The petitioner as an affected person under Article 80(4) (supra) contends that, the said amendment contravenes and is inconsistent with Articles 1(4), 38 (1) and is discriminatory of his rights enshrined in Article 21(1) of the Constitution. The aforesaid allegations are denied by the respondent who opposed the petition which reads as stated below:-
“1.
Your Petitioner Kwizera Eddie has interest in or is affected by the following matters
in contravention and/or inconsistent with the Constitution of the Republic of Uganda, 1995 whereby your petitioner is aggrieved:
(a)
The Article 80(4) of the Constitution of the Republic of Uganda as amended by the Constitution (Amendment) [Act No. 11 of 2005] is in contravention and inconsistent with Articles 1(4) and 38(1) and discriminatory of the petitioner’s rights enshrined in Article 21(1) of the Constitution of the Republic of Uganda.
(b)
That whereas the Constitution of the Republic of
Uganda, 1995 defines a “public officer”, there is no definition of “a person employed in any government department or agency” as it appears in Article 80(4) thus making the Article ambiguous and open to abuse and misinterpretation.
(c)
Article 80(4) of the Constitution of the Republic
of Uganda as amended by Act No.11 of 2005 infringes on the petitioner’s inherent rights guaranteed by the same Constitution.
2.
Your humble petitioner states that the reasons relied upon in his petition are as hereunder:
(a)
By the provisions of Section 18(d) The Constitution (Amendment) (No.3) (sic) Act, 2005, [Act No.11 of 2005] the Parliament of the Republic of Uganda did amend Article 80 of that Constitution by inserting immediately after Clause 3 of that Article the following provision:
“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 anybody 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 date”.
(b)
The Constitution (Amendment) (No.3) Act, 2005 became an Act of Parliament on the 26th day of September 2005, when His Excellency the President signified his assent to the bill. A copy of the Act with the statement of
assent is annexed hereto and marked “Annexture A”.
(c)
Whereas the Constitution of the Republic of Uganda, 1995 clearly defines “a public officer” in its Article 257, it does not define “a person employed in any government department or agency of the Government”.
(d)
Your petitioner works for gain as a Special Presidential Assistant in the Office of the President
and therefore on the 19th day of September 2005, he sought the opinion of the Solicitor General as to whether the provisions of Article 80(4) of the Constitution are applicable to him.
(e)
On the 29th day of September, 2005, the learned Solicitor General opined that the provisions of Article 80(4) of the Constitution were applicable to the petitioner by virtue of his employment as the Special Presidential Assistant. A copy of the legal opinion
of the Solicitor General is attached hereto and marked “Annexture B”.
(f)
Since Parliament, in its wisdom, omitted to define the term “a person employed in any government department or agency of the government”, it would be in the interests of Constitutionalism and fair play in the political arena if this Honourable Court were to interpret
that term.
(g)
Article 80(4) of the Constitution is also inconsistent with Articles 1(4) and 38(1) of the Constitution of the Republic of Uganda.
(h)
The said Article 80(4) also infringes on the petitioner’s inherent rights as enshrined by Articles 21(1) and 38(1) of the Constitution of the Republic of Uganda.
3.
Therefore your petitioner prays that this Honourable Court may:
(a)
Grant a declaration that Article 80(4) of the Constitution as amended by Act No.11 of 2005 is in contravention and is inconsistent with Articles 1(4) and 38(1) of the same Constitution.
(b)
Grant a declaration that the said Article 80(4) as amended by Act No.11of 2005, is discriminatory of the petitioner’s rights enshrined in Articles 21(1) and 38(1) of the Constitution as amended by Act No. 11 of 2005 or alternatively an order that Article 80(4) of the Constitution as amended by Act No.11 of 2005 infringes on the petitioner’s inherent rights guaranteed by the same Constitution.
(c)
In the further alternative make an order or declaration defining the term “person employed in any Government department or agency of the Government” appearing in Article 80(4) of the Constitution as amended by Act No.11 of 2005.
(d)
Make an order condemning the respondent in costs of this petition”.
4.
This petition is accompanied by an affidavit sworn by the petitioner in support of the petition.
During the scheduling conference the issues stated below were framed and agreed upon by both sides.
1.
Whether in so far as the petition seeks to nullify parts of the Constitution it is incompetent.
2.
Whether Article 80 (4) of the Constitution (Amendment) Act No. 11 of 2005 is inconsistent and in contravention of Articles 1(4), 21(1) and 38 (1) of the Constitution.
3.
Whether the petitioner is entitled to the remedies sought.
In the alternative this Court was prayed to interpret the term/phrase “person employed in any Government department or agency of the Government” appearing in Article 80(4) of the Constitution as amended by Act No. 11 of 2005.
I had the benefit of reading in draft, the judgment prepared by Okello JA. I agree with his reasoning and conclusion on some issues
but differ on a few which I intend to comment on briefly. I agree with his views and finding on issue No.1. This petition was competently
filed. The answer to it is, therefore, in the affirmative. I do not have anything else useful to add.
Another point raised by my brother Okello JA which I wish to briefly comment on, is whether section 18(d) of the Constitution (Amendment) Act 11 of 2005 effectively amended Article 80 of the Constitution. To him Clause 4 is not part and parcel of the 1995 Constitution because it did not pass the content or substance test under Article 2 (2) of the Constitution which reads:-
“(2) If any other law or any custom is inconsistent with any provisions of this Constitution, the Constitution shall prevail,
and that other law or custom shall, to the extent of the inconsistency, be void”.
For the aforesaid reasons Okello JA found that Clause 4 of Article 80 is inconsistent with Articles 257 (i) and 175 of the Constitution. Section 18 (d) of Act 11 of 2005 that introduced Clause 4 is hence void.
With respect, I differ from the aforesaid views expressed by my learned brother Okello JA. The parties to this petition did not challenge
the validity of the enactment. It was challenged as a provision which on enactment had formed part and parcel of Article 80 of the Constitution. Parliament complied with the laid down procedure in enacting it, and the Assent of the President was obtained. In the premises it
would not be incumbent on this Court, at this stage, on its own motion, to determine the content or substance test without giving
the parties opportunity to address the court on it. As far as I am concerned section 18 (d) of the Constitution (Amendment) Act effectively amended Article 80 by insertion of Clause 4 after Clause 3. The substance of the enactment is being challenged as part and parcel of the amended Article 80 of 1995 of the Constitution.
Next I wish to comment on the alternative prayer in this petition namely:-
“What is the proper interpretation of the term/phrase, “a person employed in any government department or agency of government
or anybody in church government has controlling interest.”
In agreement with my brother, Okello JA, under Article 137 (1) and (3) of the Constitution this Court has unlimited jurisdiction to determine all matters involving issues of interpretation of the Constitution.
I appreciate the contention of Mr. Matsiko that the jurisdiction of this Court does not extend to interpretation of mere words or
phrases. The said position is distinguishable from that of the present petition. There is a view, for example, which holds that the
phrase “any person employed in government department…” being a later enactment has a wider meaning than the terms “public officer” under Articles 175 and 257 of the Constitution”.
In my view, it is, therefore, incumbent on this Court, since Parliament did not speak its mind on it, to determine the meaning of
the phrase contextually. I consider it imperative for the Court and the parties to agree on the description of the categories of
persons envisaged and referred to in the amendment. From the submissions made for the petitioner it appears he is not sure whether
he is an affected person. For example he bitterly complains that unlike the case of a “public officer” under Articles 175 and 257 of the Constitution, the omission to define the “said phrase” in Clause 4 has rendered it ambiguous and open to misinterpretation.
There is some merit in the argument. It would have been of great assistance to the courts and those to whom the law is applicable,
for Parliament to specify the persons to whom that term/phrase refers. For the purposes of clarity so that we know the person we
are referring to I, will mention some of categories of persons envisaged and affected by the amendment and those excluded. There
is no way the Court can determine the issues before it, especially the allegations of discrimination without determining the status
of the persons concerned.
