Uganda: Constitutional Court

AND

ATTORNEY GENERAL RESPONDENT

(MAJORITY JUDGMENT OF THE COURT: HON. LADY JUSTICE L.E.M. MUKASA-KIKONYOGO, DCJ, HON. LADY JUSTICE C.N.B. KITUMBA, JA., HON. MR. JUSTICE STEVEN B.K. KAVUMA, JA.)

This petition is filed under Article 137 of the Constitution. It was brought against the Attorney General/Respondent by Hon. Miria Matembe, Hon. Ben Wacha and Hon. Abdu Katuntu (hereinafter referred to as the 1^st, 2^nd and 3^rd petitioners respectively and together as the petitioners) on the 4^th April, 2005. The petitioners are challenging the constitutionality of certain acts of the Attorney General/Minister of Justice and Constitutional Affairs, Parliament, The Constitutional (Amendment Bill) No. 2 of 2005 and rules 104 and 111 of the Rules of Procedure of Parliament.

The background to the petition is that on the 14^th February 2005 the Government of Uganda published The Constitutional (Amendment) Bill, 10 No. 2 of 2005, (hereinafter referred to as the Bill). The object of the Bill, commonly referred to as the "Omnibus Bill", was to amend various constitutional provisions categorized under articles 259, 260, and 261 of the Constitution. It was tabled before Parliament by the Attorney General/Minister of Justice and Constitutional Affairs (hereinafter referred to as the Minister) on the 15^th February 2005. It was immediately committed to the Legal and Parliamentary Affairs Committee of Parliament (hereinafter referred to as the Committee) for consideration. By the time of the hearing of this petition, the Committee had not submitted its report for consideration and debate by Parliament. 20 The petitioners allege: -

"1.That they are citizens of Uganda and members of Parliament affected by the following matters being inconsistent with the Constitution of the Republic of Uganda, 1995 whereby they are aggrieved.

2. That the act of the Minister in tabling before Parliament and of Parliament debating the Constitutional (Amendment) Bill No. 2 of 2005 which combines proposed amendments to articles specified in articles 259 (2), 260 (2) and 261 is inconsistent with and contravenes articles 91 258, 259, 260, 261 and 262 of the Constitution in as much as:

1. The proposed amendments to some of the articles referred to in article 260 and 261 will unduly be subjected to the procedure in article 259 of the Constitution.

2. The proposed amendments to some of the articles referred to in article 259 (2) of the Constitution will be unduly subjected to article 260 of the Constitution.

3. The proposed amendments to some of the articles referred to in article 261 of the Constitution will be unduly subjected to article 262 of the Constitution.

3. That rules 104 and 111 of the Rules of Procedure of the Parliament of Uganda are inconsistent with and contravene articles 259 (1) (a) 260 (1) (a) and 261 of the Constitution in as much as:

a) the votes of Members of Parliament on the second and third reading of the bill under the said rules are omnibus covering the entire bill and are not on individual clauses seeking to amend specific articles in the Constitution.

b) The votes of Members of Parliament on individual clauses of the bill under the said rules are by simple majority and not two thirds majority.

4. That the said bill in as far as it proposes to amend in an omnibus manner several articles of the Constitution without a specific two thirds vote in Parliament and where necessary in district councils and/or referenda on each specific article and by subjecting the entire bill to an omnibus district council vote and national referenda contravenes and is inconsistent with article 1 of the Constitution."

The petitioners pray that court may: -
"5. (a) Grant declarations that:

(i) "Constitutional (Amendment) Bill No. 2 of 2005 is inconsistent with and contravenes articles 91, 258, 259, 260, 261 and 262 of the Constitution and is null and void.

(ii) Rules 104 and 111 of the Rules of the Parliament of Uganda are inconsistent with and contravene articles 259 (1) (a), 260 (1) (a) and 261 of the Constitution and are null and void.

(iii) The Constitutional (Amendment) Bill No. 2 of 2005 is inconsistent with and contravenes article 1 of the Constitution and is null and
void.

(b) Grant an order of redress by restraining Parliament and

all its committees from further consideration of Constitutional (Amendment) Bill No. 2 of 2005.

(c) Order the Respondent to pay the costs of the Petition to the Petitioners." (sic)

The petition was supported by two affidavits one deponed to by the 2^nd petitioner and the other by the 3^rd petitioner.

