place, before Court, evidence that will shift the conclusion away from a default position to one’s position. This is the necessity of affirmatively proving a fact in dispute on an issue raised between parties in a cause. Court noted that the legal burden rests on the petitioner to place credible evidence before court to satisfy it that the allegations made by the petitioner are true. He also cited Raila Odinga v Uhuru Kenyatta & Anor; Kenya Supreme Court Presidential Election Petition No. 1 of 2017, in support of this position of the law.

He submitted that Parliament was put on notice that it had to do whatever was in compliance with the principles of the Constitution. He cited Hon. Gen. Tumukunde who read to the House a portion of the decision in Ssemwogerere v Attorney General (supra), and then warned that in amending one provision of the Constitution, Parliament stood the risk of amending another that they had no authority to do. He cited Centre for Rights Education and Awareness & Anor v The Speaker of the National Assembly, Kenya High Court of Kenya at Nairobi, Milimani Law Courts Constitutional & Human Rights Division, Petition No. 371 of 2016. The Court stated therein that the power of the people is superior to both the Constitution and the Legislature; and that where the will of the Legislature is adverse to that of the people as is declared in the Constitution, the judge must give effect to the latter rather than the former. He urged the judges to regulate their decisions by fundamental laws and not by their vows, which are not fundamental. He invited Court to follow the will of the people in interpreting the Constitution.

Mr. Mabirizi recognised Parliament's mandate to amend the Constitution, but that this is subject to the Constitution; but that in this case, it amended Articles 1, 2, and 260 of the Constitution without separating the two sittings with 14 sittings days of Parliament and without referring the matter to the people in a referendum. He invited this Court not to make an ad hoc decision since it would stand for generations to come. He referred to Katiba Institute & Another v Attorney General & Anor [2017] Eklr, Kenya Constitutional Petition No. 3 of 2016; where Court held that in interpreting the Constitution, it would be guided by the general principle that the Constitution is a living instrument, with a soul and consciousness of its own, as is reflected in the preamble and fundamental objectives and directive principles of State policy. As such, Courts must endeavour to avoid crippling it by construing it technically or in a narrow spirit.

He also implored the Court to bear in mind the history of the country as it interpreted the Constitution. He cited Ssekikubo & 4 others v Attorney General – Supreme Court Constitutional Appeal No. 01 of 2015; where the Supreme Court, in establishing whether the suspension of a member by a political party leads to such member ceasing to be an MP, the Court analyzed the Constitution making history to establish how we came to have that clause in the Constitution. It found that this was because the people wanted accountability; and therefore found the interpretation given by the Constitutional Court to be incorrect. He submitted forcefully that Parliament amended Articles 1, 2, and 260 of the Constitution; without authority to do so. This, he described as ‘colorable legislation’; which the Supreme Court defined in Semwogerere v Attorney General (supra), as legislation made by a Legislature which lacks legislative power, or is subject to a Constitutional prohibition, may frame a piece of legislation to make it appear to be within legislative power or to be free from the Constitutional prohibition.

He noted that Article 105 which Parliament purported to entrench,  amended Article 1 by impliedly providing under clause 5 that Parliament shall have power to determine who shall govern the people of Uganda provided that is supported by two thirds of the Parliament. He argued that under Article 2, Parliament could have as well added that although the Constitution is supreme, Parliament may determine when the Constitution may not be. He noted that by entrenching term–limits, Parliament amended Article 260; which provides that for something to be entrenched, it must be subjected to a referendum. He contended that in this case, no referendum was held; and so, in its absence, nothing was done. He also noted that there was need to separate the 2nd and 3rd readings with 14 sitting days of Parliament; which was also not done.

He referred to page 21 of the Hansard and noted that when Mr. Magyezi reported to the Committee of the whole House, he stated that the Committee of the whole House had considered the Bill and passed it in its entirety with amendments and passed new clauses amending Articles 77, 181, 29, 291, 105, and 260 of the Constitution. He submitted that the Speaker fully heard this but did not put the House on notice of the requirement to separate the two sittings by 14 days. It was thus his contention that the Speaker of Parliament abdicated her constitutional duty and more so, that in the absence of that separation, whatever Parliament did was a nullity and the whole amendment unconstitutional without possibility of severance, especially because Article 263 (1) makes it compulsory.

Regarding the Certificate by the Speaker, Mr. Mabirizi contended that it had several issues; including the issue that the Speaker only named 4 Articles (61, 102, 104 and 193) as having been amended, yet in actual sense Parliament amended more than that. He thus observed that the other Articles, including 1, 2, 77 that were amended indirectly, and 260 that was amended directly, remained unsupported by the Certificate. It was his contention, therefore, that the Certificate was not sufficient to amend those Articles, which were not mentioned in the Certificate; and more so, since the Certificate is a Constitutional requirement, and therefore any defect in it invalidated each and every thing in that Bill.

On constitutional replacement, he relied on an Article, Unconstitutional Constitutional Amendments in the case study of Colombia: An analysis of the Justification and meaning of the Constitutional Replacement Doctrine’ by Carlos Bernal  published in the International journal of Constitutional law (volume 11, Issue 2, 1 April 2013, pages 339- 357). He observed that the learned author stated that an amendment is a partial Constitutional replacement if it is of great transcendence and magnitude for the system; an example of which is an amendment establishing a monarchy. It was his contention that looking at the impugned amendment, the Constitution had been replaced. He cited the test given by the author as to what amounts to constitutional replacement. He stated that the first test is; what is the essential element of the Constitution that is at stake and how those essential elements under pin several provisions of the Constitution.

He noted that in this case there are two elements, viz; the sovereignty of the people and the qualifications or capacity of the President/Fountain of honor. He submitted that sovereignty of the people under- pinned Articles 1, 2, 3, 5 (1), 8A, 59(1), 69(1), 77(2), 77(3), 77(4), 83(1)(g), 83(1)(h), 84(1), 96, 103(1), 107(1a) 126(1), 127, 176(2)(c), 181(4), 260, 262, 263(1) of the Constitution. To him, by dealing with the sovereignty of the people all the mentioned Articles were overthrown by the amendment. He submitted that on qualifications of the President, the amendment underpinned Articles 16(3a), 51(2), 60(1), 91(1), 95(1), 98(1), 98(2), 98(4), 99(1), 99(2), 99(3), 99(4), 99(5), 100, 101(1), 101(2), 103(1), 103(4), 103(5), 104(1), 105(1), 105(2), 105(6), and 106, of the Constitution. He thus called upon this Court to find that what Parliament did amounted to colourable legislation, as well as constitutional replacement; in effect overthrowing the Constitution.

The case for the Respondent

Deputy Attorney General Mwesigwa Rukutana:

Learned Deputy Attorney General led the team of counsel for the Respondent. He submitted that in enacting Constitutional Amendment Act No.1 of 2018, the Parliament of Uganda acted within the law pursuant to the mandate and powers bestowed upon it by the Constitution of the Republic of Uganda 1995 as well as the rules of procedure governing the enactment of Constitution amendment Acts; and as such, the Constitution was duly amended. He also submitted that the Rt. Hon. Speaker of Parliament and all the Members of Parliament acted within the law during the entire process of conceptualization, presentation, consideration and passing of the Act and that similarly, the Government of Uganda acted legally when it facilitated the process of enacting the said law.

It was his contention that the Petitioners could not, and actually did not, suffer any damage as a result of the passing of the Act. That as such, the petitions were unfounded, frivolous, and vexatious and devoid of any merit whatsoever. He gave a brief historical background to the effect that after years of turmoil, bloodshed, political and economic retrogression, Ugandans constituted a Constituent Assembly (C.A.) that considered proposals that had been gathered by a Constitutional Commission. After that, and after a protracted process, the Assembly promulgated a Constitution on the 8th October 1995.  He submitted that the C.A. took time to reflect on the history of this country and forged a solid foundation for building a strong system that would guarantee that we shall never revert back to the dark years of the past. He noted that in doing so, the Assembly put in place very powerful provisions that would steer our country, stability, safety, security, and economic advancement; and indeed over the years since the promulgation of the Constitution, all that has been achieved.  

He stated that the Assembly considered the fact that our society is not static but rather dynamic; and with time, there would be continuous changes for the better. So it recognised that in order to keep at pace with the dynamism and changing circumstances it was imperative to put in place provisions and mechanisms of changing some of the provisions of the Constitution, so as to remain in concert with the changing circumstances. To learned counsel, that had to be done without destroying the spirit and the basic structure and the foundation upon which the new nation was being built. To achieve that objective, the C.A. put in place what it agreed upon as National Objectives and Directive Principles of State Policy; which are directive ideals to the Constitution.

He stated that the Constituent Assembly provided, under Article 1 of the Constitution, that the people of Uganda are sovereign and power belongs to them. The framers of the Constitution also provided, under Article 1 (4), for the manner the people shall exercise their power in the determination of their destiny. The learned Attorney General contended that under the provision of Article 1 (4), the people of Uganda had the power to determine their destiny, either through referendum or through their elected representatives. It was thus his argument that when their elected representatives take a decision, the people had in effect determined their destiny; and that could not be deemed a usurpation of the people’s power, as long as whatever Parliament did was within the confines of the Constitution and all the relevant laws.

To the learned Deputy Attorney General, all the impugned amendments were carried out in pursuance of Article 259 of the Constitution; which is explicit on the power of Parliament to amend the Constitution in accordance with the Constitution. For this, he cited the Tanzanian case of Rev. Christopher Mtikila vs Attorney General (supra), of which the facts and Court's findings thereon are brought out herein above while considering Counsel's submission on the issue of basic structure doctrine.

Mr. Francis Atooke:

The learned Solicitor General (S.G.) handled issues 1 and 3 together, and 2 and 4 also together. He pointed out that he would rely heavily on, and be guided by, the principles of constitutional interpretation as they were laid down in the case of Kawanga Ssemwogerere and Another v Attorney General Constitutional Appeal No. 1 of 2002. He submitted that the entire Constitution has to be read as a whole and no one particular provision destroying the other but sustaining the other. He emphasised that in the interpretation of the Constitution, there is need to uphold the rule of harmony, completeness, exhaustiveness, and paramountcy of the Constitution. He noted that Parliament derives its power to make law for Uganda from Article 79 of the Constitution and it exercises those powers by virtue of Article 91 of the Constitution. It was his contention that Parliament exercised that power in passing the impugned Amendment Act.

He noted that section 1 (c) of the Acts of Parliament Act (Cap 2, Laws of Uganda 2000 Edn.) defines a ‘Bill’ as follows:

                “Bill” means the draft of an Act of Parliament and includes both a private member’s bill and a Government bill.”

He observed that Chapter 18 prescribes the legislative procedure for amending the Constitution under Articles 259, 260, 261 and 263; and he contended that Parliament complied with those requirements in amending the impugned Articles. On the petitioners’ contention that Parliament violated Article 94 (1), which empowers Parliament to make its own rules to regulate its own procedure, under rules 104(1), 105(2), 121(2) and 123(4), the learned Solicitor General argued that at the time the Bill was first brought to Parliament, it was the 2012 Rules of Procedure applicable. But at the time of the Second Reading on 18th of December 2017, it was the new 2017 Rules that were applicable. He referred to the affidavit deposition by Jane Kibirige, the Clerk to Parliament, that the new Rules took effect on the 10th November 2017.

He thus contended that Parliament did not violate the principle of rule of law since it complied with the Rules of Procedure. He noted that Rule 104(1) of the 2012 Rules became Rule 114(1) of the 2017 Rules, Rule 105(2) became Rule 115(2), Rule 121(2) became Rule 131(2), and Rule 123(4) became Rule 133(4). He submitted that under Rule 114(1) of the 2017 Rules, and section 3 of the Acts of Parliament Act, it is provided that the head of a Bill shall bear a Short Title, and a Long Title describing the leading provisions of the bill. This explained why the Short Title did not contain issues that were later incorporated in the Long Title to the Bill. He also pointed out that the subject matter of the Bill, among other things, provided for a situation where elections were to be held for the President, Parliament, and Local Government Councils; and so, Article 61 was intended to regulate when the election on various categories of leaders would be held.