In that task the Court is guided by a set of principles, doctrines, presumptions and of course the intention of the legislature which
can easily be found in the Hansard. In my view, in the context of the Amendment, Article 80 (4) the term refers to a person employed by the government, in its Public Service as defined by Articles 175 and 257 of the Constitution. It also extends to parastatal bodies, Government Companies, local government agencies, projects. It, however,
does not apply to political leaders like Vice President, Ministers, Ministers of State and all elected Political leaders like the
Mayor.
It is clear from the Hansard of July and August 2005, that, although the intention was to broaden the scope of the public officers
required to resign 90 days prior to the nomination; some categories were still left out. This apparently was the basis of the allegations
by the petitioner of discrimination against some citizens including himself. The petitioner saw no justification for allowing the
ministers to stay at work and instead force out less privileged public officers like himself. As far as he was concerned those were
also employees in the government department.
It is worth noting that there is no hard and fast rule on the definitions of an employee, or employer and department.
In Halsbury’s Laws of England 4th edition 1987 – 2000 Reissue Vol. 16 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 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.”
Regarding the meaning of the term “department”, Blacks Law Dictionary defines “’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.”
As can be deduced from the aforesaid observations, clearly, the categories of persons exempted under Article 257 (2) (b) of the Constitution who include Ministers, Ministers of State and some other political leaders elected are not employees of the Government or persons
envisaged and affected by Article 80 (4) that is why it is not applicable to them.
On issue No. 2, I have a few comments to make on the contention by counsel for the petitioner that Article 80 (4) is inconsistent and contravenes Articles 1 (4), 21 (1) and 38 (1). As it was rightly submitted by counsel for the respondent no evidence was adduced to prove that the amendment had that effect, or
to support the suggestion that the intention of the amendment was to lock out potential political competitors from the playing field
and to deny them participation. The fact that a particular law is not applicable to some category of persons but to another, per
se, is not evidence of discrimination. It does not mean that Parliament had legislated unequally in the public arena. Equal treatment
does not necessarily have to be identical, the issue is fair play. The purpose and persons for which or whom it is enacted must be
born in mind. Different categories of public officers may have different roles, or responsibilities. They may require different facilities.
Clearly, that explains the rationale behind Articles 175 and 257 2 (b) of the Constitution, which exempts the ministers and some other political leaders. If, for example, you were to apply Article 80 (4) to the top political leaders in the government you might cause a crisis in the country.
The reports of the debates in the Hansard of July and August 2005 on the Bill on the amendment reveal that Parliament was well intended
when it enacted it. It intended to level the playing field and guard against abuse of office. A good example is, public officers,
using government resources, vehicles during their campaigns. The Hansard shows that, the enactment was intended to apply to public
officers, and other categories affected by the amendment like, civil servants, members of civil agencies and employees of parastatal
bodies. To ensure fair play it was considered necessary to stop them from taking advantage over other candidates who are less privileged
although many more privileged persons were left out.
With regard to Ministers and a few categories to which it appears, according to the petitioner, this amendment should have applied;
Parliament has to find another way of leveling the playing field in their case. By the nature of their responsibilities and obligations,
requiring them to resign 90 days prior to their nomination will cause a crisis in the country. There would, for example, be no cabinet
meetings and the business in Parliament would also be affected considerably unless appropriate amendments to the Constitution were
effected to take care of the situation.
It is important to note that since the Ministers and persons to whom Article 175 and 257 2 (b) apply are neither public officers nor persons envisaged and affected by Article 80 (4), they must have been intentionally exempted. I am of the view that the application of the said amendment to those categories of persons
would defeat the purpose for which the exemption was granted.
Further in accordance with the rule of harmony and as it was submitted by Mr. Mastiko, counsel for the Respondent, Article 21 (1) must be read together with Article 21 (3) of the Constitution.
They read as follows: -
21. (1)
All persons are equal before and under the law in all spheres of political, economic, social and cultural life and in
every other respect and shall enjoy equal protection of the law.
(2)
………
(3)
For the purposes of this article, “discriminate” means to give different treatment to
different persons attributable only or mainly to their respective descriptions by sex, race, colour, ethnic origin, tribe, birth,
creed or religion, or social or economic standing, political opinion or disability.
Clearly, their combined effect as argued by Mr. Matsiko, does not support the complaint of discrimination against the petitioner.
As for denial of the petitioners’ rights as claimed, the amendment did not deprive the petitioner of his rights to stand for
election or vote for a person of his choice. It did not contravene and was not inconsistent with any of those rights in anyway. On
the contrary it availed him plenty of time to prepare and carry out his political campaigns. The mere fact that the amendment is
not applicable to some categories of persons, must not be interpreted as contravention of the petitioner’s rights in particular
his rights not to be discriminated against under Articles 1 (4) and 21 (1) of the Constitution.
I also reject counsel’s submission that the requirement to resign erased the concept of free and fair elections in future Parliaments.
The issue of going into unpredictable political waters before the appointment of the nomination dates will not arise because the
law is already in place. For the 2006 Parliamentary General Elections, the law was enacted belatedly. The assent date was on 16/11/05 whilst the commencement date was on 21/11/05. The Electoral Commission
could not have appointed the nomination date without the enabling legislation. I, therefore, accept Mr. Kiapi’s submissions
that it was not legally possible to comply with the requirement in Clause 4, to resign at least 90 days prior to the nomination dates for the 2006 Parliamentary General Elections, namely, 12th and 13th January 2006. It was not disputed that the Parliamentary General Elections Act under which the Electoral Commission appointed the nomination dates, was belatedly enacted by Parliament. In my opinion it would
have been fair for the Electoral Commission, by interpretation, to waive the requirement to resign for the 2006 Parliamentary General Elections for the 8th Parliament. Clearly, any one who resigned in the available time but less than 90 days did not comply with the law.
Additionally, the insertion of Article 288 by section 46 of the Constitution [Amendment] Act 11 of 2005 immediately after Article 287 of the Constitution amended the Constitution by extending the existence of 7th Parliament to end with the Presidential term on 12th May 2006. It would have been unreasonable to expect the affected persons to resign for all that period of time when the 7th Parliament continued to sit up to May 2006.
However, in future, implementation may not be a problem as the Electoral Commission will be able to appoint the nomination dates
for future Parliamentary General Elections in time.
In the premises the answer to issue No. 2 is in the negative. The impugned Article 80 (4) is not inconsistent with and not in contravention of Articles 1 (4), 21 (1) and 38(1) of the Constitution. However, the enactment was ineffective for 2006 Parliamentary General Elections and therefore, not applicable to any candidate who stood for or wanted to stand for the 8th Parliament due to inadequacy of time.
With regard to issue No. 3, the answer is partly in the affirmative. I would, therefore, allow this petition in part. Let each party
bear its own costs.
The Decision and Declarations of the Court
As the other members of the Court also agree that the petition succeeds in part, the petition is, hereby, allowed in part with the
following declarations and orders.
On issue No. 1
The answer to issue No. 1 is in the affirmative.
By a unanimous decision of the court the petition was competent.
On issue No. 2
The answer to issue No. 2 is partly in the affirmative and partly in the negative.
By a majority decision of the court 3-2 Clause 4 of Article 80 of the Constitution is not inconsistent with and not in Contravention of Articles 1 (4) and 38 (1) of the Constitution but is inconsistent with and in contravention of Article 21 (1).
Issue No. 3
The answer to issue No. 3 is partly in the affirmative.
In the result by the majority decision of this Court, 4-1 the petition is allowed in part. Each party is ordered to meet its own
costs.
Dated at Kampala this 25th day of August, 2006.
L.E.M. Mukasa-Kikonyogo
HON. DEPUTY CHIEF JUSTICE.
JUDGMENT OF G.M. OKELLO, JA
This petition was brought under Article 137 of the Constitution of the Republic of Uganda and the Rules of the Constitutional Court (Petitions for Declarations under Article 137 of the Constitution) Directions 1996. In the petition, the petitioner seeks a number of declaratory
relief including one for nullifying Article 80(4) of the Constitution. He also sought costs of this petition. In the alternative, he prayed
that this court defines the term “a person employed in any government department, or agency of the government” as appears in the impugned Article 80(4) of the Constitution.