The respondent filed an answer to the petition in which, he denied each and every allegation contained in the petition. He contended that nothing in the drafting, tabling, debating and passing the Bill is either inconsistent or contravenes or will be inconsistent or in contravention of any provisions of the Constitution as alleged in the petition or at all. The answer is supported by two affidavits sworn by Mike Chibita, Principal State Attorney in the respondent's chambers and Aeneas Tandekwire, the Clerk to Parliament.

The respondent states, further, that the petition is premature, speculative, does not disclose a cause of action and does not raise any matter for interpretation by Court. It is frivolous and vexatious and therefore, misconceived. The respondent prays that the petition be dismissed with costs.

At the hearing of the petition, the following issues were framed for determination by Court: -

1. "Whether the petition is premature, speculative and misconceived.

2. Whether the petition raises matters for interpretation by this Honourable Court.

3. Whether the tabling of the Constitution (Amendment) Bill, 2005 before Parliament by the Attorney General & Minister of Justice & Constitutional Affairs is inconsistent with articles 91, 258, 259, 261 and 262 of the Constitution.

4. Whether the debating of the Constitution (Amendment) Bill, 2005 by Parliament is inconsistent with articles 91, 258, 259, 261 and 262 of the Constitution.

5. Whether the Constitution (Amendment) Bill, 2005 contravenes articles 1, 91, 258, 259, 260, 261, and 262 of the Constitution.

6. Whether Rules 104 and 111 of the Rules of Procedure of Parliament are inconsistent with articles 259 (1) (a), 260 (1) (a) and 261 of the Constitution.

7. Whether the petitioners are entitled to the reliefs sought in the petition." (sic)

Before we proceed, we wish to observe that the petition has been largely overtaken by events as the Bill was withdrawn and substituted with two others. However, since the parties had made their final submissions, for the sake of completion of the record and possibly for future guidance, we decided to consider and rule over all the aforesaid issues.

On perusal of the issues, we find that there is a lot of overlapping between them, hence, for convenience, we propose to consider issues 1, and 2 together, 3, 4, 5 and 6 together and 7 separately in that order.

On issues 1 and 2, "whether the petition is pre-mature, speculative and misconceived and whether it raises any matters for interpretation by this court," counsel for the petitioners submitted that Article 137, Clause 3 gives court jurisdiction to interpret the Constitution. If a complaint raised by any person falls under article 137 (3), the petition that raises it cannot be said to be premature, speculative or misconceived.

Counsel, relying on P.K. Semogerere and 2 Others vs Attorney General, Constitutional Appeal No. 1 of 2002, prayed court to hold that the acts of the Minister, Parliament, the Bill itself and rules 104 and 111 of the Rules of Procedure of Parliament are legitimately ripe for interpretation by Court under Article 137 (3). There is nothing I speculative, premature or misconceived about the petition. Mr. Walubiri 10 submitted, further, that the Court had already pronounced itself on whether the petition raised any matters for interpretation when it ruled in Constitutional Application No. 1 of 2005 that the petition raised serious questions for investigation by Court. He argued that paragraphs 2, 3 and 4 of the petition as supported by Hon. Ben Wacha's affidavit contained serious matters which called for interpretation.

In reply, the learned Solicitor General, contended that the Bill being a mere draft for an Act of Parliament cannot be challenged as unconstitutional under Article 137 (3) (a) of the Constitution. He 20 emphasized that being a mere proposal, it can be altered any time during the process of enactment. He, further, submitted that in Constitutional Application No. 1 of 2005, Court ruled that the petition was premature and as nothing had changed since then, it still remained premature, speculative and misconceived.

Mr. Tibaruha conceded that under Article 137 (3) (a) and (b) a person can petition court for declarations that an Act of Parliament or any other law or anything in or done under the authority of any law is inconsistent with the Constitution or that any act or omission by any person or authority is inconsistent with the Constitution. In the instant case, the learned Solicitor General argued that, the petitioners were seeking declarations that The Constitutional (Amendment) Bill No. 2 of 2005 is inconsistent with articles 1, 91,258,259,260,261 and 262 of the Constitution and is null and void. He contended that the said declarations were outside the ambit of 10 those contemplated under article 137 (3) (a) and (b). There is no issue for determination under Article 137 of the Constitution because the petition seeks nullification of a Bill and not an Act of Parliament.

On these two issues we make the following findings. Article 137 (3) (a) and (b) provides:-"137. (3) A person who alleges that -

1. an Act of Parliament or any other law or anything in or done under the authority of any law; or

2. any act or omission by any person or authority, is inconsistent with or in contravention of a provision of this Constitution, may petition the Constitutional Court for a declaration to that effect, and for redress where appropriate."