He referred to the Hansard of 20th December 2017, as attached to the affidavit of the Clerk to Parliament, and submitted that all those issues were brought for debate by Hon. Tusiime, and the Chair put the question to the members that the new clause be introduced as proposed. He submitted that Rule 133(4) of the new Rules provides for discussion and debate on that matter; stating that the Committee of the whole House shall consider proposed amendments by the Committee to which the Bill was referred. It may consider proposed amendments on notice where the amendments were presented but rejected by the relevant Committee; or where for reasonable cause, the amendments were not presented before the relevant committee. It was thus his contention that all those issues were brought to the Committee of the whole House and were debated; and that is how they were introduced and became part of the impugned Act of Parliament.

Meanwhile, the learned Attorney General clarified that the 14 days notice provided for in the Rules is not applicable when Parliament is amending Article 159; but is required only when amending the entrenched Articles, such as 260 and 261; which to him, were not amended. He clsarified further that it was the 3 days sitting rule – Rule 201 (2) – that provides that debate on a report of a Committee on a Bill should take place at least 3 days after it has been laid on the table by the Chairperson, or Deputy Chairperson, or a member nominated by a Committee or by the Speaker; but that, however, this was suspended.

On the petitioners’ contention that Article 77 (4) had been amended by implication, the learned Solicitor General contended that Article 77 (4) had not been amended in any way by the provisions that Parliament amended under sections 2 and section 6 of the Constitutional Amendment Act 2018. He noted that the conditions that exist for extending the terms of Parliament in Article 77(4) are still firmly in existence and were not affected by the amendment of provision of Article 77(3) as alleged by the petitioners. The learned Deputy Attorney General clarified that Parliament, in its wisdom, after consultations found that it was necessary to lengthen the life of Parliament from five to seven years; and that Article 77 (3) was like any other clause, and so it could be amended.

He added that clause 4 remained intact; as it was not amended. He noted that it was why it was taken to the transitional provisions; and Parliament thought it best that the amendment of Article 77 (3) should start with the current Parliament. To him, Article 77 (4) was not and could not be said to have been amended by implication or infection. He argued that if for instance in the seven years, a state of emergency arose, Parliament could extend its term; and there was nothing wrong with that. To him, Article 77 (3) could be amended and Parliament duly did so. The learned Solicitor General argued that there was nothing wrong with Parliament extending its own term as long as they did it in compliance with the Constitution.

He submitted that it was evident that all the amendments followed thorough consultations; and it was the people of Uganda who determined that a term of five years is too short. Hence, they instructed their representatives to enlarge the term to seven years; and they further stated that because of the evils we have witnessed, and it is so urgent, it should take immediate effect. He submitted that retrospective application of the law is not inconsistent with or in contravention of Articles 1 and 8A, and it is also provided for under S. 14 (4) of the Acts of Parliament. The learned Deputy Attorney General clarified that where the framers of the Constitution thought it was necessary to prohibit retrospective legislation, they said so explicitly.

In this regard, he referred to Article 92 of the Constitution which specifically provides for incidents in respect of altering the decision or judgment of any Court; and even then only between the parties to the decision. He also cited Article 28 (7) in respect to criminal proceedings. He contended that democracy is adherence to the rule of law which entails looking at a collective will of the people and that the rule of law entails adherence to the constitution and all other laws that are in place. He noted that democracy does not necessarily mean uniformity in thinking and aspirations, and that while the petitioners may be aggrieved it does not change the fact that the majority of Ugandans are very happy with amendments that were carried out. He prayed that Court finds that the amendments were duly done in compliance with the Constitution.

COURT'S CONSIDERATION AND RESOLUTION OF THE ISSUES:

Extension of tenure of parliament and local government councils

Issues No. 1, 2, 3, and 4:         

For a proper and effective determination of these issues, it is important, first, to appreciate the status, functions, and role of Parliament in the constitutional scheme of arrangement. The relationship between Parliament and the people, from whom Parliament's legislative power derives, is a contractual one. This is a derivative, and an extension, of the classical principle of social contract between the individual and society. It is a contract executed between the people in whom all power belongs as the sovereign, as is enshrined under Article 1(1) of the Constitution on the one hand, and the respective representatives who together constitute Parliament on the other hand. By this contract, the people have, pursuant to the provisions of Article 1(3) and (4) of the Constitution, vested certain powers in Parliament to execute on behalf of the people. The contract, which binds Parliament to the people, has both general and, as well, specific terms and conditions well spelt out in the Constitution.

Article 79 of the Constitution provides, on the functions of Parliament, as follows:

"79.  Functions of Parliament.

(1)    Subject to the provisions of this Constitution, Parliament shall have power to make laws on any matter for the peace, order, development and good governance of Uganda."

However, in the exercise of its powers and functions pursuant to the provision of Article 79 above, Parliament is under duty to exercise its best judgment in making laws; and in this, it is guided by the provision therein that legislations it enacts must be 'for the promotion of good governance and development of the country'. This also applies when it is carrying out its other functions of representation of the people; such as the exercise of its oversight role over the Executive. This is the general power of representation contained in the contract between the representatives and the people. It enjoins Parliament to act in the public interest in the exercise of its function of law making. In the book, Legislative Drafting (supra), the author states at p.301 that:

"But ultimately, the obligation to act in the public interest requires that importance must be given to the public interest over the private and personal interests of the Legislators, Ministers and Officials. The Lawmakers must rise above their narrow personal interests and see that the public interests is given due precedence."

Pursuant to this principle of constitutional arrangement, the opening provision of Article 79 (1) which subjects Parliamentary powers to the Constitution is a clear statement that the will of Parliament, or powers conferred upon it by the people, is subordinate to, and must be exercised strictly in conformity with the Constitution as the supreme and overriding legal instrument. Parliament has to exercise the powers conferred upon it, within the legal framework or parameters laid down in specific provisions of the Constitution itself; which parameters qualify the general power conferred on Parliament to make laws.

Constitutional Amendments

This contentious issue of the extension of the tenure of Parliament, and the Local Government Councils, arises from the provision of section 2 of the impugned Constitution (Amendment) Act No. 1 of 2008, which amends Article 77(3) of the Constitution, by providing that the tenure of Parliament shall be seven years. Similarly, section 6 of the impugned Act amends Article 181 of the Constitution by providing for seven–year tenure for Local Government Councils. On the face of it, these two provisions in the Constitution (Amendment) Act, No1, of 2018, amending the tenure of Parliament and Local Government Councils, fall within the general power conferred on Parliament under Article 79 of the Constitution to make laws.

However, these are constitutional amendments; hence, they are governed by the provisions contained in Chapter Eighteen of the Constitution; which specifically and exclusively cover amendments to the Constitution. Accordingly then, the amendments extending tenure of Parliament and Local Government Councils can only be valid upon proof that they were so made in accordance with the Constitution.  It is questionable, whether the amendment in issue meets the test for validity; namely, that it was so done for the peace, order, development, and good governance, of Uganda. The reasons given in Parliament for the two–year extension, such as the need to afford members of Parliament time within which to acclimatise themselves with the procedure in Parliament; and yet the law sets a high academic qualification for being elected to Parliament,  betray the true intentions behind the amendment.

It is quite apparent there from that peace and development of Uganda, or any of the other permissible justifications for amending the Constitution, did not feature at all in Parliament's consideration of the motion for the amendment of the provision regarding the tenure of Parliament. The purported reasons given for the extension were evidently personal to Parliament; which was most unfortunately self–serving. The reasons could not pass the requirement for reasonableness as a test for justifying the amendment of the Constitution. In Attorney General vs Morgan [1985] LRC 770, at p.777, KELSICK C.J. stated as follows:

"The reasonableness or otherwise of a law has to be judged on broad principles, keeping in view the interest of the general public."

As I pointed out, herein above, in the course of discussing the issue of basic structure of the Constitution, the framers of the 1995 Constitution were alive to the need to have certain provisions of the Constitution secured by expressly entrenching them with clear provisions of the Constitution. The provisions entrenched in the Constitution either put the respective provisions safely beyond the reach of Parliament, or fetter Parliament's powers and thereby deny it the freedom to treat the Constitution with reckless abandon.

However, and admittedly, Article 77(3) of the Constitution is not entrenched; and so, on the face of it, it can apparently be amended with less restriction than the provisions that have been entrenched. It simply requires a two–thirds majority of all members of Parliament, both at the second and third readings, for it to pass. It does not require the space of fourteen sitting days between the second and third readings, or a referendum for people's approval, for it to become law. That not withstanding, I recognise that there are provisions of the Constitution, which are not covered by either the provision of Article 260 or 261 of the Constitution expressly requiring special majority vote of Parliament and or referendum. Nonetheless, and implicit from the object of such provisions, the general power of Parliament to amend them are as much curtailed as if they were expressly provided for under Articles 260 or 261 of the Constitution.

Such provisions also dictate that the exercise of amending them is done strictly in compliance with the manner for doing so; as is provided for in the Constitution. An instance of such specific and express provision is the term of the social contract between the people and their representatives, contained in Article 77 (3) and (4) of the Constitution before the impugned amending Act came into force. They provided as follows:

"(3)   Subject to this Constitution, the term of Parliament shall be five years from the date of its first sitting after a general election.

(4)    Where there exists a state of war or state of emergency which would prevent a normal general election from being held, Parliament may, by resolution supported by not less than two thirds of all members of Parliament, extend the life of Parliament for a period not exceeding six months at a time." (emphasis added).

The phrase 'subject to this Constitution' means, except where there is a provision in the Constitution to the contrary, the term of Parliament shall be five years. Since the Constitution grants Parliament the power to amend the Constitution, and the provisions of Article 77 (3) and (4) thereof are, on the face of it, not entrenched or require any special condition, it means Parliament is at liberty to amend the provision of this Article of the Constitution on the tenure of Parliament. The question is however, first, whether a sitting Parliament can amend the Constitution with the effect that it alters its own tenure from the five years for which it was specifically elected. The restrictive provision of Article 77 (3) of the Constitution imposes a specific and limited period of five years as the tenure of each elected Parliament.

This period is only extendable for a short time, not exceeding six months at a time; as is provided for under Article 77 (4) of the Constitution. Its noteworthy that the provision for extension of Parliamentary tenure secures the provision by spelling out expressly that it can only be justified 'where there exists a state of war or state of emergency which would prevent a normal general election from being held'. This is codification of the doctrine of constitutional necessity; usually resorted to for validating or legitimizing what would otherwise be considered a violation of certain constitutional tenets. However, this doctrine being one of necessity, one cannot call it to one's aid in ordinary circumstances.

I therefore hold the strong view that before Parliament can extend its tenure pursuant to the provision of Article 77 (4) of the Constitution, on grounds of war or occurrence of an emergency, there must be a state of war, which the President would have declared under Article 124 of the Constitution. The war envisaged here, is with regard to external aggression; but given the nature and ravages of wars of insurgency in modern times, this provision should to my mind, cover such wars as well. Similarly, there must be a declaration of a state of emergency under the provision of Article 110 of the Constitution. Then finally, due to either of the two situations, it must be impossible to conduct elections, before the extension of the tenure of Parliament can be justified. Otherwise, beyond these circumstances, Parliament has no authority to amend or vary the terms of the contract on the basis of which the representatives therein were elected by the people.

Accordingly then, on the evidence, there having been no state of war or emergency as is envisaged in the provision of the Constitution, Parliament's extension of its tenure by two years, was in breach of and undermined the express powers the people, as the principal in the agency contract, had conferred upon Parliament; and also contravened the Constitution. This unilateral variation of this specific term and condition of the social contract, securely enshrined in the Constitution, is a naked and blatant contravention of the express contractual term between the two parties; which was the mandate the people gave each of the representatives in Parliament, to represent the people strictly for a specific period of five years. Instead, Parliament usurped and arrogated unto itself power that exclusively vests in the people; as is clearly expounded in Article 1 of the Constitution.

