Court name
Supreme Court of Uganda
Judgment date
28 January 2004

Paul k Ssemogerere and Ors v Attorney General (Constitutional Appeal-2002/1) [2004] UGSC 10 (28 January 2004);

Cite this case
[2004] UGSC 10

THE REPUBLIC OF UGANDA

IN THE SUPREME COURT OF UGANDA

AT MENGO




CORAM: ODOKI, CJ; ODER, JSC; TSEKOKO, JSC; KAROKORA, JSC;
MULENGA, JSC; KANYEIHAMBA, JSC; BYAMUGISHA, AG.JSC.


CONSTITUTIONAL APPEAL NO.1 OF 2002

BETWEEN
1. PAUL K. SSEMOGERERE
2. ZACHARY
OLUM

3. JULIET RAINER KAFIRE :::::::::::::::::::::::::
APPELLANTS

AND

ATTORNEY-GENERAL :::::::::::::::::::::::::::::::: RESPONDENT

(Appeal from the majority Judgment of the Constitutional Court of
Uganda sitting at Kampala on the 17th April, 2002

(Mukasa- Kikonyogo,DCJ, Kato, Kitumba JJA;) with Mpagi-
Bahigaine
and Twinomujuni JJA; dissenting) in
Constitutional Petition No.7 of 2000)


JUDGMENT OF BYAMUGISHA, Ag. JSC

I had the benefit of reading in draft form the lead judgment prepared by
Kanyeihamba JSC. I also read all the draft judgments that were prepared
by the learned justices of this Court. I entirely agree with the
conclusions that have been arrived at that Act 13 of 2000 is null and
void. There was substantial non-compliance with mandatory provisions of the
Constitution with regard to the amendment
of its provisions. These provisions
were ably pointed out in the lead judgment. I therefore concur that the
appeal ought to succeed. I also agree with the declarations that
Kanyeihamba JSC has proposed. I have nothing more useful to
add.




JUDGMENT OF MULENGA JSC.


I had the advantage of reading in draft the judgment prepared by my learned
brother, Kanyeihamba JSC. I agree that this appeal ought
to succeed. I also had
the further advantage of reading, the judgments of my learned brothers, Odoki
CJ, Oder, Tsekooko and Karokora
JJ.S.C, with which I agree.

I will briefly give my reasons for allowing the appeal.

The appeal arises from a decision of the Constitutional Court dismissing a
petition brought by the above named appellants, under Article
137(3) of the
Constitution, challenging the constitutionality of the Constitution (Amendment)
Act, No 13 of 2000, "the Act". I need not repeat the background to the
appeal, as it is sufficiently set out in the judgment of Kanyeihamba JSC. It
suffices to say that in their joint petition, the appellants alleged that
Parliament passed the Act without due compliance with relevant
provisions of the
Constitution, and that some provisions of the Act violate some Articles of the
Constitution. The respondent contested
the petition, and at the start of
hearing, took out preliminary objection to the petition, asking the court to
strike it out on two
grounds, namely, that -

The affidavits
supporting the petition were defective and inadmissible;
and
The court lacked jurisdiction to
interpret the Act which had become part and parcel of the
Constitution;

The Constitutional Court overruled the
objection, holding that the affidavits were admissible, and that the court had
jurisdiction
to determine if Parliament followed the proper procedure in passing
the Act. However, in the course of its ruling, it also held that
it -
"
would have no jurisdiction to inquire into the question whether the amending
sections, if they properly became part of the constitution, were
unconstitutional".

That holding had tremendous influence on the final
decision of the court, as I will illustrate presently. In support of the
holding,
the court cited its previous decision in James Rwanyarare
& Another vs. Attorney General,
Constitutional Petition No.5 of 1999, and an Indian decision in
Kesavananda vs. State of Kerala AIR 1973 SC 146. I should observe
in passing, however, that the court seems to have misconstrued the latter case,
as the majority
decision therein does not support the said holding. Be that as
it may, the petition proceeded to hearing on one framed issue, namely
whether
the Act -
"was passed in compliance with the procedural requirement for
the amendment of the Constitution",
which the court answered by majority of
3 to 2, in the affirmative, and dismissed the petition.


My conclusion
from reading the preliminary ruling and the judgments in this case, is that the
undercurrent, which is what the court
meant to portray in the said holding, was
that it had no power to declare any provision of the Constitution void. To my
mind, however,
jurisdiction to interpret or construe a constitutional provision,
and power to declare such a provision void, are two different things.
Nevertheless, in the final decision, the majority of the court appear to have
considered that their hands were tied by the holding
in the preliminary ruling,
to the extent that they declined to consider questions, which clearly arose from
the pleadings, for fear
of "interpreting one constitutional provision against
another".
The issue of the court's jurisdiction is now subject of the sixth
ground of appeal, which reads in part as follows -
"6. The
Constitutional Court erred in law and fact when they held that a Constitutional
Court would have no jurisdiction to construe
part of the Constitution as against
the rest of the Constitution "



The Constitution prescribes the
jurisdiction of the Constitutional Court in clause
(1) of Article 137, as
follows -
"Any question as to the interpretation of this Constitution
shall be determined by the Court of Appeal sitting as the Constitutional
Court."

The court is thus unreservedly vested with jurisdiction to determine any
question as to the interpretation of any provision of the
Constitution. With
regard to interpretation of the Constitution, the court's jurisdiction is
unlimited and unfettered. This is reiterated
in clause (5), which provides for
reference of "any question as to the interpretation of this Constitution",
arising in any proceedings in a court of law, to the Constitutional Court
"for decision in accordance with clause (1)". Clause (3) provides that
any person who alleges that a law or anything done under law, or any act or
omission by any person or authority,
is inconsistent with, or in contravention
of, any provision of the Constitution, has a right to access the Constitutional
Court directly
by petition. Thereupon the Constitutional Court may grant a
declaration that such law, thing, act or omission is inconsistent with
or
contravenes the provision in question. To my mind, the clause does not thereby
preclude the court from interpreting or construing
two or more provisions of the
Constitution brought before it, which may appear to be in conflict. In my
opinion, the court has, not
only the jurisdiction, but also the responsibility
to construe such provisions, with a view to harmonise them, where possible,
through
interpretation. It is a cardinal rule in constitutional interpretation,
that provisions of a constitution concerned with the same
subject should, as
much as possible, be construed as complimenting, and not contradicting one
another. The Constitution must be read
as an integrated and cohesive whole. The
Supreme Court of U.S.A., in Smith Dakota vs. North
Carolina
192 US 268 (1940) put the same point thus -
"It is
an elementary rule of constitutional construction that no one provision of the
Constitution is to be segregated from 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
as to effectuate the great purpose of the
instrument."

There is no authority, other than the Constitutional Court, charged with the
responsibility to ensure that harmonisation. 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
amendment. In my opinion
therefore, the decision that the Constitutional Court has no jurisdiction to
construe or interpret any provision
of the Constitution is misconceived and
erroneous in law. The sixth ground of appeal ought to
succeed.


Grounds 1, 2 and 3 are complaints based on two combined but
distinct contentions. In each ground, it is contended first, that the
court
erred to hold that the Act did not indirectly amend a set of Articles, and
secondly that the amendment of the set of Articles
was required to be in
accordance with Articles 259 and 262. The second contention is reiterated in
ground 4, which is a complaint
that the court erred in holding that the
appellants failed to prove non-compliance with procedures under Articles 259 and
262. The
holding by the majority, in respect of the first contention, was that
since the three sets of Articles were not included in the preamble
along with
those to be expressly amended, the Act did not amend any of them by implication
or infection as the appellants alleged.
With due respect to the three learned
Justices constituting the majority of the court, this holding was not based on
any judicial
consideration and assessment of the effect of the provisions of the
Act on the Articles in question. It seems to me rather, that
the holding
resulted from the learned Justices' avoidance of any such consideration,
apparently on the misconceived notion that the
Court did not have jurisdiction
to interpret conflicting provisions of the Constitution. This is evident from
what each one said
in response to the contention that the Act had the effect of
indirectly amending some provisions of the Constitution.
• The learned
Deputy Chief Justice said:
"it is not true as suggested by counsel for the
petitioners that Act 13 of 2000 amended other provisions of the Constitution
indirectly
the Act specifically mentioned all the provisions of the Constitution
which it had amended. I find no evidence to justify that sort of
interpretation which if adopted by court might end up amending all the
provisions of the
Constitution";

• Kato J.A. (as he then was)
said:
"Parliament in its wisdom listed the articles it was interested in
amending this petition in court now is concerned with the procedure
followed by
the Parliament but not the effect the amendment will have on other provisions of
the law. The question before the court is not what effect will the amendment
have on existing laws?
The question is: was the proper procedure followed
when the Act was enacted?";

and Kitumba J.A.
said:
"It is not the duty of this Court to look into the effect or
implication of those amendments as doing so would be trying to interpret
one
constitutional provision against another".
(emphasis is added)
Apart
from the misconceived notion, I also find that the holding is unsustainable
because it is self-defeating. If the position were
that the Act was not intended
to, and does not amend the Articles that the appellants allege it purports to
do, then it would follow
that any provision of the Act, which is inconsistent
with any of those Articles, is ipso facto void to the extent of that
inconsistence. The Constitution empowers Parliament to amend any of its
provisions, but does not empower
it to make any law that is inconsistent with
any of its provisions. Under Article 2 any enactment, which is inconsistent but
does
not amend the Constitution is void to the extent of the
inconsistency.

It is common ground that in sections 2, 3 and 4, the Act expressly seeks to
amend Articles 88, 89(1) and 90 by substitution. The centre
of controversy is
section 5 of the Act that seeks to amend Article 97 by addition of two clauses,
which by cross reference exempt
parliamentary minutes and documents from the
application of Article 41. While Article 41 guarantees every citizen the right
of access
to information in possession of the state, its organ or agency, the
amendment by section 5 of the Act reserves absolute discretion
in Parliament to
permit or refuse citizens access to information in possession of Parliament. In
this appeal, Mr. Lule S.C. submitted
for the appellants that section 5 of the
Act has the effect of expressly amending Article 41, and of amending Articles 1,
2, 28,
44, 128 and 137 by implication and infection. For the respondent, Mr.
Bireije, the learned Commissioner for Civil Litigation, conceded
that section 5
amends Article 41; but he strenuously argued that it does not affect any of the
other Articles, on the ground that
an amendment must be specific, not implied.
My learned brothers have, in their respective judgments exhaustively considered
arguments
on both sides. I agree with them that an express amendment of one
provision of the Constitution may have the effect of indirectly
amending another
provision. I also agree that in the instant case, section 5 of the Act has the
effect of amending not only Article
41, but also Articles 28, 44, 128 and 137.
If the provisions of section 5 were in force, those four Articles would have to
be construed
with modification. I however, agree with the learned Chief Justice,
for the reasons set out in his judgment, that the said section
does not have the
same effect on Articles 1 and 2.

The substance of the second contention in grounds 1, 2 and 3, which is
reiterated in ground 4, is that the Articles, which the Act
indirectly seeks to
amend, were not passed in accordance with the amendment procedures set out in
Articles 259 and 262. This is slightly
misleading since Article 259 does not
apply to all the Articles in question. Article 259 provides that a bill seeking
to amend provisions
to which it applies -

"shall not be taken as passed unless -

(a) it is supported at
the second and third readings in Parliament by not less than two-thirds of all
members of Parliament; and it has
been referred to a decision of the people and
approved by them in a referendum."

Article 44 is
among the provisions to which Article 259 applies. Since section 5 of the Act
indirectly seeks to amend provisions in
Article 44, it ought to have been
referred to a decision of the people in a referendum. It is not in dispute that
the bill for the
Act was never so referred. Section 5 therefore cannot "be taken
as passed".


Article 262 sets out several requirements. Those
pertinent to the instant case are in clauses (1) and (2). Under clause (1), it
is
mandatory for the second and third readings of an amendment bill to which
Article 259 applies, to be separated by at least fourteen
sitting days of
Parliament. In the instant case, that requirement was not complied with, because
the second and third readings of
the bill for the Act (including section 5) were
done on the same day. That too was non-compliance in relation to section 5 of
the
Act. Lastly, clause (2) provides that a bill for the amendment of the
Constitution -
"shall be assented to by the President only if
-

(a) it is accompanied by a certificate of the Speaker that the
provisions of this Chapter have been complied with....

(b) in the case of a bill to amend a provision to which article 259...
applies it is accompanied by a certificate of the Electoral
Commission that the
amendment has been approved at a referendum
(emphasis is added). The
President assented to the bill for the Act on the same day it was passed by

Parliament alone. Needless to say, no certificate of the Electoral Commission
could have accompanied the bill, as the bill was never
referred to a referendum.
Since the Constitution does not authorise the President to assent to any
amendment to Article 44 without
the Electoral Commission's certificate of
compliance, the assent, as far as it relates to section 5 of the Act is invalid.
Similarly,
the President is not authorised to assent to a bill seeking,
expressly or indirectly, to amend any provision of the Constitution
unless it is
accompanied by the Speaker's certificate of compliance. The bill for the Act in
the instant case, expressly sought to
amend provisions in Articles 88, 89, 90,
and 97, and Article 41 by express reference. It also sought to insert a new
Article 257A,
and in my opinion, it indirectly sought to amend Articles 28, 44,
128 and 137. All those amendments had to be in compliance with
one or other of
the procedures set out in chapter 18, and the President could assent to the bill
containing them, only if it was
accompanied by the Speaker's certificate of such
compliance. Whether any such certificate accompanied the bill, however, is a
contentious
issue. In his supplementary affidavit in support of the joint
petition, the 2nd appellant expressly averred in paragraphs 5 and 6
that
amendments sought by the Act did not comply with the required special
procedures, and that in particular -
"The Bill was not accompanied by the
prescribed certificate of compliance from the Speaker of Parliament."
The
respondent did not contradict that averment, either in the Answer to the
Petition or in the only affidavit in support of the answer.
At the trial, the
contention for the respondent was that the petitioners had the onus to prove the
noncompliance which they did not
discharge; and in the alternative, that absence
of the certificate was not fatal. The majority of the Constitutional Court
accepted
that contention. Kato JA, who discussed the contention at length,
upheld it on two grounds. First, he relied on his earlier judgment
in
Uganda Law Society and Another vs. Attorney
General
, Constitutional Petition No.8/2000, in which he opined
that the requirement for the Speaker's certificate was intended to avoid the
President signing something not legally passed, but was not intended to render a
law passed by Parliament void, and added -
"The issuance of a certificate
is a mere procedural and administrative requirement which does not go to the
root of the law making
process. Since the President assented to the Act, in the
absence of evidence to the contrary, one is compelled to conclude that
before he
did so he was satisfied
(sic) that all the formalities had been carried
out. My holding on his point is based on the legal doctrine
(sic) which
states that all things are presumed to have been performed with all due
formalities until it is proved to the contrary."
It should be noted,
however, that the constitutional requirement is for the Speaker to certify that
there was compliance, not for
the President to satisfy himself, by any other
means, that all the formalities were carried out. Nor can the "presumption of
regularity"
be a basis for the conclusion in face of the affidavit evidence to
the contrary. The learned Justice of Appeal held that the 2nd
appellant's averment did not prove anything since he did not disclose how he
came to know the absence of the certificate. Kitumba
JA went further to hold
that the 2nd petitioner would not on his own be in possession of the
knowledge whether a certificate of compliance was attached to the bill or
not,
because he was neither the Speaker nor a member of staff with the duty to take
bills for presidential assent. According to the
learned Justice of Appeal,
because he did not disclose the source of his information, his affidavit was not
worthy of belief. It
is remarkable, however, that neither learned Justice of
Appeal adverted to the fact that the respondent did not positively deny that
averment of fact, by affidavit or other evidence. In my opinion the learned
Justices of Appeal were not entitled to reject the evidence
without testing its
cogency. In view of that, and because that was a fact within the special
knowledge of the respondent, I would
hold that the onus shifted to the
respondent to prove that the bill was accompanied by the Speaker's certificate
of compliance. He
did not discharge the onus. It is mostly unlikely that the
respondent would fail to show that the bill was accompanied by the certificate
if in fact it had been so accompanied. I would therefore hold that most
probably, the bill for the Act was not accompanied by the
Speaker's certificate
of compliance.


I do not share the learned Justices' view that the
presidential assent is not a law making process but a mere formality. The
Constitution
allows the President discretion to refuse to assent to a bill, and
provides for what has to be done in such special circumstances
or eventuality.
Save under those special circumstances, which are not applicable in the instant
case, a bill does not become law
until the President assents to it. In my view
therefore, the presidential assent is an integral part of law making process.
Under
Article 262(2), the Constitution commands the President, to assent only if
specified conditions are satisfied. The command is mandatory,
not discretionary.
It does not allow for discretion in the President to assent without the
Speaker's certificate of compliance. In
the circumstances, I would hold that in
respect of both the express and indirect amendments, the assent to the bill was
invalid for
non-compliance with the requirement under Article 262(2)(a). In the
result, I would hold that the Act did not become law and its
proposed amendments
to the Constitution did not become part of the Constitution. Grounds 1, 3 and 4
ought to succeed. On ground 5,1
do not wish to add anything to what my learned
brothers have said. The ground ought to succeed.

Before taking leave of this case, I am constrained to observe that at the
trial the issue of the Speaker's certificate was not treated
with the
seriousness it deserved. In my view, facts pertaining to constitutional
questions ought to be proved with certainty rather
than being left to the fate
of "hide and seek" between litigants, which the rules on the onus of proof
evoke. Whether or not the
certificate of compliance accompanied the bill was not
a difficult fact to ascertain. I would go as far as to say that if the parties
failed to do so, it was open to the court, apart from examining the
2nd respondent as to the source of his knowledge, to call direct
evidence from the appropriate officer of Parliament without appearing
'to unduly
descend into the arena'. The desirability to decide constitutional issues on
ascertained facts cannot be over emphasised.

For the reasons I have
indicated, I would allow the appeal and grant the declarations and orders
proposed by Kanyeihamba JSC.

JUDGMENT OF KAROKORA JSC


I have had the benefit of reading in draft the judgment prepared by my
learned brother, Kanyeihamba JSC and I agree with him that
the appeal must
succeed. I only wish to add my voice on the issue of whether the Constitution
(Amendment) Act 13/2000 amended articles
1, 2 (1) (2), 28, 41, 44 (c) and 128
(1) of the Constitution in addition to those which had been expressly mentioned
by Constitution
(Amending) Act 13/2000 as the articles which were intended to be
amended. I shall hereinafter refer to the Act as Act 13/2000.