It is clear to us that in the first limb of Article 137 (3) (a), the Constitution provides for the challenging by any person who satisfies the relevant parts of the rest of Article 137, the constitutionality of an Act of Parliament and not a mere daft proposal for an Act of Parliament. If the framers of the Constitution intended that the constitutionality of a bill for an Act of Parliament can be challenged, they would have clearly stated so.

In the case of The Independent Jamaica Council for Human Rights 1998) Limited and Others Vs. Hon. Syringa Marshall-Burnett and the Attorney General of Jamaica, Privy Council Appeal No. 41 of 2004 (hereinafter called, the Jamaican case), which is similar to the present petition in this respect, their Lordships had this to say: -

"The challenge to the Constitutionality of the Legislative procedure adopted came before the full Court of the Supreme Court (Wolfe C.J., Marsh and Mcintosh JJ) when the bills were still going through Parliament, that court did not review the legal merits of the appellants' argument but struck out the proceedings as premature. In reasons given on the 17^th May 2004, following a hearing in April, the Court held that any challenge should be made after and not before enactment of the legislation. The Court of Appeal (Forte P Harrison and Smith JJA) did hear argument on the merits of the appellants' challenge but rejected it for reasons given in judgments delivered on 12^th July 2004. The appellants repeat their challenge before the Board. But because the bills have now received the assent of the Governor-General, the argument on prematurity has been overtaken by events and so is not pursued."

Although the above case is from a foreign jurisdiction, it is from the Commonwealth and therefore of persuasive value. It makes it abundantly clear that before a bill is enacted into an Act of Parliament, it would be premature to resort to court to challenge its constitutionality.

This Court in Constitutional Application No. 1 of 2005 dismissed the applicants' application on the ground that it was premature which decision still holds. At that time, the Bill was still in the Committee and pending a report to Parliament. It had not yet been enacted into law. Similarly at the time we completed the hearing of this petition, nothing had changed. It is, therefore, still premature.

On Mr. Walubiri's submission that the Court had held in Constitutional Application No. 1 of 2005 that the petition raised serious matters for the courts' interpretation, that holding must be understood in the context of that application. The ruling was before the merits of the petition had been considered. Furthermore, this Court takes judicial notice of the fact that shortly after the ruling, the Bill was withdrawn and was substituted with two other Constitutional (Amendment) Bills.

With regard to the unconstitutionality of rules 104 and 111 of the Rules of Procedure of Parliament, it is contended that applying the said rules, Parliament would debate and vote on the Bill unconstitutionally. The contention cannot be but premature and speculative at this stage as the said rules have not been invoked. This Court must be on its guard to avoid premature adjudications and entanglement in abstract or speculative disputes between potential petitioners. In gauging the fitness of any issue before it for judicial adjudication, this Court should not get involved in uncertain or contingent future events which may or may never occur at all. It will only intervene to correct excess or abuse. It is also vital for the judicial process of this country that this Court must see that petitioners have exhausted all the constitutionally available remedies before seeking protection and adjudication from it. See Supreme Court Constitutional Appeal No. 1 of 1997 Attorney General vs Major General David Tinyefuza.

The Executive and the Legislature must be left to perform their constitutional duties without undue interference from the courts. This would also guard against overzealous litigants from dragging these government organs to court prematurely each time a bill is tabled in Parliament. There is need to avoid unnecessary obstruction of the conduct of the affairs of state. We are mindful of the mandate of the Court to ensure that the Legislature complies with the legislative procedure of Parliament to keep it on the constitutional truck. However, this must be done within the constitutionally recognized parameters. In the result, we hold that this petition is speculative, premature and misconceived. We also find that it does not raise any matters for constitutional interpretation. It would, hence, fail on issues 1 and 2.

On issues 3,4,5 and 6, we note that some matters which feature here, have been covered during our evaluation of issues 1 and 2. However, there are some aspects which have not been addressed which we wish to consider next.

The act of the Minister in tabling the bill is, in our opinion, the starting point in enacting the Bill into law by Parliament. Under article 78 of the Constitution, Ministers being members of Parliament, participate in the legislative process and functions of Parliament. Furthermore, when a 10 Minister tables any government bill before Parliament, that Minister, performs an executive function on behalf of the President under article 99 (4) of the Constitution. That Article provides: -

"99 (1)The executive authority of Uganda is vested in the President and shall be exercised in accordance with the Constitution and the laws of Uganda.

(2) The President shall execute and maintain the Constitution and all laws made under or continued in force by the Constitution.