The express codification, in the Constitution, of the specific and limited tenure of five years for Parliamentary representation, is an embodiment of the law of agency; and derivative of the principle of social contract. In this contractual relationship, entered into between the people and their representatives on Election Day, the people in whom sovereign power vests, engage their elected representatives in Parliament to serve them, and delegate specific powers to them to exercise; but this is strictly for a definite period of five years only. Save for the occurrence of war or emergency, falling under the provisions of the Constitution pointed out above, the people's representatives must seek fresh mandate from the people upon the expiry of the statutory contractual five–year tenure.

Article 77 (4) of the Constitution is therefore part of the fundamental features of the Constitution. Hence, although it is not an entrenched provision of the Constitution, and its amendment is seemingly constitutional, the amendment in the manner Parliament did, is nevertheless unconstitutional. This is because Parliament was elected for a specific period of five years only; and this is a provision it cannot vary.

RETROSPECTIVE AND RETROACTIVE EFFECT OF AMENDMENT

Issue No. 4:             

Section 8 of the impugned Act amends Article 289 of the Constitution by substituting therefor the following:

"       Replacement of Article 289 of the Constitution.

'289. Term of current Parliament.

Notwithstanding anything in this Constitution, the term of the Parliament in existence at the time this article comes into force, shall expire after seven years of its first sitting after the general elections'." (emphasis added).

By this provision, the amendment of the tenure of Parliament from five to seven years does not operate prospectively from the date of its amendment; but rather in retrospect from the year 2016, which is the date of the first sitting of the current Parliament that has amended the Constitutional provision on tenure of Parliament. It is this aspect of the amendment of tenure of Parliament, which is clearly and gravely problematic; as it has either retrospective, or retroactive, effect. A critical question to answer is, therefore, whether Parliament has the power to pass laws that have retrospective or retroactive effect. As C.K. Comans has pointed out in his article, The Power of the Commonwealth Parliament to make Retrospective or Retroactive Laws is Well Established, 27 Australian Law Journal, the words retrospective and retroactive are often used interchangeably. Crabbe explains in Understanding Statutes (supra) that a statute may in fact be both retroactive and retrospective; and that statutes falling in that category could be, and are usually prospective in character.

However, in the main, there is a distinction between retroactive and retrospective statutes; subtle or thin, as that distinction may be. The difference between the two principles of law lies in the test applicable in either case. Crabbe (supra) explains at p.166 that:

"For retroactivity, the question is whether there is in the Act, read as a whole, anything which indicates that the Act 'must be deemed to be the law from a date antecedent to its enactment'. For retrospectivity, the question is whether there is anything in the Act which indicates that 'the consequences of an earlier event are changed, not for the time before the enactment, but prospectively from the time of the enactment, or from the time of the commencement of the Act'." (emphasis added).

He then explains at p.168 that:

"A retrospective statute operates for the future. It is prospective in character but imposes new results in respect of a past event or transaction. A retroactive statute does not operate backwards; it operates forwards from a date prior to its enactment. A retrospective statute operates prospectively but attaches new consequences for the future to an event that took place before the statute was enacted. A retroactive statute changes the law from what it was, or from what it otherwise would be with respect to a prior event or transaction." (Emphasis added).

He then sums up at p.169 that:

"It is not difficult to identify a retroactive statute. There is a specific statement that it shall be deemed to have come into force on a date prior to its enactment. Or it is expressed to be operative with respect to past transaction as of a past time"

Accordingly then, the impugned provision of the Constitution (Amendment) Act No. 1 of 2008, on the tenure of Parliament, is retroactive in nature, as it is deemed to have come into force in 2006 when the current Parliament first sat; which is long before the amendment in issue. The same position holds for the Local Government Councils; as section 10 of the impugned Act amends Article 291 of the Constitution by providing that the seven year tenure for Local Government Councils 'shall apply to the term of the Local Government Councils in existence at the commencement of this Act.' It is worthy of note that the two retroactive provisions of the Act, contrast with the provision of section 8 of the Act; which introduces a new Article 289A of the Constitution, providing that Clause 2 of Article 105 of the Constitution, as amended, 'shall come into effect upon dissolution of the Parliament in existence at the commencement of this Act'. This makes the provision prospective in character.

In Phillips v. Eyre (1890) LR 6 QB 1 at p.23, Willis J. stated the principle of the application of the retrospection maxim as follows: –

"Retrospective laws are, no doubt, prima facie of questionable policy, and contrary to the general principle that legislation by which the conduct of mankind is to be regulated ought, when introduced for the first time, to deal with future acts, and ought not to change the character of past transactions carried on the faith of the existing law ... Accordingly, the courts will not ascribe retrospective force to new laws affecting rights unless by express words or necessary implication it appears that such was the intention of the legislature." 

Retrospective or retroactive legislation may be justified when it is passed in the public interest or in protection of guaranteed rights; but not for the benefit or satisfaction of narrow interests of a section of the people only. A classical case, in our own jurisdiction, in support of the case for retrospective legislation, is the Expropriated Properties Act, No. 9, of 1982 (Cap. 87, Vol. IV, Laws of Uganda, 2000 Edn.); but whose commencement date was in 1983. It was passed in rectification of a monstrous wrong committed by the ignoble regime of Idi Amin in 1972 – ten years before the law – when it forcefully deprived a section of persons of their properties, in violation and disregard of the guarantee for such rights under the 1967 Constitution. The Act was therefore passed as a guarantee of the protection of property rights clearly spelt out in the Constitution. While it was expressly prospective in nature, it nullified all past transactions over the assets of Departed Asians from the year 1972; thereby making it a retrospective legislation since it affected past transactions.  

In purporting to exercise powers beyond what the people had conferred upon it, Parliament ousted and undermined the provisions of Articles 1 and 77 (3) & (4) of the Constitution; thereby amending those provisions of the Constitution by infection. For this, it is guilty of having acted ultra vires the Constitution; hence, it was on a frolic of its own. This being the case, its action done in breach of the constitutional contractual terms stated above, has no binding effect on the people. This legal position applies with equal force to the purported extension of the tenure of the sitting Local Government Councils, as it violates the constitutional contract between the people and the present Local Government Councils; which provides, under Article 181(4) of the Constitution, strictly for a five–year tenure.

This would equally apply to a sitting President; since, under the provision of Article 105(1) of the Constitution, the President would have been elected for a five year tenure. Furthermore, owing to the special status accorded the President by the Constitution, and the powers conferred upon him or her therein, Article 260 (1) (f) of the Constitution entrenches the five year Presidential tenure provided for under Article 105(1); by requiring a referendum to be held to approve any amendment or alteration of that provision. Thus, in extending its tenure and that of the Local Government Councils by two years, Parliament disturbed the need to maintain the harmony in the electoral process; provided for under Article 61(3) of the Constitution, as follows:

"(3)   Except where it is impracticable to do so, the Electoral Commission shall hold Presidential, general Parliamentary and Local Government Council elections on the same day."

An amendment of Article 77 (3) and (4) of the Constitution could only be permissible, and therefore be allowed to stand, if the amendment was done alongside the provision of Article 260 (1) (f) of the Constitution on the Presidential tenure. This would leave the date for Presidential election in conformity with that for Parliamentary and Local Government Councils, as is provided for under Article 61(3) of the Constitution. As it is, the amendment of Article 77 (3) and (4) of the Constitution, has the effect of unlawfully amending the provision of Article 260 (1) (f) of the Constitution by infection, in view of the fact that the required mandatory referendum for that purpose has not been carried out. Thus, where Parliament, which exercises agency powers conferred upon it by the people, acts in excess of such power, it is a flagrant and blatant abuse of the Constitution; which this Court, in the exercise of its judicial oversight role, cannot condone.

In Marbury vs Madison 1 Cranch 137, 2 L Ed 60 (1803), where the Supreme Court of the United States held that 'a legislative act contrary to the constitution is not law', Chief Justice John Marshall had this to say on the power of the Constitution; and the need to strictly comply with its provisions:

"To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if these limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it ..."

The relationship between the people and Parliament being a contractual one, Parliament could only lawfully act unilaterally with regard to its tenure pursuant to a clear provision of the Constitution in that regard. Instances of such provision that permit Parliament, or a member thereof, to act unilaterally and thereby terminate their Parliamentary tenure are in Article 83 (1) (a), (g), (h), and (i) of the Constitution. These provisions prescribe, respectively, for resignation of a member of Parliament, crossing over from a political party the member was elected under and crossing over to another political party, joining a political party when the member was elected as an independent, and taking up a public office appointment.

Similarly, the people themselves are bound by the contractual terms and conditions; and can only act unilaterally to terminate the tenure of a member of Parliament if this is done in accordance with the provision of the Constitution in this regard. Circumstances under which this may happen are provided for under Article 83 (f) and Article 84 of the Constitution for recall of a member of Parliament by the people. Outside of these provisions, it seems to me that the only way a sitting Parliament could extend its tenure by amending the Constitution, is by subjecting that amendment to approval of the people in a referendum pursuant to the provision of Article 260 (1) (b). This would involve both parties to the contract – the people and Parliament – in the alteration or amendment of the Constitution.

Finally, on this matter, for such amendment to pass the requisite test for a valid enactment, it has to be expressly included in the certificate of compliance issued by the Speaker of Parliament; and sent to the President, together with the Bill for assent, in accordance with the provisions of Article 263 of the Constitution. In the instant case, the Speaker's certificate of compliance was issued in conformity with the Form in that regard, specified in Part VI of the Second Schedule to Acts of Parliament Act (Cap. 2 Vol. 1, Laws of Uganda, 2000 Edn.). It was signed by the Speaker of Parliament, Hon. Rebecca Alitwala Kadaga, on the 22nd day of December 2017; and accompanied the Bill sent to the President for assent. It reads as follows:

"I CERTIFY that the Constitution (Amendment) (No. 2) Bill, 2017 seeking to amend the following articles –

        (a)    article 61 of the Constitution;

        (b)    article 102 of the Constitution;

        (c)     article 104 of the Constitution;

        (d)    article 183 of the Constitution;

was supported by 317 members of Parliament at the second reading on the 20th day of December, 2017 and supported by 315 members of Parliament at the third reading on the 20th day of December, 2017, in Parliament, being in each case not less than two thirds of all members of Parliament, the total membership of Parliament at the time, being 434; and that the provisions of articles 259, 262, and Chapter Eighteen of the Constitution have been complied with in relation to the Bill."

As is quite evident from this certificate of compliance, Articles 77, 105, 181, 289, 289A, and 291, which form part of the provisions of Constitution (Amendment) (No. 2) Bill, 2017, sent to the President for assent, are conspicuously and inexplicably absent from the certificate. These amendments are, respectively, with regard to the following matters; namely: the extension of the term of Parliament from five to seven years, restoration of the Presidential term limit, extension of the term of Local Government Councils from five to seven years, extension of the term of Parliament to begin with the current Parliament, Presidential term limit to come into force upon the dissolution of the current Parliament, and extension of the term of Local Government Councils to begin with the current Local Government Councils. 

The requirement for a certificate of compliance issued by the Speaker of Parliament is a constitutional one; hence, as was pointed out by the Supreme Court (per Kanyeihamba JSC) in Ssemwogere & Anor v Attorney General; Supreme Court Constitutional Appeal No. 1 of 2002, it is a mandatory substantive requirement. This requirement, in my view, is not only about the issuance of a certificate of compliance; but is equally about its content, as is provided for in the Format for such certificate in the Schedule to the Acts of Parliament Act referred to above. There is therefore no way any provision in a Bill sent to the President for assent can be regarded as a valid part of the Bill, when such provision is not listed in the certificate of compliance. In the event, the President ought to have sent back the Bill to the Speaker of Parliament for remedial action; owing to the glaring discrepancy between the Bill and the certificate of compliance that accompanied it.

I therefore find that the Petitioners have discharged the burden that lay on each of them to prove the allegations that constituted issues 1, 2, 3, and 4 of the consolidated petitions. This is that by the existing Parliament amending Articles 77, 181, 289, 289A, and 291, of the Constitution; by which it purported to extend its tenure and that of the existing Local Government Councils by two years, it contravened the provisions of the Constitution pointed out above. The amendments are thus illegal; and so, cannot be allowed to stand. Accordingly, I answer those issues in the affirmative.