The petition alleges that clause 4 of Article 80 of the Constitution is in contravention of and inconsistent with Articles 1(4), 21(1)
and 38(1) of the Constitution. Further, that the impugned clause 4 of Article 80 is ambiguous and is open to abuse and misinterpretation,
particularly as the term “a person employed in any government department or agency of the government” appearing therein has not been defined.
The petition was supported by an affidavit of Kwizera Eddie, the petitioner, dated 3rd October 2005.
The respondent filed his answer to the petition, denying each and every allegation of fact contained in the petition. In particular,
he denied that clause 4 of Article 80 of the Constitution is in contravention of or inconsistent with any of the mentioned Articles
of the Constitution or at all. He also denied that clause 4 of Article 80 is ambiguous.
The facts which gave rise to this petition are briefly that on 13/09/2005, Parliament passed the Constitutional Amendment Act No
11 of 2005 to effect amendment No 3 of the Constitution of Uganda, 1995. The President assented to the Act on 26/09/2005. In that
exercise, Parliament amended several provisions of the Constitution. The amendment introduced clause 4 to Article 80.
The clause reads thus:-
“ Under the multiparty political system, a public officer or person employed in any government department, or agency of the
government or an employee of a local government or anybody 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.”
Under the powers conferred on it by the Parliamentary Election Act No 17 of 2005, the Electoral Commission (EC) on 20th day of December 2005 appointed the 12th and 13th of January 2006 to be the nomination days for Parliamentary General Elections 2006. That gave less than 90 days between the date
of appointment of the nomination days and the nomination day itself.
Aggrieved by the requirement in clause 4 of Article 80 of the Constitution that a public officer or a person employed in any government
department or agency of the government who wishes to contest for a Parliamentary seat, should resign his or her office at least ninety
days before nomination, the petitioner instituted this petition.
At the scheduling conference that was held by counsel for both parties before the Registrar of this court, the parties agreed on
the brief facts that gave rise to this petition. The agreed facts are in substance the same as those given above. They also agreed
on the following issues to be determined by this court.
1.
Whether in so far as the petition seeks to nullify part of the Constitution, it is competent.
2.
Whether Article 80(4) of the Constitution is inconsistent with and in contravention of Articles 1(4), 21(1) and 38(1) of the same
Constitution.
3.
Whether the petitioner is entitled to the remedies sought.
Counsel for each party filed a skeleton of his legal arguments and the authorities each intended to rely on. At the start of the hearing
of the petition, court gave leave for the alternative issue to be included.
The issue is:-
“alternatively what is the proper interpretation of the term/phrase, a person employed in any government department or agency of the government.”
Subsequently, counsel argued the above issues serially. I propose to consider them in the same order.
Before I embark on consideration of the above issues, it is in my view, important that I set out here some of the salient principles
of constitutional interpretation that will be guiding me in the task at hand as follows;-
1.
The principle which governs the interpretation of statutes also apply to interpretation of Constitution. This is what is commonly
referred to as the literal rule of interpretation. It looks primarily at the words used in the statute. If the words used are clear
and unambiguous, they must be given their natural meaning irrespective of the consequences.
See Uganda vs. The Kabaka’s government (1965) EA 395; Republic vs. El Mann (1969) EA 357
2.
Liberal rule of interpretation:
This gives written words of the statute or Constitution liberal and wide interpretation. It does not, however, allow for stretching
the meaning of the words to encompass the spirit or purpose of the enactment.
3.
The generous and purposive rule:
By this, the words of a provision of the Constitution is given a generous and purposive construction.
See Abuki and Another vs. the Attorney General, Constitutional Petition No 2 of 1997.
4.
the rule of harmony:
By this, 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 1 of 1996 (Judgment of Manyindo DCJ as he then was).
5.
All provisions of the Constitution concerning an issue should be considered together. This means all provisions bearing upon a particular
subject must be brought into focus to be so interpreted in order to effectuate the instrument.
See South Dakata vs. North Carolina 192 US 268 (1940) 448.
6.
Purpose and effect rule:
Purpose or effect can determine the Constitutionality of a statute.
See the Queen vs. Big M drug Mart Ltd (1996) LRC 332.
With the above principles in mind, I shall now proceed to consider the above issues.
Issue No 1:-
Whether in so far as the petition seeks to nullify part of the Constitution, it is competent.
Mr. Kiapi, learned counsel for the petitioner, contended that the petition is competent because this court has jurisdiction to nullify
any part of the Constitution which contravenes another. He cited Paul Kawanga Semwogerere and 2 others vs. Attorney General, Constitutional Appeal No 1 of 2001 as his authority for that proposition. He referred us to a passage in the judgment of Kanyeihamba JSC page 13, 2nd paragraph; judgment of Odoki, CJ, at page 4 last paragraph; Judgment of Oder JSC, page 25, 2nd paragraph; judgment of Tsekooko JSC at page 8 last two paragraphs and judgment of Mulenga JSC pages 4 – 5.
Mr. Matsiko, Acting Director of Civil Litigations in the respondent’s chambers, who represented the respondent, did not agree.
He stated that this court has no jurisdiction to nullify any provision of the Constitution. He pointed out that the powers and mandate
of this court are derived from Article 137 of the Constitution. I accept that view. Clause 1 of that Article confers on this court
the power and mandate to interpret this Constitution.
Mr. Matsiko stated that Article 137 does not confer on this court the power to strike down any part of the Constitution. What this
court can nullify is an Act of Parliament. He referred us to the relevant portions of the judgments of the learned Justices of the
Supreme Court mentioned by Mr. Kiapi in Semwogerere and 2 others vs. The Attorney General (supra) and submitted that none of their Lordships had ruled that this court has power to nullify any part of the Constitution. Learned
counsel stated however, that this court has power to construe one provision of a Constitution against another to harmonise them,
but has no power to nullify them.
I accept Mr. Matsiko’s submission that the jurisdiction of this court to interpret the Constitution is derived from Article
137 of the Constitution. To be more exact, the power is conferred by clauses 1 and 3 of this Article. For ease of reference, I reproduce
here the texts of these clauses.
“(1) -
Any question as to the interpretation of this Constitution shall be determined by the Court of Appeal,
sitting as the Constitutional Court.
(3) -
Any person who alleges that:-
(a)
an Act of Parliament or any other law or anything in or done under the authority of any law; or
(b)
any act or omission by any person or authority, is in consistent 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.”
A careful reading of clause 1 above shows that it confers a general power to determine “ any question as to the interpretation of this Constitution.” The power given under this clause is unlimited.
Clause 3 however, specifies when that power is exercisable. The circumstances are stipulated in sub clause (a) and (b) of clause
3. Clauses 1 and 3 are to be read together.
The Supreme Court did consider the scope of the jurisdiction of this court to interpret this Constitution in the case of Semwogerere and 2 others (supra).
I have had the chance to read the judgments of all their Lordships of the Supreme Court in that case. I do accept Mr. Matsiko’s
submission that whereas this court has jurisdiction to construe one provision of the Constitution against another to harmonise them,
it has no power to nullify any provision of the Constitution. Neither clause 1, nor clause 3 of Article 137 of the Constitution gave
this court that power. A close reading of the judgments of their Lordships in Semwogerere and 2 others (supra) reveals that none of them has held that this court has power to nullify any provision of the Constitution. For emphasis,
I shall show the relevant passage of the judgment of each of the justices referred by Mr. Kiapi
The Chief Justice at page 4 of his judgment said:-
“The second question is one of harmonisation. The Constitutional Court was in error to hold that it did not have jurisdiction to construe
one provision against another in the Constitution. It is not a question of construing one provision against another, but of giving
effect to all the provisions of the Constitution. This is because each provision is an integral part of the Constitution and must
be given meaning or effect in relation to others. Failure to do so will lead to an apparent conflict within the Constitution.”
He only talked of giving effect to all the provisions of the Constitution. He did not say that this court has power to nullify any
provision of the Constitution.
Kanyeihamba JSC at page 13, 2nd paragraph said:-
“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.”
He did not say that the Constitutional Court has jurisdiction to nullify any part of the Constitution.
