HON JUSTICE L.E.M. MUKASA KIKONYOGO, DCJ
HON JUSTICE A.E.N.MPAGI-BAHIGEINE,
HON JUSTICE C.N.B. KITUMBA, JA
HON JUSTICE C.K. BYAMUGISHA, JA
l bre on the point is
Kwizera Eddie, hereinafter referred to as the petitioner, filed this petition against the Attorney General seeking the following
That article 80(4) of the Constitution as amended by Act No. 11 of 2005 is in contravention of
and inconsistent with articles 1(4) and 38(1) of the same Constitution.
21(1) and 38(1) of the Constitution and infringes on the petitioner’s inherent rights guaranteed by the same Constitution.
In the further alternative make an order or declaration defining the term “person employed in any Government department or agency of the Government” appearing in article 80(4) of the Constitution as amended by Act No. 11 of 2005.
Make an order condemning the respondent in costs of this petition.”
The petition is based on the following grounds:
That article 80(4) of the Constitution of the Republic of Uganda as amended by the Constitution
Amendment Act 2005 (Act No. 11 of 2005) is in contravention of and inconsistent with articles 1(4) and 38(1) and discriminatory of
the petitioner’s rights enshrined in articles 21(1) of the Constitution of the Republic of Uganda.
Article 80(4) of the Constitution of the Republic of Uganda as amended by Act No. 11 of 2005 infringes
on the petitioner’s inherent rights guaranteed by the same Constitution.”
It was filed under Article 137 of the Constitution. The rules of the Constitutional Court (Petitions for Declarations under Article 137 of the Constitution)
Directions, 1996; and The Interpretation of the Constitution (Procedure Rules, 1992 (Modification) Directions 1996. It was supported by his own affidavit dated 3-10-2005.
Mr. Paul Kiapi appeared for the petitioner while Mr. Joseph Matsiko, Ag Director Civil Litigation, represented the respondent Attorney
The agreed facts were that:
Parliament amended article 80 of the Constitution by introducing clause 4 to that Article, which provides:-
or an employee of a local government or any body in which the government has a controlling interest who wishes to stand in a general
election as a Member of Parliament shall resign his or her office at least ninety days before the nomination day.”
which contention the respondent denies.
The agreed issues were:
Regarding issue No.1, Mr. Kiapi submitted that the petition was seeking to nullify certain provisions. It was competent and that
this court had jurisdiction to hear and determine it. He argued that it is settled law that this court has jurisdiction to construe
one provision against another, citing P. K. Semwogerere and 2 others v Attorney General, Constitutional Petition No. 1 of 2002 which, with respect, he must have misconstrued. Learned counsel maintained that the court had jurisdiction to nullify any part of
it as against another and that therefore, this petition was competent and not incompetent as contended by the respondent.
Mr. Matsiko opposed the petition and orders sought thereunder contending that the powers of this court did not involve nullifying
any part of the Constitution but rather harmonising all parts concerning a subject matter. Referring to the different judgements
in Constitutional Petition No.1/2001, learned counsel asserted that their Lordships did not at any time talk of “nullifying” the Constitution but rather of “harmonising” it so as to give effect to all its provisions. He submitted that this court has thus no power to nullify any part thereof and that
Mr. Kiapi’s argument rendered the petition incompetent. He prayed court to answer Issue No.1 in the affirmative.
This court sitting as a Constitutional Court is a creature of Article 137 from which it derives its powers. The scope of these powers
has been highlighted by the Supreme Court and this court in various judgements, drawing from various common wealth and foreign authorities.
It is unnecessary to reproduce all the pertinent excerpts to this issue from Constitutional Petition No. 1/2001. P. K. Semwogerere And Others v Attorney General, as they all concur. Suffice it to cite only a few. In the judgement of Odoki CJ at page 4, his Lordship said:
to construe one provision against another in the Constitution. It is not a question of construing one provision against another,
but of giving effect to all the provisions of the Constitution. This is because each provision is an integral part of the Constitution
and must be given meaning or effect in relation to others. Failure to do so will lead to an apparent conflict within the Constitution.”