RESTORATION OF PRESIDENTIAL TERM LIMIT

Issue No. 10:       Whether section 5 of the Act which reintroduces term                                    limits and entrenches them as subject to referendum is                                 inconsistent with and/ or in           contravention of Article 260                             (2)(a) of the Constitution.

Section 5 of the impugned amendment Act, which reintroduces the Presidential term limit, provides as follows:

"5.     Amendment of article 105 of the Constitution.

Article 105 of the Constitution is amended–

(a)    by substituting for clause (2) the following–

        '(2)    A person shall not hold office as President for more than                  two terms.';

(b)    by inserting immediately after clause (2) the following–

        '(2a)' A bill for an Act of Parliament seeking to amend this                                 clause and clause (2) of this article shall not be taken as                   passed unless–

        (a)    it is supported at the second and third reading in                              Parliament by not less than two thirds of all the Members                         of Parliament; and

        (b)    has been referred to a decision of the people and                              approved by them in a referendum."

It is clear from the record of the Parliamentary proceedings, as is evidenced in the Hansard, that Parliament overwhelming passed the Nandala Mafabi motion seeking to amend Article 105(2) of the Constitution by the reinstatement of Presidential term limit; which had earlier been scrapped. The motion as was passed had a rider to it, providing for entrenchment of the restored provision in the Constitution. A perusal of the Hansard discloses an ambiguous and erratic record of what transpired in Parliament when this motion was introduced by Nandala Mafabi:

"MR NANDALA MAFABI: I want to move an addition of a new clause. Madam Chairperson, since you allowed Hon. Michael Tusiime to raise an amendment, I want to bring an amendment to Article 105 of our Constitution to reintroduce term limits – [Memebers: Aye] – thank you. I want to say that a person shall not hold office as President for more than two terms. In addition to that, this should take effect from the next Parliament. We do not want to count this Parliament; we want this one to be entrenched as (f) in chapter 5 under amendment – entrench it as chapter 7, Article 105 (1) and (2). I beg to move." (emphasis added).

After response by Hon Odonga Otto, and Hon Oboth the Chairperson of the select Legal and Parliamentary Committee, the Hansard shows what the Speaker, who was presiding as Chairperson since the House was sitting as a Committee of the whole House, did:

"THE CHAIRPERSON: Honourable Members, I put the question Article 105 to be amended as proposed.

(Question put and agreed to.)"

After this, Mr NANDALA–MAFABI stood up again; and this is what the Hansard shows:

"MR NANDALA–MAFABI: Madam Chairperson, we have moved both amendments that this Article be re NANDALA–MAFABI entrenched – (Interjection) – under Article 260 we entrench it to be under (f), we add and (2). The justification is to avoid it being changed at will." (emphasis added).

To this, the Chairperson put the question; and it was agreed to. Hon Mwesigwa Rukutana then shot up; and the second leg of his contention was that Parliament could not amend Article 260 without going for a referendum. Most unfortunately, however, his voice of reason was drowned by the din of interjections that exhibited a classical case of tyranny of the majority.

Two grave issues arise from this turn of events as is recorded in the Parliamentary proceedings of that day. First, is that the question that the Speaker as Chairperson of the Committee of the whole House put, and was agreed to by the House, was that Article 105 of the Constitution be amended, and the amendment be entrenched under Article 105 itself. It is a little difficult to understand then what it was that Hon Nandala–Mafabi sought to be entrenched under Article 260; unless the import of the second motion was to have the reinstated Presidential term limit entrenched under both Articles 105 and 260. Be it as it may, the unmistakable position is that the House voted and agreed to two questions. The first question sought to entrench the amended provision of Article 105, in Article 105 itself; while the second question sought to entrench the same amended provision of Article 105, under Article 260.

The first question the Chairperson put to the House, and was agreed to, did not provoke any concern from the learned Attorney General (Hon. Mwesigwa Rukutana); understandably because it was safe, as it did not cause any tremors. The second one was however problematic for seeking to entrench the amended provision of Article 105 under Article 260 of the Constitution; which provides for approval by the people in a referendum for any of the provisions therein to be amended, and yet no such referendum had been held. One can then appreciate or imagine the dilemma the draftsperson must have been in when struggling to give effect to the evidently conflicting intention of Parliament over the Nandala–Mafabi motion. As it is, the draftsperson entrenched the provision under Article 105 itself; the consequence whereof I shall shortly deal with.

The crux of the contention in this issue is whether the entrenchment of the provision, through the referendum safeguard provided for under Article 105 of the Constitution where the said term limit is located, rather than under Article 260 thereof as was also passed by Parliament, renders the provision invalid for only partially reflecting the intention of Parliament. To determine this issue I prefer to adopt the logical liberal rule of interpretation and construction; which propounds the principle of purposive approach in the exercise of statutory construction. This rule is that in construing or interpreting a provision of a Statute, and this applies to a Constitution, it is not so much the letter of the statutory provision in issue, but rather the spirit and substance thereof, which is of the essence; hence, deserves to be given effect to. There is a corpus of authorities on this.

Crabbe bolsters this proposition of law, in 'Understanding Statutes' (supra) wherein he aptly puts it using the idiomatic maxim: "He who sticks to the letter of the law, only gets to the bark of the tree"; and explaining further as follows: –

"The principle here is that the substance of the law, the effect of the law, are matters far weightier than the niceties of form or circumstances. The reason behind the law makes the law what it is. For 'reason is the soul of the law, and when the reason of any particular law ceases, so does the law itself'. Laws are not enacted for the mere purpose of enactment. They are intended in their application to achieve a purpose. That should be borne in mind when interpreting or construing an Act of Parliament. 

He cites, at p.59 of 'Understanding Statutes' (supra), a speech from the English Parliament (209 Hansard Parl. Deb. (3rd Series); where, in a debate in the House, Sir Roundell Palmer had this to say:

"Nothing is better settled than that a statute is to be expounded, not according to the letter, but according to the meaning and spirit of it. What is within the true meaning and spirit of the statute is as much law as what is within the very letter of it, and that which is not within the meaning and spirit, though it seems to be within the letter, is not the law, and is not the statute. That effect should be given to the object, spirit, and meaning of a statute is a rule of legal construction, but the object, spirit, and meaning must be collected from the words used in the statute."

In Attorney General of the Gambia vs Momodou Jobe [1984] 3 WLR 174, at p.183, (see also [1985] LRC 556 at p.565), Lord Diplock said:

"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 a generous and purposive construction."

In IRC vs Saunders [1958] AC 285, at p.298, Lord Reid had this to say:

"It is sometimes said that we should apply the spirit and not the letter of the law so as to bring in cases which, though not within the letter of the law, are within the mischief at which the law is aimed." (emphasis added).

In Minister of Home Affairs vs Bickle & others 1984 (2) SA 439 (ZSC), when interpreting a provision of the law regarding compulsory acquisition of property, including enemy property, by the State, Telford Georges CJ quoted with approval the words of Lord Wright in James vs The Commonwealth of Australia [1936] AC 578 at p.614; that:

"It is true that a Constitution must not be construed in any narrow and pedantic sense. The words used are necessarily general, and their full import and true meaning can often only be appreciated when considered, as the years go on, in relation to the vicissitudes of fact which from time to time emerge. It is not that the meaning of words changes, but the changing circumstances illustrate and illuminate the full import of that meaning ... ... ... The task of the Court must be to interpret the Constitution, applying the normal canons, then to interpret the challenged legislation, and then to decide whether a meaning can fairly be placed on that legislation which enables it to fit within the already determined constitutional framework ... ... ..."

In our own jurisdiction, in Salvatori Abuki vs Attorney General, Constitutional Petition No.2 of 1997, the Court held that the Constitution must be construed ‘not in a narrow and legalistic way but broadly and purposively so as to give effect to its spirit'. Similarly, in Moses K. Katuramu vs Attorney General Civ. Appeal No. 2 of 1985, WAMBUZI P. (as he then was) stated thus: –

"In interpreting a provision of the law a Court must ensure justice and pay less respect to technicalities. It was perfectly open to the Appellant to amend his plaint but chose, perhaps a little imprudently having regard to the wording of rule 6 of order 7, to file a reply, a perfectly legitimate pleading."

Basing on this principle of construction, the true purpose of, and reason behind, the requirement for a referendum to approve any amendment of the Presidential term limit provision, to my understanding, is to insulate the provision against reckless and extravagant amendment by Parliament.

It would be a strict, narrow, and indeed an unfortunate construction of the amendment, to hold that its purpose was to determine the place in the Constitution where the safeguard of a requirement for a referendum should be located, for it to be able to thwart the mischief it was intended to remedy or avert. To put it in a different way, the mischief the Constitution sought to counter, by the entrenched provision, is not the place or location in the Constitution where the entrenchment is. It is, rather, the wantonness and ease with which Parliament could otherwise amend the unentrenched and vulnerable term–limit provision; as it did, by scrapping the unsecured term limit provision from the Constitution; only to turn round now seeking to have it restored.

Second, it is noteworthy that the entrenching provision under Article 105 of the Constitution for the requirement of a referendum is textually identical with the entrenching provision for a referendum under Article 260. Thus, in entrenching the provision under Article 105 of the Constitution, the safeguard against the mischief the entrenching provision seeks to thwart is not lost or vitiated at all. It retains all the force of law it would have, if it were instead entrenched under the provision of Article 260. It is quite evident that the problem was caused by Hon Nandala Mafabi himself, and was concretised by Parliament when it went as far as identifying the place in the Constitution where the entrenchment of the Presidential term limit should be located.

In this, Parliament forayed into a function, which is the sole professional purview of the Parliamentary Counsel; who is better placed to determine how best the Constitution should be arranged. Therefore, it would be wrong and unfair to fault him or her for the order of form the Constitution takes, as long as in the choice of arrangement, the purpose of the enactment is not defeated or lost at all. In Understanding Statutes, (supra), Crabbe states, at p.61, on an instance of 'casus omissus' as follows:

"An Act of Parliament may be badly drafted. That may result in an omission of certain matters in the Act, or even of a word or words. It may be the fault of the Parliamentary Counsel who drafted the Bill for the Act, or the result of an amendment in Parliament, but whatever the source of the omission, effect must be given to the Act. In those circumstances the 'intention of the legislature, however obvious it may be, must, no doubt, in the construction of the statutes, be defeated where the language it has chosen compels to that result, but only where it compels to it'."

The case of Labrador vs R [1893] AC 104, is authority for the proposition that no Court should impugn the validity of an Act of Parliament on the ground that it is based on an erroneous set of facts. In that case, Lord Hammer stated at p.123 that:

"Even if it could be proved that the legislature was deceived, it would not be competent for a Court of law to disregard its enactments. If a mistake has been made, the legislature alone can correct it. ... The Courts of law cannot sit in judgment on the legislature, but must obey and give effect to its determination."

This is a restatement of the well – known constitutional principle of separation of power between the Executive, Parliament, and the Judiciary; which is securely enshrined in our Constitution. The remit of Court's oversight function does not extend to legislating. That is the function of Parliament. Indeed, where Parliament has committed an error in the exercise of its legislative function, such error can only be rectified by Parliament itself through the legislative remedy of repeal of the undesired legislation. It is when a piece of legislation offends a provision of the Constitution that the Court of law will declare so, and then exercise its mandate to strike it out.

In Henry vs Attorney General [1985] LRC 1149, Parliament of Cook Islands had, in the exercise of its sovereign power to make laws for the peace, order and good government of the Cook Islands passed a Constitution amendment; where however it erroneously referred to the 1964 schedule, instead of the 1965 schedule, as having been amended. The petitioner challenging the amendment argued that due to the fundamental importance of the Constitution as the supreme law of the land, it was of paramount importance that any amending legislation had to refer to and identify the correct provision of that Constitution free from any error, uncertainty or ambiguity. Hence, failure to refer to the correct source in the Constitution, as having been amended, rendered the amendment invalid.

