The agreed issues by the parties are as follows
1.
“Whether the 2nd–45th respondents were required to resign at least 90 days prior to their nomination as candidates in the 2006 Parliamentary General Elections.
2.
Whether the nomination of the 2nd–45th respondents as candidates in 2006 Parliamentary General Elections contravened Article 80 (4) of the Constitution.
3.
Whether the election of the 2nd–45th respondents as members of Parliament in 2006 Parliamentary General Elections contravened Article 80 (4) of the Constitution.
4.
Whether the petitioners were entitled to the relief sought.”
The team of lawyers representing the petitioners consisted of Mr. David K. Mpanga and Mr. Fredrick Mpanga. Miss Christine Kahawa,
Senior State Attorney represented the 1st respondent whilst Mr. Peter Kabatsi assisted by Mr. David Mpanga and Mr. Oscar Kambona represented the remaining 44 respondents.
On the first issue, Mr. Mpanga rightly pointed out that Article 80 of the Constitution deals with qualifications and disqualifications of members of Parliament. However, it was recently amended by the Constitution (Amendment) Act No. 11 of 2005 which inserted and amended a number of sub-articles in our Constitution. Section 18 (d) of the Constitution (Amendment) Act amended, Article 80 by inserting Clause 4 (supra).
On the first issue, Mr. Mpanga endeavored to prove that respondents 2nd – 45th were persons envisaged and affected by Article 80 (4) (supra). With regard to the meaning of the term employment, he conceded that there was no elaborate definition to describe it. There was, also,
no hard and fast rule to define the term ‘employee’.
However, he referred this Court to Halsbury’s Laws of England, Fourth Edition, 2000 Reissue Vol. 16 where the term ‘employee’
at common law is defined as follows: -
“ ‘Employee’ means an individual who has entered into or works under, or where the employment has ceased, worked
under, a contract of employment, employment in relation to a worker, means employment under contract and ‘contract of employment’
means a contract of service or apprenticeship, where express or implied, and, if its is express, where it is oral or in writing”
Whether a person is or is not an employee it is a question of fact which in proceedings under the Employment Rights Act 1996 is essentially
a matter for the employment tribunal”
Relying on the aforesaid definitions, counsel submitted that all the 44 respondents were affected by the amendment.
He pointed out that the Vice President, Cabinet Ministers and Ministers of State are appointed by the President, under Article 113 of the Constitution and approved by Parliament and are subject to the provisions of the Constitution. They hold various portfolios in the Executive and
receive emoluments in the form of salaries, allowances and sundry benefits payable directly out of the Consolidated Fund and/ or
directly out of monies provided by Parliament. Their appointments can be revoked. They can be censured and are bound by the rules
of the code of conduct. The President and the Government have a high degree of control over them. On appointment they take the oath
of allegiance.
With regard to the 36th to 45th respondents inclusive, they were all commissioned officers employed by and serving in various capacities in the Uganda Peoples Defence
Forces (UPDF) and affiliated bodies. In the premises all the respondents were employees in government departments or agencies which
they head or where they work.
Quoting Black’s Law Dictionary, counsel defined the term “Department’ as one of the major administrative divisions of the executive branch of the government usually headed by
an officer of the cabinet rank, for example department of the State. Generally a branch or division of Governmental administration”
In conclusion, counsel submitted that generally the 2nd to the 45th respondents were employees of the Executive Branch of the Government of Uganda. In particular 2nd –35 respondents were employees of the departments they head. The 36th-45th respondents were employees of UPDF, a branch of the Executive under chapter 12 of the Constitution. Alternatively they were employees
of a Government Agency under the Ministry of Defence. Counsel prayed Court to find the answer to issue No. 1 in the affirmative.
Respondents 2-45 were required to resign at least 90 days prior to their nomination as candidates in the 2006 Parliamentary General
Elections.
Relying on the same submissions and reiterating the same arguments on issues 2 and 3, Mr. Mpanga submitted that the provisions of
Article 80 (4) are mandatory. The nomination of the 44 respondents was made in contravention of the said Article. Similarly the subsequent election of the respondents to the 8th Parliament founded on the said nomination also contravened Article 80 (4). As the proper procedure laid down by the Constitution was not followed, the respondents were disqualified to be elected members
of Parliament. The election was in contravention of Article 80 (4) of the Constitution as amended by the Constitution (Amendment) Act 11 of 2005.
Lastly, on the 4th issue, Mr. Mpanga submitted that on the arguments he advanced and authorities cited the petitioners were entitled to the declarations
prayed for. On their behalf he prayed this Court to declare that the election of the respondents as members of Parliament to the
8th Parliament based on the nomination to 2006 Parliamentary General Elections was in contravention and inconsistent with Article 80 (4) of the Constitution.
In reply, Mr. Kabatsi, vehemently opposed the petition. He took a different approach from that of Mr. Mpanga. He based his submissions
on what he termed “headings” but covered, the main issues agreed upon by the parties.
On the first heading he contended that the 2nd to 45 respondents were not persons envisaged and affected by clause 4 of Article 80 of the Constitution as amended. (supra). As far as he was concerned, firstly the term “ a person employed in any government department” affects the public officer as defined by Articles 175 and 257(2) (b) of the Constitution. Secondly, it was intended to apply to persons in government departments, local government councils and thirdly to those persons employed
in corporations, companies or parastatal bodies or those on Commissions. Mr. Kabatsi submitted that by virtue of the definitions
in the above mentioned Articles, the 2nd -45th respondents are outside the ambit of Article 80 (4). It is not applicable to them. The term “public officer” does not refer to them.
Similarly, the 2nd -45th respondents are not affected by Clause 4 of Article 80. He submitted that this was a proper case in which to apply the rule of ejusdem generis (things of the same kind or nature) enunciated
in the case of Gregory vs. Fearn (1953) 1 WLR 974. On that doctrine counsel submitted that the respondents were excluded from the application of clause (4). Mr. Mpanga did not agree. To him the doctrine was irrelevant. The law is clear on issues of construction. Where the language of the
Act is clear, effect must be given to it, in which case the law should apply to the respondents.
On the second heading, Mr. Kabatsi contended, that the Constitution (Amendment) Act 11 of 2005 could not have affected the nomination of candidates of 2006 Parliamentary General Elections. Parliament could not have enacted a
law knowing it would be applicably impossible.
On the third heading, counsel argued that the application of Article 80 (4) to respondents 36-45, would disqualify them for the elections. They have to be members of the special group they are representing
in Parliament, in this case the Army. Mr. Mpanga, however, argued that the representatives of the said special group could have been
retired officers. They did not have to be in active service.
The fourth argument advanced by Mr. Kabatsi was based on the fear that if Clause 4 of Article 80 is interpreted to include the respondents, it would lead to absurdity. It would also be prejudicial to the country in that it would
leave the President and the country without a Vice President, Cabinet, Parliament,
Army Commander and other senior officers of the UPDF whose constitutional duties would be unattended to. Parliament could not have
intended to create such an absurd and prejudicial situation.
Mr. Mpanga ruled out the issue of absurdity. It did not arise. Sub-Article 4 did not require the entire Cabinet to resign but only those who wished to stand for 2006 Parliamentary General Elections. The Constitution
had to be read as a integrated whole.
Finally, Mr. Kabatsi prayed Court to strike out the petition with costs. It was filed incompetently because there was nothing to interpret
by this Court. It, therefore, had no jurisdiction to entertain it.