Mr. Lule (SC) appearing for appellants, submitted that section 5 of the Act
13/2000 expressly amended articles 88, 89, 90, 97, 257
and 257A of the
Constitution. He contended that the majority of the Justices of Constitutional
Court were in error when they held
that parliament never amended articles 1,
2(1) (2), 28, 41, 44(c) and 128 (1) of the Constitution. He submitted that
article 41 was
amended by implication whilst articles 1, 2(1) (2), 28, 44 (c)
and 128(1) were amended by infection. Counsel submitted that amendment
by
infection means that the amendment of an article had the effect of amending an
article which had not been specifically mentioned
at all. He contended that it
was immaterial that the amending Act did not categorically state that the Act
intended to affect those
articles. What was material was the effect, design and
impact the amendment had on these other articles. He cited the case of The
Queen Vs Big M Drug Mart Ltd 1987 LRC 332 in support of his
submission. On the other hand, Mr. Denis Birijje, counsel for respondent,
submitted that articles which were amended
were expressly mentioned by the Act
13 of 2000 as articles 88, 89, 90, 97, 257 and 257A. He contended that articles
1, 2(1) (2),
28, 41, 44 (c) and 128 (1) were none of those mentioned to be
amended. Counsel submitted that the amendment was done in accordance
with
articles 258, 261 and 262 (2) (a) of the Constitution, but contended that
amendment did not require compliance with article
262 (2) (b). Counsel contended
that the appellant had failed to prove that the amendment was not done in
accordance with the procedure
laid down in the Constitution.

In order to determine whether section 5 of the Act 13/2000 affected more
articles than those mentioned by the amending Act, particularly
articles 1,
2(1)(2), 28, 41, 44(c) and 128(1) of the Constitution, it is necessary to go
through the preamble to the Act and section
5 of the Act itself. The preamble to
the Act states as follows:

"An Act to repeal and replace article 88 of the Constitution to make
provision in relation to quorum, to amend article 89 of the Constitution,
provide for the number of ascertaining the majority of votes cast on any
question, to repeal and replace article 90 of the constitution
to recognise the
role of the committee of the whole house in the passing of bills and to make
provisions in relation to the function
of the committees of Parliament; to amend
article 97 of the Constitution to protect the proceedings of parliament from
being used
outside parliament without the leave of Parliament; and to insert a
new article 2S7A to ratify certain past acts relating to
procedures"

Section 5 of Act 13 of 2000 which amended article 97 renumbered article 97 as
clause 5(1) of that article. Immediately after the new
clause (1) there follows
a new clause (2) which reads as follows:

"Notwithstanding article 41 of this Constitution no member or officer
of parliament and no person employed to take minutes of evidence
before
Parliament or any committee of parliament shall give evidence else where in
respect of contents of such minutes of evidence
or the contents of any document
laid before parliament or any such committee, as the case may be, or in respect
of any proceedings
or examination held before Parliament or such committee,
without the special leave of parliament first obtained."

What we are concerned with here is the impact the Act has on a citizen's
right of access to information in possession of the state
or any other organ. I
agree with submission of Mr. Lule, counsel for appellant,
that though Act 13
of 2000 was not purposely enacted to derogate on the right to fair hearing, a
careful examination of the preamble
to the Act and section 5 of the Act
vis-a-vis articles 41 and 44 (c) shows
clearly that the Act had that effect.
In my view, so long as the Act had this effect on the non-derogable right to
fair hearing it
does not matter what the purpose behind the enactment was. In
the case of Major General David Tinyefunza and Attorney General
Constitutional Appeal No. 1 of 1997
the majority of the Justices of the
Supreme Court held that on the advent of 1995 Constitution article 41,
section
121 of the Evidence Act which was intended to shield all unpublished
official records from being used in evidence was declared unconstitutional.
The
section provided inter alia

"No one shall be permitted to give any evidence derived from
unpublished official records relating to any affairs of state except
with the
permission of the officer at the head of the department concerned who shall give
or withhold such permission as he think
fit"

Then in Paul Ssemogerere and Zachary Olumn Vs Attorney General
constitutional Appeal No.l of 2000
the Constitutional Court upheld the
decision of the constitutional court that to the effect that on the advent of
1995 constitution,
section 15 of the National Assembly (Powers and Privileges)
Act became null and void. Section 15 of the above Act stated as follows:

"Save as provided in this Act no member or officer of the Assembly and
no person employed to take minutes of the evidence before the
Assembly shall
give evidence elsewhere in respect of the contents of any document laid before
the Assembly or such committee as the
case may be or in respect of any
proceedings or examination held before the Assembly or such committee as the
case may be, without
special leave of the Assembly first had and
obtained."

In the instant case the parliament transplanted the nullified provision of
section 121 of the Evidence Act see Major General David Tinyefuza Vs
Attorney General (supra)
and into section 5(2) of the Act
13/2000.

Whereas Parliament had powers under article 259 of the constitution to amend
any provisions of the Constitution, I agree with Mr.
Lule (SC)'s submission that
the amendment brought about by section 5(2) of the Act 13/2000 had the effect of
amending articles 1,
2(1) (2), 28, 41, 44 (c) and 128 (1) of the Constitution by
implication/infection. A number of decided cases from common Law Jurisdiction
illustrate amendments by infection.

In the case of the Queen Vs Big M. Drug Marrt Ltd (1986) LRC 332, the
respondent had been charged with unlawfully carrying on the sale of goods on a
Sunday, contrary to the Lord's Day Act, 1970 and
acquitted by the trial court.
The court of Appeal dismissed the appeal. Further appeal to the Supreme Court of
Canada, the main question
was whether the Act especially section 4 which
prohibited any one to sell any thing or offer for sale or purchase any goods,
chattels
or to carry on any business of his ordinary calling ... on that day,
infringed the right of freedom of conscience and religion guaranteed
by section
2 of the Canadian Charter of Rights and Freedom.

The Supreme Court, stated:

"Both purpose and effect are relevant in determining constitutionality,
either an unconstitutional purpose or an unconstitutional
effect can invalidate
legislation. All legislation is animated by an object the legislature intends to
achieve. The object is realised
through the impact produced by the operation and
application of the legislation. Purpose and effect respectively in the sense of
the legislation's object and its ultimate impact are linked, if not indivisible
Intended and actual effects have often been looked
to for guidance in assessing
the legislation's object and thus the validity."

See also the Attorney General For Ontario Vs Reciprocal Insurers (1924)
AC 326 from Canada and The Bribery Commissioner Vs Padrick Ranasinghle
(1965) AC
172 from Ceylon.


In my view, if it was to be otherwise, Parliament could amend any provisions
of the Constitution, including the entrenched provisions
without complying with
the prescribed procedure in chapter 18 of the Constitution as long as it avoided
mentioning them in the amending
Act.

Now, the question is whether Act 13/2000 amended articles 1 and 2 of the
Constitution. Article 1 of the Constitution provides:-
"1. All powers
belong to the people who shall exercise their sovereignty in accordance with
this constitution. Article 2 of the
Constitution provides: -
"2 (1) the
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."

The provisions of these articles are very clear. It is the people of Uganda
who are sovereign and exercise their sovereignity through
the Constitution. It
is the Constitution, not the Parliament nor executive nor judiciary which is
supreme. Each of these organs can
only exercise the jurisdiction conferred on it
by the Constitution. None can confer on itself jurisdiction not authorised by
the
Constitution.

Under 1995 Constitution, independence of organs of state must go with
responsibility and accountability. Each of these organs must
be transparent and
accountable in their operations. Under articles 1 and 2 people are sovereign and
exercise their sovereignty through
the Constitution which is Supreme Law of
Uganda and has a binding force on all authorities and persons throughout the
country. Article
41 was enacted to guarantee transparency. Any attempt to
whittle down article 41 would conflict with articles 1 and 2 and
would be an attempt to amend them.

In the instant case the complaint is against section 5 (2) of Act
13/2000 which amended article 97 of the Constitution, which I have
already quoted in this judgment. I must state that I agree with the judgments of
Mpagi Bahegeine
and Twinomujuni JJA and especially the passage in the judgment
of Twinomujuni JA where he stated, inter alia, that;

"The above amendment section (5) (2) of Act 13/2000) which amended
article 97 of the Constitution can only survive in a jurisdiction
where
parliament, like in United Kingdom, is supreme... In Uganda today, the amendment
amounts to a coup against the sovereignty
of the people and the Supremacy of the
Constitution. It can not exist side by side with articles 1 and 2 in the same
constitution.
It contravened the two articles and Parliament alone cannot pass
such amendment unless it first consults the people in a referendum
in accordance
with chapter 18 of the constitution. I would hold that although section 5 (2) of
the Constitution (Amendment) Act 13/2000
did not expressly and specifically name
articles 1 and 2 of the Constitution as being amended, yet it had the effect of
repealing
or varying the articles and therefore it amended them by necessary
implications"

I would add that section 5 (2) 7 Act 13/2000 further amended
article 128 (1) of the Constitution by implication, because, as the Act
stands, courts cannot access minutes of evidence taken before Parliament or
any
committee of Parliament without first seeking leave from Parliament, which leave
can be granted or withheld - thus making Parliament
supreme to
constitution.

I have already stated in the course of this judgment that section 15 of the
National Assembly (Powers and Privileges) Act became unconstitutional
on the
advent of 1995 constitution in the case of Paul Ssemogerere & Zachary
Olum Vs Attorney General
(supra) by this court and therefore in
contravention of articles 28, 41 and 44 (c) of the Constitution. In the instant
case, by seeking
to elevate provisions of section 15 of the National Assembly
(Powers & Privileges) Act which had already been declared unconstitutional
in Paul Ssemogerere & Zackary Olum (supra), into an amendment to
article 97 of the Constitution, Parliament amended articles 28, 41 and 44 (c) of
the Constitution by
implication.

The next question is whether Parliament had powers to amend articles 1, 2,
28, 41, 44 (c) and 128 (1) of the Constitution.

There is no doubt that under article 258(1) of the Constitution, Parliament
can amend any provisions of the Constitution by addition,
variation or repeal in
accordance with the procedure laid down in chapter 18 of this
Constitution.

However, whereas the Parliament had the powers to amend those articles, it
had to do so in strict compliance with the provisions of
articles 259, 262 (1)
and (2).

Article 259(1) specifically states that a bill for an Act of Parliament
seeking to amend any of the provisions of this Constitution
which include
articles 1, 2, 44(c) and 128(1) shall not be taken as passed unless:-

(a) It is supported at the
second and third readings in Parliament by not less than two- thirds of all the
members of parliament, and
(b) It has been
referred to a decision of the people and approved

by
them in referendum.

Article 262 goes further and states that;

"(1) The votes on the 2and and 3rd readings referred to in
article 259 and 260 of this constitution shall be separated by at least fourteen
sitting days of Parliament".

(2) A bill for the amendment of this constitution which has been passed
in accordance with this chapter shall be assented to by the
President only
if:-

(a) It is accompanied by a
certificate of the speaker that the provisions of this chapter have been
complied with in relation to it;
and
(b) In the case of a bill to
a mend a provision to which articles 259 or 260 of this Constitution applies, it
is accompanied by a certificate
of the Electorial Commission that the amendment
has been approved at a referendum or as the case may be, ratified by the
district
councils in accordance with this
chapter."

Each of the 3 petitioners adduced evidence through their unchallenged
affidavits. Both Zachary Olum and Juliet Reiner Kafire are members
of Parliament
and averred that they were in Parliament when Act 13/2000 was debated and
passed.

(i) Hon Zachary Olum's unchallenged affidavit averred that the bill was
passed in two days instead of not less than 14 days prescribed
by the
Constitution.
(ii) That it was not referred to the people in a referendum

(iii) It was not accompanied by the certificate of Electorial Commission that
the amendment had been approved at a referendum or as
the case may be, ratified
by the
district councils in accordance with this chapter.

(iv) That it was not accompanied by the certificate of the speaker of
Parliament certifying that the provisions of chapter 18 had
been complied
with.

The respondent never refuted the above averrments. The affidavit of Patricia
Mutesi from the Attorney General's chambers did not claim
that she attended
parliament when the Bill was being debated. Clearly an omission or neglect to
challenge the evidence in chief on
a material or essential part by cross
-examination would lead to the inference that the petitioners' averrment was
accepted subject
to its being assailed as inherently or palpably in credible.
See the case of James Sowabiri and Another Vs Uganda (SSC) Cr. Appeal No.5
of 1990 .
In the instant case, although the petitioners never averred
that they saw the Bill being submitted to the President and that they
never saw
the Speaker's certificate stating that the provisions of chapter 18 of the
Constitution had been complied with, in my view,
the petitioners' unchallenged
averrments in their affidavits were sufficient to discharge the burden cast on
them. The fact that
the President assented to the Bill was not conclusive that
all the formalities precedent to the passing of the Bill had been complied
with.

On this point, Kato JA, as he then was, stated that:
"I agree with
him (Mr. Birije's). It is my opinion that the above provision was intended to
avoid the President signing for something
not legally passed by the Parliament.
The issuance of a certificate is a mere procedural and administrative
requirement which does
not go to the root of the law making process. Since the
President assented to the Act in the absence to the contrary, one is compelled
to conclude that before he did so he was satisfied that all the formalities had
been carried out. My holding so on this point is
based on the legal doctrine
which states that all things are presumed to have been performed with all due
formalities until it is
proved to the contrary. "

With all due
respect, I cannot agree that the above doctrine applies to cases where there is
a supreme law clause requiring the Speaker's
certificate to accompany the bill.
Article 262 (2) (a) specifically makes it mandatory that
"a bill for
amendment of this constitution shall be assented to by the President only
if:-

(a) it is accompanied by a certificate of the Speaker that
the provisions of this chapter have been complied with in relation to
it."

The house of Lord's decision in the case of The Bribery Commissioners
Vs Pedrick Ranasinghe (Supra)
is relevant and is almost on all fours to
the instant case. In that case, by section 29 of the Ceylon (Constitutional)
Orders- In
- Council, 1946(1) provided that subject to the provisions of this
order, parliament shall have power to make laws for the peace,
order and good
government of the Island (4) provided that in the exercise of its powers under
this section, Parliament may amend
or repeal any of the provisions of this
Order in its application to the island; provided that no Bill for the
amendment or repeal of any of the provisions of this order shall be presented
for the Royal Assent unless
it has endorsed on it a certificate under the hand
of the speaker that the number of the votes cast in favour thereof in the house
of representative amounted to not less than two thirds of the whole numbers of
members of the house. Every certificate of the speaker
shall be conclusive for
all purposes and shall not be questioned in any court of law.

The respondent was tried and convicted for bribery by the Bribery Tribunal
under the Bribery Act, 1954. During the course of trial
and argument it emerged
that the Act which established the Bribery Tribunal, though it received Royal
Assent had not been accompanied
by a certificate of the Speaker, certifying that
all the requirement under the Ceylon (Constitution). Order - In - Council 1946
had
been complied with.

It was submitted for the commissioners that once the Royal Assent was given
and the law was enacted, the court could not go behind
it but must take it as a
law.

It was held that the principle that one cannot go behind an Act of Parliament
does not apply to cases, where there is a supreme law
clause requiring the
Speaker's certificate. Therefore, in the case of amendment and repeal of the
constitution, the Speaker's certificate
is a necessary part of the legislative
process and any bill which does not comply with the condition precedent to the
provision is
and remains, even though it receives the Royal Assent, invalid and
ultra vires.

Therefore orders made against the respondent who had been tried before a
Bribery Tribunal on a charge of bribery were null and void
and inoperative since
the persons comprising the tribunal were not validly appointed to the tribunal -
having been appointed pursuant
to the ultra vires provisions of the Act.

In the instant case, there was no attempt by the respondent to refute
appellants' argument that articles 259 and 262(1) (2) of the
Constitution had
not been complied with. Mr. Birije, counsel for respondent merely contended that
there was no requirement for interval
of 14 sitting days of Parliament between
the 2nd and 3rd readings before the bill was
passed.

On the averrment by appellants that when submitting the Bill for Presidential
Assent, there was no Speakers certificate, certifying
that the provisions of
chapter 18 had been complied with, Mr. Birije, counsel for respondent submitted
that there was no evidence
adduced to show that the copy sent to the President
did not have certificate from the Speaker. He also contended that the issuance
of a certificate was more of a procedure and administrative requirement which
did not go to the root of the law making process. I
am not persuaded by these
submission. As stated in the case of The Bribery Commissioner (Supra),
where there is a supreme law clause requiring the Speaker's certificate to
accompany the Bill, submitting it for Presidential Assent,
that certificate is
not procedural and administrative requirement but rather a necessary part of the
Legislative process. In my view,
the absence of the certificate, accompanying
the Bill, certifying that the provisions of chapter 18 had been complied with,
even
though it received the Presidential assent, remained invalid and ultra
vires. Therefore, the stipulated number of 14 sitting days
were not complied
with.

Further, since section 5(2) of Act 13/2000 amended articles 1, 2, 41, 44 and
128 (1) of the constitution by implication/infection
as I have already stated in
the course of this judgment, and since according to clause (2) (b) of article
262 of the constitution
no certificate of the Electorial Commission accompanying
the Bill, certifying that the amendment had been approved at a referendum
in
accordance with chapter 18 of the constitution, the President's assent would not
cure and give life to the Bill which was invalid
ab-initio.

Consequently, in my view, section 5(2) of Act 13/2000 infringed the
provisions of articles 1, 2(1) (2), 41, 44 (c) and 128 (1) of
the Constitution
and was therefore unconstitutional. In the result, I would hold that section
5(2) of Act 13/2000 is null and void.

I would allow this appeal and grant the reliefs sought in the petition and
the costs as proposed by Kanyeihamba J.S.C

JUDGMENT OF TSEKOOKO. JSC:

This appeal is against the decision of the Constitutional Court dismissing,
by a majority, the appellants' petition to that Court
in which the appellants
had sought a number of declarations.

I have read in advance, the lead judgment prepared by my Lord Justice G.W.
Kanyeihamba, JSC, and concurring judgments by my Lords
the Chief Justice and
A.H.Oder, JSC. I agree that this appeal ought to succeed substantially and that
the declarations sought by
the appellants, as set out in the lead judgment ought
to be granted.

In Constitutional Petition No.3 of 1999, the 1st and the
2nd appellants challenged the validity of the enactment by Parliament
of the Referendum and Other Provisions Act, 1999 on ground that
the Act had been
passed by Parliament without the requisite quorum stipulated in the
Constitution. On 23/9/1999, the Constitutional
Court summarily dismissed the
petition leading to an appeal to this Court which on 31/5/2000 reversed that
decision and remitted
the matter to the Constitutional Court for hearing. The
present respondent was the respondent in the petition. The latter court heard
the petition and on 10/8/2000 granted the declarations sought and struck down
the Act. There was no appeal. However, on 1/9/2000,
the Government reacted by
moving Parliament to enact the Constitution (Amendment) Act 2000 (Act 13 of
2000) whose effect was, inter
alia, to nullify the said judgment of the
Constitutional Court. Act 13 of 2000 amended Articles 88, 89, 90 and 97 of the
Constitution.
The amendment also affected Article 41, among others, and
introduced a new Article 257A. The appellants herein thereupon instituted a
fresh petition (No. 7 of 2000) against
the respondent challenging the amendment.
In summary this time the appellants contended, inter alia, that: -

(a) The Act indirectly amended,
inter alia, Article 41 of the Constitution. Act 13 of 2000 made Parliament
Supreme over the Constitution
of 1995 yet the reverse is the position. Act 13 of
2000 creates a one party state, the NRM, and eliminates other political
parties.