(3)

(4) Subject to the provisions of this Constitution, the functions conferred on the President by Clause (1) of this article may be exercised by the President either directly or through officers subordinate to the President."

In the premises the Ministers' act cannot be challenged before the bill is passed into an Act of Parliament.

We accept the learned Solicitor General's submission that the executive act of the Minister should not be unnecessarily subjected to challenge in court. Similarly, the legislative act of Parliament in debating a bill should not be unnecessarily subjected to challenge in court. Such a challenge can only be justified when either the Executive or Parliament has, in the clearest of cases, exceeded its power and acted unconstitutionally. It cannot be sustainably contended at this stage in the instant petition that either the Minister or Parliament had clearly exceeded their power to warrant judicial intervention.

We are in agreement with the observations of George Kanyeihamba JSC in Attorney General vs. Major General David Tinyefuza, Constitutional Appeal No. 1 of 1997 where he had this to say: -

"The rule appears to be that courts have no jurisdiction over matters which are within the constitutional and legal powers of the legislature or the executive. Even in cases, where courts feel obliged to intervene 20 and review legislative measures of the Legislature or administrative decisions of the executive when challenged on the grounds that the rights or freedoms of individuals were clearly infringed or threatened, they do so sparingly and with the greatest of reluctance."

The petitioners' other concerns here are that the Minister. tabled and Parliament would be debating a bill which combines amendments to articles categorized under Articles 259 (2), 260 (2) and 261. To them, this is inconsistent with and contravenes articles 91, 258, 259, 260, 261 and 262. They contend that amendments requiring separate levels of popular support will be unduly subjected to the highest level of popular support. Those that could be quickly passed and assented to by the President, will have to wait for those which must have the voting at the 2^nd and 3^rd reading separated by at least 14 sitting days of Parliament. The less entrenched 10 provisions will also have to be treated in the same way as those that must be approved by the population in a referendum under article 259 and those that must be ratified by the at least 2/3^rds of all the districts of Uganda under article 260. In the petitioners' view, there should be three separate bills each covering amendments to provisions categorized under each of the articles 259, 260 and 261.

They, further, contend that Parliament debating the Bill which lumps together amendments to constitutional provisions categorized under articles 259, 260 and 261, will erode the sovereignty of the people enshrined in article 1 of the Constitution and violate it. They also argue 20 that rules 104 and 111 of the Rules of Procedure of Parliament are inconsistent with articles 259 (1) (a), 260 (1) (a) and 261 of the Constitution. In support of his arguments, Mr. Walubiri relied on the Jamaican case (supra).

On the other hand, the learned Solicitor General reiterated his earlier arguments of the executive and legislative nature of the acts of the Minister and the Legislature respectively. He pointed out that the doctrine of separation of powers, barred one of the three arms of government from interfering into each other's work. He assured Court that all the relevant constitutional provisions would be complied with in the process of enacting the Bill into law. He cited the case of Attorney General - vs -Tinyefuza (supra). He disagreed with the petitioners' contention that constitutionally, the amendments covered in the Bill should be in three separate bills. To him it was illogical that one document would be amended by three separate bills.

Parliament derives its power to make law for Uganda from article 79 of the Constitution and it exercises those powers by virtue of article 91 of the Constitution.

Article 79 provides, inter alia, that: -

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

(2) Except as provided in this Constitution, no person or body other than Parliament shall have power to make provisions having the force of law in Uganda except under authority conferred by an Act of Parliament.

(3)

Article 91 (1) of the Constitution provides:-

"91 (1) Subject to the provisions of this Constitution, the power of Parliament to make laws shall be exercised though bills passed by Parliament and assented to by the President."

These are, indeed, important, extensive and exclusive constitutional powers and functions of Parliament.

The Acts of Parliament Act defines a bill in Section 1 (c) as "a draft of an Act of Parliament which includes both a private members bill and 10 a government bill."

We find nothing offensive to the Constitution in Parliament debating the Bill under its extensive powers. This is what the Constitution enjoins Parliament to do.

On the combination in the Bill of amendments of constitutional provisions categorized under articles 259, 260 and 261, we have carefully considered counsel for the petitioners' submission and the evidence contained in the affidavits of the 2^nd and 3^rd petitioners in support of the petition. We have 20 also examined the submissions of the learned Solicitor General and the evidence in the affidavits in reply deponed to by Mr. Chibita and Mr. A. Tandekwire and came to the conclusions below.