Oder JSC (RIP) at page 25 said:-
“The Constitutional Court’s jurisdiction to declare an Act of Parliament inconsistent with or in contravention of the Constitution
goes together with the one for interpretation of the Constitution. It is unlimited. The Constitutionality or otherwise of an Act
of Parliament must be construed vis-
-vis the Constitution. The court’s jurisdiction in Article 137(3) (a) must be applied together with the one in Article 137(1). In
my view, these provisions apply to any Act of Parliament which a person alleges is inconsistent with or contravenes the Constitution. For purposes of exercising these jurisdictions, by the
Constitutional Court, there can be no distinction between an Act passed to amend the Constitution or an Act passed for other purposes.”
Clearly, the learned Justice of the Supreme Court was talking about the jurisdiction of the Constitutional Court to declare an Act
of Parliament that has been alleged to be inconsistent with or contravenes a provision of the Constitution. He did not suggest that
this court has jurisdiction to nullify any provision of the Constitution.
Tsekooko JSC at page 8 said:-
“For the foregoing reasons, I think that the decision of the Constitution in Dr Rwanyarare & Wegulu 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.”
Again, his Lordship did not say that this court has jurisdiction to nullify any provision of the Constitution.
Mulenga JSC at page 4 – 5 said:-
“To my mind, the clause does not thereby preclude the court from interpreting or construing two or more provisions of the Constitution
brought before it which may appear to be in conflict. In my opinion, the court has not only the jurisdiction, but also the responsibilities
to construe such provisions, with a view to harmonise them, where possible, through interpretation. It is a cardinal rule of Constitutional
interpretation that provisions of a Constitution concerned with the same subject should, as much as possible, be construed as complementing,
and not contradicting one another. The Constitution must be read as an integrated and cohesive whole. The Supreme Court of USA in Smith Dakota vs. North Carolina 192 1940 268 put the same point thus:-
‘ It is an elementary rule of constitutional construction that no one provision of the Constitution is to be segregated from
the others and to be considered alone, but that all the provisions bearing upon a particular subject are to be brought into view
and to be interpreted as to effectuate the great purpose of the instrument.’
“There is no authority other than the Constitutional Court, charged with the responsibility to ensure that harmonisation. Even where it
is not possible to harmonise the provisions brought before it, the court has the responsibility to construe them and pronounce itself
on them, albeit to hold in the end that they are inconsistent with each other. Through the execution of that responsibility, rather
than shunning it, the court is able to guide the appropriate authorities, on the need, if any, to cause harmonisation through amendment.
In my opinion, therefore, the decision that the Constitutional Court has no jurisdiction to construe or interpret any provision of
the Constitution is misconceived and erroneous in law.”
It is very clear from the above excerpt that His Lordship, in that long opinion, did not say that this court has jurisdiction to
nullify any provision of the Constitution. What all the learned Justices of the Supreme Court said in that case are two:-
1.
That this court has jurisdiction to construe one or more provisions of this Constitution against another with a view to harmonise
them. It has no jurisdiction to nullify a provision of this Constitution although it may hold that they are inconsistent with each
other.
2.
What this court has jurisdiction to nullify is an Act of Parliament. This includes all Acts of Parliament whether it is an Act to
amend the Constitution or an Act for any other purposes. The reason they gave is that an Act of Parliament that is challenged under
Article 137(3) remains uncertain until the appropriate court has pronounced itself upon it. This gives the Constitutional Court a
duty to make a declaration, one way or the other on such an Act.
This is the position regarding the jurisdiction of the Constitutional Court in Uganda today. This petition, however, is competently
before this court as it was brought under an appropriate provision of the law that empowers this court to investigate the allegation
of inconsistency raised. For the reasons that I have endeavoured to give above, I would answer issue No 1 in the affirmative.
I shall now proceed to consider issue No 2 which is couched thus:-
Whether Article 80(4) of the Constitution is inconsistent with and in contravention of Articles 1(4), 21(1) and 38(1) of the same
Constitution.
Mr. Kiapi submitted that by requiring certain citizens to resign their offices at least ninety days before nomination, clause 4 of
Article 80 is inconsistent with Article 1(4) of the Constitution that provides for a free and fair election. His reason was that
clause 4 whittles away the concept of free and fair election by unleveling economically the political playground. He cited as his authority for that proposition Col Rtd Dr Kizza Besigye vs. Yoweri Museveni Kaguta, Presidential Election Petition No 1 of 2001, in particular the judgments of Odoki, CJ at page 41 last paragraph and that of Oder JSC at page 437 2nd paragraph.
His second point was that Article 80(4) was made impossible to comply with by the act of the EC that had power to appoint the nomination
day. It gazetted the dates appointed to be the nomination days on 21/11/2005 appointing the 12th and 13th day of January 2006 to be the nomination days for the Parliamentary General Elections 2006. The time between the date of publication
of the nomination day and the nomination day itself was less than 90 days, making it impossible to comply with Article 80(4).
Thirdly, even if one wanted to comply with Article 80(4) the elaborate procedure for resignation set out in Article 252(2) made complying
with the requirement in Article 80(4) impossible within the time left.
Learned counsel further pointed out that after the petitioner had filed this petition, the respondent introduced in Parliament a
Bill, seeking to amend Article 80(4). It was Constitution Amendment Bill No 3 of 2005. Counsel argued that by introducing that Bill
the respondent was conceding that Article 80(4) contravenes Article 1(4).
Article 21(1):-
This Article provides for equality before the law. Mr. Kiapi contended that Article 80(4) introduced inequality in the political arena
by requiring certain categories of people to resign their offices at least ninety days before nomination. He submitted that that
requirement was inconsistent with Article 21(1). Worse still, Article 80(4) is ambiguous as it does not specify who is a person employed in government department or agency. He argued that because of the ambiguity, that Article was liable to abuse and open to misinterpretation.
Article 38(1):-
This confers on every Uganda citizen the right to participate in the affairs of Government, individually or through his or her representatives
in accordance with law. Mr. Kiapi contended that Article 80(4) has whittled away that right by unleveling the political playground.
Mr. Joseph Matsiko did not agree with Mr.Kiapi’s arguments. He submitted that Article 80(4) does not infringe on Article 1(4)
because the latter merely gives the people of Uganda the right to determine through a regular free and fair elections or through
referenda how and by who they wish to be governed. Article 80(4) does not affect the principle of free and fair election. He concedes
that Col Rtd Dr Kizza Besigye vs. Yoweri Museveni Kaguta and Anor (supra) defined the criteria of a free and fair elections in the judgment of Odoki, CJ. Learned counsel submitted however, that Mr.
Kiapi did not show how that Article 80(4) contravenes any of the elements of a free and fair election enumerated in that judgment.
On the inadequacy of time within which to resign, following the late publication by the EC, of the nomination day, Mr. Matsiko submitted
that that was a practical problem. It does not render Article 80(4) inconsistent or contravene Article 1(4). In his view, the argument
that the ninety days requirement in Article 80(4) is unreasonable; had not been pleaded. Even if it were pleaded, which is denied,
it had not been shown how it is unreasonable.
On the argument that the introduction of the Constitutional Amendment No 3 of 2005 in Parliament was a concession by the respondent
that Article 80(4) was inconsistent with Article 1(4), Mr. Matsiko denied that there was such a concession. The Bill was only a proposal.
On Article 21(1), Mr. Matsiko denied that Article 80(4) contravenes Article 21(1) in any way. He pointed out that Article 21(3) which
must be read together with Article 21(1), defines what is meant by “to discriminate” in Article 21(1). According to him, that meant giving different treatment to different persons based only or mainly on their descriptions
by sex, race colour, ethnic origin, tribe, birth, creed or religion or social and economic standing, political opinion or disability.
He submitted that Article 80(4) is not based on any of the attributes stated in Article 21(3). He denied that Article 80(4) is ambiguous.
He stated that the Article is clear. It talks about the people to which it applies and requires them to resign their offices at least
ninety days before nomination if they wish to stand for a Parliamentary General Elections.
On Article 38(1), Mr. Matsiko submitted that there was nothing to show that the requirement to resign under Article 80(4) divests
Ugandans of their rights to participate in the affairs of their government. He thought on the contrary that the Article promotes
even more participation by allowing those to which it applies to resign their offices within the time stated and contest in a Parliamentary
General Elections if they so wish. In counsel’s view, Article 80(4) compliments Article 38(1).
