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IN THE SUPREME COURT OF UGANDA AT MENGO
CORAM: ODOKI CJ. ODER, TSEKOOKO, KAROKORA, MULENGA,
KANYEIHAMBA JJ.S.C & OGOOLA AG.J.S.C..
CONSTITUTIONAL APPEAL NO. 3 OF 2004
BETWEEN
ATTORNEY
GENERAL:::::::::::::::::::::::::::::::::::::::::::::::::APPELLANT
AND
1. PAUL K. SSEMOGERERE 2. ZACHARYOLUM::::::::::::::::::::::::::::::::::::::::::::RESPONDENTS
(Appeal from decision of the Constitutional Court (Okello, Engwau, Mpagi-Bahigeine, Twinomujuni, and Kitumba JJ.A) at Kampala dated 25th June 2004, in Constitutional
Petition No.3 of 2000.)
REASONS OF MULENGA J.S.C. FOR THE COURT'S JUDGMENT.
These are my detailed reasons for concurring in the judgment of this
Court dated 2nd September 2004, in an appeal against the
decision of the Constitutional Court declaring the Referendum (Political
Systems) Act 2000,
("the impugned Act"), null and void and making other
consequential findings and declarations. In the judgment we allowed the appeal
in part, and reserved the detailed reasons to be given later. I have
since had opportunity to read in draft the detailed reasons of my Lord
the learned Chief Justice in which he ably and adequately sets out the
background to the appeal as well as the submissions on
the grounds of appeal by learned counsel on both sides. I will
only repeat what I deem necessary for emphasis or clarity of my
reasons.
The impugned Act was enacted by Parliament on 7th June 2000.
It made provision for the holding of a referendum under Article 271 of
the
Constitution. On 22nd June, the respondents petitioned the Constitutional Court
to strike down the impugned Act as null and void
on several grounds. Before the
petition came up for hearing, the referendum was held on 29th June 2000, and
subsequently the results
were published in the Uganda Gazette of 28th July 2000.
On 17th October 2000, the Constitutional Court stayed the hearing of the
petition sine die, pending disposal of Constitutional Petition No.7 of 2000. I
must pause here to observe that this was, to say the
least, an unfortunate
decision, because it overlooked the imperative in Article 137(7) that requires
that court to hear and determine
constitutional causes expeditiously, and as it
turned out, it led to inordinate delay. In my view the better course would have
been
to consolidate the two petitions, as I assume that the stay was because
both petitions raised the same or similar issues. Be that
as it may, the
petition was eventually heard on 28th April 2004, and judgment allowing the
petition was delivered on 25th June 2004,
four years after institution of the
suit. The appeal to this Court was on 14 grounds of appeal, attacking the
declarations and diverse
holdings in the judgments of the five Justices of the
Constitutional Court.
At the hearing of the appeal, the Attorney
General, Hon. Amama Mbabazi, appeared in person, assisted by Mr. Joseph Matsiko,
Principal
State Attorney. I shall refer to them interchangeably as "counsel for
the appellant". Mr. Godfrey Lule, assisted by Mr. Joseph Balikuddembe
appeared
for the respondents. Counsel for the appellant abandoned grounds 1 and 13 did
not specifically address ground
12 because apparently it was covered in arguments on the other grounds. The remaining 11 grounds were argued in batches as follows -
o grounds 2 and 3, on justiciability of the impugned Act, together;
o grounds 5 and 6, on contravention of Article 271, together;
o grounds 9, 10 and 11 on procedural breaches in passing the Act, together;
o grounds 4, 7 and 8, on validity of the referendum, together;
and
o ground 14, on doctrine of prospective overruling, separately. I will
discuss my reasons in the same pattern.
Justiciability of the impugned Act:
The first batch, comprising grounds 2 and 3, was centred on the proposition that the impugned Act, being an expired law, was incapable of contravening, or being inconsistent with the Constitution, and therefore could not be challenged under Article 137. The grounds read as follows -
"(2) The learned Judges of the Constitutional Court erred in law and in fact in holding that the expired Referendum (Political Systems) Act, 2000 can be challenged as being unconstitutional;
(3) The learned Judges of the Constitutional Court erred in law and in
fact in hearing and deciding on a petition challenging a non-existing
dispute on
the basis of a non-existing law;"
Learned counsel for the appellant
submitted that the Constitutional Court ought to have considered the status of
the impugned Act
as at the time when the petition was decided because that was
the material time to consider if the relief sought could be granted,
namely if
there was in existence an Act to strike down for contradicting the Constitution.