The provisions in Chapter 18 of the Constitution do not, in our opinion, anywhere prohibit amendments to constitutional provisions categorized under articles 259, 260 and 261 to be put in a single bill. The provision in article 258 is clearly concerned with the power of Parliament to amend by way of addition, variation or repeal any provision of the Constitution in accordance with the procedure laid down in Chapter 18.

Clause 2 of article 258 provides: -

"258. (2) This Constitution shall not be amended except by an Act of Parliament -

1. the sole purpose of which is to amend this Constitution; and

2. the Act has been passed in accordance with this Chapter."

The Bill fully complied with the requirements of article 258 (2) (a) as its sole purpose was to amend provisions of the Constitution. As to whether the Bill would be passed by Parliament in accordance with the procedure laid down in Chapter 18, that would have been revealed by the completion of the legislative process which has not happened.

Additionally we find the earlier submissions of the Solicitor General on the doctrine of separation of powers very pertinent here. It was also amply expounded by Kanyeihamba, JSC in Attorney General Vs. Major General Tinyefuza (supra) where he had this to say:-"The Constitution provides that the Constitutional platform is to be shared between the three institutional organs of Government whose functions and powers I have already described (supra). The Uganda Constitution recognizes these organs as the Parliament the Executive and the Judiciary. It was not by accident either that it created, described and empowered them in that order of enumeration. Each of them has its own field of operation with different characteristics and exclusivity and meant by the Constitution to exercise its powers independently. The doctrine of separation of powers demands and ought to require that unless there is the clearest of calling for intervention for the purposes of determining constitutionality and legality of action or the protection of the liberty of the individual which is presently denied or imminently threatened, the courts must refrain from entering arenas not assigned to them either by the Constitution or laws of Uganda. It cannot be overemphasized that it is necessary in a democracy that courts refrain from entering into areas of disputes best suited for resolution by other government agents. The courts should only intervene when those agents have exceeded their powers or acted unjustly causing injury thereby." We are of the considered opinion that in the instant case the courts should strictly observe the above principle. The Constitution does not require this court to supervise the functioning of the legislature in every aspect and at all the stages of its work. The greatest care must be taken to ensure that as far as possible the principle of separation of powers is duly observed by the three arms of government to avoid unnecessary erosion of each other's constitutional functions otherwise good and balanced governance may be unduly hampered.

Relying on the affidavit evidence of Mr. Chibita, Mr. A. Tandakwire, that of the of the 2^nd Petitioner and the submissions of the learned Solicitor General, we are persuaded to believe that there would have been no unconstitutionality in the process of enacting the Bill into law by Parliament. There is also the precedent set by Parliament when it passed The Constitutional (Amendment) Act 2000. The procedure followed fully complied with Chapter 18 of the Constitution.

Voting at the 2^nd and 3^rd reading of a bill seeking to amend the Constitution is governed by articles 259, 260 and 261 which require at least 2/3^rds support of all members of Parliament. It is not governed by rules 104 and 111 of the Rules of Procedure of Parliament. We have seriously searched, but in vain, for any constitutional prohibition for a vote on the resolution for a bill seeking to amend the Constitution to be carried on the entire bill at both these stages, provided such a decision is taken by not less than the mandatory 2/3^rds majority of all members of Parliament. Going by the precedent of the mode of ascertaining the required votes set by Parliament in passing The Constitutional (Amendment) Act 2000, we have no reason to conclude that Parliament would not follow the proper procedure. We further find no constitutional prohibition for amendments to provisions categorized under article 261 of the Constitution not becoming effective until after the requirements of articles 259 and 260 are complied with.

Similarly we have not found any constitutional prohibition against amendments categorized under article 261, having been passed by Parliament, to wait before they become effective, until at least 14 sitting' days of Parliament separation of voting between the 2^nd and 3^rd reading of the Bill, under article 262 (i).

As for the Petitioners' concern that during Parliament's consideration of the Bill at Committee stage voting by members of Parliament will be by simple majority rather than at least 2/3^rds majority on each individual clause is unfounded in law.

Article 89 (1) of the Constitution provides: -

"Except as otherwise prescribed by this Constitution or any law consistent with this Constitution, any question proposed for decision of Parliament shall be determined by a majority of votes of the members present and voting".

Article 94 (1) of the Constitution provides as follows: "94 (1) Subject to the provisions of this Constitution, Parliament may make rules to regulate its own procedure including the procedure of its Committees".