On 10/11/2000, when the petition was called for hearing in the Court below,
Mr. Deus Byamugisha, Ag. Director of Civil Litigation,
objected first to the
competence of the petition and secondly to the jurisdiction of the court to hear
the petition. Ruling on the
objection was given on 29/11/2000, overruling the
first point of objection but the Court held that it had no jurisdiction "
to declare that one part of the constitution was in conflict with the
another."
After hearing the petition subsequently, the
Constitutional Court, by a majority of three to two, dismissed the petition. The
appellants
now appeal against the dismissal and base the appeal on six grounds
which have been set out in the judgment of Kenyaihamba, JSC.

I would like to make observations on ground 6 of the appeal. For easy
reference I will reproduce it and it was formulated this way:

The Constitutional Court erred in law and fact and misconstrued the gist
of the petition and the petitioners' contention when they
held that a
Constitutional Court would have no jurisdiction to construe part of the
Constitution as against the rest of the Constitution
and thereby came to the
wrong conclusion.


This ground relates partly to the court's ruling to
which I have just alluded by which the court accepted Mr. Byamugisha's
contention
that the court had no jurisdiction to interpret Act 13 of 2000
because the Act was part and parcel of the Constitution and the Court
itself
cannot construe one part of the constitution against another part of the same
constitution.

At the commencement of the hearing of the petition in the
Constitutional Court and partly because of the earlier ruling alluded to
above,
the court disabled and restricted itself by framing only one issue as follows:
-"Whether the Constitutional Amendment Act No.13 of 2000 complied with the
Constitutional requirements for amendment of the constitution".

It would appear from the opening remarks in that court by Mr. Lule, who was
counsel for the petitioners, that this was not the only
issue which arose from
the pleadings. Indeed in his dissenting judgment, Twinomujuni, JA (at pages 2
and 3) lamented that the issues
raised by the petition could have been more
directly addressed if the court considered -

"Whether the Constitution (Amendment) Act No.13 of 2000 was consistent
or inconsistent) with the Constitution of Uganda".


This shows
that the pleadings raised more than one issue and indeed this is reflected in
the submissions which were made in the Court
below and before us.
Now whether
it is a constitutional matter or an ordinary suit, it is trite that a trial
court must frame all issues arising out of
the pleadings so as to determine the
matter, or matter, in controversy. A perusal of the pleadings in this case
(petition and affidavits)
shows that among the issues in controversy was
consistency or inconsistency between the Act and some other parts of the
Constitution.
That is what needed to be clearly framed and decided
upon.

Be that as it may, Mr. Godfrey Lule, SC, counsel for the appellants
in this Court argued that the majority learned Justices of the
Constitutional
Court erred when they held that the Court had no power to interpret one part of
the Constitution against another part.
In a way Mr. Bireije, Commissioner for
Civil Litigation, conceded this point when he agreed that the court had
jurisdiction to harmonise
various provisions of the Constitution provided that
the right procedure of amending the Constitution had been followed Here he quite
properly abandoned the position taken in the Constitutional Court by his
colleague, Mr. D. Byamugisha. He however glossed over the
point whether the
court would have jurisdiction to harmonise the original articles of the
Constitution which is the holding of the
Constitutional Court.


As
noted already, on 29th November, 2000, the Constitutional Court which
at that time was differently composed, ruled upholding one of the objections to
the
petition by Mr. D. Byamugisha that the "Court would have no jurisdiction
to inquire into the question whether amending sections if they properly became
part of the constitution
were unconstitutional".
Mr. Byamugisha, the then
Ag. Director for Civil Litigation, had argued, during the hearing of the
preliminary objection, that once
an Act amending the Constitution became law, it
became part and parcel of the Constitution. Of course this last point is
indisputable.
However, Mr. Byamugisha's strange view suggests that once a
constitution amending Act becomes law, and part of the Constitution,
it acquires
sanctity against interpreting its provisions against the rest of the
constitution. For this strange view, Mr. Byamugisha
and the Constitutional Court
relied on the Indian case of Kesavananda Vs. State of Kerala
1654 SC. reported at paragraph 788 A.I.R and on the Ugandan_Constitutional
Petition decision in Rwanyarare & Wegulo Vs Attorney General ..
Constitution Petition No.5 of 1999 (unreported).


Thus the
Constitutional Court in its ruling administered to itself a preventive dose
which in effect disabled it from considering
one of the relevant issues raised
by the petition and, therefore, the court abdicated its duty by declining from
examining the impugned
articles of the constitution in order to determine
whether the complaints raised in the petition were valid, or otherwise. This is
unfortunate. It is my considered opinion, and with due respect to the
Constitutional Court, that Kesavananda case was
misunderstood and, therefore, misapplied to the facts of the petition. The
provisions of our constitution override that case.
Clauses (1) and (3) of
Article 137 of our Constitution are very clear.
The first clause gives unlimited jurisdiction to the Court to interpret our
constitution. It reads:
"Any question as to the interpretation of
this Constitution shall be determined by the Court of Appeal sitting as a
Constitutional
court".
If there was any clear answer to the doubts in
the mind of the Constitutional Court as to its jurisdiction to interpret any
provision
of the Constitution, clause (1) is the answer. In my opinion clause
(3) does not fetter in any way whatsoever the powers of the court
contained in
clause (1). Clause (3) reads: -"1. A person who alleges that -

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



The issue which was in
the Kesavananda case appears to have been whether an Act of
Parliament had become part and parcel of the Constitution. That was and is not
the issue in
the petition giving rise to the appeal before us. Indeed nobody can
dispute the fact that a Constitutional Provision introduced by
an amendment of
the Constitution forms part and parcel of the Constitution.

No copy of the judgment of Kesavananda case was availed to us.
I have not been able to lay my hands on the full judgment. But passages of it
are quoted in the Singaporean case
of Teo Son Lung Vs Minister
for_Home
Affairs and others (1990) LRC (Const.)
490. At page 504, Chua.J., quotes a passage from a judgment of one of the judges
in Kesavananda case as follows:
"Fundamental or basic
principles can be changed. There can be radical changes in the Constitution like
introducing a Presidential
system of Government for a cabinet system or a
unitary system for a federal system. But such amendment would in its way bring
all
consequential changes for the smooth working of the new systems.' (Para
932).


Those who frame the Constitution also know that new
and unforeseen problems may emerge; that problems once considered important may
lose their importance because priorities have changed; that solutions to
problems once considered right and inevitable are shown
to be wrong or to
require considerable modification; that judicial interpretation may rob
certain provisions of their intended effect;
that public opinion may shift
from one philosophy of Government to another .... The framers of the
Constitution did not put any limitations
on the amending power because the end
of a Constitution is the safety, the greatness and well being of the people.
Changes in the
Constitution serve these great ends and carry out the real
purposes of the Constitution, (Para 959)".

This passage indicates that written constitutions are not static and are
liable to be amended.
There is an obvious implication in this passage that
courts have to interpret constitutional provisions to bring the constitution
in
line with current trends. Implicit in this is the real possibility that one part
of the constitution can be harmonised with another
part of the same
constitution.
Further in para (h) of the report, Chua. J., pointed out that
Malaysian Courts had declined to follow Kesaananda doctrine. Moreover the
decision in the case itself was not unanimous which robs it of its full
persuasive value.

Besides, I am of the considered view that even if the
provisions of the Constitution (Amendment) Act, 2000 are part and parcel of
the
Constitution, its provisions as enacted constitute an Act of Parliament. That is
how the Act describes itself. According to definitions
in the Acts of Parliament
Act and the Interpretation Act, "Act or Act of Parliament" means a law made by
Parliament. That is so whether
the Act amends or does not amend the
constitution.

For the foregoing reasons, I think that the decision of the
Constitutional Court in Dr. Rwanyarare & Wegulo Vs Attorney
General
(Petition 5 of 1999) in so far as the Constitutional Court
held that it has no jurisdiction to interpret one provision of the Constitution
against another represents a wrong approach to our principles of Constitutional
interpretation and in my opinion that case was wrongly
decided and represents a
wrong view of the law which should not be followed.

Ground six ought therefore to succeed.

I agree with the minority judgment of the Constitutional Court that the
appellants had in the main established their complaints as
raised by the
Constitutional Petition. Therefore I would allow the appeal. I agree with the
orders proposed by Kanyeihamba, JSC.

JUDGMENT OF ODER J.S.C.

The appellants Paul K. Ssemogerere, Zachary Olum and Juliet Rainer Kafire,
have appealed to this Court against the whole of the majority
decision of the
Constitutional Court, (Lady Justice L.E.M. Mukasa - Kikonyogo, DCJ, Mr. Justice
CM. Kato J.A and Lady Justice C.N.
Kitumba, J.A.) delivered at Kampala on
17/4/2002.

I have had the benefit of reading in draft the judgment of my learned
brother, Kanyeihamba, J.S.C, and I agree with him that the appeal
should
succeed.

In his judgment Kanyeihamba J.S.C, set out the background to the appeal. I
shall not repeat the same in this judgment.

The Memorandum of appeal sets out six grounds of appeal as follows: -

1. The learned majority Justices
of the Constitutional Court erred in law and fact when they held that section 5
of the Constitutional
(Amendment) Act 2000, did not amend articles 28, 41 (1)
and 44(c) of the Constitution by implication and infection which Articles
require amendment in accordance with Articles 259 and 262 of the
Constitution.
2. The learned majority Justices
of the Constitutional Court erred in law and fact when they held that section 5
of the Constitutional
(Amendment) Act. 2000, did not amend articles 1, 2 (1) and
(2) of the Constitution by implication and infection which Articles require
amendment in accordance with Articles 259 and
262.
3. The learned majority Justices of the
Constitutional Court erred in law and fact when they held that section 5 of the
Constitutional
Amendment Act, 2000 did not amend Articles 128 (1), (2) and (3)
and 137 (3) (a) of the Constitution by implication and infection
which articles
require amendment in accordance with Articles 259 and
262.
4. The learned majority Justices of the
Constitutional Court erred in law and fact when they held that the
Petitioners/Appellants had
not proved that Parliament did not follow the
required procedure under Articles 259 and 262 of the Constitution when enacting
the
Constitutional (Amendment) Act.
2000.
5.
6. The
learned majority Justices of the Constitutional Court erred in law when they
failed to distinguish between a waiver of parliamentary
procedure and
non-compliance with the Constitutional Provisions under Articles 258, 259 and
262 of the constitution of Uganda.
7. The
Constitutional Court erred in law and fact and misconstrued the gist of the
petition and the petitioners' contention when they
held that a Constitutional
Court would have no jurisdiction to construe part of the Constitution as against
the rest of the Constitution
and thereby came to a wrong
conclusion.

The appellants prayed that the appeal be allowed and that the respondent
should be ordered to pay the costs here and in the court
below.

Mr. G.S. Lule, S.C. and Mr. J. Balikuddembe represented the appellants and
Mr. Denis Bireije, Commissioner for Civil Litigation, and
Mr. Okello Oryem,
Senior State Attorney, both from the Attorney General's Chambers, appeared for
the respondent. Mr. Lule argued
grounds 1,2,3 4, and 5 together and ground 6
separately.

In his submission, Mr. Lule criticized the majority of the learned Justices
of the Constitutional Court for holding that there was
no amendment of the
articles mentioned in article 259 of the Constitution, and that on that ground
alone the appellant's petition
failed. He contended that provisions of the
Constitutional (Amendment) Act 13 of 2002 (Act 13/2000) amended certain articles
of the
Constitution expressly, impliedly or by infection. Article 41 was amended
expressly and impliedly. That amendment automatically affected
articles 44, 28,
1,2,28, 128 and 137 of the constitution. However, the Constitutional Courts
finding was that as Act 13/2000 did
not mention those articles in its preamble,
it follows that they were not amended or affected. Learned counsel contended
that amendment
of a constitutional article does not depend entirely on an
express statement that the article is being amended. It also depends on
the
effect of the amending legislation on the article. It is for the Court to
determine the intended meaning and effect of the amending
statute. The learned
counsel then referred to the decision of this Court in Constitutional
Appeal No. 1 of 1997, Attorney General Vs Major General David Tinyefuza

(unreported). Learned counsel submitted that in that case, the Court
dealt with the effect of article 41 on section 121 of the Evidence
Act as
regards the right of access to information.

Learned counsel further submitted that all the procedures laid down in
article 262 were applicable to article 41, the amendment of
which affected the
other articles. They were mandatory and amendments carried out without
compliance with article 258 (2) (b) cannot
be part of the Constitution. The
Learned Counsel urged this Court to apply the decisions cited in the appellant's
List of authorities
submitted in this appeal. He added that the same authorities
were relied on in the lower court. Some of those authorities are:
Constitutional Appeal No.1/2000 Paul Ssemogerere and Another Vs
Attorney General (SCU) (unreported): The Bribery Commissioner V. Pedrick
Ranasinghe (1965) A.C 172 (H.L): The Queen Vs. Big M. Drug Mart Ltd (1986) LRC
(Const.) (332); and "The Constitutional Law of India"
3rd Edition, Vol.1 by H.M.
Seervai.

Learned Counsel also adopted his submission in Constitutional Petition No. 13
of 2000 regarding "colourable" legislation by which,
he contended section 5 was
used to amend article 41 of the Constitution. On amendment of articles of a
constitution by colourable
legislation, the learned counsel referred to
"The Constitutional Law of India" (Supra).

Learned Counsel distinguished the case of Teo Soh Lung Vs. Minister
of Home Affairs and others (1990) LRC (Constitutional) 490.
relied
on by the respondent, as not applicable to the instant case. Learned Counsel
also referred to respondent's other authority,
namely Constitutional
Petition No. 8 of 2000. The Uganda Law Society and Justine Semuyaba Vs. The
Attorney General (Constitutional Court
of Uganda) unreported
.
He 4
pointed out that in the judgment of Hon. Lady Justice Mukasa Kikonyogo D.C.J,
amendment of article 41 of the Constitution by
section 5 Act 13/2000 was never
addressed, but the judgment agreed with the view that section 5 amended article
257 by insertion
of a new article 257 A and article 97 by insertion of new
previsions thereto. The two other members of that Court agreed with that
holding.

Mr. Denis Bireije opposed the appeal and supported the majority
decision of the Constitutional Court. He argued against the grounds
of appeal
together. He submitted that the issue for decision before the Constitutional
Court was whether Parliament followed the
constitutional provisions in amending
the Constitution by Act 13/2000. In his opinion the articles of the Constitution
which were
amended by Act 13/2000 were articles 88, 89 90, 97. Another amendment
was by insertion of article 257A. Learned counsel contended
that the petition in
the Constitutional Court was that Parliament did not follow the Constitution in
amending those articles but
the appellants failed to produce sufficient evidence
to prove that Parliament never followed the required constitutional procedure
in
making the amendments. Learned counsel submitted that the articles he has
referred to as having been amended did not require their
amendment to conform
with articles 258, 259, 261 and 262 (2) (a), as contended by the appellants'
counsel. Learned counsel submitted
that the articles which were amended were
expressly stated in the preamble of the amending statute. Those not expressly
mentioned
were not amended.

Learned counsel contended that article 41 was
amended but he disagreed that the procedure under articles 259 was required to
do so.
He submitted that article 28 was not amended by implication or infection.
Nor was the procedure under articles 259 and 262 (1) required
to do so. Learned
counsel also contended that articles 1 and 2 were not amended by Act 13/2000.
Learned counsel also disagreed with
the appellant's contention that by amending
article 41, section 5 affected article 28 and 44, because the right to fair
hearing was
not affected by the amendment of article 41. He contended that the
amendment of article 41 did not affect article 128, nor did it
affect article
137, because people still have the right to petition under the latter.
Regarding the appellant's complaints in grounds
2, 3 and 5 of the appeal that
the procedure required by articles 259 and 262 (2) (a) were not complied with in
passing section 5
of the Act, the respondent's learned counsel argued to the
contrary. He contended that no evidence was produced by the appellants
to prove
that the articles in question were not complied with.

Learned counsel relied on. Teo Soh Luna Vs. Minister of Home Affairs
and others (1990) LRC (Constitution) 490.
in support of the
preposition that once the correct procedure has been followed in amending the
constitution, the amendments become
part and parcel of the amended constitution.
Learned counsel contended that article 257 (a) permits amendment of the
Constitution
by modification, but he contended that such an amendment can be
effected only if the article to be amended is specifically mentioned
in the
amending legislation.

Learned counsel submitted that the Constitutional Court has powers to
harmonise provisions of the Constitution, but it can do so only
when the right
procedure has been followed in enacting the amending legislation.

I shall consider grounds 1,2 and 3 together; grounds 4, and 5 together, and
6, separately.

The complaints in grounds 1,2 and 3 of the appeal are to the effect that the
Constitutional Court erred in holding that Act 13/2000
did not amend articles
1,2 (1), (2) 28, 41 (1), 44 (c), 128 (2), (3) and 137 (3) of the
Constitution.

Section 5 of Act 13/2000 amended article 97 by inter alia, introducing two
clauses to that article as follows:

"(2) Notwithstanding article 41
of this Constitution, no member or officer of Parliament and no person employed
to take minutes of
evidence before Parliament or any Committee of Parliament
shall give evidence else where in respect of the contents of any document
laid
before Parliament or any such Committee, as the

case may be, or in respect of any proceedings or examination held
before Parliament or any such committee, without the special leave
of Parliament
first obtained.

(3) The special leave referred to in clause (2) of this article may,
during a recess or adjournment of Parliament, be given by the
Speaker or in the
absence of the Speaker or during a dissolution of Parliament, by the Clerk to
Parliament"

In the Constitutional Court the learned Lady Justice Mukasa-Kikonyogo, D.C.J,
said this:

"7 do not agree with Mr. Lule, as already pointed out, that the
amendment of article 97 resulted in the amendments of articles 41 (1)
and 44 of
the Constitution which, he argued, blocked ordinary citizens to have access to
information. I disagree with him that the
said amendments were linked to other
articles which had not been amended like article 137 (Supra). Counsel cited a
number of authorities
in support of his arguments. I had the opportunity to read
them but with due respect I do not find them relevant to the instant
petition."

Two other members of that Court concurred with the learned D.C.J.

With the greatest respect, I am unable to agree with the learned D.C.J and
the JJ.A in this regard, because, first, in my considered
opinion, the new
additions made by section 5 of Act 13/2000 to article 97 clearly affected the
right of access to information guaranteed
by article 41 of the constitution.
Article 41 was expressly amended. They made availability of records of
proceedings of Parliament,
for instance, Hansard, subject to prior approval of
Parliament, which approval can be granted or denied. If it is denied, the new
clauses (2) and (3) of article 97 do not indicate the reasons on which
Parliament may deny a citizen access to records of its proceedings.
Under
article 41 (1) release of Parliamentary proceedings to a litigant may only be
denied if the release of such information is
likely to prejudice the security or
sovereignty of the state or interfere with the right to privacy of any other
person. Moreover,
Parliament does not yet appear to have made laws prescribing
the classes of information referred to in article 44 (2) and the procedure
for
obtaining access to such information. Secondly, the authorities relied on by the
appellant are most relevant to the instant case.
I shall refer to only three for
purposes of discussing article 41. One is Constitutional Appeal No. 1
of 1997. Attorney General Vs. Major General David Tinyefuza (Supra).