Before I consider the merits and demerits of the arguments of counsel on this issue, I wish to point out that this issue is argued
by counsel as if clause 4 which was introduced to Article 80 by section 18(d) of the Constitutional Amendment Act No 11 of 2005,
was already part of the 1995 Constitution. I find that this approach overlooked the principle laid down by the Supreme Court in the
case of Semwogerere and 2 others (supra). The principle is that any part of an Act of Parliament, whether it is an Act to amend the Constitution or an Act for any
other purpose, that is challenged remains uncertain until an appropriate court pronounces itself on it.
In the instant case, clause 4 that was introduced by section 18(d) of the Constitutional Amendment Act 11 of 2005 to amend Article
80 of this Constitution was challenged in this petition as being inconsistent with and in contravention of a number of articles of
this Constitution.
In accordance with the above principle, therefore, that clause remains uncertain until this court pronounces itself on it. Until then,
clause 4 is not part of the 1995 Constitution. To become part of this Constitution the Act, that is Constitutional Amendment Act
11 of 2005 has to pass two tests, namely:-
(a)
Procedural test and
(b)
Content or substance test.
Procedural test is that in passing the Act, Parliament had complied with the procedure laid down in this Constitution.
As for the content or substance test, it is that the contents of the Act must be consistent with the other provisions of this Constitution.
In the instant case, there had been no complaint about the procedure followed by Parliament in passing Act 11 of 2005. That meant
that Parliament had complied with the procedure laid down by this Constitution for amending this Constitution. In other words, the
Bill which sought to amend the Constitution was solely for that purpose and that its 2nd and 3rd readings were supported by two third of all the members of Parliament as required in Article 261.
With regard to the content or substance test, the contents of the introduced clause 4 of Article 80 must be consistent with the other
provisions of this Constitution except Article 80 which it sought to amend.
Clause 4 requires a public officer or person employed in any government department or agency of government or an employee of a local government or anybody in which the government has controlling interest who wishes to stand in a general elections as a member of Parliament to resign his or her office at least ninety days before nomination.
A well known principle of Constitutional interpretation requires that all provisions of the Constitution bearing upon a particular
subject must be brought into view and considered together to give effect to the instrument. In line with that principle, it is necessary
to bring into view Articles 257 and 175 and consider them together with clause 4 of Article 80. The reason is that they all concern
“public officer”.
Article 257(1) defines “public officer” to mean a person holding or acting in any public office.
Public office is defined by the same Article to mean an office in the public service.
Article 257(2)(b) explains that a reference to an office in the public service excludes 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.
Article 175 falls under chapter ten of this Constitution, under the heading ‘Public Service’. It defines “public officer” in the same way it is defined in Article 257(1) above. It defines “Public Service” to mean service in any civil capacity of the government, the emolument for which are payable directly from the Consolidated Fund or
directly out of moneys provided by Parliament. The definition of “Public Officer” in Articles 257 and 175 are consistent.
The introduced Clause 4 of Article 80 added to the word “public officer” “a person employed in any government or agency of the government or an employee of a Local Government or anybody in which the government
has controlling interest.” In doing so, clause 4 has thereby added to the term “public officer” as known in Articles 257(1) and 175 of this Constitution new category. That amounted to an amendment to those Articles by infection
since it did not intend to amend them. By widening the scope of public officers, clause 4 is inconsistent with Articles 257(1) and
175 of this Constitution. It has, therefore, failed the content or substance test. Section 18 (d) of Act 11 of 2005 introduced clause
4 that contravenes Article 2 (2) of this Constitution which provides:-
“If any other law or any custom is inconsistent with any of the provisions of this Constitution, the Constitution shall prevail and that
other law or custom shall to the extent of the inconsistency, be void.”
The above provision emphasizes the supremacy of this Constitution as the basic law of this country and a yardstick by which all other laws are measured.
I now turn to the merits and demerits of the arguments of counsel on issue No 2. This issue is centered on whether clause 4 is inconsistent
with Articles 1(4), 21(1) and 38(1) of the Constitution. To appreciate better the arguments of counsel, it is necessary to reproduce the texts of these articles.
They are:-
“1.(4).
The people shall express their will and consent on who shall govern them and how they should be governed
through regular, free and fair elections of their representatives or through referenda.
21(1).
All persons are equal before and under the law in all spheres of political, economic, social and cultural life
and in every other respect and shall enjoy equal protection of the law.
38(1).
Every Uganda citizen has the right to participate in the affairs of governments individually or through his or
her representatives in accordance with law.”
The petitioner complained that Article 80(4) whittles away the right to “free and fair elections” guaranteed in Article 1(4) of the Constitution.
It is common ground that the term “free and fair elections” in Article 1(4) of the Constitution has not been defined either in the Constitution itself or in any other relevant law. Odoki CJ
threw some lights on the elements that he considered would make an election free and fair in the case of Col Rtd Dr Kizza Besigye vs. Yoweri Museveni Kaguta (supra) as follows:-
“To ensure that elections are free and fair, there should be sufficient time given at all stages of the elections, nominations, campaigns,
voting and counting of votes. Candidates should not be deprived of their rights to stand for elections and the citizens to vote for
candidates of their choice through manipulations of the process by electoral officials. There must be a leveling of the ground so that the incumbents or government Ministers and officials do not have unfair advantage. The entire election
process should have an atmosphere free of intimidation, bribery, violence, coercion or anything intended to subvert the will of the
people. Election procedures should guarantee the secrecy of the ballot, the accuracy of counting and the announcement of results
in a timely manner. Election law and guidelines for those participating in elections should be made and published in good time. Fairness
and transparency must be adhered to in all stages of the electoral process. Those who commit electoral offences or otherwise, subvert
the electoral process should be subjected to severe sanctions. The Electoral Commission must consider and determine election disputes
speedily and fairly.”
The other four Justices of the Supreme Court who were on the panel that heard that case did not express any contrary opinion from
the above on the elements of a free and fair elections. By the principle of precedence, that decision is binding on this court.
It has not been shown that clause 4 infringes on any of the elements stated in the excerpt of the Chief Justice Odoki’s judgment,
nor how it interferes with the right to a free and fair elections. It does not interfere with the time given at all stages of the
electoral process. It does not deprive any candidate of the right to contest the election.
I find no merit in this complaint.
With regards to Article 21(1), Mr. Kiapi contends that clause 4 introduces inequality contrary to Article 21(1). When asked how that
inequality was effected, he replied that “economically.” He did not elaborate on that answer. In my view it is important to know the scope of or to whom that clause applies to determine whether
it is inconsistent with article 21(1). The term “any person employed in any government department or agency of the government or anybody in which the government has controlling interest” has clearly widened the scope of the term ‘public office’ as defined in this Constitution.
As stated earlier in this judgment, clause 4 of Article 80 has amended by infection Articles 257(1) and 175 of the Constitution.
Article 257(1) defines the term “public office” to mean an office in the public service. The term ‘public service’ is defined in that Article to mean service in a civil capacity of the government or of a local government. According to Article 257(2) (b) a reference to an office in the ‘public service’ excludes what may be termed political leaders of the government. Considering the exclusion in Article 257(2) (b), my view is that, by the impugned clause 4, Parliament must have targeted those officers, like the public officer, serving in the
civil capacity of the government or agency of the government or of a local government. Parliament could not have intended to include
political leaders excluded in Article 257(2) (b). Parliament is presumed not to make absurd laws.
The question then is whether by requiring only officers serving in the civil capacity to resign their offices at least ninety days
before nomination if they wished to contest for a Parliamentary seat, clause 4 was contrary to Article 21(1)? Mr. Matsiko submitted
that it was not and that to arrive at that conclusion clauses 1 and 3 of Article 21 must be read together.
With respect to the learned Acting Director of Civil Litigations, I do not accept that approach. A closer look at Article 21(1),
(2) and (3) shows that clause 1 is intended to be independent of clauses 2 and 3. The use of the phrase “without prejudice to clause (1) of this Article” at the beginning of clause (2) of Article 21 supports that view. Secondly, non use of the word “discriminate” in clause (1), confirms the view that clause 1 was intended to be independent. Clause 3 of Article 21 defines the words “discriminate” which is used in clause 2.