Under that provision, Parliament made its Rules of Procedure. Rule 71 (i) of the said rules provides: -

"Except as otherwise prescribed by the Constitution or any law consistent with the Constitution, all questions proposed for decision of Parliament shall be determined by a majority of votes of members present and voting".

This rule is in exactly the same terms as Article 89 (i) (supra). Its application, therefore, by Parliament when considering any bill, including one for the amendment of any provision of the Constitution at committee stage is in effect an application of a constitutional provision, article 89 (1). The voting by simple majority at committee stage cannot, therefore, be unconstitutional. It may not appear desirable to the petitioners but that is not the issue. What is important is for Parliament to comply with the laid down procedure in both the Constitution and its Rules of Procedure. Once this is done, the sovereignty of the people enshrined in article 1 of the Constitution cannot be said to have been violated and the Bill would have been validly passed into law.

The evidence on record through the affidavit of Mike Chibita in paragraphs 6, 7, 8, 9 and 10 is clear as to the procedure of voting at the district level as required by article 260 and at the referendum as required by article 259 of the Constitution. We reproduce the said paragraphs which read as below: -

"6. That I know that the provisions of the Referendum and Other Provision Act, 2005 will apply to a referendum to effect the proposed amendments to some of the articles referred to in article 259(2) of the Constitution and ratification by district councils to effect the proposed amendments to some of the articles referred to in article 260(2) of the Constitution.

7. That I know that under the provisions of the Referendum and Other Provisions Act, 2005, the question for approval by the people in a referendum under article 259(1)(b) of the Constitution, will be restricted to only individual clauses in the Bill seeking to amend some of the articles referred to in article 259(2) of the Constitution.

8. That I know that under the provisions of the said Referendum and Other Provisions Act, 2005, the question for ratification by members of district councils under article 260(1)(b) of the Constitution, will be restricted to only individual clauses in the Bill seeking to amend some of the articles referred to in article 260(2) of the Constitution.

9. That I know that under the said Act Electoral Commission shall, at least two months before a referendum, formulate and implement civic education programmes relating to the referendum for amending the Constitution under article 259 of the Constitution.

10. That I know that under the said Act, the Electoral Commission is obliged to ensure that the relevant clauses seeking to amend some of the articles referred to in article 260(2) of the Constitution are ratified by at least two-thirds of the members of the district council in each of at least two-thirds of the districts in the country.

Both the Solicitor General's submission and Mr. Chibita's affidavit clearly show that voting at the referendum and the district level would be on individual clauses of the Bill to be referred to the people in a referendum and to the district councils. All this would be explained by the Electoral Commission through civic education. The Solicitor General explains that the apparent defect in the drafting of schedules 3 and 4 of the Referendum and other Provisions Act is not fatal. It is curable under Section 43 of the Interpretation Act which provides thus -

"43. Where any form is prescribed by any Act, an instrument or document which purports to be in such form shall not be void by reason of any direction from that form which does not affect the substance of the instrument or document or which is not calculated to mislead".

We accept Mr. Tibaruha's argument. We are also satisfied that the procedure explained by Mr. Chibita in his affidavit and the Solicitor General in his submission would be in total compliance with the requirements of Constitution.

We next proceed to reproduce the affidavit evidence of Mr. A. Tandakwire in paragraphs 6 to 23. This relates to the procedure for voting in Parliament and its Committees including the Committee of the Whole House. The paragraphs read as follows: -

"6. That I know that there are two procedures which Parliament must apply to a Bill to amend the Constitution.

7. That I know that the said procedures are firstly procedures under Chapter Eighteen of the Constitution and secondly procedures under the Rules of Procedure of Parliament.

8. That I know that under Chapter Eighteen of the Constitution the mandatory procedures are that: -

(i) under article 258 of the Constitution the amendments to the Constitution must be effected by a Bill for an Act of Parliament the sole purpose of which is to amend the Constitution by way of addition, variation or repeal of any provision of the Constitution.

(ii) the Bill involving the amendment of any article of the Constitution referred to in articles 259 (2), 260 (2) and 261 of the Constitution must in order to pass be supported at the second and third readings of the Bill by votes of two thirds of all Members of Parliament.

(iii) the Bill involving the amendment of any article referred to in article 260 (2) of he Constitution must be ratified by two thirds of the members of district councils in each of at least two-thirds of all districts in the country.

(iv) the bill involving the amendment of any article referred to in article 259 (2) of the Constitution must be approved by the people in a referendum.

9. That there is nothing unconstitutional about presenting and debating a number of Constitutional amendments in one Bill, and I know that it is more expedient to have one Constitution (Amendment) Bill instead of a number of them.