In that case, this Court was concerned with, inter alia, section 121 of
the Evidence Act and article 41 (1) of the Constitution. Section
121
provides.

"No one shall be permitted to give any evidence derived from
unpublished official records relating to any affairs of state, except
with the
permission of the officer at the head of the department concerned who shall give
or withhold such permission as he thinks
fit."

During a trial of a petition in the Constitutional Court, The Attorney
General objected to the admissibility of a certain recorded
radio message from
the Head of State as Commander-in - Chief of the Army to the Minister of State
for Defence concerning the respondent
in that appeal. The objection was based on
grounds of state security under section 121. The Constitutional Court overruled
the objection,
which was upheld by this Court. In his judgment Wambuzi CJ. (as
he then was) put the matter this way.

"The Court (the Constitutional Court) then went on to consider section
121 of the Act together with Articles 28,41,43, 44 and 273
of the Constitution
and concluded

'The Constitution has determined that a citizen shall have a right of
access to information in the hands of the state. It has determined
the
exceptions in a manner that is inconsistent with the application of section 121
of the Evidence Act, it is no longer for the
head of department to decide as he
thinks fit. The

unfettered discretion has been overturned by
article 41 of the

8 constitution and now it is for the Constitutional Court to determine
whether a matter falls in the exceptions in article 41 or not.
And to this, the
state must produce evidence upon which the Court can act. It has not done so in
this instance.'

The objection as to admissibility was overruled and I am unable to
fault the reasoning of the Constitutional Court".

In my own judgment in that case I said:

"The right of access to information is new in the constitutional
history of Uganda. The Evidence Act is an old vintage statute of
1909. For this
and other reasons I have given I think that article 41 of the Constitution
overrides section 121 of the Evidence Act.
I have already referred to the views
expressed on page 5260 of "Field's law of Evidence" to the effect that there is
a long catena
or chain of decisions in which warnings have been given by Courts
of the menace which supposed privilege implies to the individual
liberty and
private rights and to the potency of its abuse. It is this menace which in my
view, article 41 sets out to limit. The
right of access to information must
include the right to use such information in a Court of Law in support of a
citizens case."

I still hold the same view.

Article 97 as amended by section 5 of Act 13/2000 by introduction of clauses
(2) and (3) are couched in identical terms as section
15 (1) and (2) of the
National Assembly (Powers and Privileges) Act, (Cap. 249). The effect of article
41 (1) of the Constitution
on section 15 (1) and (2) was considered by this
Court in Constitutional Appeal No. 1 of 2000. Paul Ssemogerere and
Zachary Olum Vs. Attorney General (Supra).
This is another case to
which the appellants referred the Court of Appeal in support of their
petition.

Section 15 of the Act provided: "15 (1) Save as provided in this Act
nomember or officer of the Assembly and no person employed to take minutes of
evidence before
the Assembly or any committee shall give evidence elsewhere in
respect of the contents of such minutes of evidence or contents of
any document
laid before the Assembly or any such committee as the case may be, or in respect
of any proceedings or examination held
before the Assembly or such committee as
the case may be without the special leave of the Assembly first had and
obtained.

"(2) The special leave referred to in subjection (1) of this section
may be given during a recess or adjournment by the Speaker or,
in his absence or
other incapacity or during any dissolution of the Assembly, by the
clerk."

Rule 171 of the rules of procedure of Parliament, 1996 were worded in
identical terms as section 15 (1) of the Act.

In that case Learned
Justice Kanyeihamba, JSC, wrote the lead judgment. All the other members of the
Court, except Wambuzi CJ, (as
he then was) agreed with him on his conclusions on
the application of section 15 (1) and (2) of the Act (Cap 249) in the light of
article 41 of the Constitution. Kanyeihamba, JSC said:

"It is my view that in the light of the provisions of article 41 (1),
the argument that a citizen needs permission of parliament to
use Hansard or
allow members of Parliament to give evidence in Court proceedings is
unsustainable. In this case, the Speaker gave
what is known in administrative
law as a speaking order. He disclosed that he had consulted the registers of
members and used the
numbers registered therein to ascertain the quorum. A
speaking order is impeachable in courts of law, especially if there is evidence
that it was based on a wrong principle. Consequently, since under article 41(1),
information in possession of the state is freely
available to a citizen
except

where its release would be "prejudicial to the security
or sovereignty of the state or interference with the right of privacy of
any
person" I can find no constitutional or legal grounds to prevent the release and
use of Hansard or stop members of parliament
from giving evidence
in courts of law............ The Attorney General did not show nor am I
aware that Parliament
has made the necessary law under article 41(2). In any
event it would be incumbent upon the Attorney General to show that the
information
to be excluded as evidence in Constitutional petition No. 3 of 1999,
came within the purview of the exceptions listed in clause (1)
of the same
article. In my opinion, while it is still a practical necessity for a litigant
to write to the state or organ or agency
in possession of information, once that
information is obtained, with or without the co-operation of the state, or organ
or agency
concerned, the information is freely usable and admissible in courts
of law unless it falls within the exceptions under article 41(1).
Moreover,
where the state refuses to release such information, the citizen entitled to
receive it may take the necessary legal steps
to compel its release"

In the case of Phato Vs Attorney General (1994), 3 LRC (Supreme Court
of South Africa)
it was held that the right of access to information by
an accused person was required for the exercise of his right to a fair trial
within the meaning of section 23 of the Constitution of South Africa,
notwithstanding that it was not essential for the exercise
of the latter right
in circumstances where another law already provided for an alternative method to
gain access to some, but not
all, of the information sought, enabling him to
defend the charges against him. A right of access to information in terms of the
supreme law, the Constitution, could not be whittled away. Further more where
information existed which was highly likely to be relevant,
such information was
'required' within the meaning of section 23, at least in order to enable the
person seeking it to exercise or
protect a right to take a proper decision about
it. On the facts in that case, the first applicant 'required' the information in
the police docket and particularly the witness statements in order to prepare
for trial.

In the instant case the effect of article 97 (2) and (3) as amended by
section 5 of Act 13/2000 is to restrict the citizens' access
to information in
the hands of Parliament subject to the absolute discretion of Parliament to
release or not to release the information.
In my view the provisions of section
5, conflict with the right of access to information, guaranteed by article 41.
They are, therefore,
null and void.

Act 13/2000 expressly amended article 41 by the introduction of the new
clauses (2) and (3) to article 97. Part of the appellant's
case is that other
articles of the Constitution were amended by implication or infection. These are
articles 1,2(1) and (2), 28,
44 (c), 128 (1), (2) (3) and 137 (3). The
respondent's contention is that these articles were not amended, just as article
41 was
not amended, because the preamble to Act 13/2000 did not specifically
state that they were to be amended.

Amendment of the Constitution is provided for by article 258 of the
Constitution, the provisions of which are to the effect that the
Constitution
can only be amended if an Act of Parliament is passed for that purpose; the Act
has the effect of adding to, varying
or repealing any provision of the
Constitution; and the Act has been passed in accordance with the provisions of
Chapter Eighteen
of the Constitution. To me, it follows that if an Act of
Parliament has the effect of adding to, varying or repealing any provisions
of
the Constitution, then the Act must be said to have amended the affected article
of the Constitution. The amendment may be effected
expressly, by implication or
by infection, as long as the result is to add to, vary, or repeal a provision of
the Constitution. It
is immaterial whether the amending Act states categorically
that the Act is intended to affect a specified provision of the Constitution
or
not. It is the effect of the amendment which matters. This view, in my
opinion, is supported by the decision of the Supreme
Court of Canada in
The Queen VS. Big M. Drug Mart Ltd (1986) LRC (Const), with which
I agree.

In that case, the respondent had been charged with unlawfully carrying on the
sale of goods on Sunday in Calgary, contrary to the
Lords Day- Act (RSC 1970 C.
L - 13) and was acquitted at the trial. The Alberta Court of Appeal dismissed
the appeal and a further
appeal was made to the Supreme Court in which various
constitutional questions were raised, in particular, whether the Act, (1)
especially
section 4, infringed the right of freedom of conscience and religion
guaranteed by section 2 of the Canadian Charter of Rights and
Freedoms; (2) was
justified by section 1 of the Charter; (3) was enacted pursuant to the criminal
law power in section 97 (27) of
the Constitution Act of 1867. The Attorneys -
General of Canada, New Brunswick and of Saskatchewan intervened in the appeal.
The
appeal was dismissed, because:

(1) Since the true, purpose of
the Act was to compel the observance of the Christian Sabbath, it, especially
section 4, infringed the
freedom of conscience and religion guaranteed by
section 2(a) of the Charter. Nor was it justified as a reasonable limit under
the
Charter, because, though a secular justification for a day of rest in the
Canadian contex could be found, it was not the motivation
of the
legislation.
(2) (Per Dickson, Beetz,
MacIntyre, Chouinard and Lamer, JJ): Both purpose and effect are relevant in
determining the constitutionality,
either an unconstitutional purpose or an
unconstitutional effect can invalidate legislation. All legislations are
animated by an
object the legislature intends to achieve. This object is
realised through the impact produced by the operation and application of
the
legislation. Purpose and effect respectively, in the sense of the legislation's
object and its ultimate impact, are clearly linked,
if not indivisible. Intended
and actual effects have often been looked to for guidance in assessing the
legislation's object and
thus its validity.

In that case, Wilson J said:

"While it remains perfectly valid to evaluate the purpose underlying a
particular enactment in order to determine whether the legislature
has acted
within its constitutional authority in division of powers terms, the Charter
demands an evaluation of the infringement
by even intra vires legislation of the
fundamental rights and freedoms of the individual. It asks not whether the
legislature has
acted for a purpose that is within the scope of the authority of
that tier of government, but rather whether in so acting it has
had the effect
of violating an entrenched individual right. It is in other words, first and
foremost an effects or oriented document."

In my opinion the principles expressed by the Canadian Supreme Court in
The Queen VS. Big M. Drug Mart Ltd (Supra) apply with equal force
to the instant case.

Another important principle governing interpretation and enforcement of the
Constitution, which is applicable to the instant case,
is that all provisions of
the Constitution touching on an issue are considered all together. The
Constitution must be looked at as
a whole. In South Dakota Vs North
Carolina, 192 U.S. 268 (1940) L.Ed
the U.S. Supreme Court said at
page 465.

"Elementary rule of Constitutional Construction is that no one
provision of the Constitution is to be segregated from all others to
be
considered alone, but that all provisions bearing on a particular subject are to
be brought into view and to be so interpreted
as to effectuate the great purpose
of the instrument."

The right to a fair hearing is protected by article 28 of the Constitution,
clause (1) of which provides that in the determination
of civil rights and
obligations or any criminal charge, a person shall be entitled to a fair, speedy
and public hearing before an
independent and impartial court or tribunal
established by law. Under the provisions of article 44 (c) derogation of the
right to
fair hearing is prohibited. Under article 128 (3) all organs and
agencies of State are enjoined to accord to the Courts such assistance
as may be
required to ensure the effectiveness of the Courts. Parliament is such an organ
of state. It should not therefore enact
laws which hinder functions of Courts in
dispensing justice, of which the right to fair hearing is an important aspect.
In my considered
opinion a litigant whose right of access to information is
curtailed by the amended article 97 of the Constitution cannot enjoy the
right
to fair hearing under articles 28 (1) and (c) if Parliament withholds from him
or her Parliamentary proceedings which he/she
needs for evidence in a Court of
Law. By withholding such information from being used in a Court of law
Parliament would also be
violating article 128 (3) of the Constitution.

For the same reasons, a citizen's right under article 137 (3) to petition the
Constitutional Court for a declaration that an Act of
Parliament is inconsistent
with, or contravenes, the Constitution would be rendered impossible if
Parliament can deny him/her information
in its possession which the citizen
requires to support his/her petition for that purpose. Denial of such
information would inevitably
result into denial to the citizen the right to fair
hearing and to violation by Parliament of its Constitutional duty under article
128 (3). Consequently the Constitutional Court's jurisdiction under article 137
(1) is affected in that where a petitioner for purposes
of article 137 (3) is
denied information to support his/her petition the Constitutional Court cannot
give him/her a fair hearing.

In the circumstances, the amendments
introduced by section 5 of Act 13/2000, which I have discussed in this judgment,
are also in
conflict with articles 28, 44 (c), 128 (3) and 137 (1) and (3) of
the Constitution and, therefore, null and void.

In view of my finding that Act 13/2000 is in conflict with the constitution,
it is my considered opinion that Act 13/2000, was a "colourable"
legislation. A
colourable legislation occurs where a legislature lacking legislative power or
subject to a constitutional prohibition
may frame its legislation so as to make
it appear to be within the legislative power or to be free from the
constitutional prohibition.
Such a law is "colourable" legislation, meaning
thereby that while pretending to be a law in the exercise of undoubted power, it
is, in fact, a law on a prohibited field.

The principle of colourable
legislation has been applied in some Common -wealth jurisdictions. In
Union Colliery Co. Of British Columbia Vs. Bryden (1899) AC. 580,
the
Privy Council held that section 4 of the impugned Act, which prohibited China
men of full age from employment in underground
workings, was not a law relating
to Provincial Undertakings, nor a law relating to Property and Civil Rights in
the Province but
was in pith and substance a law relating to naturalisation of
aliens, a subject of exclusive Dominion legislative power. Accordingly
S.4 was
ultra vires the Provincial Legislature. In Attorney General of Ontorio
Vs Reciprocal Insurers (1924) A.C 328, the
Privy Council had to
consider, inter alia, an attempt by the Dominion of Canada to control contracts
of insurance within a Province.
The Dominion having failed to secure that
control by the Insurance Act of 1910, inserted section 508 (c) in the Criminal
Code which
made it an offence for any person to solicit or accept any insurance
risk except on behalf of or as agent of a company duly licensed
under the
Insurance Act, 1917 of Canada. The Dominion contended that its power to
legislate on Criminal Law was unfettered and that
the impugned law was intra
vires. Rejecting this contention the Privy Council observed that this claim was
a claim to legislate every
topic of exclusive Provincial Legislation by
resorting to the entry on Criminal Law, and that such a claim could not be
allowed consistently
with the principles governing the interpretation of
Sections 91 and 92 of the B.N.A Act 1869. At page 343 the Privy Council
said:

"It is one thing, for example to declare corruption in Municipal
elections, or negligence of a given order in the management of railway
trains,
to be a criminal offence and punishable under the Criminal Code; it is another
thing to make use of the machinery of the
criminal law for the purpose of
assuming control of municipal corporations or of Provincial
railways".

Other cases in which the principle of colourable legislation has been
discussed include Att. Gen for Alberta Vs Att. Gen for Canada (1979) A.C.
117; W.R. Morgan Pty Ltd. Vs Dy Commissioner of Taxation for N.S.W. (1940)
A.C.
838; and K.C. Gajapati Narayan Deo Vs Orissa (1954) S.C.R. 1, (53) ASC. 375.
In the Gajapati case (supra) Mukhherjea J, observed that
the doctrine of colourable legislation did not involve any question of
bonafides or malafides on the part of the legislature. The whole
doctrine resolved itself into a question of the competency of a particular
legislature to
enact a particular law. The whole doctrine of colourable
legislation is based upon the maxim that you cannot do indirectly what you
cannot do directly. See Constitutional Law of India, 3rd
Edition, By HM. Seervai, Paragraph 3.15.


In the instant
case, Act 13/2000, in my view, was a colourable legislation, by which Parliament
sought to amend articles 28, 41, 44(c),
128 and 137 (1) and (3) of the
Constitution without saying so. It did indirectly what it could not do directly,
without complying
with the Constitutional procedural requirements. For this
reason and the others I have already given in this judgment, section 5
of Act
13/2000 is in conflict with the provisions of the Constitution in question, and
is null and void.

Article 1 of the Constitution provides for the sovereignty of the people and
for their governance through their will and consent.
In my view Section 5 of Act
13/2000 did not affect or amend article 1 of the Constitution, for it did not
remove away or in any way
affect the right of the people to exercise their
sovereignty in accordance with the Constitution. Nor did the section affect or
amend
article 2 of the Constitution, which provides for the supremacy of the
Constitution.

In the circumstances ground 1 of the appeal should succeed. So should ground
3. On the other hand, ground 2 of the appeal should fail.

I shall next consider grounds 4 and 5 together. The Constitution stipulates
certain procedural conditions for enacting and assenting
to bills intended to
amend certain provisions of the Constitution. Firstly provisions of article 259
(1) state that a bill for an
Act of Parliament seeking to amend provisions of
articles 44 and 128 (1) shall not be taken as passed unless it is supported at
the
second and third readings in Parliament by not less than two-thirds of all
members of Parliament; under article 261, the some procedure
applies to article
41. Secondly, it has been referred to a decision of the people and approved by
them in a referendum; thirdly under
article 262 (1) the votes on the second and
third readings required under articles 259 and 260 shall be separated by at
least fourteen
sitting days of Parliament; fourthly under article 262 (2) a bill
for the amendment of the Constitution which has been passed in
accordance with
Chapter Eighteen shall be assented to by the President only if: (a) it is
accompanied by a certificate of the Speaker
that the provisions of Chapter
Eighteen have been compiled with in relation to it and (b) in the case of a bill
to amend a provision
to which articles 259 or 260 of the Constitution apply, it
is accompanied by a certificate of the Electoral Commission that the amendment
has been approved at a referendum or, as the case may be, ratified by district
councils in accordance with Chapter Eighteen.

In her judgment with which other two members of that Court agreed, the
learned DCJ held that there was no requirement to hold a referendum
or to have
approval by district councils. Such a conclusion on the part of the learned DCJ,
in my opinion, is not surprising because
the learned DCJ held that only articles
88, 89, 97 and 257 of the constitution were amended, and that articles 1, 2, 28,
41, 44,
128 and 137 (3) were not amended, by Act 13/2000. The learned DCJ also
held that there was no requirement for spacing of 14 days
between the second and
third readings of the Constitution (Amendment) Bill No.16 of 2000 (Act 13/2000);
that the Constitution does
not provide for special procedures to be followed by
Parliament when enacting Constitutional amendment Acts other than those enacted
under articles 259 and 260. It only makes provision for Parliament to make it's
own Rules under article 94 (1): In the instant case,
there was nothing to stop
Parliament from applying its own Rules. The learned DCJ also held that the
affidavits sworn by the 2nd and 3rd appellants did not
indicate that Parliament did not comply with the correct rules of procedures. It
was entitled to resort to its
own rules to regulate its proceedings during the
debate of Bill No.16 of 2000. Parliament is provided with powers to waive any
requirement
of its rules where a particular bill is considered urgent. Under
rule 96 (4) a bill may be taken through all the stages in a day
notwithstanding
anything in those rules. The learned DCJ also held that although they were
members of Parliament, the affidavits
of the second and third appellants did not
prove that the Speakers Certificate under article 262 (2) was not attached to
the bill
when the bill was sent to the President for his assent thereto. In any
case failure to attach the Speaker's Certificate to the bill
would not be fatal
to the validity of Act 13/2000. Issuance of the Speaker's certificate was a mere
procedural and administrative
requirement which does not go to the root of law
making process. Similarly, none of the Constitutional amendments effected by Act
13/2000 had to be accompanied by a certificate of the Electoral Commission.