According to him, when the petition was
heard -
• the Act was spent, and already expunged from the revised Laws of Uganda;
• the Act being, non-existent, could not infringe the Constitution; and was not available to be struck down;
• the dispute between the parties had ceased on expiry of the Act; and so there was no subject matter upon which the court could adjudicate;
• the Act was deemed repealed under section 13 (3) of the Interpretation Act, and as such, it was dormant and so incapable of infringing the Constitution.
In reply, learned counsel for the respondents submitted that -
• the impugned Act was challenged when it was still in force, whereupon the Constitutional Court was seized with jurisdiction to determine its validity;
• the proceedings so initiated were preserved subsequent to the expiry of the Act by virtue of section 13(2)(e) and (3) of the Interpretation Act;
• the expiry of the Act neither affected the cause of action, nor the court's jurisdiction to conclude those proceedings.
• to uphold the contention that an expired Act is not challengeable would render acts done on authority of such Act ipso facto unchallengeable even if the acts were unconstitutional.
I respectfully agree with the
reasoned observations made by my learned brother Tsekooko JSC, that the date
when the impugned Act expired
was neither fixed nor ascertained. However, it was
common ground that the impugned Act was in force when the respondents filed the
petition in court, and therefore challengeable under Article 137; and that by
the time it came up for hearing, about four years later,
the Act had expired and
was no longer in force. The bone of contention was whether that expiry had the
effect of causing the petition
to lapse or of rendering the Act non justiciable.
For the following reasons I was satisfied that the expiry of the Act had neither
effect. First, while the Act was in force, it was capable of contravening or
being inconsistent with the Constitution. The dictum in Attorney
General vs. Dr. James Rwanyarare & Others, Constitutional Appeal
No.2/03 (SC) (unreported), on which learned counsel for the
appellant heavily relied, as authority for the proposition that a dormant Act
cannot breach the Constitution, was inapplicable to the instant
case. In Dr. Rwanyarare's case (supra), the petition
challenging an Act of Parliament was filed in court nearly two months after the
enactment of the Act. The Constitutional
Court overruled an objection
that the petition was filed outside the prescribed time of thirty days
from the alleged breach of the Constitution. On appeal to this Court, the
substantial question to determine was when the prescribed time
started running. This led to consideration of the time when an Act of Parliament
becomes effective and therefore capable of contravening the
Constitution. The Court noted the provisions of section 14(1) and (2) of the
Acts of Parliament Act, (Cap.2)
concerning commencement of an Act of Parliament,
and then concluded -
"Clearly according to those provisions an
Act of Parliament... becomes a law when it is assented to by the President.
However, we
understand subsection (2) to imply that a law remains dormant until
the day upon which it becomes enforceable and that day is the
date of
commencement.. Needless to say a dormant law cannot breach the constitution
because it is ineffective." (Emphasis is added). What was
under contemplation in the dictum, was a law that is dormant
before it becomes effective, not one that becomes
dormant after being effective. In the instant case, the impugned Act
became effective upon enactment. The respondents challenged it for its
effectiveness while it was in force, not for its dormancy
after it expired. Secondly, in private as well as
public interest litigation, the competence of a suit is
determined by the disclosure of a cause of action in the
applicable pleadings as at the date of initiating the
suit, not at the date of granting relief. The respondents in the instant case
disclosed a
cause of action in their petition by pleading that the
impugned Act was unconstitutional on diverse grounds and praying for a
declaration to that effect. The petition
was therefore competent and upon the
appellant contesting it, the Constitutional Court was seized of a live and
existing dispute.
There was nothing (in law or in fact) that occurred thereafter
to extinguish either the cause of action or the dispute. Thirdly,
notwithstanding that pursuant to s.13 (3) of the Interpretation Act an expired
Act is construed as a repealed Act, the effect of expiry, as that of a
repeal, is not to wipe out its impact as if it never existed. To
construe an expired Act as a repealed statute is no
more than to construe it as inoperative from the time of its expiry.