10. That I know that there is no Constitutional requirement for each clause in a Constitutional Amendment Bill to be voted on by two thirds majority of all Members of Parliament, but the requirement for the two thirds majority applies when passing the said Bill at the Second and Third Readings.

11. That at the second reading the Minister responsible for the Bill moves a motion that the Bill be read the second time, and the Chairperson of the Committee to which the Bill is referred presents to the House the Report of the Committee on the Bill.

12. That after the Report of the Committee is presented, the merits and principles of the Bill are debated by the House, and at the end of the debate a vote is taken on the motion and if the motion is supported by at least 2/3 of all Members of Parliament, the motion for the second reading of the Constitution (Amendment) Bill is carried, and then the Clerk reads the short title to the Bill, and the Bill is taken to have been read the second time.

13. That after completion of the motion for the second reading, the Bill Stands Committed to the Committee of the Whole House.

14. That it is at the Committee Stage that the details of the Bill are debated, clause by clause, and each clause is approved by a simple majority vote.

15. That after the completion of consideration of the Bill clause by clause by the Committee of the Whole House a motion is moved for the House to Resume.

16. That when the motion is agreed to the House is reconstituted, the Minister reports to the House what has been done on the Bill which report includes the changes which have been approved, amended or rejected.

17. That after that Report again the Minister moves that the House adopts the Report and if the House adopts the report from the Committee the adopted report becomes the basis for causing the Minister to move a motion to have the Bill read the third time and pass.

18. That before a motion is put to a vote any member who is not satisfied with the Committee's Report may move for the Recommittal of part of the Bill or the Whole Bill and if agreed on the Bill Stand Recommitted and the process in the Committee resumes.

19. That the vote for third reading is done when in respect of the Constitution Amendment Bill there is an approval by the 2/3 of all Members of Parliament. Any member is free to oppose the motion for adoption of the Committee's Report or the motion for 3^rd Reading.

20. That I am conversant with Parliamentary procedures in all Commonwealth Countries and I know that in particular the procedure of the second and third readings of the Bill is common in all Commonwealth Countries.

21. That when the 6 Parliament considered the Constitution (Amendment) Bill, 2000, the above procedures were applied as is shown in Annexture A to this Affidavit.

22. That the above procedures were used to pass the Constitution (Amendment) act, 2000 and were never challenged by the Petitioners or any other person.

23. That if the Constitution (Amendment) Bill 2005 is passed there will be no prejudice to the Petitioners or any other person.

In the premises, we are satisfied that the procedure outlined above would not be unconstitutional. The Jamaican case (supra) relied on by counsel for the petitioners is distinguishable from the instant petition. By the time that case was decided by the Privy Council, the bills had been enacted into law and the Acts were challengeable. Further, in that case again, the constitutionally laid down procedure to amend entrenched articles of the Constitution was not followed. On the contrary, by the time the Court heard the present petition, the Bill had not been passed into an Act of Parliament and therefore was unchallengeable. Secondly there was no conclusive evidence of non-compliance with the proper procedure. It was all, but speculation.

In the result, on issues 3, 4, 5 and 6 we make the following findings: -

Issue 3. The tabling of the Constitutional (Amendment) Bill, No. 2 of 2005 before Parliament by the Minister is not inconsistent with articles 91, 258, 259, 261 and 262.

Issue 4. The debating of the constitutional (Amendment) Bill No. 2 of 2005 by Parliament is not inconsistent with articles 91, 258, 259, 261 and 262 of the Constitution.

Issue 5. The constitutional (Amendment) Bill No. 2 of 2005 does not 10 contravene articles 1, 91, 258, 259, 260, 261 and 262 of the Constitution.

Issue 6. Rules 104 and 111 of the Rules of Procedure of Parliament are not inconsistent with articles 259 (1) (a), 260 (i) (a) and 261 of the Constitution.

As for issue no. 7, whether the petitioners are entitled to the reliefs sought, we would decline to make the declarations prayed for. First and foremost, the petitioners did not prove their case. Secondly, the petition 20 was largely overtaken by events when the Bill was withdrawn from the floor of Parliament. Thirdly, even if it had not been withdrawn, we are skeptical as to whether the orders sought by the petitioners would be enforceable or effectively implemented. It is a well-established principle that a court of law will not issue an order which is unenforceable and also would not act in vain. See Udo Udoma C.J., as he then was, in Jetho V. Nyangali [1965] E.A. 619.

In the result, this petition would fail.