The cause c
the others and to be considered alone, but that all the provisions bearing upon a particular subject are to be brought into view
and to be interpreted so as to effectuate the great purpose of the instrument.”
on a subject as much as possible so as to bring out the spirit of the great document as a whole. As indicated in the judgement of
Mulenga JSC at page 4, the learned Justice of the Supreme Court said:
Even where it is not possible to harmonise the provisions brought before it, the court has the responsibility to construe them and
pronounce itself on them, albeit to hold in the end that they are inconsistent with each other. Through the execution of that responsibility,
rather than shunning it, the court is able to guide the appropriate authorities, on the need, if any, to cause harmonisation through
Thus where the various articles are irreconcilable thus rendering harmonisation impossible, this court would only recommend an appropriate
course of action to the appropriate authorities. This is, however, not to be confused with the correlated power under article 2 to
declare null and void an Act of Parliament or parts thereof, be it a Constitution (Amendment) Act or ordinary Act which the court
might find to be inconsistent with the Constitution since the Constitution is the Supreme Law. Article 2 states:
(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.”
any part of the Constitution. I would thus answer issue No. 1 in the negative.
Regarding issue No.2, as to whether article 80(4) of the Constitution is inconsistent with and in contravention of article 1(4),
21(1) and 38(1) of the same Constitution, Mr. Kiapi pointed out that in as far as article 1(4) provides for free and fair elections; article 80(4) whittles away free and fair elections. He relied on Election Petition No.1 of 2001 Dr. Kiiza Besigye v Museveni Yoweri Kaguta where the concept of free and fair elections was expansively examined by their Lordships and submitted that the resignation envisaged
under the amendment discriminatively applied to some people and not to others. He was further concerned with the time factor involved,
maintaining that the amendment was enacted too late to allow sufficient time for the targeted officers to tender in their resignations,
whose procedure was too elaborate, before the prescribed time for nomination. The nomination days which were scheduled for 12th and 13th January 2006 were only gazetted on 21-11-2005. He pointed out that by enacting article 80(4) Parliament legislated inequality in
the political arena by requiring a certain sector of citizens to resign their jobs 90 days before nomination. Furthermore, it left
ambiguous the term “a person employed in a Government Department or Agency” thus rendering the article open to misinterpretation due to its ambiguity.
Regarding article 38(1) as to the right to participate in the affairs of Government, Mr. Kiapi submitted that article 80(4) is discriminatory
in that it has the effect of unlevelling the playing field. It tends to close out many citizens from participating in elections and
Mr. Matsiko, however, contended that article 1(4) only gives the people a right to determine how they wish to be governed. The requirement
of public officers to resign does not divest the public of their right to be governed as they wish. It does not infringe on the right
to free and fair elections. Furthermore, it was not shown to court how unreasonable the 90 days period in article 80(4) was, which
ground was never ever pleaded in the petition. Concerning article 21(1) Mr. Matsiko asserted that Article 80(4) is not based on any
of the attributes of discrimination as defined in article 21(3). He submitted that article 80(4) only required one to resign if one
intended to stand for election.
Regarding article 38(1) Mr. Matsiko stated that it is about giving the public a right to participate in the affairs of Government
individually or through representatives. The requirement to resign does not in any way divest Ugandans of their right to participate
in governance. On the contrary Article 80(4) allows everybody in governance to resign public office and be able to participate unhindered.
Mr. Matsiko prayed court to answer Issue No.2 in the negative.
of a local government or anybody in which the government has a controlling interest who wishes to stand in a general election as
a member of Parliament shall resign his or her office at least ninety days before the nomination day.”
“1(4). The people shall express their will and consent on who shall govern them and how they should be governed, through regular,
free and fair elections of their representatives or through referenda.”
Whether or not article 80(4) whittles away free and fair elections, it is necessary to look at Election Petition No.1 of 2001, Dr. Kiiza Besigye v Museveni Yoweri Kaguta in which article 1(4) was expansively examined. In his judgement, the Chief Justice Ben Odoki commenting on article 1(4) said, inter
To ensure that elections are free and fair there should be sufficient time given for all stages of the elections, nominations, campaigns,
voting and counting of votes… Candidates should not be deprived of their right to stand for elections, and the citizens to
vote for candidates of their choice through unfair manipulation of the electoral process by electoral officials. There must be a
levelling of the ground so that the incumbents or government ministers and officials do not have an unfair advantage.
… Election Law and guidelines for those participating in elections should be made and published in good time. Fairness and
transparency must be adhered to in all stages of electoral process…”
of the election. It begins with the electoral laws that govern all the aspects of the election. In the instant case, the court is
not concerned with validity of the laws but with the need for a level playing field for all participants… observance of the
fundamental rights and freedom of the individual during the electoral process, as at all times, is also an important aspect of free
and fair elections.”
His Lordship Mulenga JSC similarly observed:
between the competing candidates.”
from an office under the Constitution, to be simply by letter addressed to the appointing or electing authority, it becomes clear
that there was no sufficient time to make the 90 days prescribed prior to January 12th and 13th. This was the first hurdle the Electoral Commission had to resolve. Could the aspirants resign or could they not? This remained unresolved
by the legislators and responsible authorities. Time was of essence. The law was late and therefore ineffective. It should have been
enacted well in time. Thus, the would be free and fair elections hit an insurmountable hurdle right from the start. This was, however,
one aspect of the matter.