There is clearly a difference of treatment by clause 4 of officers serving in the civil capacity of government from the political
leaders. Only officers serving in the civil capacity are required to resign their offices ninety days before nomination. Political
leaders are spared that requirement. This is inconsistent with the spirit of Article 21(1) of this Constitution.
I would, therefore, answer that clause 4 is inconsistent with Article 21(1) of the Constitution. There is merit in this complaint.
As to Article 38(1), Mr. Kiapi submitted that the requirement for resignation contained in clause 4 denies the persons to which it
applies the right to participate in the affairs of government, contrary to Article 38(1). He argued that in doing so, clause 4 has
introduced unlevel ground in the political arena.
I respectfully disagree with that submission. Requirement to resign does not deny those to which it applies the right to participate
in the affairs of government. One does not need to be employed to have the right to participate in the affairs of government. To
say so would suggest that the bulk of the citizenry that are not employed are denied the right to participate in the affairs of government.
That is far from the truth.
I would answer issue No 2 partly in the affirmative.
Mr. Kiapi submitted that from the time the Electoral Commission appointed the nomination day for the Parliamentary General Elections
for the eighth Parliament to the actual nomination days, it was not possible to comply with Article 80(4). The time given was less
than 90 days.
I agree that the time between the publication of the date appointed by the Electoral Commission for nomination for the Parliamentary
General Elections for the eighth Parliament and the actual nomination day was less than 90 days. This was due to the Parliamentary
Election Act No 17 of 2005 under which the Electoral Commission acted. It came into force too late for the Electoral Commission to
allow 90 days before nomination. As the wording of clause 4 of
Article 80 is clearly mandatory, any resignation made less than ninety days before nomination would not comply with the requirement
of the clause. The passing of the Parliamentary Election Act 17 of 2005 less than ninety days before nomination posed a very serious
practical problem that rendered compliance with the clause at that time impossible. That clearly produced absurdity.
Mr. Kiapi, further argued that the elaborate procedures for resignation laid down in Article 252 could not have also enabled the
affected persons to comply with clause (4). In my view, this is tied down to the practical problem referred to above.
In the alternative, Mr. Kiapi submitted that this court should interpret the term.
“ a person employed in any government department or agency of government in Article 80(4).”
As I have stated earlier in this judgment, the jurisdiction of this court to interpret this Constitution is derived from Article
137(1) and (3) of the Constitution. Clause (1) of Article 137 gives this court unlimited jurisdiction to determine any question as
to the interpretation of this Constitution.
I do not agree with Mr. Matsiko that this court can not pick one word or phrase in this Constitution and interpret it. However, the
phrase that we have been asked to interpret is part of clause 4 that was intended to be part of Article 80. Interpreting those words
amounts to interpreting clause 4 itself. I have already done so earlier in this judgment. I shall not repeat.
In the result, my answer to issue No 1 would be in the affirmative and issue No 2 partly in the affirmative. The alternative prayer
seeking the definition of the term “person employed in any government department or agency of government” appearing in the impugned clause 4 is granted.
Declarations:-
1.
The impugned clause 4 has amended articles 257(1) and 175 by infection. It contravenes Article 2(2).
2.
Clause 4 is not inconsistent with Articles 1(4) and 38(1) of the Constitution.
3.
It is inconsistent with Article 21(1) of this Constitution.
In the result, I would allow the petition in part. Each party to bear its own costs of this petition.
Dated at Kampala this 25th day of August 2006
G.M. OKELLO
JUSTICE OF APPEAL
JUDGEMENT OF HON. JUSTICE A.E.N. MPAGI-BAHIGEINE, JA
Kwizera Eddie, hereinafter referred to as the petitioner, filed this petition against the Attorney General seeking the following
declarations:
“(a)
That article 80(4) of the Constitution as amended by Act No. 11 of 2005 is in contravention of
and inconsistent with articles 1(4) and 38(1) of the same Constitution.
(b)
That the said article 80(4) as amended by Act 11 of 2005, is discriminatory of the petitioner’s rights enshrined in articles
21(1) and 38(1) of the Constitution and infringes on the petitioner’s inherent rights guaranteed by the same Constitution.
(c)
In the further alternative make an order or declaration defining the term “person employed in any Government department or agency of the Government” appearing in article 80(4) of the Constitution as amended by Act No. 11 of 2005.
(d)
Make an order condemning the respondent in costs of this petition.”
The petition is based on the following grounds:
“(a)
That article 80(4) of the Constitution of the Republic of Uganda as amended by the Constitution
Amendment Act 2005 (Act No. 11 of 2005) is in contravention of and inconsistent with articles 1(4) and 38(1) and discriminatory of
the petitioner’s rights enshrined in articles 21(1) of the Constitution of the Republic of Uganda.
(a)
That whereas the Constitution of the Republic of Uganda, 1995 defines a “Public officer” there is no definition of “a person employed in any government department or agency” as it appears in article 80(4) thus making the article ambiguous and open to abuse and misinterpretation.
(c)
Article 80(4) of the Constitution of the Republic of Uganda as amended by Act No. 11 of 2005 infringes
on the petitioner’s inherent rights guaranteed by the same Constitution.”
It was filed under Article 137 of the Constitution. The rules of the Constitutional Court (Petitions for Declarations under Article 137 of the Constitution)
Directions, 1996; and The Interpretation of the Constitution (Procedure Rules, 1992 (Modification) Directions 1996. It was supported by his own affidavit dated 3-10-2005.
Mr. Paul Kiapi appeared for the petitioner while Mr. Joseph Matsiko, Ag Director Civil Litigation, represented the respondent Attorney
General.
The agreed facts were that:
Parliament amended article 80 of the Constitution by introducing clause 4 to that Article, which provides:-
“(a) Under the Multiparty 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 a 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 the nomination day.”
The petitioner contends that article 80(4) of the Constitution contravenes articles 1(4), 21(1) and 38(1) of the same Constitution
which contention the respondent denies.
The agreed issues were:
1.
Whether in so far as the petition seeks to have parts of the Constitution nullified, it is incompetent.
2.
Whether article 80(4) of the Constitution is inconsistent with and in contravention of articles 1(4), 21(1) and 38(1) of the same
Constitution.
3.
Alternatively what is the proper interpretation of the term/phrase “a person employed in any government department or agency of the government?”
4.
Whether the petitioner is entitled to the remedies sought.
Regarding issue No.1, Mr. Kiapi submitted that the petition was seeking to nullify certain provisions. It was competent and that
this court had jurisdiction to hear and determine it. He argued that it is settled law that this court has jurisdiction to construe
one provision against another, citing P. K. Semwogerere and 2 others v Attorney General, Constitutional Petition No. 1 of 2002 which, with respect, he must have misconstrued. Learned counsel maintained that the court had jurisdiction to nullify any part of
it as against another and that therefore, this petition was competent and not incompetent as contended by the respondent.
Mr. Matsiko opposed the petition and orders sought there under contending that the powers of this court did not involve nullifying
any part of the Constitution but rather harmonising all parts concerning a subject matter. Referring to the different judgments in
Constitutional Petition No.1/2001, learned counsel asserted that their Lordships did not at any time talk of “nullifying” the Constitution but rather of “harmonising” it so as to give effect to all its provisions. He submitted that this court has thus no power to nullify any part thereof and that
Mr. Kiap’s argument rendered the petition incompetent. He prayed court to answer Issue No.1 in the affirmative.
This court sitting as a Constitutional Court is a creature of Article 137 from which it derives its powers. The scope of these powers
has been highlighted by the Supreme Court and this court in various judgments, drawing from various common wealth and foreign authorities.
It is unnecessary to reproduce all the pertinent excerpts to this issue from Constitutional Petition No. 1/2001. P. K. Semwogerere And Others v Attorney General, as they all concur. Suffice it to cite only a few. In the judgment of Odoki CJ at page 4, his Lordship said:
“…The second question is one of harmonisation. The Constitutional Court was in error to hold that it did not have jurisdiction
to construe one provision against another in the Constitution. It is not a question of construing one provision against another,
but of giving effect to all the provisions of the Constitution. This is because each provision is an integral part of the Constitution
and must be given meaning or effect in relation to others. Failure to do so will lead to an apparent conflict within the Constitution.”