I heard the submissions and legal arguments advanced by counsel for the parties. I also had a careful perusal of the evidence on record,
relevant provisions of the law and the authorities cited by the parties. Before I proceed with the evaluation of the evidence I would
like to comment on the views expressed by my learned brother, Twinomujuni JA which I noted when I read his draft judgment in this
petition.
At the stage of drafting his judgment, he realized that two procedural matters had been ‘mismanaged’ at the conferencing
stage, and wrong assumptions had been acted upon by the Court. He, therefore, decided to reframe the issues under Order. 13 rule. 5 (1) of the Civil Procedure Rules without consulting and giving the parties opportunity to address the Court on the matter.
In his judgment, the learned justice pointed out to the Court that the issues agreed upon by the parties were framed incorrectly.
To him the petitioners’ prayers and orders as well as the framed issues wrongly assumed that Article 80 (4) as introduced by S. 18 (d) of the Constitution (Amendment) Act 11 of 2005 had already formed part and parcel of the 1995 Constitution.
As Section 18 (d) of the Constitution (Amendment) Act No. 11 of 2005 is part of an Act of Parliament intended to amend Article 80 of 1995 Constitution by inserting Clause (4) (supra), this Court had first to test it. Before forming part of the 1995 Constitution it had to pass the test laid down under Article 2 of the Constitution which reads as follows: -
“2. (1)
This 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.”
That view holds that if the entire Amendment Act or any part of it is found to have been irregularly enacted (i.e. not in accordance
with 1995 Constitution), or contravenes or is inconsistent with any provision of the 1995 Constitution, then this Court has the power under Article 137 of the Constitution to nullify such amendment Act or any part thereof to the extent of the contravention or inconsistency.
Relying on the decision in Constitutional Appeal No. 1 of 2001 Ssemwogerere and Others vs. Attorney General, Hon. Justice Twinomujuni insisted that before considering the issues in the both petitions, it was incumbent on this Court to first decide
whether Section 18 (d) of the Constitution (Amendment) Act 11 of 2005 effected valid amendment to Article 80 (4) of the Constitution of Uganda. The Court and counsel should not have assumed so. Instead the court should have, therefore, ordered the parties to amend
the issues they had agreed upon and reframed them before the trial.
To him, if the issue of validity of the amendment under S. 18 (d) had been considered first by the Court, it would have disposed of the petition without going into the remaining issues.
Additionally, the learned justice, relying on the decision in Major General David Tinyefuza vs. Attorney General Constitutional Appeal No. 12 of 1999, cited the rule of harmony which requires the Constitution to be read as an integrated whole where no one particular part should
destroy but sustain each other.
For the aforesaid reasons, the answer on the first issue he reframed namely “whether Section 18 (d) of the Constitution (Amendment) Act No. 11 of 2005, effectively amended Article 80 of the 1995 Constitution” was in the negative. As far as he was concerned, the amendment did not form part and parcel of the Constitution and should be declared
null and void.
With great respect I disagree with the holding of my learned brother. I am not persuaded by the reasons and conclusion on issue No.
1 as reframed by him.
First and foremost, although the issue involved a point of law, it would be a violation of the rule of natural justice, namely, “not to condemn a man unheard”. On the authority of Oriental Insurance Brokers Ltd vs. Transocean Ltd C. Appeal No. 55/95.pages 197 – 227, where a court amends issues which parties had agreed upon, it is necessary to give the parties the right to adduce further evidence
or address the court on the amended issues.
I am alive to the provisions of Order 13 rule 5 (1) of the Civil Procedure Rules (supra) which empower a court to reframe the issues where necessary and which read as follows: -
“5. (1) The court may at any time before passing the decree amend the issues or frame additional issues on such terms as it
thinks fit, and all such amendments or additional issues as may be necessary for determining the matters in controversy between the
parties shall be so made or framed.”
See also- Makula International Ltd vs. His Eminence Cardinal Nsubuga & Another 1982 HCB 11
The aforesaid law not-withstanding, I am of the view that, where the parties had closed pleadings and submitted on agreed issues,
the court, still, has to consult the parties and give them a hearing, if they so wish, as held in the case of Oriental Insurance Brokers Ltd vs. Transocean (U) Ltd Civil Appeal No. 55/95 page 197 – 227 (supra). It is not disputed that the trial proceeds on issues which are in dispute. The parties must know the issues which require proof so
that they adduce the required evidence. Service on the Attorney General was imperative as he was not heard on the matter involving
enactment of legislation which was subsequently was to be declared null and void.
It must be noted that the petitioners did not challenge the validity of the Constitution (Amendment) Act No. 11 of 2005. They were satisfied that Section 18 (d) had effectively amended Article 80 of the Constitution. Their grievance was not non compliance with the laid down procedure but the substance of Clause 4. The assumption, which I find correct, is fortified by the revised edition of the Constitution which has incorporated the amendments
up to today, including Article 80 (4) at page 73.
Further, Article 137 (1) of the Constitution does not empower this Court to amend or draft petitions on behalf of aggrieved parties to the extent of changing their character.
In the instant petition the additional issue, framed as issue No. 1, in my view, amended that petition. I disagree that it is incumbent
on this Court, in the first place, to test the validity of the substance of the Act on the Court’s own motion without even
involving the parties.
As far as I am concerned, the test is applicable to the procedure or where the Court has been moved. That, in my view, was the issue
considered in Constitutional Appeal No. 1 of 2001 Ssemogerere & 2 others vs Attorney General (supra). Clearly, the aforesaid authority is distinguishable from the present petition. As already indicated the grievance in that petition
was the non-compliance with the laid down procedure. The petitioners were challenging the repeal of Article 88 and the creation of Article 257 A without complying with the laid down correct procedure, in particular to amend the Constitution by infection.
The petitioners, in the present petition, are challenging the act and conduct of the Electoral Commission which they allege was inconsistent
or in contravention of the provisions of Article 80 (4) of the Constitution.
My understanding on this issue is that once Parliament had enacted the Constitution (Amendment) Act No. 11 of 2005 in accordance with the correct procedure, and the President had assented to the Act, Clause 4 became part and parcel of Article 80 of the Constitution. There was no more Act No. 11 of 2005, therefore, to challenge or declare null and void. It had formed part and parcel of Article 80 as Clause 4. The right course was for the petitioners to proceed with their petition on the issues framed and agreed upon by them. In those circumstances
the petitioners were aggrieved by the non compliance with the amendment as an integral part of Article 80 (4) of the Constitution.
In the premises I do not agree with my brother, Twinomujuni, J.A that, the amendment under Clause (4) of Article 80 should be declared null and void for failure to meet the test under Article 2 of the Constitution. (supra).
I will now proceed with the examination of the issues framed and agreed upon by the parties before the Registrar during the scheduling
conferencing.
For convenience I propose to start with the question on the jurisdiction of this Court raised by Mr. Kabatsi. In my view, it would
have been better to raise it as a preliminary point of law. However, being a point of law, it could be heard at any stage.
It was contended by Mr. Kabatsi that this petition should have been handled by the High Court under Article 86 (1) (a) which reads as follows:-
“(1) The High Court shall have jurisdiction to
hear and determine any question whether-
(a)
a person has been validly elected a member of Parliament or the seat of a member of Parliament has
become vacant”
To him, there are no issues for interpretation as provided by Article 137. The petitioners should have filed an action for non compliance with the relevant provisions of the law. Counsel cited Constitutional Appeal No. 1 of 1997 Attorney General vs. David Tinyefunza in support of his arguments.