Lastly, I agreed with the contention by counsel for the respondents that
to hold that an expired Act is
unchallengeable would lead to ridiculous
results rendering unconstitutional acts done on authority
of an expired Act ipso facto
unchallengeable. Accordingly I agreed that
the holding that the impugned Act was challengeable
under Article 137 was not an error and that grounds 2 and 3 were without
merit.
Contravention of Article 271 (2).
The second batch of the grounds of appeal complained thus -
"(5) The learned Judges of the Constitutional Court erred in law and in fact in holding that the Referendum (Political Systems) Act 2000 was passed in contravention of Article 271(2) of the Constitution.
(6) The learned Judges of the Constitutional Court erred in law and in fact in holding that the Referendum (Political Systems) Act 2000 amended Article 271(2) of the Constitution."
In the judgment of this Court, we held that these two grounds must fail. I am constrained to add that ground 6 was a misconception because the Constitutional Court did not hold that the impugned Act amended the Constitution. On the contrary, in their respective judgments the learned Justices were unanimous in the view, which they expressed differently, that notwithstanding its section 2, the impugned Act did not have retrospective effect because Article 271 was not amended. The point is clearest in the words of Twinomujuni J.A. who said -
"Section 2 of the Act had another problem. To the extent that it
purported to abridge the period allowed by article 271 ...from 12
months to only
three weeks, it would have the effect of varying the meaning of that article.
That would tantamount to amending it
by implication or infection within the
meaning of article 258. To do that Parliament had to comply with chapter 18 of
the constitution
... It is common knowledge that that was not
done."
That leaves me to discuss my reason for upholding the Constitutional Court's
conclusion that the impugned Act did not conform to Article 271. The
appellant's learned counsel focussed his attack on the finding by the
Constitutional Court that the impugned Act had purported to abridge the
period for canvassing to three weeks contrary to Article 271(2), which
guaranteed a period of one year before the
referendum. He submitted that the respondents did
not discharge the burden to prove that there was no freedom to canvass,
and asserted that both in law and in fact,everyone interested was free
to canvass and did canvass during the period stipulated in
Article 271(2). With due respect, I think that the
learned counsel mixed up the issues. In my view, the bulk
of his submissions under these grounds was more related to
the legitimacy of the referendum. I
will revert to it and briefly review
his arguments when I discuss grounds 4, 7 and 8. The relevant
question to consider under ground 5, which at the trial was framed as issue No.
3, is
whether the passing of the impugned Act contravened or was inconsistent
with Article 271(2). In the judgment of this Court, we answered the
question in the affirmative. In order to clarify that
answer, it is important to recall the context in which
the impugned Act was enacted.
In
Article 69, the Constitution declares the
people's right, through elections or referenda, to
choose and adopt a political system from among the movement or the
multi-party political systems or any other democratic political system. In
Chapter 19, it sets out transitional provisions
to apply before the
people adopt a political system of their choice. For the purposes of this
appeal, the pertinent provisions are in Articles
263, 269 and 271. The essence
of Article 263 was to provide for "the Government of the National Resistance
Movement", (NRM), which
was in office before the promulgation of the
Constitution, to continue in office until the election of a new government
within nine months after
the said promulgation. Article 269 authorised the
continued activity of political organisations but imposed a number
of restrictions, until such time as Parliament enacts a law to regulate their
activities. Among other things, it prohibited political parties from
holding public rallies or "carrying on any activities that may
interfere with the movement political system". Then Article 271 ordained
that the first presidential, parliamentary and local government elections would
be held under the movement political system. It prescribed the
time for the people's first exercise of the right to choose and adopt a
political system of their choice through a referendum and the
time for canvassing. The full text of that Article
reads thus -
"277. (1) Notwithstanding the provisions of article 69 of this Constitution, the first presidential, parliamentary, local government and other
public elections after the promulgation of this Constitution shall be held under the movement political system.
(2) Two years before the expiry of the term of the first Parliament elected under this Constitution, any person shall be free to canvass for public support for a political system of his or her choice for purposes of a referendum.
(3) During the last month of the fourth year of the term of
Parliament referred to in clause (2) of this article, a referendum shall be held to determine the political system the people of Uganda wish to adopt.
(4) Parliament shall enact laws to give effect to the provisions of
this article."