The cause c
l
bre on the point is Smith Dakota v North Carolina 192 1940 268 where the Supreme Court of USA pronounced:
“It is an elementary rule of constitutional construction that no one provision of the Constitution is to be segregated from
the others and to be considered alone, but that all the provisions bearing upon a particular subject are to be brought into view
and to be interpreted so as to effectuate the great purpose of the instrument.”
It is thus clear that this court is not mandated to nullify any provision of the Constitution but rather to harmonise all the provisions
on a subject as much as possible so as to bring out the spirit of the great document as a whole. As indicated in the judgment of
Mulenga JSC at page 4, the learned Justice of the Supreme Court said:
“…There is no authority other than the Constitutional Court, charged with the responsibility to ensure that harmonisation.
Even where it is not possible to harmonise the provisions brought before it, the court has the responsibility to construe them and
pronounce itself on them, albeit to hold in the end that they are inconsistent with each other. Through the execution of that responsibility,
rather than shunning it, the court is able to guide the appropriate authorities, on the need, if any, to cause harmonisation through
amendment…”
Thus where the various articles are irreconcilable thus rendering harmonisation impossible, this court would only recommend an appropriate
course of action to the appropriate authorities. This is, however, not to be confused with the correlated power under article 2 to
declare null and void an Act of Parliament or parts thereof, be it a Constitution (Amendment) Act or ordinary Act which the court
might find to be inconsistent with the Constitution since the Constitution is the Supreme Law. Article 2 states:
“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.”
Thus to answer Mr. Kiapi’s concerns, the two powers though correlated should not be interchanged. This court would not nullify
any part of the Constitution. I would thus answer issue No. 1 in the negative.
Regarding issue No.2, as to whether article 80(4) of the Constitution is inconsistent with and in contravention of article 1(4),
21(1) and 38(1) of the same Constitution, Mr. Kiapi pointed out that in as far as article 1(4) provides for free and fair elections;
article 80(4) whittles away free and fair elections. He relied on Election Petition No.1 of 2001 Dr. Kiiza Besigye v Museveni Yoweri Kaguta where the concept of free and fair elections was expansively examined by their Lordships and submitted that the resignation envisaged
under the amendment discriminatively applied to some people and not to others. He was further concerned with the time factor involved,
maintaining that the amendment was enacted too late to allow sufficient time for the targeted officers to tender in their resignations,
whose procedure was too elaborate, before the prescribed time for nomination. The nomination days which were scheduled for 12th and 13th January 2006 were only gazetted on 21-11-2005. He pointed out that by enacting article 80(4) Parliament legislated inequality in
the political arena by requiring a certain sector of citizens to resign their jobs 90 days before nomination. Furthermore, it left
ambiguous the term “a person employed in a Government Department or Agency” thus rendering the article open to misinterpretation due to its ambiguity.
Regarding article 38(1) as to the right to participate in the affairs of Government, Mr. Kiapi submitted that article 80(4) is discriminatory
in that it has the effect of unleveling the playing field. It tends to close out many citizens from participating in elections and
Government.
Mr. Matsiko, however, contended that article 1(4) only gives the people a right to determine how they wish to be governed. The requirement
of public officers to resign does not divest the public of their right to be governed as they wish. It does not infringe on the right
to free and fair elections. Furthermore, it was not shown to court how unreasonable the 90 days period in article 80(4) was, which
ground was never ever pleaded in the petition. Concerning article 21(1) Mr. Matsiko asserted that Article 80(4) is not based on any
of the attributes of discrimination as defined in article 21(3). He submitted that article 80(4) only required one to resign if one
intended to stand for election.
Regarding article 38(1) Mr. Matsiko stated that it is about giving the public a right to participate in the affairs of Government
individually or through representatives. The requirement to resign does not in any way divest Ugandans of their right to participate
in governance. On the contrary Article 80(4) allows everybody in governance to resign public office and be able to participate unhindered.
Mr. Matsiko prayed court to answer Issue No.2 in the negative.
I will start off with article 80(4) and 1(4) which read as follows:
“80 (4) under the Multiparty 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 anybody in which the government has a 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 the nomination
day.”
“1(4). The people shall express their will and consent on who shall govern them and how they should be governed, through regular,
free and fair elections of their representatives or through referenda.”
Whether or not article 80(4) whittles away free and fair elections, it is necessary to look at Election Petition No.1 of 2001, Dr. Kiiza Besigye v Museveni Yoweri Kaguta in which article 1(4) was expansively examined. In his judgment, the Chief Justice Ben Odoki commenting on article 1(4) said, inter
alia:
“… the concept of free and fair elections is not defined in the Constitution or in any Act of Parliament…
To ensure that elections are free and fair there should be sufficient time given for all stages of the elections, nominations, campaigns,
voting and counting of votes… Candidates should not be deprived of their right to stand for elections, and the citizens to
vote for candidates of their choice through unfair manipulation of the electoral process by electoral officials. There must be a
levelling of the ground so that the incumbents or government ministers and officials do not have an unfair advantage.
… Election Law and guidelines for those participating in elections should be made and published in good time. Fairness and
transparency must be adhered to in all stages of electoral process…”
His Lordship Oder JSC (RIP) on the same point concurred:
“Neither our Constitution nor the electoral laws applicable to this case, define the meaning of ‘free and fair elections. In my view, for a conclusion that an election has been free and fair, it requires an assessment of the entire process
of the election. It begins with the electoral laws that govern all the aspects of the election. In the instant case, the court is
not concerned with validity of the laws but with the need for a level playing field for all participants… observance of the
fundamental rights and freedom of the individual during the electoral process, as at all times, is also an important aspect of free
and fair elections.”
His Lordship Mulenga JSC similarly observed:
“… It also entails equal opportunity among candidates to access the electorate, as well as, among the electorate to choose
between the competing candidates.”
Article 80(4) was enacted under the Constitution (Amendment)(No.3) Act, 2005 Section 18(d). It came into effect on 26th September 2005. The nomination days scheduled for 12th and 13th January 2006 were gazetted on 23rd December 2005. The aspiring candidates had to resign 90 days before nomination. Though article 252 prescribes the procedure for resignation
from an office under the Constitution, to be simply by letter addressed to the appointing or electing authority, it becomes clear
that there was no sufficient time to make the 90 days prescribed prior to January 12th and 13th. This was the first hurdle the Electoral Commission had to resolve. Could the aspirants resign or could they not? This remained unresolved
by the legislators and responsible authorities. Time was of essence. The law was late and therefore ineffective. It should have been
enacted well in time. Thus, the would be free and fair elections hit an insurmountable hurdle right from the start. This was, however,
one aspect of the matter.
The second aspect is the formulation of the entire amendment (article 80(4)). In this respect, one of the principles of constitutional
interpretation provides that all the articles bearing upon or pertinent to a subject under discussion must be brought within purview
when discussing a related article. Thus when considering the term ‘public officer’ articles 80(4), 175 and 257(1) and
(2)(b) must all be considered together.
These others read as follows:
“175. In this chapter, unless the context otherwise requires-
“public officer” means any person holding or acting in an office in the public service;
“public service” means service in any civil capacity of the Government the emoluments for which are payable directly from the consolidated fund or directly out of moneys provided by Parliament.”
Similarly article 257(1) defines
‘public officer’ to mean an office in the public office, ‘public officer’ means a person holding or acting in any public office and ‘public service’ means service in a civil capacity of the government or of a local government.
The foregoing must, nonetheless, be read with article 257(2) (b) which states:
“(b) a reference to an office in the public service does not include a reference to the office of the President, the Vice –
President, the Speaker or Deputy Speaker, a Minister, the Attorney General, a Member of Parliament or a Member of any commission,
authority, council or committee established by this Constitution.”