The answer to the question whether this Court is seized with jurisdiction to hear this petition is not hard to find. Whilst I concede
there is an element of validity of the election of the respondents to the 8th Parliament, it was not the petitioners’ sole complaint. The petitioners’ main grievance was the act or
conduct of the 1st respondent of approving the respondents’ nomination in contravention of Article 80 (4) of the Constitution. The 2nd-45th respondents being persons envisaged under clause 4 of Article 80 of the Constitution, had not resigned at least 90 days before their nomination was approved which was unconstitutional.
Article 137 clearly spells out the jurisdiction of this Court. It reads inter alia as follows:-
“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 or any other law or anything in, or done under any authority of 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 a redress where
appropriate.
………………………The contents on this
matter include”
As can be seen from the above provisions of the Constitution it
cannot be disputed that this Court had jurisdiction to hear this petition. It was not, incompetently filed as submitted by Mr. Kabatsi.
It is properly before this Court. The objection to jurisdiction is overruled.
I will now turn to the remaining three issues. As both learned counsel rightly pointed out the petition hinges mainly on issue No.1.
I, therefore, propose to start with and dwell on this issue since the answer to it will dispose of all the remaining ones.
The main issue this Court has to determine is whether the 2nd to the 45th respondents had to comply with the provisions of Article 80 (4) (supra). If the answer to that question is in the affirmative, proof is required to the effect that at the material time, some of the respondents
were, public officers or employed in government departments, government agencies or were working in bodies in which the government
had controlling interest.
The Constitution under Articles 175 and 257 defines the terms “public service”, “public officer”, minister” …………….” but on the Amendment in Clause 4, it is silent as to the meaning of “a person employed in government department”. The task of interpreting the aforesaid terms contained in the insertion in clause 4 of Article 80 was left to this Court.
In matters of interpretation or construction of constitutional and statutory provisions, the Court is guided by a set of principles,
doctrines, presumptions and other authorities including the intention of the legislature when it is known. For the purposes of this
petition, whose main concern is interpretation, I find it useful to mention some of those principles we intend to apply or rely on
to determine the three remaining issues.
One of the cardinal principles of interpretation, as rightly observed by Mr. Mpanga, is the rule of harmony. The courts of law and
in particular the Constitutional Court are enjoined to read the entire Constitution as an integrated whole and no one particular
provision should destroy the other. This rule is also referred to as the rule of completeness.
For the aforesaid reasons, no one provision of the Constitution is to be segregated from the others and be construed alone. All provisions
bearing upon a particular subject are brought into view and interpreted so as to effectuate the greater purpose of the instrument
or relevant provision.
In the instant petition, for example, this Court will have to address its mind to the provisions of Articles 78, 175 and 257 of the Constitution and other relevant ones when determining whether the respondents are persons envisaged and affected by the amendment under Article 80 (4) of the Constitution.
Another principle relied on in interpretation of constitutional and statutory provisions, is the requirement to give the widest construction
possible in its context according to the ordinary meaning of the words used and each general word should be held to extend to all
ancillary matters.
Further, in construction of matters similar to the present petition, courts are guided by the purpose and effect which principle was
applied by the Supreme Court in Attorney General vs. Salvatori Abuki Constitutional Petition No. 1 of 1998.
Another important and useful principle in construction especially of Acts of Parliament is that they should be construed according
to the intention expressed in the Acts themselves. A case in point is the Republic vs. EL Mann Mwenda Co. Int. 1969 EARLR 357 where it was held that:-
“Where the language of an Act is clear and explicit we must give effect to it, whatever may be the consequences, for in that
case the words of the statute speak of the intention of the legislature”.
The aforesaid notwithstanding, where the language of the legislature admits of two constructions and if there is likelihood of leading
to obvious injustice, the court acts on a view that such a result could not have been intended. The courts of law would avoid enforcing
laws that would result in absurdity.
Guided by some of the above mentioned principles and other relevant ones not mentioned, I will continue with the consideration of
issue No.1. The first question to answer is whether any of the 2nd-45th respondents were public officers.
As the law stands, it is not disputed that respondents 2-35 by virtue of Article 175 and 257(2) (b) of the Constitution of Uganda are not referred to as public officers. It is more appropriate to refer to them as political leaders. It follows, therefore, that
in general the regulations for civil servants or public officers, are not applicable to them.
Article 175 reads as follows:-
“In this Chapter, unless the context otherwise requires-
“public officer” means any person holding or acting in an office in the public service;
“public service” means service in any civil capacity of the Government the emoluments for which are payable directly
from the Consolidated Fund or directly out of moneys provided by Parliament.”
Article 257 (2) (b) provides that:-
“A reference to an office in the public service does not include a reference to the office of the President, the Vice President,
the Speaker or Deputy Speaker, a Minister, the Attorney General, a member of Parliament or a member of any commission, authority,
council or committee established by this Constitution.”
It is, however, argued by the petitioners that Article 80 (4) has a wider application than Articles 175 and 257 and it was intended to apply to the 2nd to 45 respondents. As already indicated, it was unfortunate that unlike in Article 257 (2) (b) Parliament did not clarify whether Clause 4 was applicable to the respondents, who are still political leaders as opposed to civil servants in the Public Service. It was not
categorically stated that the exemption under Article 257 (2) (b) was or was not applicable to clause 4 of Article 80.
The next pertinent question to ask is whether any of the respondents were employed in government departments, agencies or bodies where
the Government had controlling interest. Without hesitation I do not agree that the 2nd-35th respondents fall under any of those categories. I do not accept Mr. Mpanga’s submission that Cabinet Ministers and Ministers
of State are employed in the ministries/departments which they head. It is important to note that, they are political heads but not
the administrators like, for example, Permanent Secretaries.
There are cogent reasons for my holding. Whilst I agree both Ministers and State Ministers are referred to under Article 257 (1) of the Constitution as “Ministers of the Government”, they are not employees of the Government. They are not appointed under the Public Service but by the President. It is true their appointments are approved
by Parliament but the President can revoke them as and when he wishes. They are appointed at his pleasure. He hires and fires them.
The respondents cannot sue the President like a public officer can sue for wrongful dismissal.
The Minister has no permanent place of work. He may not even have a ministry to head for there are ministers without portfolio. A
copy of the letter of appointment of Ministers to the recently formed Cabinet bears me out on this point. It is written in a form
of circular letter with the list of the names of the newly appointed ministers.
It reads as follows:-
“REPUBLIC OF UGANDA
APPOINTMENT OF MINISTERS OF THE GOVERNMENT OF UGANDA
I, Yoweri Kaguta Museveni, President of the Republic of Uganda, acting in pursuance of the powers conferred upon me by Articles 113(2)
and 114 (3) of
the Constitution of the Republic of Uganda (1995), do hereby appoint the following Ministers in the respective portfolios in Cabinet
of the Government of the Republic of Uganda, as set out below:-
Cabinet Ministers:
1.
Prime Minister/Leader of Government Business – Nsibambi Apollo
2.
1st Deputy Prime Minister/Minister in Charge of the East African Affairs – Antigay Eriya
3.
2nd Deputy Prime Minister/Minister of Public Service – Kajura Henry
4.
3rd Deputy Prime Minister/Minister of Information and National Guidance- Kivejjinja Kirunda
5.
Minister in charge of Security- Mbabazi Amama
6.
Minister in charge of the Presidencey- Wabudeya Beatrice
7.
Minister in charge of General Duties/Office of the Prime Minister- Mwesigye Adolf
8.