The following facts were not in dispute here or in the
court below -
• that the term of the first Parliament referred to in Article 271 commenced on 2nd July 1996 and expired on 1st July 2001;
• that freedom to canvass for purposes of the referendum referred to in clause (2) of Article 271, had to be in place two years before 1st July 2001; and
• that the referendum referred to in clause (3) of Article 271, in which, the people of Uganda were, for the first time to select a political system of their choice, was to take place during the month of June 2000, that being the last month of the fourth year of the first Parliament.
Under clause (4) of Article 271, the Constitution
commanded Parliament to enact laws for the purpose of giving effect to
provisions of that Article. The two obvious provisions, to which
the envisaged laws were to give effect, were those concerning the
holding of the referendum and the freedom to canvass. Evidently, the
special provision for freedom to canvass for support in the
referendum was necessitated by and intended to
override the restrictions imposed, under Article
269, on political canvassing while the NRM was in
power. The intention must have been to
ensure that, notwithstanding those restrictions, an
ad hoc law giving effect to that freedom throughout the
prescribed period would be in place. In order to
comply with that command therefore, Parliament had to enact the law
before the commencement of the prescribed period. The first
attempt was the enactment of the Referendum and Other Provisions Act 1999 ("Act
2 of 1999") on 2nd July 1999, which however was subsequently
annulled.
Parliament enacted the impugned Act, as the
law to give effect to the provisions of Art. 271. This
is apparent from the provisions of the Act and more specifically from its
long title which spelt out that it was enacted "to make provision for the
holding of the referendum required to be held under article 271". In
addition, presumably for emphasis or avoidance of doubt, it was
provided in section 27 of the impugned Act, that the referendum "shall be
held" in accordance with the Act "notwithstanding the provisions
of any other law." Sections 12 and 21 related to the freedom to canvass.
In particular, the latter section provided -
"21. On and
after the 2nd day of July, 1999 any person shall be free to canvass
for public support for a political system of his or her choice for the purpose
of the referendum." The impugned Act, including that
section, was enacted nearly a year after it was due.
Parliament failed to comply with the constitutional command in Article 271
Notwithstanding the notional backdating, however, it could not give
effect to the constitutional provision on the freedom to canvass,
during and throughout the prescribed
period of one year, commencing on 2nd July 1999, which
had passed.
The law, therefore, was inconsistent with the
letter and spirit of the provision in Article 271, and was
therefore, null and void. Accordingly, grounds 5 and 6
failed.
Procedural breaches in passing the impugned Act
In
grounds 9, 10 and 11 the appellant attacked the findings on the
procedure adopted in processing the bill for enactment of the
impugned Act. I do not wish to add anything to the reasons for our decisions on
these grounds as set out in our judgment and detailed
by the learned Chief Justice. I would only emphasise that the specialised
functions of a Standing Committee are very different from
the regular function of the Committee of the Whole House at
the "committee stage". There was no merit in ground 9 but grounds
10 and 11 had to succeed.
Validity of the Referendum
The complaints in grounds 4, 7 and 8 related to the Constitutional Court's findings in respect of the referendum held on 29th June 2000. The grounds read thus -
"4. The learned Judges of the Constitutional Court erred in law and in fact in holding that the Referendum which was held on 29th June, 2000 was invalid
7. The learned Judges of the Constitutional Court erred in law and in fact in holding that the 2000 Referendum on choice of Political Systems was held in contravention of Article 69 of the Constitution
8. The learned Judges of the Constitutional Court erred in law and in
fact in holding that the people of Uganda in a referendum held on 29th June 2000 never adopted a political system under Article 69 of the Constitution."
These grounds arise from declarations set out in the judgments of Okello and Twinomujuni JJ.A respectively. In the former the second declaration read thus -"(b) Holding the referendum under the Referendum (Political Systems) Act 2000 before passing a law under Article 269 to set free Political Organisations contravened Article 69"; and in the latter the second and third declarations read thus -
"(2) The referendum which was held under the Act on 29th June 2000 was invalid.
(3) No Political System under Article 69 was put in
place."