The Court of Appeal disagreed with that line of reasoning. Dillon J., instead agreed with the submission of the Attorney General that the reference to a wrong provision of the Constitution was not the kind of substantive alteration that could be regarded as an amendment, modification, or extension. At p.1152, he stated as follows:

"While a reference to an enactment may contain an error, nevertheless at the same time when considered fairly it may be free from uncertainty and ambiguity. In such a case, the error in itself does not render the enactment totally ineffective. To hold otherwise would frustrate the clear intention of the legislature to amend an instrument which it had identified sufficiently (although not entirely accurately) as to leave no doubt as to the subject matter of the legislation."

He adopted the generous interpretation of the Constitution counselled by Lord Wilberforce in Minister of Home Affairs vs Fisher [1980] AC 319; and therefore advised against strict construction of the Constitution, stating, at p.1153, that:

"To do so, would require too legalistic and mechanical an approach to its construction. If the strictly literal approach contended for in this case were taken to its inevitable conclusion it would require a constitutional amendment to be passed ..."

In my considered view then, the imperative of the 'term limit' entrenchment provision is not in its location in the Constitution; but rather the fact that the provision is explicitly and clearly entrenched in the Constitution. I am of the strong persuasion that locating the entrenchment elsewhere in the Constitution – in this case doing so under Article 105 thereof, other than under Article 260 – has no vitiating effect whatever on the desired object of the amendment; which is the entrenchment of the term limit provision. Since the entrenchment serves as a remedial provision for the mischief against which the entrenchment was necessary, it therefore effectively achieves the objective of the amendment. I am reinforced in this, by the fact that there is no express or implied provision anywhere in the Constitution that all entrenchment provisions requiring a referendum must exclusively be located under Article 260.

To the contrary, there are several other provisions in the Constitution for the requirement of a referendum. Such provisions include Article 69, which is a provision for referendum as one of the modes available to the people of Uganda to choose the political system under which they wish to be governed. Article 74 is more specific and elaborate on how a referendum for change of a political system may be triggered. Article 75 of the Constitution prohibits Parliament from enacting a law that establishes a one–party State. Since this provision of the Constitution prohibits only Parliament from enacting such a law, it is implicit that the people themselves, through a referendum, may enact a law providing for a one–party State. I hold that view because the only way the people can directly involve themselves in enacting a law is by approval thereof in a referendum.

Before I take leave of this matter, I should address my mind to two aspects thereto, deserving of consideration. It is quite evident that the entrenchment of a constitutional provision under the Article of the Constitution in which the provision is – in the present instance under Article 105 – more proactive. It affords ease and convenience in identifying the entrenchment; as in this case the entrenchment is discernible from Article 105 itself, without any need to look elsewhere in the Constitution to establish whether, or not, such provision is entrenched. Had the term limit provision in Article 105 been entrenched instead under Article 260, the entrenchment would not be obvious from reading the provision of Article 105 only; thus necessitating the cumbersome process of referring to Article 260 to determine whether this is one of the entrenched provisions.

Second, it would appear the draftsperson was conscious of the fact that entrenching the provision on Presidential term limit under Article 260 of the Constitution, as was agreed on by Parliament, would have had the effect of amending Article 260. This would have necessitated the approval of the people in a referendum; and yet this had not been catered for in the certificate of financial implication that permitted the moving of this motion. Accordingly then, the entrenchment of the term limit provision under Article 105 of the Constitution was prudent; as by this, the amendment of Article 260 was avoided withoiut causing any harm at all. This choice of drafting, therefore, laudably obviated an otherwise costly, undesirable, and unnecessary, exercise that would have ensued had the impugned resultant Act reflected the letter, rather than the spirit and substance, of the Nandala Mafabi amendment.

Indeed, the draftsperson is tasked with a most unenviable responsibility. It is always easy to blame him or her for the text of the law; and quite often, unfairly. In Evelyn Viscountess De Vesci vs O' Connell [1908] AC 298, at p.310, Lord Oliver of Aylmerton stated:

"I confess to having myself once described a particularly abstruse provision as 'something of a minor masterpiece of opacity', but I regret it because I think that such shafts are frequently not aimed at the right target. The draftsman doesn't draft in a vacuum and straight out of his head. It is his job as well as his misfortune to seek to reduce to writing concepts and ideas fashioned and implanted by somebody else. The Parliamentary draftsmen do an immensely important task and do it under almost intolerable pressure; but in the end they merely put into words what their political masters state as their desired object. If the object is itself bizarre or ambiguous, one can hardly be surprised that the result is bizarre or ambiguous."

In Ealing LBC vs Race Relations Board [1972] AC 342, at pp. 360–361, Lord Simon of Glaisdale stated that:

"The Court sometimes asks itself what the draftsman must have intended. This is reasonable enough: the draftsman knows what is the intention of the legislative initiator (nowadays almost always an organ of the executive); he knows what canons of construction the Courts will apply; and he will express himself in such a way as accordingly to give effect to the legislative intention. Parliament, of course, in enacting legislation, assumes responsibility for the language of the draftsman. But the reality is that only a minority of the legislators will attend debates on the legislation. ... ... ...

Accordingly, such canons of construction as that words in a non–technical statute will primarily be interpreted according to their ordinary meaning ... are not only useful as part of the common code of juristic communication by which the draftsman signals legislative intent, but are also constitutionally salutory in helping to ensure that legislators are not left in doubt as to what they are taking responsibility for." 

As I pointed out earlier in this judgment, the problem of the location of the entrenchment of the Presidential term limit was caused by Parliament itself, which overstepped its role by going as far as determining the location of the entrenchment in the Constitution. However, my finding that entrenching the provision under Article 105 of the Constitution, instead of under Article 260, does not offend any provision of the Constitution at all, still leaves one matter for determination over the validity of the restoration of the Presidential term limit. While determining the validity of the extension of the tenure of Parliament and that of Local Government Councils, I was categoric that for any provision to validly constitute part of an enactment, it must be included in the Speaker's certificate of compliance; and this is a mandatory constitutional requirement.

With regard to the amendment of Article 105 of the Constitution, the Speaker's certificate, as has been shown, does not mention it as one of the provisions of the Constitution that were amended by Parliament. Without the Speaker referring to this amendment in her certificate of compliance, there is absolutely no way that the inclusion of the impugned provision in the Bill that was sent to the President, for assent, could be clothed with validity. The President ought not to have assented to such a Bill, which was at variance with the Speaker's certificate of compliance. In the circumstance, there is no alternative, to having the provision struck out from the impugned Constitution (Amendment) Act, No. 1 of 2018; which I hereby do with much regret.

Issue No.12:        Whether sections 3 and 7 of the Act, lifting the age limit                               without consulting the population are inconsistent with                                and/or in contravention of Articles 21 (3) and 21(5) of                                    the Constitution.

Lifting Presidential age – limit:

One out of the five consolidated petitions raised the issue of age limit removal. That is not to suggest that there is need for plurality of Petitions for the issue in contention to be found to be of substance; and, hence, be clothed with validity. The Petitioners' case, in Constitutional Petition No.10 of 2018, is that sections 3 and 7 of the impugned Amendment Act, which scrapped the age limits hitherto provided in the Constitution for the President and District Chairperson, amended, by infection, Article 1 of the Constitution which recognizes that all power vests in the people; who shall determine how they should be governed.

The basis of the argument for the Petitioners in this issue is that the people in the exercise of their original constituent power provided for restrictions in the Constitution against certain acts that would have the effect of amending the Constitution; so, it would be unconstitutional for Parliament to alter them. Therefore, amending the Constitution, in the terms of sections 3 and 7 of the impugned Amendment Act, has amended Article 1 of the Constitution by implication; thereby undermining the people’s sovereignty. This, it was argued, conflicts with the Basic Structure Doctrine, which does not permit this type of amendment. The Petitioners also contested the Private Member's statement in the Memorandum to the Bill that restrictions on age in the Constitution were discriminatory. This, in their view, also undermines the peoples' power duly recognised in the Constitution.

The Respondent however responded in rebuttal; contending that the removal of the age limit from the Constitution through this contested amendment had no infectious effect whatever on the other provisions of the Constitution; inclusive of Article 1 of the Constitution which asserts that ultimate power belongs to the people. Counsel for the Respondent further submitted that the contested amendments, which removed the restrictions that the people had imposed on the age required for eligibility to contest for office of President and Chairperson Local Government Council V, has instead enlarged the catchment area for potential leaders who could now contest for these two offices.

Resolution of the issue by Court

Prior to the contested Amendment Act, Article 102 of the 1995 Constitution provided for qualifications of the President as follows:

102. Qualifications of the President.

A person is not qualified for election as President unless that person is –

                    (a)    a citizen of Uganda by birth;

                    (b)    not less than thirty-five years and not more than seventy -                        five   years of age; and

        (c)     a person qualified to be a member of Parliament.”

It is noteworthy that this provision of the Constitution was not secured by any provision therein requiring holding of a referendum, or subject to any of the safeguards that characterize the other provisions of the Constitution, which we have recognised as basic or fundamental features of the 1995 Constitution. Thus, the framers of the 1995 Constitution never treated the provisions of Articles 102 on age limit for President, and Article 183 on age limit for LCV Chairperson, as a fundamental feature of the Constitution; which would have necessitated its entrenchment. This contrasts with the institution of the Presidency, which is enshrined as a fundamental feature of the Constitution; by the requirement that the President be elected directly by universal adult suffrage; and further that before the five–year Presidential tenure provision can be altered by Parliament, it must first be approved by the people in a referendum.

It follows therefore that for the amendment of Articles 102 and 183, which provided for age limit for qualifications of the President and LCV Chairperson respectively, Parliament was obliged to comply with the provision of Article 262 of the Constitution; under the general power of legislation conferred on it by the people as I have exhaustively discussed above. For this, all that was required of Parliament was to ensure the majority vote of not less than two thirds of all members of Parliament in favour at the second and third readings of the Bill, for the amendment to be valid. There are circumstances when an amendment to the Constitution may not, directly or discernibly, offend any of the provisions secured by Articles 260 and 261 of the Constitution; and yet such may have the effect of amending or altering some other provision of the Constitution by implication or infection.

It is therefore imperative for this Court to determine whether the contested amendments have such an effect. It is this, which would resolve the question whether the lifting of the lower and upper age limits for the President and Chairperson LCV, is constitutional; or they contravene any provision of the Constitution. As I have discussed at great length when resolving the issue of extension of Parliament's tenure, the people in whom ultimate power vests, have granted Parliament both general and limited power to make laws, and amend existing ones. For the general power conferred on Parliament under the provision of Article 79 of the Constitution, all that is required of Parliament is to exercise its best judgment to ensure that the law so passed promotes the desired peace, order, development, and good governance of Uganda.

It is only provisions secured by some safeguard, where the power conferred on Parliament to amend the Constitution is greatly curtailed through a number of impediments, which Parliament has to overcome before such an amendment can be valid. The impediments are the requirement of at least a two–thirds majority of the entire membership of Parliament, and a referendum, in fulfillment of the provisions of Articles 260 and 261 of the Constitution. Neither is Article 102, nor 183, of the Constitution such a provision whose amendment is fettered by these impediments; hence, Parliament is spared the burden of having to satisfy the requirements. Instead, the amendment of Articles 102 and 183 by Parliament is done pursuant to the power conferred on Parliament by the provisions of Articles 259 and 262 of the Constitution; and this is precisely what Parliament did.

While section 7 of the contested Amendment Act amended Article 183 (2) of the Constitution by repealing paragraph (b) on age limit for the Chairperson LCV, section 3 of the impugned Amendment Act, amended article 102 of the Constitution as follows:

"3.    Replacement of Article 102 of the Constitution.

            For Article 102 of the Constitution, there is substituted the following –

            102. Qualifications and disqualifications of the President.

            (1).   A person is qualified for election as President if that person              –

        (a)    is a citizen of Uganda by birth;

        (b)    is a registered voter; and

        (c)     has completed a minimum formal education of Advanced                 Level standard or its equivalent.