Minister of Agriculture, Animal Industry and Fisheries- Onek Hilary
9.
Minister of Defence – Kiyonga Crispus
10. Minister of Relief and Disaster Preparedness-
Kabwegyere Tarsis
etc.”
It was preceded by a nomination letter by His Excellency the President addressed to the Speaker which I need not reproduce.
It is not correct as submitted by counsel for the petitioners that the Standing Orders apply to the respondents. The 2nd -35th respondents being Ministers have no contract of service like the traditional civil servants.
Although Mr. Mpanga, rightly pointed out, they take the Oath of Allegiance, they remain political leaders. The oath of allegiance
does not change their status. It is similar to an official oath taken by an officer when he assumes charge of his office, whereby
he declares that he will faithfully discharge the duties of that office, or whatever else may be required by Statute in the particular
case. The oath of allegiance is one by which a Minister in this case promises and binds himself to bear true allegiance to the sovereignty
or Government of Uganda. Such oath is administered generally to all high officers and soldiers. It does not necessarily turn one
into a government employee although a majority of the officers who take it are employees of the Government.
Further, it is not correct to conclude as Mr. Mpanga did, that receipt of emoluments is further proof that the respondents are employed
in Government departments/ministries. They are assigned duties by His Excellency the President in respect of those ministries/departments
as political heads. A cleaner who cleans Government offices and whose services are paid for by the Government does not necessarily
become an employee of Government. He or she has to be recruited properly.
In my view the respondents are ministers of the Ugandan State but not employees of the government as envisaged by Article 80 (4). They do not head the Civil Service like the Permanent Secretaries do, for Ministers come and go. They are members of the Executive
Arm of Government. They are responsible for political supervision of the ministries assigned to them by the President. As it were
they are agents or representatives of the President.
Additionally, I find merit in Mr. Kabatsi’s submission that Parliament would not have intended the provisions of Article 80 (4) supra to apply to the respondents.
To assist us to find out the intention of Parliament we called for the Hansard. A careful perusal of the relevant excerpts of the
debate on the Constitution (Amendment) Bill, under Clause 4 reveals that Parliament had no intention of extending its application to 2nd-45th respondents. The Hansard indicates that the enactment was partly intended to broaden the scope of those persons required to resign
as envisaged by it. It is also indicated that it was considered necessary to level the playing field to stop some public officers
from taking unfair advantage of their positions. Clearly, from the references by the members, in the debate, to the persons to whom
this law was intended to apply, Clause 4 could not have been intended to apply to 2nd -35th respondents. The House was more concerned about the conduct of “the public officers” as opposed to the political leaders. To support my finding, I hereby, reproduce some reports of the debates in the Hansard.
In the Hansard of July 7th 2005 at page 14734, Hon. Oulanyah states inter alia that:-
“The justification is to broaden the scope of those who must resign, before seeking nomination, Mr. Chairman.”
At page 14735 of the same Hansard Hon. Bamwanga states as follows:-
“Mr. Chairman, when members are raising this issue they are looking at leveling the playing ground. The fact that they are more
interested in taking part in politics, if they are civil servants as we talk now and
they are already campaigning in the constituencies using government vehicles and facilities, it is not a level playing ground for Members of Parliament to keep quiet about it. That is what we are trying to cure by raising
this matter on the Floor of the House. Thank you”.
At page 14734 of the July Hansard Hon. Wadri stated inter alia that
“I remember it was the Sixth Parliament, which even floated the idea that if a person is holding a public office he should take 120 days’ leave, and then it was reduced to 3 days. This meant that before nomination a person holding a public office should have taken leave, according to that time, at least one month before the nomination days. What we are saying here is that if
this person who is holding a public office is expected to resign then there must be a stipulated time within which his resignation should be tendered in before nomination. Otherwise, a person will tender his resignation on the
same day when the nomination is supposed to take place and yet he has been using the Government resources to campaign. I think there must be something done”.
At page 14735 Professor Kamuntu had this to say:-
“Mr. Chairman, thank you very much. I still have the Floor. I would agree with you that if you want to guard against temptations
to abuse public office, we can start counting from the date, (underlining is mine) which is known in advance when the term of Parliament expires and we put
a time like two months before the expiry of the sitting Parliament, and then that will be practically possible”.
Further at page 14735 Hon. Ochieng in his debate on the clause 4, states inter alia-
“Mr. Chairman, the guidance I want on this particular matter is if all goes well, by next elections we shall be under a multi-party
arrangement. I wonder how a public servant who is not supposed to be partisan will undergo partisan issues, go through primaries, go through all these things to nomination
without resigning? How are we going to go about this kind of thing”?
Similarly Hon. Wacha, who followed him, had this to say:-
“Thank you very much, Mr. Chairman and I want to thank Hon. Ochieng for that comment. Under a Multi-party arrangement the political
scenario changes completely. A public servant is not supposed
to be partisan but immediately he undertakes to go for primaries of any political party and then he is chosen by that political party to represent
it in that constituency, then he will have dropped from that height of partisan; he becomes partisan. How do you expect a partisan public servant to continue in office after he has declared himself partisan? The scenario changes completely.
Waiting for a nomination date is not the issue. Once he is chosen by his party in the primaries to represent it, then he must leave
office”.
Other relevant parts of the debate include contributions of Hon. Wacha and Hon. Oulanyah at page 15059 of 8/8/2005 Hansard and of
Hon. Mwonda.
Hon. Oulanyah in his debate had this to say:-
“In which case the formulation that I read earlier should be the one we retain. This is because what Hon. Wacha is reading is from
the amendment previously proposed by the Government. Therefore, it would now read as follows: “Under the Multi-party political
system, a public officer or a person employed in any government department or agency of the Government or an employee of a Local
Government or any organization in which the Government has control or interest who wishes to stand in a general election as a Member
of Parliament shall resign his or her office, at least 90 days before nomination day.”
Hon. Wacha had this to say:-
“Thank you Mr. Chairman. We have had consultations with the Attorney General and his deputy on this matter and we have agreed
that this particular sub-clause be recast in this manner: “Under the Multiparty political system, a public officer or a member
of a commission, authority or committee established by the Constitution who wishes to stand at a general election as a Member of
Parliament shall resign his or her office three months before nomination day”.
Hon. Mwondha had this to say:-
“Mr. Chairman, I was wondering whether I could make one small observation while that tallying is going on? It looks like by
this amendment we have ruled out public officers in the next general elections because they need to give three months notice before they resign; they must resign three months before
nomination. This is August; we are holding elections in March, which means that they are technically out. I just thought I would put this on
record.”
The last speaker, Hon. Mwondha, clearly, shows that the enactment under Clause 4 was intended to apply to public officers, like civil servants, members of civil agencies, companies but definitely not to the 2nd-35th respondents. The story may be different with the 36th-45th respondents but we shall come back to those later.
Closely related to the intention of the legislature is the rule of harmony mentioned earlier. This Court has a duty in the interpretation
of Article 80 (4) to harmonize it with Articles 78, 175, 257 (2) (b) and any other relevant provision to avoid conflicting interpretation of the Constitution. This takes care of the argument advanced
by the petitioners that since clause (4) is a later enactment to the aforesaid Articles; Parliament must have intended it to apply to the 44 respondents.
I do not ascribe to that view for as we have already seen above, the Court is enjoined to ensure that one provision of the Constitution
does not destroy another. It follows, therefore, that where as in the instant case, the statute did not specifically speak its mind,
the court must apply established principles, presumptions or doctrines to enable it make correct interpretation of the law and come
to a reasonable or sensible and just decision.