As I indicated earlier, the bulk
of the submissions by counsel for the appellant on
ground 5, related to the legitimacy of the referendum and I find it appropriate
to consider that part along with his
specific submissions on grounds 4, 7
and 8, which were premised on the contention that the respondents did not
challenge the referendum. He submitted that in their petition, the
respondents challenged the validity of the impugned Act only and prayed for a
declaration that it was null and void, but did not ask the
court to determine the constitutionality of
the referendum, or whether the people of
Uganda had made any choice of a political system in that referendum. He stressed
that after the referendum was
held on 29th June 2000, the respondents
could have amended their pleadings to pray for the annulment but did not
do so. He maintained that it is an error of law for a court to grant a relief
that is not founded on pleadings or framed
issues. In support of that
proposition counsel cited rule 13 (1) of Legal Notice No.4 of 1996; O.6 r.1 and
0.18 r.4 of the Civil
Procedure Rules; Chitaley and Rao
A.I.R. Commentaries 6th Ed.
p.2697 and Capt. Harry Gandy vs. Casper
Air Charters (1956) 23 EACA 139. On the
validity of the referendum, the thrust of his submissions was that
the referendum did not contravene Article 69
because both as a matter of law and a matter of
fact, the referendum was free and fair. He
drew the Court's attention to Act No.2 of 1999, which
expressly provided in s.13 that any person or group
of persons was free to canvass for support of a side in a
referendum under Article 271 for choosing a political system. He
argued that although subsequently the
Constitutional Court annulled it, Act No.2 of 1999 was in force
during the year preceding the
referendum and at the time the referendum was held, and
that the people had in fact freely canvassed under it as was held by the
Constitutional Court to that effect in Dr. James Rwanyarare &
Another vs. Attorney General, Constitutional Petition No.5 of 1999.
He also pointed out that the impugned Act had validated all things done
in good faith under Act No.2 of 1999.
In reply, counsel for the
respondents submitted first that the invalidity of the referendum was an
issue canvassed at the trial and properly determined by the
Constitutional Court. The issue was pleaded in paragraph 1(e) of the petition
and at the trial it was framed as the fourth of
the agreed issues for
determination by the court. Secondly, learned counsel submitted
that the annulled Act No.2 of 1999, could not cure the contravention of Article
69, as it was null and void ab initio. The regulations and all other
things done under it were similarly void and could not be saved by
the impugned Act, which itself was unconstitutional.
In our judgment, we answered two questions that arose out of these submissions. First, we held that the Constitutional Court did not err in considering the validity of the referendum because the question was properly before it albeit indirectly. Secondly, we held that the Constitutional Court erred in making the declaration that the referendum was invalid when the ground for so holding was not proved.
We also observed that the circumstances warranted the exercise
of the court's discretion to decline granting the
declaration. I will now elaborate on my
reasons for those holdings in that order.
It is
a cardinal principle in our judicial process, that in adjudicating a suit the
trial court must base its decision and orders on the pleadings and the
issues contested before it. Founding a court decision or relief on
unpleaded matter or on an issue not properly placed before
it for determination is an error of law. Hence the rules of
procedure require that at the commencement of the trial,
the court should frame issues for its determination,
primarily from the pleadings. Framing of issues highlights the material
questions in controversy and thus provides guides as to what questions of fact
and law each party should focus on in proving
its case. The Civil Procedure
Rules, which apply to proceedings in the Constitutional Court by
virtue of Legal Notice No.4 of 1996, provide in 0.13 r.l (5) -
"At the hearing of the suit the court shall, after reading the pleadings, if any, and after such examination of the parties or their advocates as may appear necessary, ascertain upon what material proposition of law or fact the parties are at varience, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend".
And 0.18 r.4 provides that a judgment
shall contain a precise statement of the
case, the points for determination, the decision, and the reason for
such decision.