(2).   A person is not qualified for election as President if that                    person –

        (a)    is of unsound mind;

        (b)    is holding or acting in an office the functions of which                      involve a responsibility for or in connection with the                                conduct of an election;

        (c)     is a traditional or cultural leader as defined in Article 246                (6) of this Constitution;

        (d)    has been adjudged or otherwise declared bankrupt under                         any law in force in Uganda and has not been discharged;

        (e)    is under a sentence of death or a sentence of                                    imprisonment exceeding nine months imposed by any                       competent court without the option of a fine;

        (f)     has, within seven years immediately preceding the                            election, been convicted by a competent court of an                          offence involving dishonesty or moral turpitude; or

        (g)    has, within seven years immediately preceding the                            election, been convicted by a competent court of an                          offence under any law relating to elections conducted by                      the Electoral Commission.”

Since Parliament exercised power, which the people have conferred onto them under the provision of Article 2 of the Constitution, I am unable to fault it for the process it took to effect these amendments. I am therefore a little at a loss in seeking to understand how the amendments could have either undermined or infected the provisions of Articles 1 and 2 of the Constitution, or any other, as is alleged by the Petitioners. These two amendments – sections 3 and 7 of the impugned Amendment Act – were at the core of the original Magyezi Bill. On the evidence, the process through which they were passed to amend the Constitution was beyond reproach; as, in addition to having been done pursuant to the provisions of the Constitution in that regard, the process through which they were amended fully complied with the Rules of Procedure of Parliament. 

Finally, the Speaker's certificate of compliance, which accompanied the Bill forwarded to the President for assent, and is a mandatory constitutional requirement, expressly included therein these two amendments in the list of provisions of the Constitution amended by Parliament. Therefore, and for the reasons given above, it is my considered persuasion that the two contested amendments were done by Parliament in full compliance with the Constitution; hence, they were lawfully done. This being so, the two amendments have validly become part of the Constitution. In the event, I would answer Issue No.12 in the negative.

Issue No. 7:         Whether the alleged failure by Parliament to observe                                      its own Rules of Procedure during the enactment of                                     the Act was inconsistent with and in contravention of                                     Articles 28, 42, 44, 90 (2), 90 (3) (c) and 94 (1) of the                                       Constitution.      

Parliament's non-compliance with its Rules of Procedure.

Counsel Erias Lukwago submitted that Article 94 of the 1995 Constitution obliges Parliament to make its own Rule of procedure; which upon coming into force, binds Parliament and its Committees. Non compliance with the Rules, he contended, would violate Article 94 of the Constitution. He cited the following authorities; namely: Prof. J Oloka- Onyango & 9 Others v. Attorney General, Constitutional Petition No.8 of 2014, Law Society of Kenya v. Attorney General & Another, Constitutional Petition No.313 of 2014, Kesavananda Bharati v. State of Kerala and Anor, Supreme Court of India, Petition 135 of 1970 and Njoya and Others v. Attorney General and Others (2004) AHRLR 157 (KeHC 2004), in support of his contention that it is mandatory for Parliament to comply with its Rules of Procedure.

He contended that the entire process of amending the Constitution, from the tabling of the Bill, to the passing thereof, manifested that the constitutional principles were compromised and the whole process tainted with illegalities. He maintained that the Bill was smuggled into the Order Paper; which came as a surprise as it was never part of the Order Paper, this , he argued, was an instance of a tainted process. He argued further that in so doing, Parliament violated Rules 26, 27 and 28 of its Rules of procedure. He referred to paragraphs 12, 13, 14, 15, 16 and 17 of the affidavit of Hon. Ssemujju Nganda, dated 18th January 2018, and sworn in support of the petition; then paragraph 16 of the affidavit of Hon. Jonathan Odur; paragraphs 11 and 12 of the affidavit of Hon. Sewanyana Allan; then paragraphs 10, 11 and 12 of Hon. Karuhanga; and that of Hon. Mubarak Munyagwa. 

The case for the respondent

Mr. Oluka Henry rebutted the alleged failure by the Parliament to comply with its own Rules of procedure during the process of enacting the Constitution (Amendment) Act; hence, there was no inconsistence or contravention of Articles 28, 42, 44, 92, 93, and 94 (1) of the Constitution. He contended that the Bill was never smuggled onto the floor of Parliament; because the inception, tabling, the enactment of any bill, or the enactment of any motion before the House is undertaken within the Rules, and those Rules are the Rules, which are set out under Article 94 (1) of the Constitution.

Court's Resolution

On Rules of Procedure in Parliament, Article 94 of the Constitution provides as follows:

“(1) Subject to the provisions of this Constitution, Parliament may make rules to regulate its own procedure, including the procedure of its committees.”

The first time the impugned Constitution (Amendment) Bill was presented to Parliament, in September 2017, Parliament's Rule of Procedure in force (the old Rules) was that of 2012. The new Rules of Procedure came into force in November 2017. Rule 26, of the old Rules, provided that the Clerk had to supply each Member with a copy of the Order paper for each sitting; and that for the first sitting of a meeting, at least two days from the sitting, while for the other sittings at least three hours before the sitting. Rule 28 provided that a weekly Order paper was to be availed to the Members through their pigeon–holes or electronically.

Rule 24(1) of the old Rules provided for Order of Business as follows:

“The Speaker shall determine the order of business of the House and shall give priority to Government business.”

Rule 165 (1) of the old Rules provided that:

“It shall be the function of the Business Committee subject to rule 24, to arrange the business of each meeting and the order in which it shall be taken; except that the powers of the Committee shall be without prejudice to the powers of the Speaker to determine the order of business in Parliament and in particular the Speaker’s power to give priority to Government business as required by clause 14 (a) of Article 94 of the Constitution.”

It is thus clear that under the Rules, the Speaker enjoyed wide, and almost unfettered, discretionary power to determine the Order of Business in the House. From the Hansard, the record shows that on Tuesday 26th September 2017, at p.4699, the Speaker expressed satisfaction with the Magyezi motion for leave to introduce a private Members’ Bill; which had met the test laid down under Rule 47, and so, could be included in the day’s Order Paper. 

Therefore, I fail to understand how, in allowing Hon. Raphael Magyezi’s motion for leave to introduce a private Member's Bill, the Speaker could be accused of having smuggled the matter onto the Order Paper in breach of the Rules of Procedure of Parliament; as alleged by the petitioners. The Rules of procedure do not require the Speaker to seek permission from the Members of Parliament, or any other person, to include the motion on the Order paper; which, failure to do so, would have justified her being accused of smuggling the motion onto the Order paper. The position in law is that failure by Parliament to abide by the rules of procedure provided for in the Constitution and the Rules of Parliament has adverse effect on the resultant law; as it renders it invalid (See Paul Ssemwogerere & Others vs Attorney General and Oloka Onyango & Others vs Attorney General (supra)

It is a principle of law that a Bill has a short title; and then a long title, from which the main contents of the Bill can be ascertained. This is provided for under Rule 114(1) of the Rules of Procedure. Rule 115(2) of the said Rules forbids the inclusion of any matter foreign to what is contained in the long title to the Bill. Rule 131(2) mandates the Committee of the whole House and the Select Committee to entertain such amendments as it deems are relevant to the subject matter of the Bill. Rule 133(4) of the Rules of procedure provides that:

“The Committee of the whole House shall consider proposed amendments by the committee to which the bill was referred and may consider proposed amendments on notice where the amendments were presented but rejected by the relevant committee or where for reasonable cause the amendments were not presented before the relevant committee”. 

Therefore, a motion to amend the Bill for an Act can be introduced at any stage of the process of considering the Bill; as long as the rules governing the process are adhered to. In the instant case, the report by the Chairperson of the Select Committee was that the issue of Parliamentary tenure was not part of its report to the Committee of the whole House. On the evidence, it is clear that no amendment was presented before the Legal and Parlaiamentary Committee. No reasonable cause, or any at all, was presented before the Committee of the House for the failure to raise the matter before the Select Committee. The long title to the Constitution (Amendment) (No.2) Bill, 2017 stated as follows: 

“An Act to amend the Constitution of the Republic of Uganda in accordance with articles 259 and 262 of the Constitution; to provide for the time within which to hold presidential, parliamentary and local government council elections; to provide for eligibility requirements for a person to be elected as President or District Chairperson; to increase the number of days within which to file and determine a presidential election petition; to increase the number of days within which the Electoral Commission is required to hold a fresh election where a presidential election is annulled; and for related matters.”

The amendments to the Bill, which later became sections 2, 5, 6, 8, 9, and 10, of the impugned Amendment Act were not part of the long title to the Bill. The reason for their non–inclusion in the long title to the Bill, is that they were foreign to the Bill; so, they became part of the Bill in contravention of the provisions of the Rules of Procedure of Parliament. Indeed, the Speaker identified and pointed them out as extraneous matters. Since they had not been subjected to the process of a public hearing, and yet they were substantive amendments introducing new matters, it was imperative that they be subjected to public participation at the hearing before the Select Committee; and more so, since this was a Bill for the amendment of the Constitution.

However, the long title of the resultant Act contains term of Parliament, Presidential term limit, and transitional provisions for the amendments that was to be made. The memorandum to the bill manifested that the object of the Bill was: 

“to provide for time within which to hold presidential, parliamentary and local government council elections under article 61, provide for eligibility of a person to be elected as President or District chairperson under Articles 102(b) and 183(2)(b), to increase the number of days within which to file and determine a presidential election petition under 104 (2) and (3), to increase the number of days within which the Electoral Commission is required to hold a fresh election where a presidential election is annulled under article 104(6); and for related matters”. related matters.”  

The Kenyan Constitutional Petition No.3 of 2016, Law Society of Kenya v the Attorney General, dealt with issue of extraneous matters brought into a Bill; and held as follows:

“Therefore by introducing totally new and substantial amendments to the Judicial Service Act 2011 on the floor of the House, Parliament not only set out to circumvent the Constitutional requirements of public participation but, with due respect, mischievously short- circuited and circumvented the letter  and spirit of the Constitution.  Its actions amounted to violations of Articles 10 and 118 of the Constitution”. (emphasis added).

Owing to the blatant violation of the Rules of procedure of Parliament with regard to the foreign matters wrongly introduced in the Bill, the extraneous matters cannot be allowed to stand.

With regard to the action taken by the Speaker to suspend certain Members of the House from participating in the proceedings in the House, the unrebutted evidence is that the suspended members had defied the Speaker and disrupted the proceedings in the House; thus provoking the wrath of the Speaker. Where an institution's rule of good order is defied without the defiant person being held to account, it can only lead to chaos if not total mayhem. It therefore becomes necessary to wield the stick to rein such members in; so to say. There is no evidence presented before Court that in the exercise of her discretion, the Speaker either exceeded her authority or acted ultra vires the Rules permitting her to take disciplinary action to maintain the honour of the House.

On the proceedings having taken place in the absence of some of the members from the House, there is no rule requiring that all members must be in the House for matters to be proceeded with; otherwise, there would be no reason for quorum at the voting stage. In the book 'Understanding Statutes' (supra), at p.15, Crabbe quotes from The Listener, where Gerald Kaufman gives a graphic account of how the committee system works in Parliament; as follows:

"... once a member goes in to the committee room, the member is encapsulated in a private world; life is governed by the hours the Committee sits and the party to which the member belongs. If the member is a government backbencher, the sole expectation is that the member sits silently, except when votes take place and the member is required to call out Aye or No, as instructed by the harrassed but unrelenting whip. Apart from this, the supporters of the administration sit at their desks ... ... looking up from time to time in case something interesting might be happening."  

The point being made here is that not every member in the House actually follows what is happening in the House; and indeed many are only awoken from their slumber by the Speakers's call for a vote. The Rules provide for a quorum for Parliamentary business to proceed; and then most importantly such number as would satisfy the requirement for majority vote where it is a requirement that a given fraction of the membership of the whole House must support a motion brought in Parliament before it is considered as having been duly passed.

The evidence regarding the absence of the Leader of Opposition when certain proceedings took place is quite interesting. When the Speaker ruled that she should sit down, the Hon. Leader of Opposition took offence, and on her own volition, walked out of the Chamber of Parliament. I do not understand why anyone should blame the Speaker for the Leader of Opposition's free willed choice to evacuate herself from the Chambers of Parliament. If every time a Member walks out in protest, the Speaker must suspend proceedings, I can envisage a situation where Parliament would always be held at ransom; thus paralyzing the work of Parliament.