With great respect I am unable to agree with the learned DO and the
two JJ.A. that the amendment effected by Act 13/2000 did not, require approval
by the people in a referendum or by district
councils; that the second and third
readings of the amending bill did not require to be separated by 14 days; that
the period of
fourteen day's was a mere procedural requirement which Parliament
could waive as it wished under rule 96 (4); and that the requirements
for the
Speaker's certificate or the certificate of the Electoral Commission were mere
procedural and administrative requirements
which did not go to the root of the
law making process.

It is my view that the Constitutional procedural requirements for the
enactment of legislation for amendment of the Constitution are
mandatory
conditions, which cannot be waived by Parliament as mere procedural or
administrative requirements. They are conditions
to be complied with. Mandatory
Constitutional requirements cannot simply be waived by Parliament under its own
procedural rules.
It is also my considered opinion that had the learned D.C.J
and Justices of Appeal found that Act 13/2000 amended articles 28, 41,
44, 128
and 137 (1) and (3) they would have found that the Constitutional procedural
requirements under articles 258, 259, 260(1),
262(1) and (2) were mandatory and
that Parliament should have complied with them in enacting Act
13/2000.

In my considered opinion this view is supported by the decision
of the House of Lords in The Bribery Commissioner VS Dedrick Ranasinghhe
(1965) AC 172.
It was held in that case that a legislature has no power
to ignore the conditions of law making that is imposed by the instrument
which
itself regulates its power to make law. This restriction exists independently of
the question whether the legislature is sovereign.
Such a constitution can be
altered or amended by the legislature if the regulating instrument so provides
and if the terms of those
provisions are complied with, and the alteration or
amendment may include the change or abolition of those very provisions. A
legislature
has no inherent power derived from the mere fact of its
establishment to make a valid law by for instance, the resolution of a bare
majority which its own constitutional instrument has said shall not be valid
unless made by a different type of majority or by a
different legislative
process.

Regarding the findings in the instant case of the Constitutional Court that
there was no proof that the requirement for fourteen days
interval between the
second and third readings of the Bill 16 of 2000 had been fulfilled; that the
respective certificates of the
Speaker and the Electoral Commission did not
accompany the Bill to the President for his assent, the second and third
appellants
filed affidavits to say that the relevant procedural constitutional
requirements were not complied with when Act 13/2000 was enacted.
Zachary Olum,
the second appellant deponed in paragraph six of his affidavit that the Bill was
read for the first, second and third
readings within two days only; that the
Bill was not referred to the decision of the people for approval in a
referendum; and that
the Bill was not accompanied by respective certificate of
compliance from the Speaker of Parliament and from the Electoral Commission.
In
her affidavit, Juliet Rainer Kafire, the third appellant, deponed in paragraph
five of her affidavit that Act 13/2000 was passed
by Parliament in one day,
namely 31.8.2000. It was published in the Uganda Gazette on 1.9.2000 and became
law the same day. The respondent's
answer to the appellant's petition was
supported by the affidavit of Patricia Mutesi, a State Attorney in the
respondent's Chambers.
Mutesi's affidavit was silent on the allegations made in
paragraphs six and five respectively of the second and third appellant's
affidavits' which, therefore, were not controverted. In my view, some of these
were matters within the special knowledge of the respondent.
He alone knew or
should have known whether the bill for the enactment of Act 13/2000 was
accompanied or not by the respective certificates
of the Speaker and the
Electoral Commission for purposes of assent to the bill by the President. The
appellants had no access to
official information or materials as evidence in the
possession of the respondent. By their affidavits, the appellants had make a
prima facie case that the Constitutional requirements were not complied with.
The burden to prove the contrary, in my opinion shifted
to the respondent,
because the matters in question were within his special knowledge. See section
105 of the Evidence Act. Regarding
the absence of the 14 days interval the two
appellants were members of Parliament and deponed to that fact from their own
knowledge.
It is my opinion, therefore, that the appellants proved what they
alleged in their affidavits.

In ground 1 (e) of their petition, the
appellants challenged the constitutionality of the new article 257 A introduced
by Section
6 of Act 13/2000. The Constitutional Court did not make any decision
about that ground of the petition. However, it is my opinion
that I should
comment on it for purposes of clarification since it relates to a procedure for
passing Acts of Parliament. The provisions
of the new article 257 A are to the
effect that no Act or decisions passed or taken by Parliament at any time after
the commencement
of the Constitution using the procedure of voting by a voice
vote shall be taken to be invalid by reason of the use of that procedure.
It
follows, in my view, that procedure is inapplicable to passing of Acts of
Parliament which were or are intended to amend the Constitution
where a majority
of two-thirds, majority of all the members of Parliament at the second third
readings are required by the Constitution.
Such a procedure would require a head
count to ascertain a majority of two thirds of all the members of Parliament who
are entitled
to vote, excluding ex-officio members, which is not possible in a
voice count of "Ayes" or Noes."

In the circumstances, grounds four and five of the appeal should
succeed.

I shall consider next ground six of the appeal. The passage of the judgment
of the Lady Justice Mukasa-Kikonyogo, DO, with which two
members of that Court
agreed, and which is relevant to this ground of appeal reads as follows:

"Once the correct procedure for enacting a Constitutional Amendment Act
is complied with, its provisions become part and parcel of
the Constitution,
they cannot be challenged in this Court. This Court by a majority of 3:2 in
Constitutional petition No.5 of 1999 Dr. Rwanyarare and Had Sadim Degulo VS.
Attorney General
held that this Court would not have jurisdiction to
construe parts of the Constitution as against the rest of the Constitution. See
also Kesavananda VS State of Kerala 1654 Paragraph 788 A.I.R. All that
this Court could do was to determine whether the challenged Act was enacted in
accordance with
the procedure for enacting constitutional amendments. This
petition was, hence, adjourned for hearing to determine the issue of compliance
with the laid down procedure. In the recent Constitutional Petition No.8 of
2000 Uganda Law Society and Justin Semuyaba VS Attorney General,
where a
similar constitutional petition was heard by this Court, the unanimous holding
of the court was that Parliament passed Act
13 of 2000, known as The
Constitution (Amendment) Act, in accordance with the laid down procedure. The
petitioners failed to prove
that the procedure was not followed by Parliament.
In my view, the decision to that effect is still standing as no appeal was filed
against it and this Court has not reversed itself. The holding also decided
Constitutional Petition No.6 of 2000 Karuhanga Chapa and 2 others VS Attorney
General
in the same way as a test case. When this petition came up for
hearing on 18th February 2002 that decision of the Court was brought
to the attention of Mr. G. Lule and Mr. Balikuddembe, learned counsel for the
petitioners, but they replied that their clients' case was distinguishable from
the two petitions decided. Unlike in the other petitions,
they told the Court
that they had evidence to prove that the laid down procedure was not followed by
Parliament when enacting Act
13 of 2000."

As I understand it, the decision of the Constitutional Court in this passage
of the judgment is that the Constitutional validity of
an Act of Parliament
intended to amend the Constitution can be challenged only if proper procedures
are not followed in the enactment
process. It appears to mean that because such
an Act becomes part and parcel of the Constitution it cannot be challenged that
it
is inconsistent with or contravenes the Constitution even if that is the
perception of the petitioner. Such a decision in my view,
with respect, would
severely limit the jurisdiction of the Constitutional Court as provided for
under article 137 of the Constitution.

Jurisdiction is defined in Mulla on the Code of Civil Procedure
at page 225 as:

"By jurisdiction is meant authority which a Court has to decide matters
that are litigated before it or to take cognizance of matters
presented in a
formal way, for its decision. The limits of this authority are imposed by
statute, charter or Commission, under which
the Court is constituted and may be
exercised or restricted by the like means. If no restriction or limit is imposed
the jurisdiction
is unlimited"


For purposes of ground six of the
appeal in the instant case, the jurisdiction of the Constitutional Court to
construe Acts of Parliament
is set out in article 137 of the
Constitution.

"137 (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..... . is inconsistent with or in

24 contravention of a provision of the Constitution may petition the
Constitutional Court for a declaration to that effect, and for
redress where
appropriate."

The Constitutional Court's jurisdiction to declare an Act of Parliament
inconsistent with or in contravention of the Constitution
goes together with the
one for interpretation of the Constitution. It is unlimited. The
Constitutionality or otherwise of an Act
of Parliament must be construed
vis-a-vis the Constitution. The Court's jurisdiction in article 137 (3) (a) must
be applied together
with the one in article 137 (1). In my view these provisions
apply to any Act of Parliament which a person alleges is inconsistent
with or
contravenes the Constitution. For purposes of exercising these jurisdictions by
the Constitutional Court there can be no
distinction between an Act passed to
amend the Constitution or an Act passed for other purposes. As long as a person
alleges that
an Act of Parliament is inconsistent with or contravenes the
Constitution, the Constitutional Court shall and should construe the
Act of
Parliament in the light of the Constitutional provisions it is alleged to be
inconsistent with or to contravene whether it
is the former kind of Act of
Parliament or the latter. For purposes of jurisdiction of the Constitutional
Court under article 137
(1) and (3) (a) there can be no distinction between an
Act for amendment of the Constitution and other Acts of Parliament. Whether
the
petition presented to the Court is to challenge the Constitutionality of an Act
in the sense that the Act is allegedly null and
void or that the Act was enacted
in a manner which did not comply with the Constitutional procedural provisions,
such as, for instance,
requirements under articles 259, 261 (1) and 262 (1) and
(2), the Constitutional Court has jurisdiction to make a declaration or
other
redress sought by the petitioner.

Any Act of Parliament intended to amend
the Constitution or not, in my view remains valid as against the Constitution
until it's validity
is successfully challenged in the Constitutional Court. To
say that the Constitutional Court has no jurisdiction to entertain a petition
challenging the Constitutional validity of an Act of Parliament intended to
amend the Constitution as long as the relevant procedures
are followed in
enacting it would, with great respect, severely whittle away the jurisdiction of
the Constitutional Court under article
137 of the Constitution. Moreover, there
is no Constitutional provision to that effect.

In the circumstances ground six of the appeal should succeed.

In the result, this appeal should substantially succeed. I would allow it
with cost in this Court and in the Constitutional Court.
I would also make the
Declarations proposed by Kanyeihamba JSC.


JUDGMENT OF ODOKI, CJ

I have had the advantage of reading in draft the judgment of my learned
brother, Kanyeihamba JSC, and I agree with him that this appeal
should
substantially succeed.

The facts giving rise to this appeal have been sufficiently outlined in the
judgment of my learned brother, Kanyeihamba, JSC, and
it is unnecessary to
repeat them.

The appellants have filed six grounds of appeal which are set out in the
judgment of my learned brother, Kanyeihamba, JSC.

The grounds of appeal raise three main issues for determination. The first is
whether the Constitutional Court did not have jurisdiction
to construe one
provision of the Constitution against another. The second issue is whether the
Constitutional Amendment Act No.13
of 2000 amended the various Articles
enumerated by the appellants.

The third issue is whether the right procedure was followed in making the
amendments.

With regard to the first issue which covers the sixth ground
of appeal, the majority of the Court held that the Court did not have
jurisdiction to construe parts of the Constitution as against the rest of the
Constitution.

The learned Deputy Chief Justice Mukasa Kikonyogo in her lead judgment
said,

"When it came before this Court for the first time on 10th
November 2000, Counsel for the Respondent raised two preliminary issues,
one on the affidavits of the petitioners and the second of
on the jurisdiction
of this court. It was conceded by the petitioners that there was a difference
between a Constitutional Amendment
and an Ordinary Act.

Once the correct procedure for enacting a Constitutional Amendment Act
is complied with, its provisions became part and parcel of
the Constitution.
They cannot be challenged in this Court. This Court by a majority of 3:2 in
Constitutional Petition No.5 of 1999
Dr Rwanyarare and Haji Badru Wegulo vs
Attorney General,
held that this Court would not have jurisdiction to
construe parts of the Constitution as against the rest of the Constitution. See
also Kesarananda vs State of Kerala 1654 paragraph 788 A.L.R. All that
this Court could do was to determine whether the Challenged Act was enacted in
accordance with
the procedure for enacting Constitutional
Amendments."

The learned Deputy Chief Justice went on to say,

"In the recent Constitutional Petition No.8 of 2000 the
Uganda Law Society and Justin Semuyaba vs Attorney General where a
similar Constitutional Petition was heard by this Court, the unanimous holding
of the Court was that Parliament passed Act
of 13 of 2000 known as the
Constitution (Amendment) Act in accordance with the laid down procedure. The
petitioners failed to prove
that the procedure was not followed by Parliament.
In my view the decision to that effect is still standing as no appeal was filed
against it and this Court has not reversed itself.

The holding also decided Constitutional Petition No.6 of
2000 Karuhanga Chapaa and 2 Others vs Attorney General in the same way as
test case."

This opinion raises question of the role of precedent in the Constitutional
Court or the Court of Appeal, and the question of harmonisation
of the
provisions of the Constitution. With regard to the first question, the doctrine
of precedent is now constitutionalised in
Article 132(4) of the Constitution,
which provides,

"The Supreme Court may, while treating its won previous decisions as
normally binding depart from a previous decision when it appears
to it right to
do so; and all other Courts shall be bound to follow the decisions of the
Supreme Court on questions of law."

This principle is a codification of the principle enunciated in the case of
Dodhi vs National & Grindlays Bank Ltd (1970) EA 195,
and the House of Lords Practice Statement (Judicial Precedent)
(1966) I WLR. 1234.

The doctrine of precedent requires lower Courts to follow decisions of higher
Courts on questions of law. The doctrine also lays down
when a Court is not
bound to follow a decision of a higher Court. This means that the Constitutional
Court/Court of Appeal is bound
to follow decisions of the Supreme Court. As
regards its own decisions, it would normally be bound by them except under the
three
circumstances set out in Young vs Bristol Aeroplane Co.Ltd
(1944) K.B. 718 which was approved in Dodhia's case
(supra) where Law JA said at p.210,

"In Kiriri Cotton Co. Ltd vs Ranchoddas Kesharji Dewani (1958)
EA 239, Sir Keneth O Cornor P, with the concurrence of other members of the
Court, held following Young vs Bristol Aeroplane Co. Ltd (1944 KB 718
that the principle of stare decis is followed by this Court, subject to the
following qualifications:

(1) that the court is
entitled and bound to decide which of two conflicting decisions of its own it
will follow;
(2) that this court
would be bound to refuse to follow a decision of its own which though not
expressly overruled cannot stand with a
decision of the Privy Council or of the
House of Lords; and
(3) this
court is not bound to follow a decision of its own if it is satisfied that the
decision was given per incurium."

It
is clear from these authorities that the Constitutional Court was not obliged to
follow its own decision if that decision was in
conflict with the decision of
the Supreme Court or if the decision was given per incurium. In my
view the decision of the Constitutional Court in this case is inconsistent with
the decisions of this Court in the cases of
Major General David
Tinyefuza vs Attorney General,
Constitutional Appeal No.1 of 1997
(unreported) and Paul Ssemogerere and Zachary Olum vs Attorney
General,
Constitutional Appeal No.1 of 2000, (unreported). In
Major General David Tinyefuza vs Attorney General, (supra)
this Court held that Section 121 of the Evidence Act, which prevented the
production in evidence of unpublished official records
without the consent of
Head of the Department was unconstitutional as it was inconsistent with Article
41 of the Constitution which
provided for a right of access to information in
possession of the State and Article 28(1) which provides for a right to fair
hearing.
Similarly in
Ssemogerere and Olum vs
Attorney General
(supra) this Court held that Section
15 of the National Assembly (Powers and Privileges) Act which prevented any
member or officer
of the Assembly to give evidence in respect of Assembly
matters without the special leave of the Assembly, was in conflict with Articles
41 and 28 of the Constitution, and was therefore null and void. The provisions
of Section 5 of Act 13 of 2000 amending Article 41
are, as we shall see later, a
reproduction of Section 15 of the National Assembly (Powers and Privileges) Act
which had been declared
unconstitutional. The Constitutional Court was bound to
follow these decisions of the Supreme Court, and it erred in not doing
so.

The second question is one of harmonisation. The Constitutional Court was in
error to hold that it did not have jurisdiction to construe
one provision
against another in the constitution. It is not a question of construing one
provision as 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 second issue is whether the Constitutional (Amendment) Act amended by
implication or infection the various Articles specified.
This issue covers
grounds 1,2 and 3 in the Memorandum of appeal. The various Articles specified in
the Memorandum of Appeal were
Articles 1, 2 (1), 2(2) 24(c), 28, 41(1), 44(c),
128(1) (2) (3) and 137(3) (a). The petition did not allege that Section 5 of Act
13 of 2000 amended Article 1 of the Constitution by implication or infection.
But the matter was argued in the Constitutional Court
and in this Court.
Paragraph 1(c) of the petition referred only to Articles 2 (1) (2) and 3 (2) and
(4) of the Constitution. The
Constitutional Court, by majority, held that these
Articles were not amended, and therefore the provisions of Articles 259 and 260
of the Constitution were not applicable. Mukasa Kikonyogo, DCJ in this respect
said,

"I agree with Mr Denis Bireije that Article 259 of the Constitution is
not relevant There was no requirement for holding a referendum.
The articles
which were amended by Act 13 of 2000 were clearly stated as Articles 88, 89, 90,
97 and 257 of the Constitution. They
did not include any of the provisions under
the Article 259 and 260. Articles 1,2,28, 41,44,79(2) and 128(1) were not
amended by
Act 13 of 2000, expressly, impliedly or by infection as submitted by
Mr Lule. In my view it would be wrong for the Court to impute
unnecessary
implications on the legislators without proof.

In any case, it would be tantamount to putting words in their mouth.
The same argument can be extended to the complaints raised by
counsel for the
petitioners under Article 260. The Constitution (Amendment) Act did not amend
any provisions of the Constitution
under that Article in any way. Article 260 of
the Constitution is also irrelevant."

The learned Deputy Chief Justice held that general amendments under Article
258 did not require holding of a referendum or approval
by districts. While it
is true that Articles 88, 89, 90 and 97, and 257 of the Constitution were
expressly stated in the Bill as
the subject of amendments, and Articles
1,2,41,44,79(2) and 128(1) were not included, it does not follow that the
Articles not mentioned
in the Bill could not be amended by implication or by
infection. Article 258(1) which provides for amendment of the Constitution
clearly envisages alteration of the Constitution by "way of addition,
variation or repeal."
The variation need not be direct but can be
indirect by implication or infection. Article 257 (9) which defines amendment
also supports
this view. It provides:

"in this Constitution, references to the amendment of any of the
provisions of this Constitution or any Act of Parliament include
references to
the alteration, modification or re-enactment, with or without amendment or
modification of that provision, the suspension
or repeal of that provision and
the making of a different provision in place of that provision."

In this connection, I agree with the dissenting judgment of Twinomujuni JA,
that an amendment may be effected expressly or by implication
or infection, and
that both the purpose and effect of the amendment are relevant in determining
Constitutionality. In considering
this point, the learned Justice, said,

"If an Act of Parliament has the effect of adding to, varying or
repealing any provision of the Constitution, then the Act is said
to have
amended the affected Article of the Constitution. There is no difference whether
the Act is an Ordinary Act of Parliament
or an Act intended to amend the
Constitution. The two are treated the same under Article 137(3) of the
Constitution. The amendment
may be effected expressly, by implication or by
infection as long as the result is to add to, vary or repeal a provision of the
Constitution.
It is immaterial whether the amending Act states categorically
that the Act is intended to affect a specified provision of the Constitution.
It
is the effect of the amendment that matters. It was stated in the Canadian
Supreme Court case of the Queen vs Big M Drug Mart Ltd (1986) LRC332
that,

"Both purpose and effect are relevant, in determining
Constitutionality, either an unconstitutional purpose or an unconstitutional
effect can invalidate legislation ...this validity."

The learned Justice of Appeal went on to say,

"If it was to be otherwise, Parliament could alter the entire
Constitution, including the entrenched provisions, without following
the
procedure prescribed in Chapter 18 of the Constitution as long as it took care
not to specify them in the Headnote of the amending
Act."

I entirely agree with those observations.

In Opolot vs Attorney General (1969) E.A. 631, the
question of implied amendment of legislation was considered. The appellant who
was formerly a Brigadier in the
Uganda Army and Chief of Defence Staff, was
discharged from the Army on October 7, 1966 and was detained under Emergency
Regulations.
He applied to the High Court for a declaration:-

(a) That his discharge was
invalid and that he was still a member of the Armed Forces and Chief of Defence
Staff,
(b) That the Armed Forces (Discharge)
Regulations 1966 were invalid.

The application was refused by the High Court and the appellant appealed to
the Court of Appeal. In dismissing the appeal, the Court
of Appeal held,
inter alia, that reference in the Armed Forces Act to "Prime
Minister"
were to be regarded as impliedly amended by the 1966
Constitution of Uganda, and the word "President" substituted. In
this connection the Court said,

"Finally Mr Kiwanuka submitted that the appellant was not validly
discharged from the Armed Forces under the Armed Forces (Discharge)
Regulations
1966, because the Defence Council which made the Regulations and which took the
decision to discharge the appellant was
not properly Constituted as its Chairman
consisted of the President and not as required by S.11 of the Armed Forces Act,
of the Prime
Minister. The trial judge rejected this submission and we agree
with him. At the time the decision to make the Regulations and to
discharge the
appellant was taken, the office of the Prime Minister no longer existed. It is
clear from the 1966 Constitution that
S.11 of the Armed Forces Act was to be
regarded as impliedly amended by substituting for the words "Prime Minister" the
word "President."
The implied amendment was not affected by the omission from
the Constitution (Modification of Existing

Law) Instrument 1966 of any specific amendment to S.11. We consider
that the Armed Forces (Discharge) Regulations 1966 were validly
made by the
Defence Council and that the appellant was validly discharged from the Armed
Forces by the Defence Council under those
Regulations, whether or not he was
validly discharged by the President acting under any other
powers."

What then were the Articles which were amended by Act 13 of 2000? In my view
Articles 1 and 2 of the Constitution were not amended
by implication or
infection. Article 1 deals with sovereignty of the people and Article 2 deals
with the supremacy of the Constitution.
None of the amendments purported to
amend expressly or by implication these Articles. The amendments did not affect
the sovereignty
of the people nor the supremacy of the Constitution. The fact
that any of the purported amendments were in conflict or did not comply
with the
requirements of other provisions did not mean that the sovereignty of the people
or the supremacy of the Constitution were
in any way affected. The fact that
Parliament may have exceeded its powers does not mean that it intended to affect
the sovereignty
of the people or the supremacy of the Constitution. Sovereignty
still remained with the people and the Constitution remained supreme.
Any law
which is inconsistent with the Constitution, still remains void to the extent of
inconsistency.

As regards Article 41, which provides for the right to
access to information, I am of the opinion that the Article was amended
expressly
by Section 5 of Act 13 of 2000 which restricted the right of access to
information in possession of Parliament. Section 5 amended
Article 41 by adding
the following two new clauses on Article 97 of the Constitution.

"(2) Notwithstanding Article 41 of this Constitution, no Member or
Officer of Parliament and no person employed to take minutes of
evidence before
Parliament or any committee of Parliament shall give evidence elsewhere in
respect of the contents of such minutes
of evidence or the contents of any
document laid before Parliament or any such committee, as the case may be, or in
respect of any
proceedings or examination held before Parliament or such
committee, without the special leave of Parliament first obtained.

(3) The special leave referred to in Clause (2) of this Article may,
during a recess or adjournment of Parliament be given by the
Speaker or in the
absence or incapacity of the Speaker or during a dissolution of Parliament, by
the Clerk of Parliament."

Article 41 is not an entrenched provision under Articles 258 and 260, and
therefore Parliament had power to amend it without the requirement
of a
referendum or ratification by members of district councils. However, Section 5
of the Act amended Article 28 of the Constitution
by implication. Article 28
provides for a right to a fair hearing. The right to a fair hearing cannot be
guaranteed or exercised
unless the public have access to information which they
need to support their cases and causes. Courts depend in evidence to establish
the truth and to substantiate claims and allegations in disputes. The right of
access to information is not absolute but can be restricted
on grounds of
prejudice to security or sovereignty of the State or interference with the right
to the privacy of any other person.
Parliament must make laws to prescribe the
restrictions. At present Parliament has not done so, and therefore it is
incumbent on
Government to prove the necessity of restricting or denying access
to information.

Article 28 of the Constitution is an entrenched provision by virtue of
Article 44 which prohibits derogation from the rights enumerated
in that
Article. The rights upon which there shall be no derogation from their enjoyment
are:

(a) freedom from torture, 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.

Rule 98 of the Rules of Parliament prohibits the introduction of Bills
derogating from particular human rights and freedoms. It states:

"No Bill, motion or amendment shall be introduced in the house which in
opinion of the Speaker is likely to result in the derogation
from the enjoyment
of any of the a particular

human rights and freedoms specified in Article 44 of the
Constitution.

By amending Article 41 in such a way that it restricted the right of to a
fair hearing, Section 5 of the Act amended by infection
Article 44 of the
Constitution which is an entrenched provision under Article 259 2(c). Such an
amendment required not only to be
passed by two-thirds majority in Parliament,
but also the approval of the people in a referendum. Failure to hold a
referendum rendered
the amendment ineffectual and void.

As regards Article 128 (1), (2) and (3) which guarantee the independence of
the Judiciary and call upon the various agencies of the
State to accord Courts
any assistance required to ensure their ineffectiveness, I am unable to say that
the amendments by implication
or infection amended these provisions. There was
no challenge to or conflict with these provisions, despite the attempted
restriction
of access to Parliamentary records.

However, as regards Article 137 of the Constitution which provides for the
right to challenge the Constitutionality of an Act of Parliament
or any action
by any person or authority, I am of the opinion that this provision was amended
by implication. This right, like the
right to a fair hearing cannot be exercised
effectively if the petitioner is not guaranteed the right of access to
information in
possession of Parliament.

The third issue was whether the correct procedure was followed in making the
amendments. It will be recalled that three methods of
amending of the
Constitution are provided for in Articles 258, 259 and 260. According to the
first method, amendments require only
two-thirds majority in Parliament, under
the second method, amendments require in addition to two thirds majority,
approval in a
referendum (Article 259 (2), and under the third method amendments
require additional ratification by district councils (Article
260), in addition
to two thirds majority in Parliament.

The Bill cannot be passed unless it is supported at the second and third
readings in Parliament by not less than two-thirds of all
Members of

Parliament. In addition Article 262 lays down procedural requirements for the
amendments to be valid. It states inter alia.

"(1) The votes on the second and third readings referred to in Articles
259 and 260 of the Constitution shall be separated by at least
fourteen sitting
days of Parliament.

(2) A bill for the amendment of this constitution which
has been passed in accordance with this chapter shall be assented to by the
President
only if-

(a) it is accompanied by a
certificate of the Speaker that the provisions of this chapter have been
complied with in relation to it, and
in the case of a bill to amend provision to
which article 259 or 260 of this Constitution applies, it is accompanied by a
certificate
of the Electoral Commission that the amendment has been approved at
the referendum or as the case may be, ratified by the district
councils in
accordance with this
chapter.

(3) Where the
provisions of clause (2) of this Article are complied with in the case of a bill
to which Articles 259 or 260 of this Constitution
applies, the President shall
not refuse to assent to the bill"

In 1996 Parliament made Rules to govern its procedure. Rule 96 which deals
with urgent matters provides,

"96 (1) Where the House determines upon the recommendation of the
appropriate Committee of the House appointed for the purpose, that
a particular
Bill is of an urgent nature, that Bill may be introduced without
publication.

(2) Copies of a Bill referred to in sub-rule (r) shall be distributed
to Members and the Bill may be taken through all its stages
in a day
notwithstanding anything in these Rules."

In her judgment, the learned Deputy Chief Justice said this on the issue of
procedure:

"It was the submission of Mr Lule that Parliamentary rules could not
supersede those of the Constitution. I would like to point out
that the
Constitution does not provide for a special procedure to be followed by
Parliament when enacting Constitutional Amendment
Acts other than those enacted
under Article 259 and 260 (supra). It only makes provision for Parliament to
make its own Rules under
Article 94(1). There was nothing to stop Parliament
from applying its own Rules.

The affidavits sworn by 2nd and 3rd petitioners
did not indicate that Parliament did not comply with the correct rules of
procedure for enactment of Acts. Parliament
has powers to waive its rules. It
was entitled to resort to its own rules to regulate its proceedings during the
debate of the Constitution
(Amendment) Bill No.16 of 2000. It is provided with
powers to waive any referendum of its rules where a particular Bill is
considered
urgent. Under rule 96 (4) a Bill may be taken through all the stages
in a day notwithstanding anything in those Rules."

On failure to attach Speaker's Certificate, she cited the decision in the
Constitutional Petition No.8/2000 "Uganda Law Society & Justice
Semuyaba Act vs Attorney General,
that failure to attach the
Speaker's Certificate to the Bill would not be fatal to the validity as the Act.
Yet she acknowledged that:

"The above provisions of the Constitution were intended to save
the President from signing for something not legally passed by Parliament.
It
was the intention of the legislators to render the law passed by Parliament
void. To them the issuance of a certificate were procedural
and administrative
requirement which does not go to the root of the law making
process."

The learned Deputy Chief Justice quoted the doctrine of omania
praesumuntur rite et solemniter acta donee probetur in contrarium
(all
things are presumed to have been performed with all the formalities until it
is
proved to the contrary). She observed in this connection that the
petitioner had the burden of proof which was not discharged.

"It is true that the petitioners filed sworn evidence but in my view it
does not add much to their petition. I am unable to find satisfactory
evidence
to substantiate the allegations made."

The learned Deputy Chief Justice concluded:

" I do not agree with Mr Lule as already pointed out the amendment of
Article 97 resulted in the amendment of Articles 41 (1) and
44 of the
Constitution which he argued blocked ordinary citizens to have access to
information. I disagree with him that the said
amendments were linked to other
Articles which had not been specifically amended like Article 137 (a)
(supra)."

The learned Deputy Chief Justice also held that the required spacing laid
down by Article 262 of 14 days between the 2nd and 3rd
readings was not applicable to the Bill No.16 of 2000. She concluded,

"The failure to observe the 14 days period stipulated under Article 262
(1) of the Constitution in my view, was not applicable to
Bill No.16 of 2000.
All that is required for the amendments under 258 and 261 of the Constitution is
the support at 2nd and 3rd readings of not less than two
thirds of all the members of Parliament which was not disputed in this
petition.

There was no requirement of spacing at any stage of Bill No.16 of 2000
as it is contended for the petitioners."

I am unable to agree with those conclusions. Parliament has the power to make
Rules of Procedure to govern its business, but those
Rules had to be consistent
or intravires the Constitution. Parliament cannot change
provisions of the Constitution through its Rules. It can only make Rules to
implement the
provisions of the Constitution. Therefore in making amendments the
correct procedure laid down in Articles 258 to 262 had to be strictly
complied
with. Those provisions could not be waived by the Rules. In the present case,
the mandatory provisions relating to entrenched
provisions were not complied
with. These provisions require separating the second and third readings of the
amendment Bill by at
least 14 sitting days of Parliament, and the holding of a
referendum or ratification by district councils in specified cases.

The Uganda Constitution is therefore a rigid one as it cannot be amended
easily. Although it is not cast in stone, it is intended
to serve not only the
present generation but the generations yet to come.

The failure to produce a Certificate of the Speaker and a Certificate of the
Electoral Commission which accompanied the Bill was fatal
to the amendment
process where these certificates were required. Once the petitioner alleged that
the Certificates were not attached,
it was incumbent upon the Respondent
Attorney General to show that the Certificates had been attached to the Bill. It
was a fact
within the special knowledge of the Attorney General. The Attorney
General failed to do so. The presumption that such certificates
existed was
rebutted by the allegations made by the petitions which were not seriously
challenged. In the result I would hold that
Section 5 of Act 13 of 2000 was void
for having not been enacted in accordance with the provisions of the
Constitution.

In paragraph 1 (e) of the petition, the Constitutionality of Section 3 of Act
13 of 2000 which introduced a new Article 257 A in the
Constitution was
challenged for being inconsistent with Articles 88 and 137 (1) and (3) of the
Constitution on the ground that they
provide for a procedure where Members of
Parliament may without a quorum vote on any question proposed for a decision of
Parliament
by using a voice vote of "Ayes" and "Noes"
which by reason of the amendment cannot be subjected to the scrutiny of
the Courts when it is the duty of the Courts to interpret
and protect the
Constitution under Article 128 (1), (2) and (3) of the Constitution and Clause 1
of the National Objectives and Directive
Principles of State Policy.

This ground was not argued in the Constitutional Court. The Court therefore
did not pronounce itself on whether the procedure of voting
by "Ayes"
and "Noes" was in conflict with the provisions of the
Constitution. The issue seems to have been raised in this Court in ground 5 of
the Memorandum
of Appeal. This ground complains that the learned majority
Justices of the Constitutional Court erred in law when they failed to
distinguish between waiver of Parliament procedure and non-compliance with the
Constitutional provisions under Articles 258, 259
and 262 of the Constitution.
Be that as it may, I shall briefly, comment on the issue because of its
importance.

Section 6 of the Constitution (Amendment) Act 2000 amended the

Constitution by adding Section 257 A which provided:

"Subject to Article 92 of this Constitution -

(a) no Act,
resolution or decision passed or taken or purported to have been passed or taken
by Parliament at any time after the commencement
of this Constitution using the
procedure of voting by a voice vote namely, by the voices of "Ayes" for those in
favour of the question
and "Noes" for those against the question shall be taken
to be invalid by reason of the use of that
procedure;
(b) no
Act passed or purported to have been passed by Parliament at any time after the
commencements of this Constitution shall be taken
to be invalid by reason of the
fact that the bill for the Act was not discussed and recommendations made on it
to Parliament by a
Standing Committee."

The
declared object of this amendment was to ratify certain past acts relating to
procedure of Parliament. This is clear from the
long title to the Act and the
marginal note to the Article which states, "Ratification of certain acts
relating to procedure of Parliament."
This provision was not intended to
provide a procedure for passing future amendments to the Constitution. It was a
validating provision.
I am unable to say that this provision is in conflict with
Articles 88 and 137 (1) and (3) of the Constitution.

In my opinion however, the procedure provided in Article 257A does not apply
to the amendment of the Constitution where a two-thirds
majority of all Members
of Parliament with voting rights is required to pass such an amendment. The
procedure of voting by "Ayes" and
"Noes" is incapable of providing accuracy and
certainty that the necessary numbers of Members of Parliament required to pass
such important
legislation have been obtained. The procedure may be applicable
in deciding questions where only a simple majority of Members of
Parliament
present and voting is required, in non-contentions matters, as provided under
Article 89 (1) of the Constitution.

In the result this appeal should partially succeed. I would hold that
ground two should fail, ground three should partially succeed,
and grounds 1, 4,
5 and 6 should succeed.

In view of the fact that the appeal has substantially succeeded, I would
grant the appellants the costs in this Court and Courts below.
I would allow a
certificate for two Counsel.

As the other members of the Court substantially agree with the judgment of
Kanyeihamba JSC, and the orders he has proposed, this appeal
is allowed with
declarations and orders as set out in the judgment of the learned Justice of
Supreme Court.

JUDGMENT OF KANYEIHAMBA, J.S.C.


The background to this appeal is as follows: -

Sometime in 1999, Paul K. Ssemogerere and Zachary Olum petitioned the
Constitutional Court in constitutional petition No. 3 of the
same year seeking a
declaration that the Referendum and Other Provisions Act of 1999 which was
passed by Parliament on 1st July, 1999 was null and void on the
ground that Parliament had passed it without a quorum. The Constitutional Court
dismissed the
petition as incompetent and decided that it had no jurisdiction to
entertain the petition. The petitioners appealed to this court
by way of
Constitutional Appeal No. 1 of 2000. On May 31st, 2000, we delivered
judgment in which we allowed the appeal and held that the Constitutional Court
had jurisdiction to decide whether
or not the Referendum and Other Provisions
Act was passed in accordance with the provisions of the Constitution. We
directed that
the Constitutional Court should hear the petition on its
merits.

Following our judgment in that appeal, the Constitutional Court heard
Constitutional Petition No. 3 of 1999 between the same parties
and delivered its
judgment on 10th August, 2000. In that judgment, the Constitutional
Court declared null and void the Referendum and Other Provisions Act No. 2 of
1999 which had been passed by Parliament without the requisite quorum and in
disregard of the Constitutional provisions applicable.
As a result of that
judgment, Parliament passed the first amendment to the 1995 Constitution, namely
the Constitution (Amendment)
Act No. 13 of 2000. It was introduced in
Parliament, debated, passed and received the Presidential Assent on the same
day, namely
the 31st of August, 2000.

The three appellants, Messrs Paul Ssemogerere, Zachary Olum and Ms. Juliet
Rainer Kafire, filed a constitutional petition against
the Attorney General
challenging, amongst other things, the constitutionality of the Constitution
(Amendment) Act No. 13 of 2000.

The petitioners, filed their petition in the Constitutional Court under
Article 137 of the Constitution. In the petition, they, inter alia,
challenged the validity of the Constitution (Amendment) Act 13 of 2000. The
petition was supported and opposed by several affidavits.
The petition contained
several grounds and prayers. However, the Constitutional Court, having held that
it was bound by its previous
decisions on similar matters, declared by a
majority that it had no jurisdiction to interpret one provision of the
Constitution against
another or others. It decided that it could only hear one
ground which was framed by the Court itself, namely, whether Act 13 of
2000 was
passed in compliance with the procedural requirements for the amendment of the
Constitution. In consequence, by a majority
of three to two, the Constitutional
Court dismissed the petition and held that the Constitution (Amendment) Act 13
of 2000 had properly
amended articles 88, 89, 90, 97 and 257 which were
specifically enumerated in the long title to the amending Bill. The Court
further
held that the Act had not amended any other Articles of the Constitution
as alleged by the petitioners. The appeal before this Court
is against the
judgment of the majority learned Justices of the Constitutional Court.

The Memorandum of Appeal in this Court contains six grounds which are framed
as follows: -

1. The learned majority Justices of the Constitutional Court erred in law
and fact when they held that Section 5 of the Constitution
(Amendment) Act 2000
did not amend Articles 28, 41(1) and 44(c) of the Constitution by implication
and infection which Articles require
amendment in accordance with Articles 259
and 262 of the Constitution.

2. The learned
majority Justices of the Constitutional Court erred in law and fact when they
held that Section 5 of the Constitution
(Amendment) Act 2000 did not amend
Articles 1 and 2(1) and (2) of the Constitution by implication and infection,
which Articles require
any amendment to be in accordance with Articles 259 and
262.
3. The learned majority
Justices of the Constitutional Court erred in law and fact when they held that
Section 5 of the Constitution
(Amendment) Act, 2000 did not amend Articles
128(1) (2) and (3) and 137(3) of the Constitution by implication and infection -
which
Articles require amendment in accordance with Articles 259 and
262.
4. The learned majority
Justices of the Constitutional Court erred in law and fact when they held that
the Petitioners/Appellants had
not proved that Parliament did not follow the
required procedure under Articles 259 and 262 of the Constitution when enacting
the
Constitution (Amendment) Act
2000.
5. The learned majority
Justices of the Constitutional Court erred in law when they failed to
distinguish between a waiver of Parliamentary
procedure and non-compliance with
the Constitutional Provisions under Articles 258, 259 and 262 of the 1995
Constitution of Uganda.


6. The
Constitutional Court erred in law and fact and misconstrued the gist of the
Petition and the petitioners' contention when they
held that a Constitutional
Court would have no jurisdiction to construe part of the Constitution as against
the rest of the Constitution
and thereby came to a wrong conclusion.

Mr. Lule, S.C. and Mr. Balikuddembe represented the appellants and Mr.
Bireije, Commissioner for Civil Litigation assisted by Mr.
Okello Oryem, Senior
State Attorney, both from the Attorney General's Chambers, appeared for the
respondent.

Mr. Lule, for the appellants argued grounds 1, 2, 3, 4 and 5 together and
ground 6 separately. He submitted that the appeal had arisen
because of the
failure by the majority learned Justices of Appeal to resolve several
allegations brought before them including the
allegation that the enactment of
the Constitution (Amendment) Act 13 of 2000 did not comply with the
constitutional provisions for
amending certain provisions of the 1995
Constitution and that some provisions of that same Act contravene or are at
variance with
several provisions of the 1995 Constitution.

Mr. Lule contended that Chapter 18 of the Constitution prescribes in Articles
258, 259, 261 and 262 the procedure which an amendment
of the Constitution must
follow. Counsel contended further that the Constitution classifies those
provisions into three groups each
of which requires its own special procedure
that Parliament ignored when enacting Act 13 of 2000. He pointed out those
provisions
with which Parliament did not comply. I will be discussing them in
this judgment.

Mr. Lule contended that the majority of the Justices of the Constitutional
Court erred in holding that only those provisions of the
Constitution which were
expressly mentioned by the Act were amended. Counsel contended that whether or
not a provision of a constitution
is amended depends on the purpose and effect
of the purported amending instrument. In law, a provision can be amended by
implication
or by infection. In Mr. Lule's view, even though not specifically
mentioned in Act 13 of 2000, the reading of its sections indicate
clearly that
Articles 1, 2(1), 2(2), 28, 41(1), 44(c), 128 (1), (2), (3) and 137 (3)(a), were
all amended either by implication or
infection.

It was also Mr. Lule's contention that by amending Article 41, the
Constitution (Amendment) Act infected Article 44(c) which prohibits
any
derogation from the enjoyment of the right to a fair hearing. Counsel further
contended that by re-enacting Article 41 and adding
on it two more clauses,
Parliament not only diluted that Article's original authority, but amended it
without following the procedural
rules required of it by the
Constitution.

Counsel submitted that previously, both this Court and the Constitutional
Court had held Section 15 of the National Assembly (Powers
and Privileges) Act,
Cap 249 inoperative in so far as it was in conflict with the provisions of
Article 41 and yet, the Constitution
(Amendment) Act 13 of 2000 had restored the
provisions of that earlier Act which had also been held to be in conflict with
the constitutional
right to a fair hearing. Counsel contended that the necessity
to seek leave from Parliament to release information from therein or
to require
a member of Parliament to give evidence, adversely affects the provisions of
Article 41.

Mr. Lule contended that if Parliament were to effectively amend the
provisions of the Constitution it had to strictly follow the procedures
and
conditions prescribed by the Constitution itself and therefore the majority
Justices of the Constitutional Court erred in law
in holding that such
procedures and conditions are internal to Parliament and failure to follow them
cannot affect the legislation
made by that august house. In Counsel's opinion
these constitutional requirements are mandatory and Parliament cannot do
indirectly
what it is prohibited from doing directly. In Counsel's view, for
Parliament to do so would result in colourable legislation.

On ground 6, Mr. Lule contended that the majority learned Justices of the
Constitutional Court erred in law in holding that they had
no jurisdiction to
construe one part of the constitution as against another or the rest of it.
Counsel contended that the appellants
had presented convincing evidence in their
respective affidavits. In Counsel's view, their affidavits dealt with matters of
which
they had personal knowledge since two of them are Members of Parliament
and had been present when the Constitution (Amendment) Bill
went through its
various stages in Parliament. Mr. Lule pointed out that on the other hand, the
affidavit in support of the respondent's
case was by a State Attorney who was
not a Member of Parliament.

Counsel cited the cases of Paul Ssemogerere and Zachary Olum v. The
Attorney General,
Constitutional Appeal No. 1 of 2000, (S.C), (unreported),
and Paul Ssemogerere and Zachary Olum v. The Attorney General,
Constitutional Appeal No. 3 of 1999, (Constitutional Court), (unreported),
Major General Tinyefuza v. The Attorney General, Constitutional Appeal
No. 1 of 1997 (S.C), (unreported), The Queen v. Big M. Drug Mart Ltd.
[1986], LRC, 332, H.M. Seervai on the Constitutional Law of India and
Teo Soh Lung v. Minister of Home Affairs and Others, [1990], LRC in
support of his submissions.

For the respondent, Mr. Bireije supported the majority judgment of the
Constitutional Court. He contended that Parliament had correctly
followed the
right procedure when enacting Act 13 of 2000. Counsel contended that the only
issue before the Constitutional Court
for determination was whether Parliament
had complied with the relevant constitutional provisions when amending articles
88, 9,
90 and 97 and in creating a new article 257A. He further contended that
the petitioners had failed to produce evidence to prove their
allegation that
Parliament had not followed the correct procedure. In Counsel's view, the
provisions which were the subject of the
amendment required conformity with
articles 258, 261 and 262(2)(a) of the Constitution and Parliament fully
complied with these provisions.
Counsel contended further that the amendments
effected by Act 13 of 2000 did not require compliance with article 262(b), as
claimed
by counsel for the appellants. It was Mr. Bireije's further contention
that all the constitutional provisions which Act 13 of 2000
affected had been
clearly identified and expressly stated in the amending bill and consequently
those other provisions named by the
appellants as having been amended were not
amended since the latter were not specifically named.

Counsel contended that the amendment did not in any way affect article 137 as
alleged in the petition because even today people continue
to enjoy the right to
petition Court if they claim that any of their constitutional rights have been
violated or threatened. Mr.
Bireije conceded that the Constitutional Court has
jurisdiction to harmonise various parts of the Constitution but contended that
in this particular case, the Court was only concerned with one issue, namely
whether Parliament had enacted Act 13 of 2000 in accordance
with the
constitutional procedure applicable for this kind of legislation. It was
counsel's contention that Parliament had correctly
complied with that procedure.
He cited the cases of Uganda Law Society and Justine Semuyaba v. Attorney
General,
Constitutional Petition No. 8 of 2000, (Const. Court),
(unreported), and Dr. Rwanyarare and Haji Badru Wegulo v. Attorney General
(infra) in support of his submissions.

I will first consider the issue raised in ground 6 of this appeal which I
regard as of a preliminary nature and on which the Constitutional
Court made a
finding. By a majority, the Constitutional Court held that it had no
jurisdiction to consider and make a pronouncement
on one part of the
Constitution in relation to any other or more parts of the same Constitution. In
her judgment, Mukasa-Kikonyogo,
learned D.C.J, stated,

"Once the correct procedure for enacting a Constitutional Amendment Act
is complied with, its provisions become part and parcel of
the Constitution.
They cannot be challenged in this Court. This Court by a majority of 3 to 2 in
Constitutional Petition No 5 of
1999, Dr. Rwanyarare and Haji Badru Wegulo v.
Attorney General
, held that this Court would not have jurisdiction to
construe parts of the constitution as against the rest of the Constitution ...
All that this Court could do was to determine whether the challenged Act was
enacted in accordance with the procedure for enacting
constitutional
amendments"

Re-echoing the same view, Kato, J.A., as he then was, observed,

"When the petition came up for hearing on 10/11/2000, a preliminary
objection was raised by Mr. Deus Byamugisha, Ag. Director for
Civil Litigation
on behalf of the respondent. In the objection, he challenged the jurisdiction of
the Court to hear the petition
since the petitioners were asking the Court to
declare part of the Constitution to be inconsistent with another part. The Court
ruled
that it had no power to declare one article of the Constitution
inconsistent with another, but it could deal with the question as
to whether or
not a correct procedure was followed when Act 13 of 2000 was
passed."



In her concurring judgment, Kitumba, J.A.
said,

"It is clear from the Constitution (Amendment) Act that the articles of
the Constitution which Parliament amended were specified
and are articles
88, 89, 90, 97 and 257. It is not the duty of this Court to look into the effect
or implication of those amendments
as doing so would be trying to interpret one
constitutional provision against another. This Court declined to do that. See
James Rwanyarare and Haji Badru Wegulo v. Attorney General,
Constitutional Petition No. 5 of 1999 and this Court's ruling in the instant
petition on 29th November, 2000."

I note that in the judgments of the majority Justices of the Constitutional
Court, great reliance was placed on the decisions of that
same court in Dr.
Rwanyarare and Wegulo v. Attorney General,
Constitutional Petition No. 5 of
1999, (Const. Court), (unreported), Uganda Law Society and Justine Semuyaba
v. Attorney General,
Constitutional Petition No. 8 of 2000, (Const. Court),
(unreported), Karuhanga Chapaa and Two Others v. Attorney General,
Constitutional Petition No. 6 of 2000, (Const. Court), (unreported). It is
also evident from both the record of proceedings and the
judgments of the
Constitutional Court that other authorities including binding ones from this
Court were cited by Counsel for the
appellants. In these other authorities such
as Major General Tinyefuza v. Attorney General, (supra), Paul
Ssemogerere and Zachary Olum v. Attorney General,
(supra) and
Ismail Serugo v. Kampala City Council and Another, Constitutional Appeal
No. 2 of 1998, (S.C), (unreported), judicial interpretation of constitutional
instruments and other legal documents
was extensively and, in my opinion,
exhaustively examined, explained and pronounced upon by this Court. Other
leading authorities
were cited and relied upon by this court.
Moreover, in guiding the Constitutional Court, some of these authorities
were cited by Counsel in favour of the appellants' petition.

The record of proceedings before the Constitutional Court indicates quite
clearly that counsel for the appellants made submissions
on how constitutional
amendments are interpreted by courts. Thus, Mr. Lule, lead counsel for the
appellants in the Constitutional
Court submitted,

"Constitutional Appeal No. 1 of 2000 at pp.32 -Article 41 was held to
be linked with Article 44 by Hon. Wambuzi, C.J. at pp.15 of
his judgment. He
linked various Articles - Amendment of one affects others. Hon. Tsekooko's, pp.
7 and 8, Hon. Karokora's p.7 and
9, Hon. Mulenga's pp.15 and 19, Hon.
Kanyeihamba's pp.10, 11 and 14. Hon. Oder pp.5 and 10. I submit Articles 41 and
44, 128 and
28(1) are all linked."

Counsel for the appellants cited additional authorities from the Commonwealth
and other jurisdictions such as The Bribery Commissioner v. Pedrick
Ranasinghe
[1965] A.C. 132 Phato v. Attorney General of South Africa
(1999) 3 LRC 587. The Queen v. Big M. Drug Mart, LRC (1986) 332. With
great respect, I do not agree with the learned DCJ that all the authorities
cited were irrelevant.

With great respect, the majority of the learned Justices of the
Constitutional Court do not appear to have taken into account counsel's
submissions and relevant authorities cited to that court. The approach they
adopted is almost tantamount to taking a maiden voyage
into the mystery of
interpretation.

The view of the majority learned Justices of the Constitutional Court that
once Parliament has passed a constitutional amendment correctly
that amendment
becomes part of the constitution and thereafter cannot be questioned in a court
of law is, to say the least, a negation
of Article 137(3)(a) which provides that
a person who alleges that "an Act of Parliament or any other law or
anything in or done under the authority of any law is inconsistent with or in
contravention
of this constitution may petition the Constitutional Court for a
declaration to that effect, and for redress where appropriate."

In my view, an Act of Parliament which is challenged under Article 137(3)
remains uncertain until the appropriate court has pronounced
itself upon it. The
Constitutional Court is under a duty to make a declaration, one way or the
other. In denying that they had jurisdiction
to make a declaration on this
petition, the learned majority Justices of the Constitutional Court abdicated
the function of that
court.

Only the dissenting learned Justices of the Constitutional Court found it
necessary to refer to these other authorities. Thus, Twinomujuni,
J.A., observed
in his judgment,

"Following its earlier decisions and those of the Supreme Court of
Uganda in Tinyefuza v. Attorney General, Constitutional Case No. 1 of
1996, Attorney General v. Tinyefuza, Constitutional Appeal No. 1 of 1997
and Ssemogerere and Olum v. Attorney General,

Constitutional Appeal No. 1 of 2000, this Court held that:
-

(a) Section
15 of the National Assembly (Powers and Privileges) Act contravened Article 41
of the
Constitution.
(b) Section
15 of the National Assembly (Powers and Privileges) Act contravened Article
28(1), 41 and 44 (c) of the
Constitution.

It was a result of these decisions that Paul Ssemogerere and Hon.
Zachary Olum were able to obtain the evidence that enabled them
to succeed in
Constitutional Petition No. 3 of 1999."

Justice Mpagi-Bahigeine, J.A., the other dissenting learned Justice of the
Constitutional Court referred to those same binding and
leading authorities
including The Attorney General v. Major General David Tinyefuza
(supra), Paul Ssemogerere and Another v. Attorney General
(supra) and The Queen v. Big M. Drug Mart Ltd., (1986) LRC,
332, in her judgment.

In the case of Tinyefuza v. Attorney General (supra), the
petition was considered by the Constitutional Court differently constituted from
that which heard this appeal and on the constitutional
interpretation, Manyindo,
D.C.J, as he then was, observed,

"The entire Constitution has to be read as an integrated whole, and no
one particular provision destroying the other but each sustaining
the other.
This is the rule of harmony, rule of completeness and exhaustiveness and the
rule of paramountcy of the written Constitution.
The third principle is that the
words of the written constitution prevail over all unwritten conventions,
precedents and practices.
I think it is now also widely accepted that a court
should not be swayed by considerations of policy and propriety while
interpreting
provisions of the Constitution".

The other learned Justices of the Court, Ag. Justice Okello, Ag. Justice
Mpagi-Bahigeine, Ag. Justice Tabaro and Ag. Justice Egonda-Ntende
agreed or
expressed the same views.

Guidance as to how to interpret a constitutional instrument in relation to
other documents including those which are not specifically
mentioned by that
instrument, may be discerned from Article 273 of the Constitution. It
provides,

"273(1) subject to the provisions of this article, the operation of the
existing law after the coming into force of this Constitution
shall not be
affected by the coming into force of this Constitution, but the existing law
shall be construed with such modifications,
adaptations, qualifications and
exceptions as may be necessary to bring it into conformity with this
Constitution."

This provision shows quite clearly that provisions of the Constitution or any
other law do not have to be specifically mentioned to
be amended by implication
or infection. I am therefore not persuaded by the arguments of respondent's
counsel that if constitutional
provisions are not specifically mentioned in an
amending bill they cannot be held to have been amended. This argument is not
founded
in logic or precedent. It attempts to clothe Parliament with an apparent
authority to do what it is not permitted to do by the Constitution
with the
result that what it enacts has the appearance of a law, but it is a law which
has no substance to it. This is what the learned
lead counsel for the appellants
called colourable legislation. Curiously however, this assertion managed to find
comfortable accommodation
in the judgments of some of the learned Justices of
the Constitutional Court.

In the Canadian Supreme Court case of The Queen v. Big M. Drug Mart Ltd.
(supra) at p332, it was said,

"Both purpose and effect are relevant in determining constitutionality;
either an unconstitutional purpose or an unconstitutional
effect can invalidate
legislation. All legislation is animated by an object the legislature intends to
achieve. This object is realised
through impact produced by the operation and
application of the legislation. Purpose and effect respectively, in the sense of
the
legislation's object and its ultimate impact, are clearly linked, if not
indivisible. Intended and achieved effects have been looked
to for guidance in
assessing the legislation's object and thus the validity."

In Smith Dakota v. North Carolina, 192 US 268(1940) the U.S. Supreme
Court expressed the opinion that:

"It is an elementary rule of constitutional construction that no one
provision of the Constitution is to be segregated from 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
as to effectuate the great
purpose of the instrument."

When a Court ignores or overlooks a binding precedent and decides a case as
if that precedent does not exist, its decision is said
to be a decision per
incurium.
I agree with Twinomujuni, J.A., where he laments in his dissenting
judgment that in the Constitutional Court,

"We appear to be bent on adjudicating this Court out of existence by
declining to exercise jurisdiction conferred expressly or by
implication by
Article 137(3)."

In my opinion, the majority of the Justices of the Constitutional Court were
in error and their decision, in so far as it holds that
that Court has no
jurisdiction to adjudicate on a provision of the Constitution in relation to
others, is a decision per incurium. In this context, it is my view that
petition 5 of 1999, Dr. James Rwanyarare and Haji Badru Wegulo v. The
Attorney General,
and Petition No. 8 of 2000, The Uganda Law Society and
Another v. The Attorney General,
were wrongly decided. Ground six of this
appeal therefore ought to succeed.

I will next consider and resolve grounds 1, 2, 3, and 4. These grounds relate
to the contention by the appellants that the Constitutional
Court erred in
holding that Act 13 of 2000 did not amend Articles 1, 2(1), (2), 28, 41(1),
44(c), 128(2), (3) and 137(3) of the Constitution
and that even in relation to
those Articles it intended to amend, Parliament did not comply with the
provisions of the Constitution.

In order to resolve this matter, it is necessary to examine what is meant by
amending the Constitution, peruse the provisions of the
Constitutional
(Amendment) Act 13 of 2000, and then decide whether or not its provisions had
the effect of amending the Articles
and clauses of the Constitution which have
been enumerated above, either directly, indirectly or by infection as contended
by the
appellants.

I find the meaning of "Amendment of the Constitution" as ably set out in the
dissenting judgment of Twinomujuni, J.A., to be most
persuasive. The learned
Justice of the Constitutional Court said,

"The meaning of this phrase is to be found in Article 258 of the
Constitution. It states that the Constitution can only be amended
if;

'(i) An Act of Parliament is passed.

(ii) The Act has the effect of adding to, variation (sic.) or repealing
any provision of the Constitution.

(iii) The Act has been passed in accordance with Chapter Eighteen of
the Constitution.'

If an Act of Parliament has the effect of adding to, varying or
repealing any provision of the Constitution, then the Act is said
to have
amended the affected article of the constitution. There is no difference whether
the Act is an ordinary Act of Parliament
or an Act intended to amend the
Constitution. The amendment may be effected expressly, by implication or by
infection, as long as
the result is to add to, vary or repeal a provision of the
Constitution. It is not material whether the amending Act states categorically
that the Act is intended to affect a specified provision of the Constitution. It
is the effect of the amendment that matters."

The Constitution (Amendment) Act 13 of 2000 which was enacted, assented to
and commenced on the 31st day of August, 2000, is brief
and contains six
sections. The long title to the Act reads as follows:-

"An Act to repeal and replace article 88 of the Constitution and make
provision in relation to quorum; to amend article 89 of the
Constitution to
provide for the manner of ascertaining the majority of votes cast on any
question; to repeal and replace article
90 of the Constitution; to recognise the
role of the Committee of the Whole House in the passing of Bills and to make
provision in
relation to the functions of committees of Parliament; to amend
Article 97 of the Constitution to protect the proceedings of Parliament
from
being used outside Parliament without the leave of Parliament; and to insert a
new Article 257A to ratify certain past acts
relating to
procedure."

Section 1 of the Act prescribes the short title to the Act. Sections 2-5
contain provisions which attempt to amend or would have the
effect of amending
existing provisions of the Constitution. Section 6 creates an additional clause
to the Constitution. On the face
of it, Act 13 of 2000 shows that Parliament
expressly attempted to amend articles 41, 88, 89, 90, 97 and 257 of the
Constitution.
Two questions to be answered are whether any other constitutional
provisions were amended by implication or infection and whether
all the
amendments whether express, implied or by infection, were passed in accordance
with the procedure prescribed by the Constitution.

I will first consider whether each of the provisions listed in the grounds of
appeal was amended in any of the ways mentioned and
if so whether the procedure
prescribed by the Constitution for amending it were adhered to by Parliament.
The appellants deponed
and their counsel submitted that Section 5 of Act 13 of
2000, amended Articles 1 and 2(1) and (2), 128(1), (2) and 137(3)(a) of the
Constitution. The respondent contended that since none of these Articles and
clauses were specifically mentioned in the amending
Act, they were not amended.
Section 5 provides as follows:

"Article 97 of the Constitution is amended -

(a) By
renumbering the existing article as clause (1) of that article;
and
(b) By
inserting immediately after the new clause (1) the following new
clauses,

(2) Notwithstanding article 41 of this Constitution, no
Member or Officer of Parliament and no person employed to take minutes of
evidence
before Parliament or any Committee of Parliament shall give evidence
elsewhere in respect of the contents of such minutes of evidence
or the contents
of any document laid before Parliament or any such committee, as the case may
be, or in respect of any proceedings
or examination held before Parliament or
such committee, without the special leave of Parliament first
obtained.

(3) The special leave referred to in clause (2) of this
article may, during recess or adjournment of Parliament be given by the Speaker
or in the absence or incapacity of the Speaker or during a dissolution of
Parliament, by the Clerk to Parliament."

In my view, the enactment of section 1 of Act 13 of 2000 per se,
does not affect or amend the provisions of Article 1 of the 1995
Constitution since in enacting the Act, Parliament believed it was
exercising
the sovereignty of the people as their representative body. The enactment was
not an attempt to oust the sovereignty of
the people even if Parliament may have
been mistaken in doing what it did.

On the other hand, Section 5, in so far as it prescribes new clauses (2) and
(3) of Article 97 which are intended to restrict a citizen's
unhampered "access
to information in the possession of the state or any other organ or agency of
the State" when the Constitution
of Uganda in Article 41 guarantees and
entrenches that right, is not only in conflict with that same article but
constitutes a blatant
attempt to clothe Parliament with supremacy which in
Uganda lies in the majesty and sanctity of the Constitution.

Regarding the right of a citizen to access to information in the possession
of the State, my learned brother, Mulenga, J.S.C. expressed
a view in Paul K.
Ssemogerere, Zachary Olum and Juliet Rainer Kafire v. The Attorney General,
Const. Appeal No. 1 of 2002, (supra), with which I agree entirely.
The learned Justice said,

"Whereas under s.121 of the Evidence Act the state had unfettered
discretion whether or not to release an official document on grounds
of national
security, Article 41 of the Constitution recognises the citizen's right of
access to any information in the possession
of the state except where
release of such information is likely to prejudice state security or
sovereignty. Consequently, the court has become the arbiter
between the citizen
who desires to access such information and the state which may want to protect
the information from release."

Consequently, in my opinion, in so far as section 5 of Act 13 of 2000
purports to restrict that access unconstitutionally, it conflicts
with the
Constitution and therefore, is null and void.

Under Article 28(1), a person is entitled to the right of a fair, speedy and
public hearing before an independent and impartial court
or tribunal established
by law. Consequently, by subjecting that right to the exigencies of Parliament
and the whimsical discretion
of its personnel, Section 5 attempts to amend
Article 28(1) by implication and Article 44(c) by infection. Article 128
prescribes
and guarantees the independence of the Judiciary. In my view, the
provisions of Act 13 of 2000, while not affecting that independence,
whittle
away the importance of Article 28(3). Clause 3 of Article 28 enjoins all organs
and agencies of the State which include Parliament,
Members of Parliament, the
Speaker and the Clerk of Parliament to accord to the Courts such assistance as
may be required to ensure
the effectiveness of the Courts. By giving Parliament,
the Speaker and the Clerk of Parliament the sole discretion as to who and
what
may assist the Court and when, the function of the Courts to administer justice
fairly, speedily and impartially would be so
severely restricted by the
provisions of Act 13 of 2000 as to be rendered illusory. Similarly, in so far as
Section 5 of Act 13 of
2000 restricts the right of Members of Parliament and the
use of

Hansard and other Parliamentary records to assist petitioners, the
Constitutional Court and other courts to proceed effectively, the
provisions of
Article 137(3) and those others guaranteeing the administration of justice would
be amended by infection.

I now turn to the second issue of procedure. It is to be appreciated that all
the provisions of the Uganda Constitution are entrenched.
Not a single provision
of the Constitution may be altered without following a special procedure. The
easiest and simplest of these
procedures is an amendment by Parliament alone
when the sole purpose of the bill is to amend the Constitution and the measure
is
supported on the second and third readings in Parliament by not less than
two-thirds of all Members of Parliament in accordance with
the provisions of
Article 261. In relation to bills amending articles prescribed in Articles 259
and 260, a period of at least 14
days must lapse between the 2nd and
3rd reading of the bill. The Constitution is silent as to what period
of time must lapse between the second and third readings of a bill
of this kind.
However, whether passed under Article 261 or under Articles 259 or 260, the bill
cannot be assented to by the President
unless it is accompanied by a certificate
of the Speaker that the provisions of Chapter Eighteen of the Constitution have
been complied
with. Regarding bills passed under Article 259 and 260, there is a
further requirement that they be accompanied by a Certificate
of the Electoral
Commission signifying that the amendment has been approved at a referendum or,
as the case may be, ratified by the
district councils, in accordance with the
provisions of Chapter Eighteen.

In Major General Tinyefuza's case (supra), I cited the famous
statement of Sir Owen Dixon which he expressed in 1965 in the Law Quarterly
Review, 590 at 604 thus,

"The law existing for the time being is supreme when it prescribes the
conditions which must be fulfilled to make a law but the question
of what may be
done by the law so made, Parliament is supreme over the law",

and then concluded that if Parliament is to successfully claim and protect
its powers and internal procedures it must act in accordance
with the
constitutional provisions which determine its legislative capacity and the
manner in which it must perform its functions.

Sir Owen was of course describing situations in countries such as the United
Kingdom where Parliament and not the Constitution used
to be supreme. In Uganda,
it is in the people and the constitution that sovereignty resides. However, even
in the United Kingdom
before the creation of the European Union of which that
country is a member, it was always emphasized that Parliament was obliged
to
obey the constitutional rules which were prior to the exercise of its
sovereignty.

In the case of Stockadale v. Hansard (1839) 9 Ad & E I, the House
of Commons which is the elected chamber of the British Parliament passed a
resolution authorising
the printing and publication of Hansard which
contained defamatory statements against the plaintiff. The plaintiff brought a
suit against the printers and publishers of
Hansard who were then
directed by the House of Commons to plead in defence that they had printed and
published Hansard under the express orders of the House of Commons and
that that House was the sole judge of its privileges and immunities and
therefore
Hansard should not be questioned in any court of law. The High
Court of England rejected that defence on the ground that no resolution of
the
House of Commons alone could oust the jurisdiction of the courts since for any
law to be validly passed in the United Kingdom,
a legislative bill must be
supported by both the House of Commons and the House of Lords and be assented to
by the Monarch. These
requirements constitute the formula for making law in that
Kingdom and cannot be waived.

In Uganda, courts and especially the Constitutional Court and this Court were
established as the bastion in the defence of the rights
and freedoms of the
individual and against oppressive and unjust laws and acts. Courts must remain
constantly vigilant in upholding
the provisions of the Constitution. Only in
this way can we in Uganda avoid situations in some other countries which were
ably described
by Professor Nwabueze of Nigeria in his book entitled:
"Constitutions in Emergent Nations" in the following terms,

"The term 'constitutional government' is apt to give the impression of
a government according to the terms of a constitution. There are
indeed many
countries in the World to-day with written constitutions but without
constitutionalism. A constitution may also be used
for other purposes than a
restraint upon government. It may consist to a large extent of nothing but lofty
declarations of objectives
and a description of the organs of government in
terms that import no enforceable restraints. Such a constitution may indeed
facilitate
or even legitimise the assumption of dictatorial powers by the
government. Indeed, it is not an exaggeration to conclude that for
many
countries, a constitution is nothing more than a proclamation of what
governments are entitled to do, and often do, to restrain
the liberty of
citizens or deprive them of proprietary interests. In a number of developing
countries, constitutions are perceived
by those in power, not as protectors of
human rights and the liberties of the individual but as instruments for
legitimising the
exercise of power. For the opponents of these rulers,
constitutions are understood in terms of the government's legitimacy to exercise
arbitrary power, to impose unreasonable laws, arrest and detain persons whose
guilt is often highly suspect, to impose restrictions
on certain freedoms and
rights and to do whatever the ruling oligarchy deems necessary and in the
interest of society."

The founders and makers of the Uganda 1995 Constitution were determined to
avoid the situations described by the learned professor.
They thus wrote in the
preamble to the Constitution that,

"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 socio-economic 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."

I have reproduced these solemn words of dedication lest we ever forget them.
It is the solemn duty of the courts of Uganda to uphold
and protect the People's
Constitution.

With the greatest respect, I disagree with the views of the majority of the
learned Justices of the Constitutional Court which they
expressed in their
respective judgements. Thus, Mukasa-Kikonyogo, learned D.C.J, said,

"There was nothing to stop Parliament from applying its own Rules' in
amending the Constitution,"
Kato, J.A. reiterating what he had said in
the earlier case of Uganda Law Society and Justine Semuyaba v. The Attorney
General of Uganda,
(supra), observed,

"The issuance of a certificate is a mere procedural and administrative
requirement which does not go to the root of the law making process.

The burden was upon the petitioners to adduce evidence to prove that
the act complained of was done without compliance with the required
procedure.
The burden has not been discharged."

Kitumba, JA., concurring, remarked,

"Regarding the absence of the certificate of compliance from the
Speaker of Parliament as required by Article 262, (2) (a), I agree
with Mr.
Bireije's submissions that absence of the certificate is not
fatal."



In my opinion, the requirements of Chapter Eighteen are mandatory and cannot
be waived, not even by Parliament. Consequently, and
with the greatest respect,
the majority of the learned Justices of the Constitutional Court erred in law in
holding that those provisions
could be waived and that in any event, they were
not essential to validating any constitutional amendment. Be that as it may, it
is apparent that Parliament failed to comply with the Constitutional provisions
when attempting to amend by implication or infection
Articles 2(1), 28, 41(1),
44(c), 128(2), (3) and 137(3). Any amendments to Articles 2(1), 44 and 128 need
to be referred to a decision
of the people for approval by them in a referendum.
The amendment of the Articles 28, 41(1) and 137(3) need to be passed by
two-thirds
majority on each of the second and third readings of the bills.
Thereafter, a bill must be accompanied by the certificate of the
Speaker to the
effect that it has been passed in accordance with the provisions of Chapter
Eighteen. Since the respondent has persistently
denied that any of these
Articles and clauses were amended, the Attorney General was hardly in a
position or mood to show that
these provisions were properly amended and indeed,
in my opinion, he failed to do so.

Regarding the provisions which the respondent admits to have been expressly
amended, namely Articles 88, 89, 90 and 97, it is my view
that their amendment
failed to comply with the provisions of the Constitution in that the bill
effecting their amendment should have
been accompanied by a certification by the
Speaker of Parliament indicating that the bill had complied with the provisions
before
the Presidential Assent. In my opinion since the respondent failed to
prove that the Constitution was complied with, the amendment
failed to become an
Act of Parliament and consequently, cannot be regarded as part of the
Constitution.

I will finally consider and determine ground 5 of the appeal. It was
contended on behalf of the appellants that the majority of the
learned Justices
of the Constitutional Court erred in law when they failed to distinguish between
a waiver of Parliamentary procedure
and non-compliance with the Constitutional
provisions under Articles 258, 259 and 262 of the 1995 Constitution. Counsel for
the respondent
advanced submissions which were in favour of the decision of the
majority Justices of the Constitutional Court. I dealt with certain
aspects of
this ground when determining the other grounds of this appeal. It can never be
over-emphasized that whereas Constitutional
provisions may be amended
constitutionally, they can never be waived at all.

I respectfully disagree with all the three views of the majority Justices of
the Constitutional Court which I alluded to earlier on
in this judgment. Those
views are not founded in our constitutional law or precedent since 1995. They
constitute an error in law
and fact. With great respect, the onus of proving
that a bill is accompanied by the Speaker's certificate should always be on the
Attorney General whenever he is a party to proceedings for it is he or she who
has special knowledge of the fact in accordance with
the provisions of section
105 of the Evidence Act.

I regard all the amendments contained in sections 2, 3, 4 and 5 of the
Constitution (Amendment) Act 13 of 2000 as merely intended
to prescribe internal
rules of procedure in Parliament and its committees. They might as well have
been prescribed by ordinary legislation
or even rules of Parliament. However, in
so far as they are intended to be substitutes for the present constitutional
provisions
in Articles 88, 89 and 90 and were not enacted in accordance with the
procedure prescribed by the Constitution, they are null and
void.

The appellants' petition before the Constitutional Court contained, inter
alia,
complaint 1(e) which was framed as follows:

"Section 3 introducing a new provision (1) and section 6 introducing a
new provision 257A of the Constitution (Amendment) Act 2000,
are
unconstitutional for being inconsistent with Articles 88 and 137, particularly
of clauses (1) and (3) of the Constitution in
that the sections do not only
provide for the imaginary past violations of the Constitution in matters of
formal procedure but they
also lay a foundation for future violations too, where
the members of Parliament may, without a quorum, vote on any question proposed
for a decision of Parliament by using a voice vote of "Ayes" and "Noes" which,
by reason of the amendments cannot be subjected to
the scrutiny of courts when
it is the courts' solemn duty to interpret and protect the Constitution under
the unamended Article 128(1),
(2) and (3) of the Constitution and clause 1 of
the National Objectives and Directive Principles of State
Policy."

This complaint is reproduced in each of the judgments of the learned Justices
of the Constitutional Court. However, none of the learned
Justices makes a
decision on the matter. The reason for this is easily discernible from what
transpired in that court. At the commencement
of the hearing of the petition and
on the submissions of counsel for the respondent, the court ruled that it had no
jurisdiction
to enquire into the alleged unconstitutionality of the Constitution
(Amendment) Act of 2000 and that the only jurisdiction it had
was to determine
whether that Act had been passed in accordance with the procedure laid down in
the Constitution. It is thus apparent
that the Constitutional Court declared
itself incompetent to adjudicate on that complaint. In my view, this court must
therefore
pass judgment on that part of the petition for a number of
reasons.

First since the Constitution excludes ex-officio members of Parliament
from voting, the methodology of the "Ayes" and "Noes" does not ensure that those
non-voting members are excluded
from voting. Secondly and perhaps more
significantly, Articles 259(1) and 261 provide, inter alia, that a bill
for an Act of Parliament seeking to amend any of the provisions of the
Constitution shall not be taken as passed unless
it is supported at the second
and third readings by the votes of not less than "two thirds of all members of
Parliament". This contrasts
with the provisions of Article 89 which prescribe
the procedure for passing ordinary bills and making other decisions. It is
provided
there that except as otherwise prescribed by the Constitution or any
law consistent with it, any question proposed for decision of
Parliament shall
be determined by a majority of votes of the members "present and
voting".

For the foregoing reasons, I regard Article 257A referred to in section 6 of
the Constitution (Amendment) Act of 2000, to be superfluous
and of no
constitutional or legal consequences.

I am constrained to state in the clearest of terms that the procedural rules
and mode of ascertaining majorities for effecting constitutional
amendments are
not found in the Constitution (Amendment) Act 13 of 2000 but in the provisions
of the Uganda Constitution of 1995
itself. It is evident therefore that the two
thirds majority of all members of Parliament required for the second and third
readings
of a bill to amend the constitution cannot be ascertained by voice
voting under the parliamentary practice of using shouts of "Ayes"
or "Noes" to
indicate consent or dissent, respectively. In my view, for constitutional
amendment, the voting in Parliament should
be determined by the head count of
members in favour of and against the amendment at the second and third reading
by lobby division
or such other mode as can ascertain that the supporters of the
amendment are two thirds of the total number of Members of Parliament.
In my
opinion, it is the strict observance of the constitutional rules of procedure
for determining the will of the majority in Parliament
that will create and
nurture a culture of belief in Ugandans that they are truly and democratically
represented and governed.

For these reasons, I would allow ground 5 of the appeal.

All in all, I would allow this appeal. I would make the following declaration
and orders:

1. That the Constitution
(Amendment) Act 13 of 2000 is unconstitutional and should be struck down as null
and void.
2. I would award costs to the
appellants in this court and in the Constitutional
Court.
3. I would certify two counsel for the
appellants.

Dated at Mengo this
29th January 2004.