By majority judgment of the Court, this petition is hereby dismissed with costs.

JUDGEMENT OF A.E.N. MPAGI BAHIGEINE, JA - DISSENTING

Having discussed this matter with the rest of the panel and noted the majority decision to dismiss the petition, I would respectfully disagree that this petition is devoid of any merit, is premature, misconceived, speculative and that therefore it should be dismissed. I would further disagree that this court is not mandated to interfere in the legislative process at this stage. I will very briefly state my position.

This petition was brought challenging the constitutionality of the act of the Attorney General and Minister of Justice and Constitutional Affairs in tabling before Parliament and of Parliament debating the Constitutional (amendment) Bill No.2 of 2005 which combines proposed amendments to articles specified in articles 259 (2), 260 (2) and 261 which they claimed to be inconsistent with and contravenes article 91, 258, 259, 260, 261 and 262 of the Constitution in as much as:-

1. The proposed amendments to some of the articles referred to in article 260 and 261 will be unduly subjected to the procedure in article 259 of the Constitution.

2. The proposed amendments to some of the articles referred to in article 259 (2) of the Constitution will be unduly subjected to article 260 of the Constitution.

3. The proposed amendments to some of the articles referred to in article 261 of the Constitution will unduly be subjected to article 262 of the Constitution.

2. That rules 104 and 111 of the Rules of Procedure of the Parliament of Uganda are inconsistent with and contravene article 259 (1) (a) 260 (1) (a) and 261 of the Constitution as much as;-

1. The votes of members of parliament on second and third reading of the bill under the said rules are omnibus covering the entire bill and not on individual clauses seeking to amend specific articles in the Constitution.

2. The votes of Members of Parliament on individual clauses of the bill under the said rules are by simple majority and not two thirds majority.

3. The petitioners asserted that the said bill in as far as it proposes to amend in an omnibus manner several articles of the Constitution without a specific two thirds vote in Parliament and where necessary in District Councils and/or referenda on each specific article and by subjecting the entire bill to an omnibus district council vote and national referenda contravenes and is inconsistent with article 1 of the Constitution.

The following declarations were sought;-

i) Constitutional (Amendment) Bill No.2 of 2005 is inconsistent with and contravenes articles 91,258, 259,260, 261 and 262 of the Constitution and is null and void.

ii) Rules 104 and 111 of the Rules of the Parliament of Uganda are inconsistent with and contravene articles 259 (1) (a), 260 (1) (a) and 261 of the Constitution and are null and void.

iii) The Constitutional (Amendment) Bill No.2 of 2005 is inconsistent with and contravenes article 1 of the Constitution and is null and void.

The petitioners further sought an order of redress to restrain Parliament and all its committees from further consideration of Constitutional (Amendment) Bill No.2 of 2005.

The petitioners moved this court under the entire article 137 of the 1995 Constitution. The first limb of their case challenged the Attorney General's act, of tabling and debating the bill, which they alleged was unconstitutional. This, they argued fells under article 137 (3) (b) which provides that:

"(3) A person who alleges that-. . .

(a) any act or omission by any person or authority., is inconsistent with or in contravention of a provision of this Constitution, may petition the constitutional court for a declaration to that effect, and for redress where appropriate."

The argument of the learned Solicitor General was that a bill is a mere draft proposal which might be amended, and even entirely rejected and therefore cannot be challenged at that early.

It is indeed indisputable that a bill is the draft of a proposed law from the time of its introduction in Parliament until the time when it is passed by way of a vote by the legislature, when it becomes an 'Act'. I cannot doubt the fact that during deliberations the bill may be amended by deletion or addition or indeed may eventually be rejected in toto. However, it is trite that no bill can be so altered or amended on its voyage through Parliament so as to change its original purpose. Once it goes through its first reading and is thereafter submitted to the Legal and Parliamentary Affairs Committee for marking up, its purpose determines the way it is to be debated and passed into an Act.

It is this entire package of events so far that forms the act which is the main concern of the petitioners, and is the subject of their first complaint under article 137 (3) (b) of the Constitution.

The earlier ruling of this court in Constitutional Application No. 1 of 2005 dated 24/3/2005 should be confined to the circumstances obtaining then. An injunction was refused on the ground that it was too early to gauge the direction of events then. However, their Lordships made a poignant observation:-

"We think that the contention of the applicants/petitioners in their petition that the act of the Minister in handling an omnibus bill for eventual enactment into an Act of Parliament will breach the Constitution raises a prima facie case with a probability of success. It raises genius questions to be investigated by this Court".