In the same vein, the fact that people who were known not to be members of the Legal Committee signed the report is not fatal to the process; though it was irregular. First is that, on the evidence, they did not participate at the hearings; but merely signed after the conclusion of the proceedings. Second is that even if they are removed from the list of those who signed the report, there would still be sufficient members who attended the Committee propceedings, and signed the report. Lastly, Article 94 of the Constitution covers this type of situation, since it provides as follows:

"(3)   The presence or the participation of a person not entitled to be present or to participate in the proceedings of Parliament shall not, by itself, invalidate those proceedings."

With regard to dispensing with the rule requiring three sittings, it is permissible for Parliament suspend its own rule under rule 16 of the rules of procedure; as long as the motion therefor is seconded. However, Rule 59 (2) of the new Rules of Procedure of Parliament, which was Rule 51 (2) of the old Rules of Procedure of Parliament, provides as follows:

"(2)   In Committee of the Whole House or before a Committee, a seconder of a motion shall not be required."

In the instant matter, Parliament was proceeding as a Committee of the Whole House; so the Rule cited above applied. Accordingly then, although the motion by Hon Mwesigwa Rukutana was not seconded, it offended no rule at all. Furthermore, the determination of the issue of breach of the Rules of procedure of Parliament turns on whether the Rules are equated with the force of Constitutional provisions. It also depends on whether the Rules are taken as mandatory or absolute, hence must be complied with or fulfilled exactly as expressed, otherwise what is done will be treated as unlawful and therefore invalid; or they are directory, hence it suffices when it is complied with substantially, or where non –compliance with them occasions no miscarriage of justice. In Liverpool Borough Bank vs Turner (1861) 30 LJ Ch. 379, at p.380, Lord Campbell stated:

"No universal rule can be laid down as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of Courts of justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be construed."

This proposition of the law was approved in Howard vs Bodington (1877) 2 PD 203, at p.211, where Lord Penzance stated thus:

"I believe, as far as any rule is concerned, you cannot safely go further than that in each case you must look to the subject–matter, consider the importance of the provision, and the relation of the provision to the general object intended to be secured by the Act, and upon a review of the case in that aspect, decide whether the enactment is what is called imperative or only directory."

In the instant case, the motion for suspension of rule 201(2) was not seconded; but, however, that notwithstanding, the matter was fully canvassed by Parliament, so no miscarriage of justice was occasioned by the non–secondment of the suspension motion. The evidence on record is that the members had been availed the materials they wanted four days earlier in their respective iPods. In this dot com era, loading materials onto the electronic gadget is at good as, if not better than, laying it on the table in Parliament.

For all of the actions taken by the Speaker, which have been challenged in the petitions, explanations in justification have been given to my satisfaction. Where there was a breach of the Rules, I have found them to be mere irregularities that are not fatal as they do not go to the root of the matter. It is the provision of sections 2, 5, 6, 8, 9 and 10 of the Constitution (Amendment) Act 2018 whose introduction into the Bill was incurably wrong for offending the Rules of Procedure of Parliament.

Issues No. 7(g) (1v) and No. 8:

Observance of 14 sitting days:

As I have pointed out, for amendment of provisions entrenched under Article 260 of the Constitution, it requires fourteen sitting days separation between the second and third readings; then followed by approval in a referendum, before such amendment can pass. Of the provisions of the Constitution (Amendment) Act 2018, ordinarily they do not require undergoing through the stringent amendment procedure stated above. However, by infection or implication, sections 2, 6, 8 and 10, amended other provisions of the Constitution, such as Article 1 of the Constitution on the people being the repository of power. These were not named in the Bill for amendment, or resultant Act; and yet amending them would require going through the stringent procedure.

There was thus need to amend those other provisions as well, before the directly amended provisions of the Constitution by sections 2, 6, 8 and 10 of the impugned Amendment Act could enjoy validity. For the proisions of the Constitution whose amendment had no infectious effect on other provisions of the Constitution, they are valid amendments. It follows therefore that this issue is only partially successful as explained above.

I have already dealt with the Speaker's certificate of compliance in the course of resolving the issue about extension of Parliamentary and District Council tenures. I can only reiterate that Constitution (Amendment) Act No.1 of 2018 specifically names Articles 61, 77, 102, 104, 105, 181, 183, 289 and 291, of the Constitution as having been amended; and yet, inexplicably, the certificate of compliance issued by the Speaker only names Articles 61,102,104 and 183 of the Constitution as having been amended; thereby excluding Articles 77,105,181,289 and 291 of the Constitution, which are included in the impugned Amendment Act as having been amended. 

The consequence of this exclusion of sections 2, 5, 6, 8, 9 and 10 of the Constitution (Amendment) Act 2018 from the Speaker's certificate is that they do not validly amend provisions of Articles 77, 105, 181, 289, and 291 of the Constitution, although they are included in the Amendment Act as having been amended. The sections of the Amendment Act purporting to amend these provisions of the Constitution should, therefore, be struck out from the impugned Act.

Issue No. 6: Validity of the process of conceptualizing,                                     consulting, debating and enacting the Act.

On this, learned Counsel Wandera Ogalo faulted the entire process of amendment of the Constitution as fraudulent from the onset; while learned Deputy Attorney General, Mr Mwesigwa Rukutana argued that the entire process was conducted within the law.  It is the Petitioners' case that the requisite consultation and public participation of the people, which is mandatory, was not conducted at all. It is quite clear on the evidence that the original Bill as was introduced by Hon Magyezi as a private member's Bill, and the amendments thereto were treated differently. The Bill as it was introduced by Hon Magezi was sent to the Committee of Legal and Parliamentary affairs; and it did conduct public hearings both within and outside Parliament.

The Bill then went through the other required procedure, up to its enactment. Members were facilitated and went to their respective Constituencies for a period of three weeks for consultation. Accordingly then, sections 1, 3, 7 and 9 of the Amendment Act, which amended Articles 61,102, 103 and 183 of the Constitution, were the result of a properly conducted Parliamentary process. The faulting of the consultation by the Members of Parliament and the alleged lack of public participation is unfortunate. All that there is in the Constitution on public participation is in the National Objectives and Directive Principles of State Policy and the provision of the Constitution for a Bill to be sent to a Select Committee for conducting a hearing.

In the absence of a law that lays down a structural modus operandi for public consultation and participation beyond what the Legal and Parliamentary Committee did, no meaningful consultation can be done. The provision in the National Objectives and Directive Principles of State Policy is couched in general terms bordering on the abstract. It cannot guide anyone with any specificity on the mode of consultation and public participation. It is public hearing conducted by a Select Committee, and the people's involvement in decision making through a referendum that are properly structured so as to bring out the will and desire of the people.

As it is, whatever consultation that was carried out, on the facilitation of shs. 29m/= given to Members of Parliament, which was vulnerable to manipulation by Members of Parliament; and could have delivered different results from the same people who were consulted by two Members of Parliament with different views on the amendment. I am fully satisfied that within the provisions of the law in force for the moment, proper consultation was carried out. However, it is the amendment thereto by Hon Tusiime and Hon Nandala Mafabi, which did not go through the same process as they were made when the Bill was already midstream.   

Violence during the amendment process.

It is the Petitioners' contention that the Bill was passed amidst violence  within and outside Parliament, and also in the whole of the country during public consultations; thereby vitiating the entire process, and thus making it unconstitutional. On the evidence, the violence started from within Parliament, and between Members of Parliament themselves, when for reasons that are difficult to fathom they abandoned their well known tool of communication in Parliament – namely the use of permissible speech, inclusive of occasional oral belligerence – in  preference for the dishonourable and ignoble use of the fists, other limbs, chairs, and  microphone stands, to express their displeasure with one another and other officials of Parliament. 

It is important to take note of the fact that the commencement and execution of the two incidents of violence by the Parliamentarians preceded any deliberations on the Magyezi Bill. Furthermore, it is quite unfortunate that all this happened in defiance Speaker who spent tireless of the efforts to restore order in and decorum of Parliament; constraining the Speaker to order for the ejection of 25 Members whom she considered were unruly and disruptive. It is against this backdrop that the members of the UPDF intervened. Admittedly, the UPDF can intervene in matters of violence that are civil. The question is when the UPDF can justifiably and thus lawfully intervene in a situation that requires intervention by someone who has the superior force to do so. 

The evidence adduced in Court shows that what was happening in Parliament was akin to the type of brawls and fracas one would expect to happen in a bar or a malwaa (local potent brew) joint. For this, the Sergeant at Arms did not consider it such a security threat as would require outside intervention. It was when certain members of the House had shown defiance to the orders of the Speaker that he sought Police reinforcement. There was absolutely no reason for the intervention of the UPDF. Proof of this is in the fact that the members of the UPDF who intervened went barehanded in civilian attire; something they would not have done had the situation been such as to warrant their intervention.

The more important point we must always remind ourselves and posterity about, is the fact that we have had a sad and painful history of military intervention in matters that are purely civilian. There is however unanimity across the board that the UPDF is quite a different class or category of military from its predecessors. Part of this view lies in the fact that we can proudly say we have a military whose membership are professional officers – men and women – who can engage anyone in a debate on political economy. That is an attribute, which we must all guard zealously. It was therefore a gross error of judgment on the part of the Army Chief to deploy the UPDF in a situation that did not, by any stretch of classification, warrant military intervention. 

It has to be stated in no uncertain language that the Police Force is a national institution whose noble duty is to ensure the maintenance of law and order in the country; and this, for the benefit of all the people of, and within, the territorial jurisdiction of Uganda. The Police Force must exercise its national responsibility in a professional and non–partisan manner; and indiscriminately serve the people without any favour, malice, or ill will. The Circular, which the leaders of the Police Force sent to the Police throughout the country to ensure that members of Parliament were restricted in their Constituencies in their consultation of the people, and intimating that this was to ensure members of the opposition did not interfere with the process of consultation, was most unfortunate.

The Police Force does not belong to, and must never ever serve the interest of any political party, whether, as is referred to in common parlance – which in our circumstance may be a misnomer – it is the political party in government. This is owing to the fact that our Constitution and democratic dispensation recognises that Parliament is one of the three arms of government alongside the Executive and the Judiciary; hence, since the opposition parties are also in Parliament, they are together in government with the political party that forms the executive arm of government. In Campbell's Trustees vs Police Commissioner of Leith (1870) LR 2HL (Sc) 1, at p.3, Lord Hatherly said:

"The courts will hold a strict hand over those to whom the legislature has entrusted large powers, and take care that no injury is done by extravagant assertion of them."

However, despite the unwarranted and wrongful intervention by the UPDF, and the Police interfering with the consultation of some of the members of Parliament, in the manner that came out in evidence, there are extenuating circumstances that point to the fact that the ramifications of the interventions did not vitiate the process in Parliament that resulted in the enactment of the Constitution Amendment Act in any way. The consultations took place fairly well. Hon Robert Kyagulany is on record as having traversed the whole country; whereat he established that the majority of the people wanted the Constitution to be left intact. Parliament continued with its business, apparently after realising the folly of turning weapons at each other. On the evidence, there was always a full House when the Speaker put the question for a vote.

Issue 13:    Whether the continuance in Office by the President elected in                   2016 and remains in office upon attaining the age of 75 years                    contravenes Articles 83 (1) (b) and 105 of the Constitution of                              the Republic of Uganda.  

This issue came up before the provision in the Constitution was amended by lifting the age limit. It is surprising that this is an issue at all. The provision of the Constitution on the matter was Article 105 (1); which provides as follows:

            “(1) A person elected President under this Constitution shall, subject to clause (3) of this article, hold office for a term of five years.”

Clause 3 provides:

            “(3) The office of President shall become vacant

            (a) on the expiration of the period specified in this article; or

            (b) if the incumbent dies or resigns or ceases to hold office under article 107 of this Constitution.”

Article 107 provides for the circumstances under which the President may be removed, including; abuse of office, misconduct, among others.