The decision in Captain Harry Gandy vs. Caspar Air Charters Ltd. (supra), on which the appellant relied, emphasises the principle, but its circumstances are clearly distinguishable from those of the instant case. In that case, the appellant sued the respondent for wrongful termination of his employment without notice on 24th August 1953. The respondent denied the allegation and counterclaimed that the appellant had verbally terminated his own employment on 23rd August 1953. The trial judge found for the respondent on the counterclaim but on a ground that was never pleaded or canvassed at the trial, namely that the appellant had terminated the contract of employment when, on 1st September 1953, he accepted alternative employment. On appeal to the Court of Appeal for Eastern Africa, Sinclair V.P. said at p.140 -
"As a rule relief not founded on the pleadings will not be given. In Eshenchunder Singh vs. Shamachurn Bhutto, 20 E.R. 3,... an appeal from Calcutta High Court, Lord Westbury described it as 'an absolute necessity that the determinations in a cause should be founded upon a case to be found in the pleadings or involved in or consistent with the case thereby made"...As to the English practice Scrutton, L.J. said in Blay vs. Pollard and Morris (1930) 1 K.B. 682:-
'Cases must be decided on the issues on the record; and if it is desired to raise other issues they must be placed on the record by amendment. In the present case the issue on which the Judge decided was raised by himself without amending the pleadings, and in my opinion he was not entitled to take such a course.' Whether the appellant broke the contract by taking alternative employment was never an issue on the pleadings or at the trial and it was neither involved in nor consistent with the company's case. It was an entirely different kind of breach from that relied on by the company which was that the appellant verbally terminated the contract without notice on 23rd August...I am of the opinion that the learned Judge was wrong in founding his judgment on that issue particularly when it was contrary to the submissions of both parties." (Emphasis is added)
In his judgment in the instant case, Okello JA held, rightly in
my view, that the validity of the referendum was
questioned in the petition where it was asserted in
paragraph 1(e) that the absence of law permitting political
party activity prejudiced the right to a free and fair referendum
in contravention of Article 69. Because the assertion was denied,
one of the five issues counsel for both
parties agreed to frame for determination was -
"4. Whether or not the absence of a law regulating the activities of
Political Organisations as provided in Article 269 of the Constitution
contravened Article 69 by perpetuating a political environment under which the
people of Uganda could not make a free and fair choice
of the political system
as to how they should be governed." Surprisingly, the Solicitor General,
who agreed to the inclusion of this issue, contended in the final
submissions that the issue was misconceived and irrelevant. Clearly, that
submission was untenable and was rightly rejected. The issue was
properly before the court, and in determining it, the court had to
consider if the referendum contravened Article 69. In this appeal, counsel
for
the appellant virtually reiterated the same untenable arguments and we
similarly rejected them, hence our first answer. I now turn to my reasons for
the second answer.
Article 69 provides -
"(1) The people of Uganda shall have the right to choose and adopt a political system of their choice through free and fair elections or referenda."
Article 73 provides for the making of law to regulate political organisations. Article 269, provides that until Parliament enacts that law, political organisations are restrained from -
> opening and operating branch offices; > holding delegates conferences;
> holding public rallies; sponsoring or offering a platform to or in any way campaign for or against a candidate for any public election;
> carrying on any activities that may interfere with the movement political system for the time being in force.
Up to the
time the referendum was held, Parliament had not enacted any law
regulating activities of political organisations. The said restraints imposed
under Article 269 were still in force. Consequently, a
political party was not free to canvass in the
referendum for support of a political system of
its choice. That scenario provided the basis on which
the respondents, in their petition,
postulated that the holding of the referendum would contravene Article 69. In
addition, they adduced supplementary affidavit
evidence by the second
respondent that the police, on diverse occasions in several districts prevented
members of the Democratic Party from holding peaceful public
meetings. I am constrained to observe, however, that in
dealing with the issue, both the respondents and the
Constitutional Court substantially placed most reliance on the postulate,
and hardly any on evidence of fact as to whether or not the referendum was free
and fair. As we said in the judgment of this Court, the postulate cannot
be faulted. Where, in a democratic setting, the
electorate are asked to choose
between two competing concepts, the respective proponents of
each concept must be given equal opportunity to canvass for support. In
the referendum in the instant case, the competing concepts were the movement
political system and the multiparty political system. It is a notorious fact
that the major competing proponents of the concepts
were the NRM for the
former, and the various political parties for the latter. The minimum
expectation for rendering the referendum free and fair in a democratic
sense
therefore, was that political parties would be free to canvass in
their organised capacities, the same way the NRM was free to canvass in its very
highly organised capacity.
Counsel for the appellant
conceded that political parties were not free to
canvass but he went to great length to argue that it was sufficient that
individual members of the political parties were free to canvass for the
multiparty political system. I appreciate that in this argument learned
counsel
took advantage of the incoherent provisions of the Constitution, which are
difficult to harmonise. On the one hand, the Constitution
protects the freedoms
of assembly and association, expressly stated to include the freedom to
form and join political organisations (Article 29); it guarantees the
right to
form political parties and any other political organisations (Article 72) and it
prohibits the establishment of one-party state
(Article 75). On the other hand, however, the combined
effect of Articles 73, 269 and 271(1), is that while the movement system is in
place, political parties are barred from carrying out
activities that are essential for their functioning and existence, including the
activity of public canvassing for support. The incoherence I refer to is
that the same Constitution promises to guarantee, protect and uphold the
said rights and freedoms while at the same
time it withholds the privilege and enjoyment of those rights and
freedoms. Even if it were accepted that the law permitted everyone to,
and in
fact every interested individual did canvass, as asserted by counsel for
the appellant, it is difficult to perceive as "fair", a referendum where the
major competing proponents do not have
equal opportunity to canvass for support.