It is thus clear that while article 80(4) targets public officers as defined above in an attempt to level the playing field, which
would in itself be commendable, nonetheless, it excludes the political class as specified under article 257(2)(b). It cannot be disputed
that it is the political class who are the main players in the electoral playing field. They are better equipped or facilitated by
the state than any ordinary aspirant or public officer specified under articles 175 and 257(1). This, therefore, gives them a leverage
in every way over these other contenders. I can do no better than refer to the holding in the judgement of the Chief Justice, Ben
Odoki, in Election Petition No.1 of 2001 (supra) where his Lordship states:
“…there must be a levelling of the ground so that the incumbents or government Ministers and officials do not have unfair
advantage.”
I think it does not augur well with the principle of fair play for the legislature to omit or to remain silent about the main political
players in the same field, under article 257(2) (b), when attempting to level the playing field by enacting article 80(4). This renders it incontestably inconsistent with article
1(4). I would therefore agree with Mr. Kiapi’s grievances and answer this in the affirmative.
As regards article 21(1), which reads:
“21(1) All persons are equal before and under the law in all spheres of political, economic, social and cultural life and in
every other respect and shall enjoy equal protection of the law.”
The entire article 21 safeguards equality and freedom from discrimination. ‘Discrimination’ under the article is defined under clause (3) to mean ‘give different treatment to different persons attributable only or mainly to their respective descriptions by sex, race, colour,
ethnic origin, tribe, birth, creed or religion, or social or economic standings, political opinion or disability.’
It is noteworthy that for the present purpose, a big percentage of the political class, exonerated under article 257(2)(b) subscribes
to the same political opinion. Impliedly, this political leaning would benefit immensely over the other political groupings and individuals.
The relevance of article 21 to the electoral process, in my view, is simply to bar anyone from giving different treatment to different
persons, by employing the state machinery to favour certain classes of candidates. Article 80(4) has such effect. The exonerated
political class would still enjoy the social and financial muscle and protection denied to other contenders while electioneering.
Clearly, this treatment would be discriminative. Article 80(4) is thus irreconcilable and inconsistent with article 21(1).
Concerning article 38(1), which reads:
“38(1) Every Ugandan citizen has the right to participate in the affairs of government, individually or through his or her representatives
in accordance with law.”
I have difficulty in appreciating Mr. Kiapi’s contention that article 38(1) is discriminatory in that it has the effect of unleveling the playing field by closing out many citizens from participating in elections and government. Article 38(1) neither expressly
nor by implication bars any citizen from participating in the affairs of government. All it does is to allow anybody who wishes to
participate in the affairs of government to do so in any of the ways prescribed under the law. I thus find no merit in this complaint.
Regarding issue No.3, Mr. Kiapi sought this court’s interpretation of the phrases “a person employed in any Government department or agency of the Government” as it is ambiguous and apt to mislead. Mr. Matsiko on the other hand contended that interpreting words and phrases was not within
the powers granted to this court under article 137(3) which states –
(3) A person who alleges that –
(a)
an Act of Parliament or any other law or 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, may
petition the Constitutional Court for a declaration to that effect, and for redress where appropriate.
My view is that the duty of this court under article 137 basically involves and embraces giving meaning to words and expressions of
provisions of the Constitution. The court’s powers under article 137(3) are very wide. The court’s duty is to review
Acts of Parliament and other laws so as to determine any issue or question on the inconsistence of any provision and/or on the contravention
of the Constitution by anything, act or omission by any person/authority. This cannot be done without giving meanings to words/phrases.
The words and phrases Mr. Kiapi seeks this court to give meaning to, are contextually the gist of the amendment article 80(4) which is the subject of this petition. Therefore to hold that this court’s
role does not involve interpretation of words and/or phrases would in my view, be tantamount to misunderstanding or shunning our
duty.
I would thus hold that this court can entertain issue No. 3, and interpret the words and phrases in question.
That being the case, according to the literal rule of interpretation, the context of the phrases complained of, to wit “a person employed in any government department or agency of the government” permit of no other definition than that of an officer employed in any government department or in any of those bodies controlled
by the government and whose emoluments are payable directly from the consolidated fund or directly out of moneys provided by Parliament.
I would therefore make the following declarations:
Issue No. 1 –
The petition is competent.
Issue No. ii –
Article 80(4) of the Constitution is inconsistent with and in contravention of Articles 1(4) and 21(1).
Article 80(4) is not inconsistent with Article 38(1).
Issue No. iii –
The petition therefore succeeds in part.
I would order each party to bear its own costs.
Dated at Kampala this 25th day of August 2006.
A.E.N. MPAGI-BAHIGEINE
JUSTICE OF APPEAL
JUDGEMENT OF C.N.B. KITUMBA, JA.
Kwizera Eddie, hereinafter to be referred to as the petitioner, is employed as a Special Presidential Assistant in the President’s
office. He filed this petition whereby he prayed this court to make the following orders.
“(1)
Grant a declaration that article 80(4) of the Constitution as
amended by Act 11 of 2005 is in contravention and is inconsistent with articles 1(4) and 38(1) of the same Constitution.
(2)
Grant a declaration that the said article 80(4) as amended
by Act No. 11of 2005 in discriminatory of the petitioner’s rights enshrined in articles 21(1) and 38(1) of the Constitution as amended by Act 11 of
2005 or alternatively
order that article 80(4) of the Constitution as amended by Act No.11 of 2005 infringes on the petitioners inherent rights guaranteed
by the same Constitution.
(3)
In further alternative make an order or a declaration defining the term “person employed in any government department or agency
of the government” appearing in article 80(4) of the Constitution as amended by Act 11 of 2005, and
(4)
Make an order condemning the respondent in cost of this petition. “
The complaint by the petitioner in the petition is that article 80(4) as inserted in the Constitution by section 18(d) of the Constitutional
(Amendment) (No.3) Act, 2005 is inconsistent with and in contravention of articles 1(4) and 38(1) of the Constitution. The new article
infringes on the petitioner’s inherent rights as enshrined in articles 21(1) and 38(1) of the Constitution. Further, whereas
the Constitution clearly defines “a public officer” in article 257, the inserted article 80(4) does not define “a
person employed in any government department or agency of the government” and thus making the article ambiguous and open to
abuse and misinterpretation. The petition is supported by the affidavit of the petitioner which he deponed to on 21st October 2005.
In answer to the petition the respondent denied the petitioner’s averments. The answer is supported by the affidavit of one Margaret Apiny who is a Senior State Attorney in the respondent’s chambers.
The back ground to the petition is that the 7th Parliament by section 18(a) the Constitutional (Amendment) Act No.11 of 2005 amended the1995 Constitution by introducing article
80(4) which reads:
“Under the multiparty political system, a public officer or person employed in any government department, or agency of the government
or an employee of a local government or anybody 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.”
In view of the above amendment the petitioner who wished to stand for parliamentary general elections sought for the opinion of the
Solicitor General whether he was affected by the amendment. The Solicitor General told him that he was affected. The petitioner was
aggrieved by the amendment and filed the instant petition in this Court.
At the commencement of the hearing of the petition counsel for both parties agreed on the following issues.
1,
Whether in so far as the petition seeks to nullify part of the Constitution, it is competent.
2.
Whether article 80(4) of the Constitution is inconsistent with and in contravention of articles 1(4), 21(1) and 38(1) of the same
Constitution.
3.
Whether the petitioner is entitled to the remedies sought.
4.
Alternatively what is the proper interpretation of the term/phase is “a person employed in any government department or agency
of government.”
On the first issue Mr. Paul Kiapi, learned counsel for the petitioner, submitted that the court has the jurisdiction to interpret one provision of the Constitution against
another. Where the court finds that the impugned article is inconsistent with another it will declare the impugned article null and
void. According to counsel that was the holding of the Supreme Court in Paul K. Ssemwogerere and 2 Others vs. The Attorney General Constitutional Appeal No. 1 of 2002. Counsel quoted extensively from all the judgements of their Lordships in the above authority.
Mr. Joseph Matsiko, the learned Acting Director for Civil Litigation appearing for the respondent, disagreed. He submitted that the
powers of this court are derived from article 137 of the Constitution. They do not include the power to strike down any provision
of the Constitution. He submitted that this court has powers to harmonise different provisions of the Constitution. He contended
that the court is empowered to strike down provisions of a constitutional amendment act or another act of Parliament but not p
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