The defining provision for this issue is Article 105 (3) (a); and we take it that ‘on the expiration of the period specified in this article’, means until the expiration of the 5 years for which the President was elected. What this means is that  a President who attains the age of 75 years, while serving a 5 year term would still continue in office until the expiration of the term. We find the requirement of age as a qualification for being elected President is at the point of election; and not at the end or during the incumbency. A President who is elected on the day he or she attains the age of 74 years would be entitled to stay in office for the next five years. This means he or she can stay in office up to the age of 79 years!

Issue 14: What remedies are available to the parties?

The parties to the Petitions made various prayers.

Severance

At the hearing of the Petition, counsel for the petitioners prayed that Court finds that the entire process of conceptualizing, consulting, debating and enacting the Act was flawed and as such Court should declare it a nullity. Counsel Ogalo prayed that in the event that Court found that the whole process was not flawed, it should apply the principle of severance.

On the other hand, counsel for the respondent prayed that Court finds that Amendment Act was lawfully enacted and should accordingly dismiss the Petition with costs to the respondent. He also prayed that in the unlikely event Court found that some parts of the process contravened the Constitution, it should then apply the severance principle and save the lawful bits and nullify the unconstitutional provisions.

Resolution

Severance

Having found as we have, the question then is whether to sever the valid amendments from the invalid ones; or take the whole Act as unlawful; hence invalid. ‘Severance’ is defined in Black’s Law Dictionary, 9th Edition, at page 1498 as:

            “The act of cutting; the state of being cut off. The separation, by the court, of the claims of multiple parties either to permit separate actions on each claim or to allow certain interlocutory orders to become final.”

The principle of severance is in fact enshrined in the 1995 Constitution. Article 2 of the Constitution provides as follows:

"2.    Supremacy of the Constitution.

(1)    This Constitution is the supreme law of Uganda and shall have binding force on all authorities and persons throughout Uganda.

(2)    If any other law or any custom is inconsistent with any of the provisions of this Constitution, the Constitution shall prevail, and that other law or custom shall, to the extent of the inconsistency, be void." (emphasis added).

In Silvatori Abuki v Attorney General; Constitutional Case No. 2 of 1997, the Constitutional Court considered the constitutionality of Sections 3 and 7 of the Witchcraft Act, Cap 108. It was argued that Section 3 contravened Article 28 (12) of the Constitution because it did not define the offence of witchcraft. It was also argued that the provision for the exclusion orders, in section 7 in particular, infringed Articles 24, 26 (2), 29 (2) and 44 of the Constitution. The Court did not declare the whole Act invalid; but only a number of sections of the Witchcraft Act, Cap 108, a nullity. It left the Act with those provisions, which were valid for being in accord with the law MANYINDO, DCJ stated in that case as follows:

            “I would therefore declare as follows:

1.  Sections 2 and 3 (3) of the Witchcraft Act are vague. They do     not meet the requirements of Article 28 (12) of the     Constitution. 
2.  The Petitioner was not accorded a fair hearing as required       under article 28(1) of the constitution. 
3.  Exclusion order is unconstitutional for being inconsistent                  with      article 24 ‘and 44 and 26 in that it threatens the       petitioner’s       life and right to
property. 
4.   Redress: As the trial was a nullity, the Petitioner having been           tried of a vague offence, the petitioner would be ordered to be set free. 

   I would therefore allow the petition with costs to the petitioner.” 

In the instant case, I am persuaded that it is a proper case for applying the principle of ‘severance’ provided for under Article 2(2) of the Constitution, which is that it is only the provision of the law that is in conflict with the Constitution that is void; thereby leaving the healthy provisions of such law valid. I would therefore strike out sections 2, 5, 6, 8, 9 and 10 of the Constitution (Amendment) Act 2018, which provide for the extensions of the tenure of Parliament and Local Government Councils by two years, and reinstatement of the Presidential term–limits. They contravene provisions of the Constitution; and are, therefore, unconstitutional.  

On the other hand, I find that sections 1, 3, 4, and 7, of the Constitution (Amendment) Act No. 1 of 2018, which remove age limits for the  President and Chairperson of Local Council V to contest for election to the respective offices, and for the implementation of the recommendations of the Supreme Court in Presidential Election Petition No. 1; Amama Mbabazi vs Yoweri Museveni, as the lawful and valid provisions of the Act. They have, each, been passed in full compliance with the Constitution. In the event, I would allow the Petitions only in part; as shown above.   

Costs

            It is trite that costs are awarded to parties at the discretion of Court. That discretion must however be exercised judiciously. With regard to the Petitions herein, there is no denying that the Petitioners took on an important national task, which was not intended to benefit them personally; but for the benefit of our beloved country. People such as the Petitioners herein are the true vanguards of the desired need to protect our Constitution, and nurture the culture of constitutionalism; and thereby uphold the rule of law. It is therefore proper that they be reasonably indemnified for the expenses and other resources they have put in their undertaking to promote the much–cherished wellbeing of the nation; and also to be rewarded for the energy, time, and expertise, they have put into the endeavour.

            I would therefore award professional fee of U. shs. 20m/= (Twenty million only) for each Petition (not Petitioner). This however does not apply to Petition No. 3 of 2018 where the Petitioner prayed for disbursements only, and Petition No. 49 of 2017 where the Petitioner appeared in person. However, I would award two–thirds disbursements to all the Petitioners.

ORDERS

            In the event then, this Court makes the following declarations and orders; namely:

            1.     By unanimous decision, the Court declares sections 2, 5, 6, 8, 9 and 10 of the Constitution (Amendment) Act 2018, which        provide for the extensions of the tenure of Parliament and     Local Government Councils by two years, and for the   reinstatement of the Presidential term–limits unconstitutional for contravening provisions of the Constitution.

            2.     Accordingly, sections 2, 5, 6, 8, 9 and 10 of the        Constitution (Amendment) Act 2018, are hereby struck out   of the Act.

            3.     By majority decision (Owiny – Dollo, DCJ/PCC; Kasule, Musoke,         Barishaki Cheborion, JJCC; with Kakuru JCC dissenting), the    Court declares that sections 1, 3, 4, and 7, of the Constitution   (Amendment) Act No. 1 of 2018, which remove age limits for        the President, and Chairperson Local Council V, to contest for   election to the respective offices, and for the implementation        of the recommendations of the Supreme Court in Presidential      Election Petition No. 1; Amama Mbabazi vs Yoweri Museveni,         have, each, been passed in full compliance with the         Constitution; and therefore remain the lawful and valid       provisions of Constitution (Amendment) Act No. 1 of 2018.

            4.     Court awards professional fee of U. shs. 20m/= (Twenty million only) for each Petition (not Petitioner). This however       does not apply to Petition No. 3 of 2018 where the Petitioner         prayed for disbursements only, and Petition No. 49 of 2017        where the Petitioner appeared in person.

            5.     Court awards two–thirds disbursements to all the Petitioners; to be taxed by the Taxing Master.

            Dated at Mbale; this 26th day of July 2018.

 

Alfonse Chigamoy Owiny – Dollo

Deputy Chief Justice & President of the Constitutional Court

 

 

THE REPUBLIC OF UGANDA

IN THE CONSTITUTIONAL COURT OF UGANDA

SITTING AT MBALE

 

CONSOLIDATED CONSTITUTIONAL PETITIONS

 

  1. CONSTITUTIONAL PETITION NO. 49 OF 2017

 

Male Mabirizi Kiwanuka :::::::::::::::::::::::::::::: Petitioner

 

Versus

 

The Attorney General of Uganda ::::::::::::  Respondent

 

AND

 

  1. CONSTITUTIONAL PETITION NO. 3 OF 2018

 

Uganda Law Society ::::::::::::::::::::::::::::::::::: Petitioner

 

Versus

 

The Attorney General of Uganda:::::::::::::: Respondent

 

AND

 

  1. CONSTITUTIONAL PETITION NO. 5 OF 2018

 

  1. Hon. Karuhanga Kafureka Gerald
  2. Hon. Odur Jonathan
  3. Hon. Munyagwa S. Mubarak
  4. Hon. Ssewanyana Allan                       :::::::::::Petitioners
  5. Hon. Ssemuju Ibrahim
  6. Hon. Winne Kiiza                            

         

VERSUS

The Attorney General of Uganda:::::::::::::::::Respondent

AND

  1.  CONSTITUTIONAL PETITION NO. 10 OF 2018

 

  1. Prosper Businge
  2. Herbert Mugisa
  3. Thomas Mugara Guma       ::::::::::::::::::::::::Petitioners
  4. Pastor Vincent Sande

 

 

Versus

The Attorney General::::::::::::::::::::::::::::::::::Respondent

 

AND

 

  1. CONSTITUTIONAL PETITION NO. 13 OF 2018

 

Abaine Jonathan Buregyeya ::::::::::::::::::::::::::Petitioner

 

Versus

 The Attorney General of Uganda::::::::::::::::::::Respondent

Coram:   Hon. Mr. Justice Alfonse C. Owiny-dollo, DCJ

              Hon. Mr. Justice Remmy Kasule, JA/JCC

Hon. Mr. Justice Kenneth Kakuru, JA/JCC

Hon. Mr. Justice Cheborion Barishaki, JA/JCC

Hon. Lady Justice Elizabeth Musoke, JA/JCC

 

 

JUDGMENT OF HON. JUSTICE REMMY KASULE

Background:

The above five Constitutional Petitions were consolidated for the purpose of being heard and determined together due to the similarity of the issues each one raised.

The Constitutional Court, in its endeavour to make Ugandans, outside Kampala where the Constitutional Court has hitherto sat to determine Constitutional issues, felt it appropriate that this time, the Court determines these issues away from Kampala, so that Ugandans elsewhere also experience how the Constitutional Court goes about determining Constitutional issues that have a bearing upon the governance structure of the country.  The Court thus decided to determine the above five Constitutional Petitions at the High Court, Mbale.

Other Constitutional Petitions, with similarity of issues, like those in the consolidated ones, were also listed for hearing in Mbale with the consolidated petitions.  These were:

  1. Constitutional Petition No. 41 of 2014

Benjamin Alipanga ::::::::::::::::::::::::::::::: Petitioner

 

  •  

 

 

The National Resistance Movement

Justine Lumumba

Richard Todwong

Rose Namayanja::::::::::::Respondents

Kenneth Omona

The Attorney General of Uganda

The National Resistance Movement

 

  1. Constitutional Petition No. 34 of 2017

Centre for Constitutional Governance

Legal Brains Trust (LBT):::::::::::::::Petitioners

Miria R.K. Matembe

  •  

Attorney General :::::::::::::::::::::::::::::::::::::::::::::: Respondent

 

  1. Constitutional Petition No. 37 of 2017

 

Advocates for Human Rights,

Peace and Development(AHUPED)::::::::::::::::::::::: Petitioner

  •  

Hon. Raphael Magyezi

Attorney General::::::::::::::::::::::::::::::::::::Respondents

 

  1. Constitutional Petition No. 44 of 2017

Dr. Abed Bwanika ::::::::::::::::::::::::::::::::::::::::::::::::: Petitioner

  •  

The Attorney General :::::::::::::::::::::::::::::::::::::::: Respondent

All the above Constitutional Petitions were called up for hearing on 09.04.2018 and were dismissed with no order as to costs either on the ground that the parties to the petitions and their respective Counsel were absent or that the parties had withdrawn the petition(s).

The Consolidated Constitutional Petitions, the subject of this Judgment, arise from the enactment by Parliament of a member’s (Hon. Raphael Magyezi) private Bill: The Constitution (Amendment) Bill, 2017 (The Magyezi Bill) which was finally enacted by Parliament into The Constitution (Amendment) Act, No. 1 of 2018 (herein to be referred to as “The Act”).  This Act amended the Constitution in these areas:

First, as to qualification for election as President of Uganda, or as a district chairperson of one being “not less than thirty-five years and not more than seventy-five years of age” hitherto contained in Articles 102 and 183 (2) (b) of the Constitution was removed. Sections 3 and 7 of the Act effected this amendment.