It is partly for that reason that I disagreed with my learned brother Twinomujuni J.A that the amendment was inconsistent and contravened
Articles 2, 21 (1), 78 (1) (c ), 175 and 257 2 (b) of The Constitution and as such it did not form part and parcel of Article 80 (4) of the Constitution.
The amendment is a general one intended to apply to the categories of persons mentioned therein but not necessarily applicable to
specific categories of persons in earlier enactments.
Furthermore, courts of law would avoid laws that would result in absurdity or injustice. Hence, where there is likelihood or obvious
defeat of the purpose of the enactment, courts would act on the view that such result could not have been intended by the legislator.
For example, if in the present petition, the provisions of Article 80 (4) were to be applied to respondents 2-45, as it was rightly submitted by Mr. Kabatsi, it would lead to an absurd and prejudicial situation
in the country. Uganda would be left without a Vice President and Cabinet Ministers for at least three months. There would be no
Army Commander and some 9 senior UPDF officers for 90 days or more. Their consultative and other duties would be unattended to. As
all members of the Cabinet sit in Parliament, business in Parliament would also be paralyzed.
Further, the extension of the term of the 7th Parliament to 12th May 2006, by Article 288 would have aggravated the crisis if the respondents had resigned. For even up to 7 months the President
would have had to run the Government with only a few ministers like the Prime Minister. Worse still if the amendment was to be extended
to all the members of the Executive and Parliament including the President, himself, nobody would remain both in the Executive and
Parliament to perform the state duties. Parliament could not have intended such a situation to occur in the country.
I am alive to the argument by counsel for the petitioners that the enactment was only applicable to those employees wishing to stand
for election. On perusal of the names of the 2nd -35th respondents, it would be noted that all those persons were members of the Cabinet.
Administrative Law requires that for the proper running of any government, all legal systems of government should be let to operate.
There would be no justification, therefore, for Parliament to pass such a law to disarm the Executive and leave the President to
work without Ministers.
With regard to the 36-45th respondents, the situation would be worse if the enactment was to be applied to them. It is worthy, noting that the said 36th-45th respondents are commissioned officers of UPDF appointed by His Excellency the President. Unlike the first category these ones are
employed in the Ministry/Department of Defence. In the premises as submitted by Mr. Mpanga, the requirement to resign under the enactment
would be mandatory.
However, Parliament could not have intended it because its application to 36-45 respondents would result in absurdity for a number
of reasons stated below;
Firstly there is the specific provision under Article 78 (1) of the Constitution which provides that:-
“Parliament shall consist of
a)…………………………………..
b)…………………………………..
c)
such numbers of representatives of the army, youth, workers, persons with disabilities and other
groups as Parliament may determine.”
Secondly, the ten respondents represent the Army Constituency as a special group envisaged in Article 78 (supra). Requiring them to resign 90 days prior to their nomination would not only disqualify them as candidates but also defeat the purpose
for their representation in Parliament.
Thirdly Mr. Mpanga’s submission that representation could consist of retired officers is not tenable. When a soldier retires,
he or she ceases to be governed by the institutional laws in place. He effectively becomes a civilian.
Additionally, as observed above a general amendment similar to the present one (Clause 4) cannot, in the absence of a specific provision, override a specific enactment or provision of the Constitution for example Articles 78(1) (c) or 175 or 257 (2) (b) in the present petition.
The strongest and most cogent argument that can be advanced for the respondents and on which alone this petition could be determined,
as submitted by Mr. Kabatsi, is the inadequacy of time for effective implementation. Clearly, on simple mathematics it was impossible
for the 2nd-45 respondents to comply with the requirement to resign 90 days prior to the nomination dates of 12th and 13th January 2006.
Although the Constitution (Amendment) Act No. 11 of 2005 was enacted in time for the candidates to comply with the requirement of Act 80 (4), the operational law was not in place. The Parliamentary Elections Act No. 17 of 2006 under which the nomination dates were appointed was assented to on 16/11/2005. It commenced on 21/11/2005 and gazetted on 23/12/2005
leaving 51 days and 18 days respectively to the nomination dates. The requirement to resign at least 90 days prior to the nomination
was mandatory. It could not be partially implemented for example by resigning within the available time, which had to be less than
90 days. Whoever resigned in such circumstances, did not comply with the law. For the 2006 Parliamentary General Elections, therefore,
it might have been justifiable for the Electoral Commission by interpretation to waive the requirement to resign by those affected.
It is, hence, reasonable to conclude that the insertion contained in Clause 4, although mandatory, was legally not applicable to candidates for 2006 Parliamentary General Elections for the 8th Parliament. However, it might probably apply to those to come after the 2006 Parliamentary General Elections.
Lastly, as the enactment in issue was mandatory as required the respondents to resign, it would have had the effect of retrospective
operation if complied with. Courts of law are generally against retrospective operation of statutes. It is, for example, a fundamental
rule of English law that no statute shall be construed to have a retrospective operation unless such construction appears very clear
in the terms of Act, or arises by necessary and distinct implication” In the Kenyan case of Municipality of Mombasa vs. Nyali Ltd 1963 EACA 371-4 it was held inter alia that:-
“Whether or not legislation operates retrospectively depends on the intention of the enacting body as manifested by the legislation………………………….one
of the rules governing construction is that if the
legislation affects substantive rights it would not be construed to have retrospective operation unless a clear intention to that
effect is manifested”.
In the instant petition, on the record before Court, this is not a proper case in which to allow a retrospective operation of the
Article 80 (4). The circumstances do not warrant it and there is no clear intention to that effect nor are there procedural issues to justify it.
On the evidence before court I find that this petition must fail for the reasons summarized below.
Firstly the 2nd-35th respondents are not public officers within the meaning of Articles 175 and 257 (2) (b) of the Constitution.
Secondly it is my holding that the 2nd-45th respondents are not persons employed by government as envisaged and affected by Article 80 (4) of the Constitution.
Thirdly and additionally, due to the inadequacy of time for the 2006 Parliamentary General Elections, Article 80 (4) was not applicable to all the candidates who stood for those elections including the 2nd-45th respondents. However, the said Article 80 (4) might be effective for future Parliamentary General Elections as time will not be an issue.
In the result the answer to issue No.1, is in the negative. The 2nd-45th respondents were not required to resign from their office 90 days prior to the nomination dates of 12 and 13th of January 2006. This answer also disposes of the questions framed under the remaining issues namely, 2, 3 and 4. I would, therefore,
find the nomination of the 2nd and 45th respondents to the 2006 Parliamentary General Elections, the elections to the 8th Parliament and the gazetting of the same was not inconsistent to any provision of the Constitution.
In the premises, as the other members of the Court substantially agree with my judgment and orders as proposed, the petition would
be dismissed with the following declarations and orders: -
DECLARATIONS OF THE COURT
On – Issue No. 1
(1)
By a unanimous declaration of the Court, the 2nd–45th respondents, as candidates for the 2006 Parliamentary General Elections and as members of the 8th Parliament did not have to resign their offices at least 90 days prior to the nomination day.
Issue No. 2
(2)
By a unanimous declaration of the Court, the nomination of the 2nd-45th respondents inclusive as candidates for 2006 Parliamentary General Elections was not inconsistent and did not contravene any provision
of the Constitution.
Issue No. 3
(3)
By a unanimous declaration of the Court, the declaration of the election and gazetting of the 2ndto the 45th respondents inclusive, as members of the 8th Parliament of the Republic of Uganda in and following the 2006, Parliamentary General Elections were not inconsistent with any provision
of the Constitution.
In the result by the unanimous decision of the Court the petition is without merit and is dismissed. Each party is ordered to bear
its own costs as this is public interest litigation.
Dated at Kampala this 4th day of August 2006.
L.E.M. Mukasa-Kikonyogo
HON. DEPUTY CHIEF JUSTICE
JUDGMENT OF TWINOMUJUNI, JA:
Darlington Sakwa and Athanasius Rutaroh, hereafter to be referred to as the petitioners brought this petition under Article 137(1) and 3(b) of the Constitution of Uganda 1995 and The Constitutional Court (Petitions and References) Rules 2005.
The petitioners, both male Ugandans, had offered themselves as candidates in the 2006 Parliamentary General Elections for Bungokho
South and Rujumbura county constituencies respectively to 8th Parliament but were not successful. As interested parties, the petitioners were affected and aggrieved by some matters relating to
the nomination and election of 2nd to 45th respondents which, they allege, are inconsistent with some provisions of the 1995 Constitution. They are, therefore, seeking declarations
and orders of redress under Article 137(3) of the Constitution.
The 1st respondent in the petition is the Electoral Commission whilst the remaining 44 respondents were members of 7th Parliament and at the time the hearing of this petition started, some of them had been sworn in as members of the 8th Parliament. The 4th respondent, Dr. Bukenya Gilbert, had been appointed Vice President of Uganda whilst a number of the remaining ones had been appointed
Cabinet Ministers and Ministers of State in various ministries in the present Government.
The petition is supported by two affidavits deponed to by both petitioners. The 45 respondents also filed affidavits in reply to
rebut adverse allegations and to adduce supporting evidence where necessary.
The background of the petition is that in January 2006, the 1st respondent nominated the 2nd to 35th respondents inclusive as candidates in the 2006 Parliamentary General Elections in various constituencies across the country. In
the same month, the President of Uganda, nominated respondents 36th to 45th as candidates for 10 seats reserved for Uganda Peoples Defence Forces as a special interest group (underlining is mine). The aforesaid nominations were approved on either 12th or 13th February 2006 by the 1st respondent. Subsequently, on 23/02/2006, all the 44 respondents were elected as members of the 8th Parliament under a multi party system of Government. Respondents 36-45 were elected as representatives of the UPDF. At the time of
the nomination and election none of the respondents had resigned their offices 90 days prior to their nomination as required by article
80(4) as amended by section 18(d) of the Constitution (Amendment) Act No.11 of 2005 which reads:-
'(4) Under the multiparty political system, a public officer or a person employed in any government department or agency of the government
or an employee of a local government or any body in which the government has controlling interest, who wishes to stand in a general
election as a member of Parliament shall resign his or her office at least ninety days before nomination day."
It is contended for the petitioners that respondents 2-45 were either public officers or persons employed in Government departments
or agencies of Government. The 36th-45th respondents were all commissioned officers employed by and serving in various capacities in the UPDF and affiliated bodies. It was
argued for the petitioners that non-compliance with Article 80(4) of the Constitution as amended rendered the election, declaration and the gazetting of the 2nd-45th respondents as members of the 8th Parliament of the Republic of Uganda, unconstitutional.
The petitioners pray for the following Declarations and Orders:-
"1.
A declaration that the nomination of the 2nd-45th respondents inclusive as candidates in 2006 Parliamentary General Elections was inconsistent with an contravened Article 80(4) of
the Constitution of the Republic of Uganda as inserted by section 18 of the Constitution (Amendment) Act 11 of 2005.
2. A declaration that the election and gazetting of 2nd-45th respondents inclusive as members of 8th Parliament of the Republic of Uganda and following Parliamentary General Elections were inconsistent with Article 80(4) of the Constitution
of the Republic of Uganda due to their nominations which were made contrary to the express provisions of the same Article."
The following issues were agreed upon and framed by both parties:
1.
"Whether 2nd-45th respondents were required to resign at least 90 days prior to their nomination as candidates in the 2006 Parliamentary General Elections.
2.
Whether the nomination of 2nd-45th as candidates in 2006 Parliamentary General Elections contravened Article 80(4) of the Constitution.
3.
Whether the election of 2nd-45th respondents as members of Parliament in 2006 Presidential General Elections contravened Article 80(4).
4.
Whether the petitioners were entitled to the relief sought."
At the trial, Mr. David K. Mpanga and Mr. Fredrick Mpanga represented the petitioners. Ms Christine Kahwa represented the 1st respondent while Mr. Peter Kabatsi assisted by Mr. David Mpanga and Mr. Oscar Kambona represented the other 44 respondents.
Before I go into the merits of this petition, let me deal with two procedural matters which in my view were mismanaged at the conferencing
stage of the petition and were unfortunately overlooked by the Court till after it was too late to do anything to correct the errors.
The first one is that at the end of his full submissions on behalf of the respondent, Mr. Kabatsi raised as his sixth point of argument
a matter that, in my view, should have been raised as a preliminary point of law shortly before the hearing of the petition on merits
began. He submitted that matters raised by the petitioners in this petition are not matters requiring constitutional interpretation
within the meaning of article 137(1) of the Constitution. In his view, they concerned the enforcement of constitutional rights which
could be dealt with by the High Court under article 86(1) (a) of the Constitution and section 60 of the Parliamentary Elections Act
2005. As the matter seems to have taken the petitioners by surprise, it did not attract sufficient response from their counsel. We
held the view that the manner in which the matter was raised was an ambush to the petitioners but being a point of law, we agreed
to entertain the matter giving the petitioners opportunity to respond. Mr. David K. Mpanga's response was that under the jurisdiction
of this court conferred by article 137(1) of the Constitution, this court had the power to consider whether article 80(4) as amended
applied to the respondent, which was a matter of constitutional interpretation.
In my judgment, the gist of the complaint in this petition, as I propose to show below, was
(a)
whether section 18(d) of the Constitution (Amendment) Act No 11 of 2005 was consistent with the 1995 Constitution and
(b)
Whether act of the Electoral Commission of nominating and declaring the respondent's as elected in the February 2006 Parliamentary
Elections was valid or not. In my view, this falls within the jurisdiction conferred on this court by article 137(3) which states:-
137(3)
A person who alleges that-
(a)
an Act of Parliament or any other law of anything in or done under the authority of any law: or
(b)
any act or omission by any person or authority,
is inconsistent with or in contravention of a provision of this Constitution, any petition the Constitutional Court for a declaration
to that effect, and for redress where appropriate."
In the agreed issues, it was agreed that this court should determine whether the act of nominating the respondents as candidates and
declaring them as elected contravened article 80(4) of the Constitution. Further, this court is being asked to declare whether the
amendment applied to the Ministers and Army members of Parliament whose offices and tenure are set out in the Constitution. Such
a declaration involves the interpretation of the Constitution. Treating this issue as a preliminary point of objection to the jurisdiction
of this court, as we should have done in the first place, I find no merit in it and I would reject the objection.
The second procedural matter, which is more relevant to the merits of the whole petition, is the manner the issues (stated above)
in this petition were framed and presented to us at the trial of the petition. There is confusion which was brought about by the
fact that the petitioners based their case on a false assumption that article 80(4) as introduced by section 18(d) of the Constitution
(Amendment) Act No 11 of 2005 was already part and parcel of the 1995 Constitution. In my opinion, section 18 of the Constitutional
(Amendment) Act No.11 of 2005 is part of an Act of Parliament which was enacted with intention to effect an amendment to Article
80 of the Constitution by adding a new Clause (4) thereon. Before it becomes part of our 1995 Constitution, if challenged, it has
to be tested and pass the test laid down in Article 2 of the Constitution thus:-
"2. (1)
This 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."
If the entire amendment Act or any part of it is found to have been irregularly enacted (i.e. not in accordance with the 1995 Constitution)
or contravenes or is inconsistent with any provision of the 1995 Constitution, then this court has the power under Article 137 of
the Constitution to nullify such an amendment Act or any part thereof to the extent of the contravention or inconsistency.
This was the main issue in the celebrated decision of the Supreme Court in Ssemwogerere and 2 others vs. The Attorney General, Constitutional Appeal No.1 of 2001. In the Constitutional Court where the appeal originated, the petitioners challenged the validity of the Constitutional (Amendment)
Act, No.13 of 2000 on the grounds that in purporting to amend Article 97 of the Constitution, Parliament indirectly and/or by infection
amended other provisions of the Constitution, not expressly mentioned, but which required to be amended under a special procedure
prescribed by Article 259(1) of the Constitution, which was not followed in the purported amendment. By a majority of 4 to 1, the
Constitutional Court held that once it is established that Parliament followed a correct procedure in enacting an amendment to the
Constitution, then that amendment became part and parcel of the Constitution and it was no longer open to this court to interpret
its provisions against the other provisions of the Constitution. In their view, Article 137 of the Constitution did not confer such
a power on the Constitutional Court. In a unanimous decision of the Supreme Court on appeal, the court held as per Kanyeihamba, JSC:-
"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 "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 the court." [Emphasis mine]
His Lordship Justice Oder, JSC concurred in the following terms:-
"The Constitutional Courts 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-
-vis Constitution. The court's powers 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 this jurisdiction, by the Constitutional Court, there can be no distinction between an Act passed to amend the Constitution
or an Act passed for other purposes."
Justice Tsekooko, JSC did not mince words:-
"For the foregoing reasons, I think that the decision of the Constitution in Dr. Rwanyarare & Wegulo vs Attorney General (Petition No.5 of 1995) in so far as the Constitutional Court held that it has no jurisdiction to interpret one provision of the Constitution against another
presents 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."
It is now my considered view that before this court considered whether the 44 respondents or indeed any other person was required
to resign at least 90 days prior to their nomination as candidates in 2006 general election, it was incumbent upon us to first decide
whether section 18(d) of the Constitution (Amendment) Act No.11 of 2005 effected a valid amendment to Article 80 of the Constitution.
Though the validity of section 18(d) of the Constitution (Amendment) Act No.11 of 2005 was not being challenged by the petitioners,
throughout his arguments, Mr. Kabatsi learned counsel for the 2nd to 45th respondents forcefully argued that the amendment was not consistent with articles 116, 175, 257 and 289 of the Constitution. In doing
so, he put in question the validity of the constitutional amendment and the issue could not any longer be ignored even if it was
not originally framed as a separate issue. This, in my view, should have been the first issue in this petition. Instead, both counsel
and ourselves assumed that the proposed Article 80 (4) had already become part of the 1995 Constitution and therefore beyond challenge.
The question arises as to whether this court should have ordered amendment to the issues agreed upon by counsel or whether at this
stage, this court can base its judgment on an issue that was not framed at the trial. My answer to both these questions is in the
affirmative.
First, Order 13 Rule 5(1) of the Civil Procedure Rules (Applicable in constitutional petitions) states:-
"The court may at any time before passing the decree amend the issues or frame additional issues on such terms as it thinks fit,
and all such amendments or additional issues as may be necessary for determining the matters in controversy between shall be so made
or framed."
Furthermore, Rule 2 of the same Order provides:-
"Where issues of law and fact arise in the same suit, and the court is of the opinion that the case or any part thereof may be
disposed on issues of law only, it shall try those issues first, and for that purpose may, if it thinks fit postpone the settlement of the issues of fact until after the issues of law have been determined."
[Emphasis supplied by me]
I must hasten to add that where a court deems it necessary to frame a new issue based on new facts and evidence, it is imperative
that before the court does so, the parties be given opportunity to challenge the evidence and address the newly framed issue. See
Oriental Insurance Brokers Ltd vs Transocean (U) Ltd, Civil Appeal No.55/95. However, where the issue is purely an issue of law, it may not always be possible for the parties to address it at the trial. If
brought to the attention of court, the court could recall the parties to address the issue or proceed to determine it if no injustice
will be occasioned. In the instant case, the issues involved are only points of law and the validity of section 18(d) Act No.11 of
2005 was canvassed and addressed by both counsel.
It is my considered opinion that consideration of whether section 18(d) of the Constitutional (Amendment) Act No.11 of 2005 was consistent
or contravened any part of the Constitution, could have, if considered first, disposed of the entire petition. With regret, I think
we failed to consider the matter.
Secondly, there are two cardinal principles (relevant to the matter at hand) among others, which a Constitutional Court should always
have in mind:-
(a)
The rule of harmony requires that the Constitution must be read as an integrated whole and no one particular provision destroying
the other, but each sustaining the other.
- See Major General Tinyefuza vs Attorney General Constitutional Petition No.12 of 1996 (The judgment of Manyindo, DCJ as he then was)
(b)
All provisions of the Constitution concerning an issue should be considered together. This means that provisions bearing upon a particular
subject must be brought into focus to be so interpreted in order to effectuate the instrument.
Bearing these principles in mind, it is my considered judgment that no amount of commission or omission, on the part of counsel or
the parties should justify the Constitutional Court to refrain from consideration of a Constitutional provision or law or any act,
whether framed into an issue or not, in furtherance of the two cardinal principles of Constitutional interpretation I have stated
above. In my judgment, the issue of constitutionality of an Act of Parliament, whether ordinary or intended to amend the Constitution,
is always on the table for consideration by this court whether it has been framed into an issue or not. Even if its unconstitutionality
is brought to the attention of the court relatively late in the proceedings, the court cannot simply ignore it.
In disposing of this petition, I propose to reframe the issues to be determined as follows:-
(i)
Did section 18(d) of the Constitution (Amendment) Act No.11 of 2005 effectively amend Article 80 of the Constitution?
(ii)
If the answer is in affirmative, did Article 80(4) of the Constitution as amended required the respondents or any other person intending
to stand as a Parliamentary candidate in 2006 Election to resign his office in public service.
(iii)
Whether the 1st respondent contravened the Constitution by causing the nomination and election of the respondents.
(iv)
Whether the petitioners are entitled to any relieves.
ISSUE NO. ONE
This is about the constitutionality of section 18(d) of the Constitution (Amendment) Act No.11 of 2005 and whether it effectively
amended the Constitution by addition of Clause (4) to Article 80 of the Constitution. The impugned amendment reads:-
"Article 80 of the Constitution is amended by inserting immediately after Clause (3) the following
'(4) Under the multiparty political system, a public officer or a person employed in any government department or agency of the government
or an employee of a local government or any body in which the government has controlling interest, who wishes to stand in a general
election as a member of Parliament shall resign his or her office at least ninety days before nomination day."
On the other hand Article 257(2)(b) of the Constitution provides:-
"257(2)(b) a reference to an office in the public service does not include a reference to the office of the President, the Vice-President,
the Speaker or Deputy Speaker, a Minister, the Attorney General, a member of Parliament or a member of any commission, authority,
council or committee established by this Constitution"
Owing to the fact that the petitioners wrongly assumed this amendment to be already part and parcel of our Constitution, they did
not address this issue directly. Their main emphasis was that Ministers and Army members of Parliament were included in the phrase
"a person employed in any government department or agency of the government or any body in which the government has a controlling interest."
Counsel David K. Mpanga cited various common law and local authorities to support his argument that the respondents were "employees"
in a government "departments or agencies".
In reply, Mr. Peter Kabatsi submitted that the constitutional amendment, if valid, was not intended to apply to the respondents who
were political leaders who were already excepted under article 257(2)(b) of the Constitution.
In his view, the amendment only included:-
(a)
"public officers" as defined by article 175 of the Constitution.
(b)
Other persons employed in government departments or agencies.
(c)
Persons employed in local government councils.
(d)
Persons employed in bodies in which government has a controlling interest.
My answer to this issue is in the negative because of the following reasons:-
(1)
It was conceded that The Vice President, Ministers and Members of Parliament are not public officers because of the definition of
that phrase in Article 257(2)(b) of the Constitution. However, it was contended that they are included in the expression "or a person employed in any government department or agency or anybody in which the government has controlling interest."
Looking at the plain language of section 18(d) of the Constitution (Amendment) Act No.11 of 2005, with the provisions of Article 257(2)(b)
of the Constitution in mind, it is clear to me that Parliament intended the amendment to apply to as many civil and public servants
in government controlled agencies and departments, except POLITICAL LEADERS. Confirmation for this view could be found in the reports
of debates on the amendment contained in the HANSARD referred to in the judgment of my Lord the Deputy Chief Justice. It is very
clear from the reports that the honourable members of Parliament were only concerned with civil servants mainly those who were perceived
to be using public assets to decampaign the members of Parliament before the official time of campaigning. For example at page 14738
of the Hansard Hon. Musumba stated:-
"Mr Chairman I want to seek clarification from the chairman of the committee. First of all, the intention is understood that
we are talking about civil servants but I just want to be comforted that what is proposed now cannot be construed to include political
leadership as well. I do not understand when we say delete and replace sub-clause (4) to include "a person". What does
that mean?"
The Chairman: We are dealing with the committee's report. (Laughter)"
Throughout the debate, no one ever addressed the concerns of Hon. Musumba. On the same page Hon. Sabiiti wondered whether Army members
of Parliament and Ministers were included in the definition of "public officer or a person working in any Government department".
Again that concern was not addressed throughout the debate. It seems to me the Chairman and the House assumed that the definition
of those phrases was beyond question and could not include Army members of Parliament and political leaders. I would agree that this
is a logical deduction from the plain language of the amendment and the intention of the legislature apparent from the records of
the debates on the amendment. But in his contribution to the debate, Hon. Sabiiti on page 14738 raised a pertinent issue. He stated:-
"Thank you Mr. Chairman. I have a problem with the definitions of a public officer or a person working in any government department.
Does this include army officers and ministers? Because if the reason behind this amendment is to stop public officers from accessing
certain facilities, which belong to the public and a minister who has already identified himself in a given political party continues
using the facilities of the state while on the other side a public officer who is also doing his work as a Government public officer,
is stopped from using those resources! It takes me aback. So, we should look at how best to solve it. In my opinion we should not
put this restriction. It should be when he is nominated because I was a public officer and I remember this was used against some
of the public officers and some members of Parliament wanted to bar people from using public assets and they themselves continued
using public assets. I suggest that if we want to bar any public officer or anybody working with the Government or any Government
department, it should cover everybody. It should not cover only a section of the society. So I really suggest that we do not insert
two or three months, but we leave it at the time of nomination."
Hon. Sabiiti's contribution raised the concern that if the amendment was passed, it would accord unequal treatment to different parliamentary
candidates, which is prohibited under Article 21(1) which provides:-
"All persons are equal before and under the law in all spheres of political, economic, social and culturing life and in every
other respect and shall enjoy equal protection of the law."
Now, I am quite aware that no one mentioned Article 21(1) of the Constitution, before, during or after the hearing of this petition.
I have already stated that I have a duty to construe the Constitution as a whole and I would be failing in my duties if I failed
to observe that the amendment in issue, if it excluded the political leaders, as I hold it does, then it is not consistent with Article
21(1) of the Constitution.
First, it allows the political leaders, including Army members of Parliament, not to resign 90 days before nomination whereas all other public officers vying for the same office must resign 90 days before nomination. Secondly, it allows political leaders to use public vehicles and other public assets for campaigning before the campaigns are officially
declared opened whereas all other public officers are prohibited from doing so. This Constitution amendment does not pass the test laid down in Article 2(1) of the Constitution (supra). It is therefore null and
void.
I do not agree with the petitioners that ministers and army members of Parliament are included in the phrase "or a person employed in any government department or agency of government or an employee of a local government or any body in
which the government has a controlling interest."
The term "employed" is defined in Halsbury's Laws of England, 4th Ed. 2000 RE ISSUE VOL. 16 page 10 as follows:-
"'Employee' means and individual who has entered into or works under, or, where the employment has ceased, worked under, a contract
of employment; 'employment', in relation to an employee, means employment under a contract of employment and, in relation to a worker,
means employment under his contract; and 'contract of employment' means a contract of service or apprenticeship, whether express
or implied, and, if it is express, whether it is oral or in writing"
The learned author gives characteristics of the relationship of employment at page 12 as follows:-
"Characteristics of the relationship: There is no single test for determining whether a person is an employee; the test that used to be considered sufficient, that is
to say the control test, can no longer be considered sufficient, especially in the case of the employment of highly skilled individuals,
and is now only one of the particular factors which may assist a court or tribunal in deciding the point. The question whether the
person was integrated into the enterprise or remained a part from, and independent of, it has been suggested as an appropriate test,
but is likewise only one of the relevant factors, for the modern approach is to balance all those factors in deciding on the overall
classification of the individual. This may sometimes produce a fine balance with strong factors for and against employed status.
Moreover, in many employments the contract will not be discernible just from one document, but will require consideration of several
documents, oral exchanges (for example at interview) and subsequent conduct.
The factors relevant in a particular case may include, in addition to control and integration: the method of payment; any obligation
to work only for that employer; stipulations as to hours; overtime, holidays etc; arrangements for payment of income tax and national
insurance contributions; how the contract may be terminate; whether the individual may delegate work; who provides tools and equipment;
and who ultimately, bears the risk of loss and the chance of profit. In some cases the nature of the work itself may be an important
consideration."
The term "employee" and "employer" are also defined in the Employment Act (Cap) 219) Laws of Uganda as follows:-
"'Employee' means any persons employed for wages and includes an apprentice and a domestic servant."
"'Employer' means any person, company, firm or corporation that has entered into a contract of service to employ any other person,
and the agent, foreman, manager or factor of that employer, and where a person has entered into a contract of service with the Government,
or with any officer on behalf of the Government, the Government officer under whom that person is working shall be deemed to be his
or her employer."
In my view, none of these definitions applies to Ministers and Army members of Parliament. Ministers are not "employed"
or. "employees" of a government department or agency. They have no contract with any government department or agency. They
are appointed at the whims of the President. He alone can and does deploy, not employ them. He can dismiss them on radio and they
have no recourse to any law court or authority. He can deploy them to hold one, two or several portfolios or no portfolio at all.
He can wake them up at 3 a.m. for duty and he can shift them from right to left (so to say) at any time of the day or night. In my
view, theirs is not "employment". It is &qu
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