The second aspect is the formulation of the entire amendment (article 80(4)). In this respect, one of the principles of constitutional
interpretation provides that all the articles bearing upon or pertinent to a subject under discussion must be brought within purview
when discussing a related article. Thus when considering the term ‘public officer’ articles 80(4), 175 and 257(1) and
(2) (b) must all be considered together.
These others read as follows:
“Public officer” means any person holding or acting in an office in the public service;
“public service” means service in any civil capacity of the Government the emoluments for which are payable directly from the consolidated fund or directly out of moneys provided by Parliament.”
President, the Speaker or Deputy Speaker, a Minister, the Attorney General, a Member of Parliament or a Member of any commission,
authority, council or committee established by this Constitution.”
It is thus clear that while article 80(4) targets public officers as defined above in an attempt to level the playing field, which
would in itself be commendable, nonetheless, it excludes the political class as specified under article 257(2)(b). It cannot be disputed
that it is the political class who are the main players in the electoral playing field. They are better equipped or facilitated by
the state than any ordinary aspirant or public officer specified under articles 175 and 257(1). This, therefore, gives them leverage in every way over these other contenders. I can do no better than refer to the holding in the judgement of the Chief Justice, Ben
Odoki, in Election Petition No.1 of 2001 (supra) where his Lordship states:
players in the same field, under article 257(2) (b), when attempting to level the playing field by enacting article 80(4). This renders it incontestably inconsistent with article
1(4). I would therefore agree with Mr. Kiapi’s grievances and answer this in the affirmative.
As regards article 21(1), which reads:
every other respect and shall enjoy equal protection of the law.”
ethnic origin, tribe, birth, creed or religion, or social or economic standings, political opinion or disability.’
It is noteworthy that for the present purpose, a big percentage of the political class, exonerated under article 257(2) (b) subscribes to the same political opinion. Impliedly, this political leaning would benefit immensely over the other political groupings
and individuals. The relevance of article 21 to the electoral process, in my view, is simply to bar anyone from giving different
treatment to different persons, by employing the state machinery to favour certain classes of candidates. Article 80(4) has such
effect. The exonerated political class would still enjoy the social and financial muscle and protection denied to other contenders
while electioneering. Clearly, this treatment would be discriminative. Article 80(4) is thus irreconcilable and inconsistent with
Concerning article 38(1), which reads:
in accordance with law.”
the playing field by closing out many citizens from participating in elections and government. Article 38(1) neither expressly nor
by implication bars any citizen from participating in the affairs of government. All it does is to allow anybody who wishes to participate
in the affairs of government to do so in any of the ways prescribed under the law. I thus find no merit in this complaint.
Regarding issue No.3, Mr. Kiapi sought this court’s interpretation of the phrases “a person employed in any Government department or agency of the Government” as it is ambiguous and apt to mislead. Mr. Matsiko on the other hand contended that interpreting words and phrases was not within
the powers granted to this court under article 137(3) which states –
(3) A person who alleges that –
to that effect, and for redress where appropriate.
provisions of the Constitution. The court’s powers under article 137(3) are very wide. The court’s duty is to review
Acts of Parliament and other laws so as to determine any issue or question on the inconsistence of any provision and/or on the contravention
of the Constitution by anything, act or omission by any person/authority. This cannot be done without giving meanings to words/phrases.
The words and phrases Mr. Kiapi seeks this court to give meaning to are contextually the gist of the amendment article 80(4) which
is the subject of this petition. Therefore to hold that this court’s role does not involve interpretation of words and/or phrases
would in my view, be tantamount to misunderstanding or shunning our duty.
I would thus hold that this court can entertain issue No. 3, and interpret the words and phrases in question.
That being the case, according to the literal rule of interpretation, the context of the phrases complained of, to wit “a person employed in any government department or agency of the government” permit of no other definition than that of an officer employed in any government department or in any of those bodies controlled
by the government and whose emoluments are payable directly from the consolidated fund or directly out of moneys provided by Parliament.
I would therefore make the following declarations:
Issue No. 1 –
The petition is competent.
Article 80(4) of the Constitution is inconsistent with and in contravention of Articles 1(4) and 21(1).
The petition therefore succeeds in part.
Dated at Kampala this ……25th ……day of ……August…2006.
JUSTICE OF APPEAL
bre on the point isSmith Dakota v North Carolina 192 1940 268 where the Supreme Court of USA pronounced: