Court name
Supreme Court of Uganda
Case number
Constitutional Petition-2008/11
Judgment date
17 September 2009

Cranmer SSajjabi Imaka & Anor v Kawune Wakhooli & 2 Ors (Constitutional Petition-2008/11) [2009] UGSC 5 (17 September 2009);

Cite this case
[2009] UGSC 5

THE REPUBLIC OF UGANDA
IN THE CONSTITUTION COURT OF UGANDA AT KAMPALA CONSTITUTION PETITION NO. 0011 OF 2008
BETWEEN
CRAMMER SAJJABI IMAKA & ANOR
VS
KAWUNE WAKHOOLI & 2 OTHERS

 

CORAM: HON. LADY JUSTICE A.E.N MPAGI –BAHIGEINE, JA
         HON. MR. JUSTICE S.G. ENGWAU, JA
         HON. LADY JUSTICE C.N. B. KITUMBA, JA
         HON. LADY JUSTICE C.K. BYAMUGSHA, JA
         HON. MR. JUSTICE A.S. NSHIMYE, JA

 


JUDGEMENT OF THE COURT
 

 

This Petition was filed by one Crammer Sajjabi Imaka and Kakaire Abubakari (hereinafter referred to as the 1st and 2nd petitioners respectively). It was brought under article 137 of the 1995 Constitution of Uganda, the Constitutional Court (Petitions and References) Rules S.1.91 of 2005 and all enabling laws).

The respondents to the Petition are David Kawune Wakhooli and Wilson Muwereza, (the Isabalangira and Katukiro of Busoga respectively), together with the Attorney General of Uganda.

The back ground as alleged is as follows.
………
2.      

 

Under Statute No. 7 of 1993 the Constitution of the Republic of Uganda, 1967 was amended to provide for restoration of traditional or cultural leaders and pursuant to that amendment, Henry Wako Muloki was installed as the Isebantu Kyabazinga of Busoga on 19th February, 1996.
3.       On 13th December, 2000, the Isebantu Kyabazinga of Busoga at Bugembe Headquarters promulgated the “Constitution of Obwa Kyabazinga Bwa Busoga, 2000”.
4.       On 1st September, 2008, Henry Wako Muloki the Isebantu Kyabazinga of Busoga died and subsequently was buried on 8th September, 2008 at his ancestral home at Kaliro.
5.       The 1st Respondent the Chief Prince of Busoga (Isabalangira) who is also the acting Kyabazinga of Busoga in his capacity as the Chairman of the Chiefs Royal Council and the 2nd Respondent in his capacity as the Prime Minister (Katukiro) of Busoga organized elections for the new Kyabazinga under the provisions of the “Constitution of Bwa Kyabazinga Bwa Busoga” and these elections took place at Bugembe on 31st October, 2008.
6.       The Government of the Republic of Uganda was involved in the electoral process in a partisan manner and has provided military police guards to one of the candidates Edward Wambuzi Zibondo and was intimidating other candidates, the electorate and the people of Busoga to vote for its preferred candidate.
7.       Under the said Constitution of Busoga, the only eligible candidate for the post of Kyabazinga are the traditional chiefs of Kigulu, Bukono, Bugabula, Bulamogi and Luuka.
8.       The other traditional chiefs of Busoga Kingdom in other Counties (Chiefdoms) of Butembe, Bukooli, Bunha, Bugweri, Bunyoli and Busiki and indeed other Basoga who are not traditional chiefs are ineligible to contest for the post of Kyabazinga.
9.       The petitioners’ grievances are therefore as follows.
a.      
That the act of the promulgation of the “Constitution of Obwa Kyabazinga Bwa Busoga, 2000” by the then Kyabazinga without the consent of the people of Busoga through any properly elected and representative Lukiiko and in view of its contents is contrary to the culture, customs, traditions, wishes and aspirations of the people of Busoga and is inconsistent with and in contravention of Articles 1, 21, 37 and 246 of the Constitution of Uganda, 1995.
b.       That the act of conducting elections of the new Kyabazinga under the “Constitution of Obwa Kyabazinga Bwa Busoga, 2000” is inconsistent with and in contravention of Articles 1, 21 37 and 246 of the Constitution of Uganda 1995.
c.       That the act of preventing other traditional chiefs specified under paragraph 7 of this Petition above and other Basoga to contest for the post of Kyabazinga is inconsistent with and in contravention of Articles 1, 21 37 and 246 of the Constitution of Uganda, 1995.
d.       That the act of the Government of the 3rd Respondent involving itself in a partisan manner in the elections is inconstant with and in contravention of Articles 1, 21 37 and 246 of the Constitution of Uganda, 1995.

The petitioners thus sought the following declarations and remedies:
(a)     
A declaration that the act of promulgation of the “Constitution of Obwa Kyabazinga Bwa Busoga, 2000” without the consent of the people of Busoga through any properly elected and representative Lukiiko and in view of its contents is contrary to the culture, customs, traditions, wishes and aspirations of the people of Busoga and is inconsistent with and in contravention of Articles 1, 21, 37 and 246 of the 1995 Constitution of Uganda.
(b)      A declaration that the act of conducting elections of the new Kyabazinga under the “Constitution of Obwa Kyabazinga Bwa Busoga, 2000” is inconsistent with and in contravention of Articles 1, 21, 37 and 246 of the Constitution of Uganda.
(c)      A declaration that the act of preventing other traditional chiefs specified under paragraph 7 of this Petition above and other Basoga to contest for the post of Kyabazinga is inconsistent with and in contravention of Articles 1, 21, 37 and 246 of the Constitution of Uganda, 1995.
(d)      A declaration that the act of the 3rd respondent involving itself in a partisan manner in the said elections is inconsistent with and in contravention of Articles 1, 21, 37 and 246.
(e)      A declaration that any Kyabazinga elected pursuant to the said elections and under the said “Constitution of Obwa Kyabaziga Bwa Busoga, 2000” is not lawfully and constitutionally elected and that such election is inconsistent with and in contravention of articles 1, 21, 37 and 246.
(f)      A permanent injunction restraining the respondents whether by themselves, representatives, officials, agents or workmen from conducting elections of the new Kyabazinga under the “Constitution of Obwa Kyabanzinga Bwa Busoga, 2000” or any other arrangement which is not in accordance with the traditions, customs, cultures, wishes and aspirations of the people of Busoga.
(g)      An order that the Respondents do pay the costs of the Petition to your Petitioners.

A number of affidavits were sworn in support of the petition. The 1st petitioner swore one dated 27-10-08 and a supplementary one of 19-11-08. These were followed by other supplementary ones by Chief Luba Munlo of Bunya Chiefdom dated 19-11-08 and 27-11-08. Another was by the Bugwere Chief Fred Mehna Kakaire, dated 27-11-08 and one by Juma Mutyaba, traditional Ruler of Bukono Chiefdom.

The issues before court were eight.
1.      
Whether the respondents had any locus to oppose the petition.
2.       Whether the act of promulgation of the constitution of Obwa Kyabazinga Bwa Busoga, 2000 without the consent of the people of Busoga through any properly elected and representative Lukiko and in view of its contents is contrary to the culture, customs, traditions, wishes and aspirations of the people of Busoga and is inconsistent with and in contravention of Articles 1, 21, 37 and 246 of the Constitution of Uganda, 1995.
3.       Whether the act of conducting elections of the new Kyabazinga under the “Constitution of Obwa Kyabazinga Bwa Busoga, 2000” is inconsistent with and in contravention of Articles 1, 21, 37 and 246 of the 1995 Constitution of Uganda.
4.       Whether the act of preventing other traditional chiefs specified under paragraph 7 of this Petition and other Basoga to contest for the post of Kyabazinga is inconsistent with and in contravention of Articles 1, 21, 37 and 246 of the Constitution of Uganda, 1995.
5.       Whether the act of the 3rd Respondent involving itself in a partisan manner in the said elections is inconsistent with and in contravention of Articles 1, 21, 37 and 246 of the Constitution of Uganda, 1995.
6.       Whether the Kyabazinga purportedly elected pursuant to the said elections and under the said “Constitution of Obwa Kyabazinga Bwa Busoga, 2000” was lawfully and constitutionally elected and that such elections were inconsistent with and in contravention of Articles 1, 21, 37 and 246 of the Constitution of Uganda, 1995.
7.       Whether a Permanent Injunction restraining the Respondents whether by themselves, representatives, officials, agents or workmen from conducting elections of the new Kyabazinga under the “Constitution of Obwa Kyabazinga Bwa Busoga, 2000” or any other arrangement which is not in accordance with the traditions, customs, cultures, wishes and aspirations of the people of Busoga should be issued.
8.       Whether the Petitioners are entitled to costs of this Petition.

The articles cited read:
Article I. Sovereignty of the people.
1.      
All power belongs to the people who shall exercise their sovereignty in accordance with this Constitution.
2.       Without limiting the effect of clause I of this article, all authority in the State emanates from the people of Uganda; and the people shall be governed through their will and consent.
………..
4.      
The people shall express their will and consent on who shall govern them and how they should be governed, through regular, free and fair elections of their representatives or through referenda.

Article 21. Equality and freedom from discrimination.
(1)     
All persons are equal before and under the law in all            sphere of political, economic, social and cultural life and in every other respect and shall enjoy equal protection of the law.
(2)      Without prejudice to clause (1) of this article, a person shall not be discriminated against on the ground of sex, race, colour, ethnic origin, tribe, birth, creed or religion, social or economic standing, political opinion or disability.
…………….
(5) Nothing shall be taken to be inconsistent with this article          which is allowed to be done under any provisions of this         constitution.
 
Article 37 – Right to culture and similar rights.
         Every person has a right as applicable, to belong to, enjoy,              practice, profess, maintain and promote any culture, cultural    institution, language, tradition, creed or religion in   community with others.

Article 246. Institution of traditional or cultural leaders.
        
(1) Subject to the provisions of this Constitution, the                            institution      of traditional leader or cultural leader may exist in    any area of Uganda in accordance with the culture, customs       and traditions or wishes and expectations of the people to       whom it applies.

         (2) In any community, where the issue of traditional or          cultural leader has not been resolved, the issue shall be        resolved by the community concerned using a method       prescribed by Parliament.
…………………
 
(6) For purposes of this article, “traditional leader or cultural leadermeans a king or similar traditional leader or cultural leader by whatever name called, who derives allegiance from the fact of birth or descent in accordance with the customs, traditions, usage or consent of the people led by that traditional or cultural leader”
 
In dealing with this matter, the court has to bear in mind the following guidelines for constitutional interpretation, namely that:
a.      
Constitutional provisions are regarded as far reaching and must receive an extensive and humanistic interpretation.
b.       All provisions relevant to an issue are to be brought into perspective to give effect to or not to derogate from the intention of the constitution.
c.       The constitution must be interpreted in the context, scene and setting that exists at the time, and not when it was passed, otherwise it will cease to take into account the growth of society which it seeks to regulate.
d.       A purposive construction is necessary in that it enables the court to take into account factors other than legal rules. These factors are the effect or objectives of the provisions, the circumstances operating at the time when the interpretation has to be determined, the future implications of the impact of the said construction on future generations, the taking into account of new developments and changes in society.
e.       Although they are said to be non-justiciable, the National Goals and Directive Principles of State Policy must be given effect wherever it is fairly possible to do so without violating the meaning of the words used. These set out an imperative direction to the State to promote, develop and incorporate, in aspects of Ugandan life, cultural and customary values which are consistent with fundamental rights and freedoms, human dignity, democracy and with the Constitution.

Though there is no answer to the petition, the grievances in the petition must still be substantiated, more so bearing in mind the importance of the subject matter.
The evidence Act, Section 101 provides:
101 (1) whoever desires court to give judgment as to any legal right or liability dependent on the existence of facts which he or she asserts must prove that those facts exist”.
The petitioners thus have to satisfy this court that the practices/customs applied in electing the Kyabazinga contravene the Basoga culture, wishes and aspirations and consequently violate the provisions of the constitution as claimed.

With the above in mind we turn to the issues as framed.
Regarding issue No. 1, the respondents conceded to not having filed any answers to the petition. Though the 1st and 2nd respondents filed in separate affidavits on 12-11-2008 the 3rd respondent did neither. This was contrary to rule 6 (3) of S. I 91/2005 which enjoins a respondent to file an answer to the petition within 7 days of being served. It reads:
“6. (3) Where the respondent wishes to oppose the petition, the respondent shall, within seven days after the petition was served on him or her, file an answer to the petition.”

The respondents therefore had no locus standi in the matter, having disentitled themselves by failing to comply with the law. The 3rd respondent, however, as Attorney General remained a nominal respondent having been served.

Coupled with foregoing, at the commencement of the hearing, the 1st respondent, the Isabalangira/Acting Kyabazinga, David Kawune Wakhooli decided to agree with the petitioners over the issues raised in the petition for constitutional interpretation. He accordingly withdrew instructions from his lawyer Mr. John Matovu. He filed in court a letter to this effect, dated 27-07-09. It was on the official letter head. It was addressed to the Registrar of this court in the following terms.

“This is to inform you that after a through review of the culture of Busoga, I am satisfied that the above petition raises correct issues for constitutional interpretation and I now agree whole heartedly with the position of the petitioners. I no longer oppose the petition and I request you to inform their Lordships of this position. By copy of this letter, I am hereby withdrawing my instructions from Ms. Matovu & Matovu Advocates.”

Mr. John Matovu for the 1st and 2nd respondent informed court that on 25-11-2008 he filed in court an application for extension of time within which to file an answer to the petition. This application had not been heard and he sought court’s guidance on the matter. It is however the same 1st respondent who had sworn the affidavit in support of the application for extension of the time to file an answer to the petition.

Even if this application were to be heard first, it would be lacking a supporting affidavit. Rule 44 (1) of the Rules of this court provides:
“44 (1) Every formal application to the court shall be supported by one or more affidavits of the applicant or of some other person or persons having, knowledge of the facts.”
Thus the application would be rendered defective.

Most remarkable is the affidavit the 1st respondent swore in reply to the petition which is most revealing. Paragraphs 8, 10, 11 and 12 of this affidavit, dated 12-11-08, aver.
“ 8. That I know that there has never been a custom in Busoga     where all Basoga can contest for Kyabazingaship apart    from the traditional hereditary rulers of the Baise Ngobi        clan     (namely: Zibondo of Bulamogi, Gabula of Bugabula,        Tabingwa of Luuka, Nkono Bukono and Ngobi of     Kigulu).
         ……………..
10. That it is also not true that there is a previous election of the Kyabazinga that was contested by any other person apart from the 5 hereditary chiefs of the Baise Ngobi clan in Busoga.
11. That I am swearing this affidavit in reply to Constitutional         Petition and affidavit in support thereof against me and         the      2nd respondent.
12. That whatever is stated herein is true and correct to the    best     of my knowledge and belief”

13. We consider that if in his capacity as Isabalangira he could act so perfunctorily blowing hot and cold over the same issue his credibility is in very serious doubt and is thus highly suspect. He is therefore not anybody whose word can be relied upon.
Regarding the 2nd respondent, Mr. Muwereza the Katukiro, his affidavit dated 12-11-08, (paragraphs 6, 7 and 11) indicated that he was not involved in the election of the Kyabazinga. He only serves at the Kyabazinga’s pleasure. As pointed out above the 3rd respondent remains the nominal respondent to the petition.

Regarding Issue No. 2. Mr. Walubiri submitted that the people of Busoga were not party to the election of the Kyabazinga which act contravened articles 1, 21, 37 and 246.
He argued as follows. The 2000 Constitution promulgated by the then Kyabazinga and under which the election of the Kyabazinga was conducted is disputed. It was signed by only a few people. The stake holders were not consulted. Under the constitution, only 5 of the 11 chiefs are eligible to contest for the Obwa Kyabazinga. The Kyabazinga is not a hereditary title. It has always involved consultations with traditional chiefs. The clan heads if consulted would give true cultural practices to unite Basoga. It was an error and oversight to limit the Electoral College to only 11 chiefs. Mr. Walubiri contended that the Electoral College should be widened to get a respectable and widely accepted Kyabazinga. The institution must be in accordance with the culture, wishes and aspirations of the people to whom it applies.
He prayed court to hold that issue No. 2 is in contravention of articles 1, 21, 37and 246 and is thus null and void.

We observe the opening page of the ‘2000 Constitution’ indicates an acknowledgment of the roles played by various individuals/groups in the making of the Busoga Constitution.
These are named as follows:
Busoga Cabinet
Busoga Lukiiko
The first Busoga Lukiiko Constitution Committee chaired by Owe’k. S. Baite Munobwa.
The second Busoga Lukiiko Constitution Committee chaired by Owe’k. E.K. Mutyabule.
Abensikirano, who are specially commended for ‘ably articulating the cultural aspect of the draft constitution’. They were headed by Isabalagira. These are the Gabula of Bugabula; the Zibondo of Bulamogi, The Ngobi of Kigulu; The Luba of Bugwerei, The Menha of Bugweri, The Wakhooli of Bukooli, The Ntembe of Butebe, The Tabingwa of Luuke, The Kisiki of Busiki, The Nkono of Bukono and the Nanyhumba of Bunhole.
The Busoga Constitution Review Committee chaired by O’wek. W.W. Kiwagama.

This document was promulgated by the late HRH Kyabazinga on 13-12-2000 and witnessed by the following:
The Hereditary Rulers, the Isabalangira, the Katukiro, and his Deputy the Speaker, his Deputy and the Minister of culture. The other signatories/witnesses were the Busoga Lukiiko members who included cabinet and Deputy Ministers, all Hereditary Chiefs and other twenty five (25) members.
In view of the above enumerated participants in the constitution making process, we have difficult in agreeing with Mr. Walubiri’s contention. He did not establish how these individuals/groups could have found themselves in such a position of constitution - making other than by popular mandate. It was incumbent upon him to do so. Noting that Basoga community do not number more than (2) million, we consider that these groups/individuals were a fair representation of the Basoga community in absence of any information to the contrary.

It is noteworthy that the main objectives of the 2000 constitution in a nutshell were:
1.      
To provide a unified traditional cultural leadership to the people of Busoga.
2.       To streamline and update the role and scope of positive customary and traditional practices, ensuring maintenance of these values signifying the cultural dignity of the Basoga etc.
Those who subscribed their signatures to the document, on 13-12-2000, as indicated above declared:
“We have assembled this thirteen day of December 2000 with a strong and genuine determination to reaffirm our union and solidarity under this constitution for purposes of reviving promoting, maintaining and preserving the Kyabazingaship of Busoga as well as maintaining our cultural identity while consolidating, sustaining and preserving the useful cultures and traditions of the Basoga under the cultural Kyabazinga and we the signatories hereto do hereby as the cultural/traditional leaders on behalf of ourselves and all the chiefdoms and people of Busoga subscribing to Busoga cultures and traditions with or outside the boundaries of Busoga solemnly adopt this constitution (hereinafter called the Constitution of the Obwa Kyabazinga Bwa Busoga) for ourselves and the people of Busoga in the current and future generations this thirteenth day of December in the year 2000”.

We observe that as against the above declaration, there are the affidavits in support of the petition aforementioned which themselves do not state whether the deponents are acting for and on behalf of the Basoga community or any section thereof. Since this is the pivotal issue in this petition, the deponents should have specifically stated so since article 37 accords everybody a right to belong to and promote any culture in community with others. It is not a right that can be enjoyed personally or with a tiny minority of the community.
Furthermore, the petitioners have not stated which customs and or practices are being violated. Mr. Walubiri has not at all indicated what law requires the Busoga Lukiiko to be elected or requires the promulgation of the Busoga Constitution to be by an elected representative Lukiiko.
The petitioners’ bare contention is summarised in the affidavit of the 1st petitioner (para. 18) as follows.
18. That under the said constitution of Busoga, the only eligible candidates for the post of Kyabazinga are the traditional chiefs of Kigulu Bukono, Bugabula, Bulamogi and Luuka”. The following Paragraph 19 is to the effect that the other traditional chiefs and clan heads are denied a role in these elections. Mr. Walubiri submitting, merely stated that all this is contrary to the culture, customs, traditions, wishes and aspirations of the people of Busoga and left it at that.

It is clear to us that the impugned practices/customs have evolved since 1919 when the 11 hereditary rulers demanded and or consented to one of them being elected by them to head the Busoga Government, hence the ascent of Chief Ezekeri Tenywa Wako Zibondo of Bulamogi, as the Kyabazinga, a term coined later in 1939. This system was recognized by the 1962 Constitution of Uganda until its abolition by the 1967 Constitution of Uganda. These practices/customs evolved and developed. Undoubtedly they have had immeasurable and great signifance to the people. Hence their embodiment in the 2000 Constitution. The election of the Kyabazinga by the 11 hereditary rulers from the five selected rulers has been in place for a considerable length of time. The petitioners urged for modernization of the institution by widening the electoral collage.
In this respect we would point out that the Institution of the Obwa Kyabazinga or any traditional ruler at that is governed by customs/traditions and people’s wishes, who cherish and value these traditional rulers. They are not subjected to elections for theirs are not political offices. Thus article I regarding regular free and fair elections is irrelevant. Similarly article 21 regarding equality and freedom from discrimination is inapplicable to traditional institutions. The 1995 Constitution article 21 (5) guarantees the institutions thus:
(5) Nothing shall be taken to be inconsistent with this article which is allowed to be done under any provision of this constitution.”
That is why Article 246 (4) goes further to clarify:
(4) The allegiance and privileges accorded to a traditional leader or a cultural leader by virtue of that office shall not be regarded as a discriminatory practice prohibited under article 21 of this constitution….”
Clause (6) finally defines the institution as follows, for the avoidance of any doubt:
(6) for the purposes of this article, traditional leader or cultural leader means a king or similar traditional leader or cultural leader by whatever name called, who derives allegiance from the fact of birth or decent in accordance with the customs, traditions, usage or consent of the people led by that of the people led by that traditional or cultural leader.”
Thus not anybody can be a traditional leader. If the petitioners are not motivated by personal aggrandizement, then this is clearly a matter that should be resolved by the entire Basoga community. See article 246 (2) which prescribes:
“(2) In any community where the issue of traditional or cultural traditional leader has not been resolved, the issue shall be resolved by the community concerned using a method prescribed by Parliament.
Thus none of the articles of the Constitution cited has been shown to have been violated. We now turn to issue No.5 that the 3rd respondent is involving itself in a partisan manner in the affairs of the Obwa Kyabazinga. The 3rd respondent though duly as indicated above, did not rebut these allegations. If this is still persisting, this court would remind the 3rd respondent of the Directive Principle of State Policy No. 24 that regarding cultural objectives its duty is to promote and preserve cultural values and practices which enhance the dignity and well – being of Ugandans but not to interfere and or impose its will in the cultural affairs of a community against that community’s wishes.
We think this takes care of all the issues raised. We have not found any merit in this petition and accordingly dismiss it forthwith. We would not make any order as to costs.
Dated at Kampala this ……17th ...day of …September….2009

 

 

HON. JUSTICE A.E.N. MPAGI-BAHIGEINE
JUSTICE OF APPEAL

 

 

HON. MR. JUSTICE S.G. ENGWAU,    Dissented
JUSTICE OF APPEAL



HON. LADY JUSTICE C.N. B. KITUMBA,
JUSTICE OF APPEAL



HON. LADY JUSTICE C.K. BYAMUGSHA,
JUSTICE OF APPEAL



HON. MR. JUSTICE A.S. NSHIMYE,
JUSTICE OF APPEAL