“… It also entails equal opportunity among candidates to access the electorate, as well as, among the electorate to choose
between the competing candidates.”
Article 80(4) was enacted under the Constitution (Amendment) (No.3) Act, 2005 Section 18(d). It came into effect on 26th September 2005. The nomination days scheduled for 12th and 13th January 2006 were gazetted on 23rd December 2005. The aspiring candidates had to resign 90 days before nomination. Though article 252 prescribes the procedure for resignation
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:
“175. In this chapter, unless the context otherwise requires-
“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.”
Similarly article 257(1) defines
‘public officer’ to mean an office in the public office, ‘public officer’ means a person holding or acting in any public office and ‘public service’ means service in a civil capacity of the government or of a local government.
The foregoing must, nonetheless, be read with article 257(2) (b) which states:
“(b) a reference to an office in the public service does not include a reference to the office of the President, the Vice –
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:
“…there must be a levelling of the ground so that the incumbents or government Ministers and officials do not have unfair
I think it does not augur well with the principle of fair play for the legislature to omit or to remain silent about the main political
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:
“21(1) All persons are equal before and under the law in all spheres of political, economic, social and cultural life and in
every other respect and shall enjoy equal protection of the law.”
The entire article 21 safeguards equality and freedom from discrimination. ‘Discrimination’ under the article is defined under clause (3) to mean ‘give different treatment to different persons attributable only or mainly to their respective descriptions by sex, race, colour,
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:
“38(1) Every Ugandan citizen has the right to participate in the affairs of government, individually or through his or her representatives
in accordance with law.”
I have difficulty in appreciating Mr. Kiapi’s contention that article 38(1) is discriminatory in that it has the effect of unlevelling
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 –
an Act of Parliament or any other law or anything in or done under the authority of any law; or
any act or omission by any person or authority is inconsistent with or in contravention of a provision of this Constitution, may petition the Constitutional Court for a declaration
to that effect, and for redress where appropriate.
My view is that the duty of this court under article 137 basically involves and embraces giving meaning to words and expressions of
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.
Issue No. ii –
Article 80(4) of the Constitution is inconsistent with and in contravention of Articles 1(4) and 21(1).
Article 80(4) is not inconsistent with Article 38(1).
Issue No. iii –
The petition therefore succeeds in part.
I would order each party to bear its own costs.
Dated at Kampala this ……25th ……day of ……August…2006.