For that reason I would not fault the postulate that a
referendum held under the legal
regime prevailing at the material time would not be free and fair.
However, that notwithstanding, it is a rule of constitutional interpretation
that the Constitution must be read as one whole. The court must endeavour
to harmonise its provisions and not hold one to override another. In that
regard, and
difficult as it may be, I am obliged to construe the
incoherent provisions as envisaging that "free and fair" elections and
referenda may be held even where political parties are not free to
participate. In those circumstances, the Constitutional Court ought not to have
resolved the issue solely on basis of the postulate. By the time the
petition came up for hearing, the conduct of the referendum was no longer a
matter for speculation.
The referendum had already been held and its
conduct could be inquired into to ascertain whether or not, it had
actually been free and fair. As I have just observed, since
the Constitution appears to envisage free and fair elections and
referenda even under the
movement political system, the Constitutional Court ought to have
considered the question whether
despite the absence of law permitting political parties to
canvass, the conduct of the referendum was free and fair. I hasten to add that
the burden was on the respondents who sought nullification of the
referendum, to prove that it was not free and fair.
The only semblance of factual evidence on this question is from Hon. Zachary Olum, who averred in his supplementary affidavit dated 16 October 2000 -
"5. That I know as a leader and member of the Democratic Party that on a number of occasions the police acting on orders from Government has prevented me and other fellow members of the Democratic Party from holding peaceful public meetings in places like Tororo, Mbarara, Nkozi and Gulu - thus denying us the right and freedom of association and assembly."
Although the appellant did not adduce any evidence in rebuttal, I am
unable to say that the respondents seriously put this allegation forward
as proof that the referendum was not free and fair.
Wittingly or unwittingly, it lacks essential particulars and detail to
link it to the referendum. For example, the deponent did not disclose the period
and circumstances
in which the police prevented him and his colleagues from
holding the public meetings, nor did he state the
objectives of the thwarted meetings. He only averred that they
were thereby denied the right of
association and assembly, but nothing about being
denied the freedom to canvass. The court cannot assume that the
meetings were intended for canvassing for
support in the referendum. Clearly, the
allegation is not a sufficient basis for a judicial
finding that the referendum was not free and fair. In the premises, there
was no adequate proof that the referendum contravened Article 69. Significantly,
both at the trial and in this appeal, the respondents did not attack the
referendum for any other constitutional infringement or for
being
something done on authority of a void statute. The Constitutional Court also did
not find that the referendum infringed the Constitution
for any other reason
than the unproved contravention of Article 69.
Admittedly on the face
of it, the referendum was conducted
under the impugned Act, which was void.
However, the authority to hold it and
consequently its legitimacy lay in the
constitutional dictates of Articles 69 and 271, which read
-"69. (1) The people of Uganda shall have the right to choose and adopt a
political system of their choice through free and fair elections
or
referenda."
"271.
(3) During the last month of the fourth year of the term of Parliament referred to in clause (2) of this article, a
Referendum shall be held to determine the political System the people
of Uganda wish to adopt."
The holding of the referendum complied with those
dictates notwithstanding the failure of Parliament to enact a valid
law under Article 271(4) 'to give effect to the provisions of (the)
article.' In my view, the absence of a valid law enacted
under Article 271(4) did not vitiate the legitimacy of the referendum held in
compliance with Article 271(3). Accordingly,
I concurred in this Court's finding
that the Constitutional Court erred in holding that the referendum was void for
contravening
Article 69. Grounds 4, 7 and 8 had to succeed.
In
addition, as we observed in the judgment of this Court, the
Constitutional Court ought to have taken the circumstances and justice of
the case into account before granting the declaration nullifying the
referendum. Needless to say, this observation is not part of the
ratio decidendi. It was made, and I reiterate it here to provide
guidance on a declaratory judgment or a judicial
declaration as a remedy. It is apparent from their
judgments that the learned Justices of the Constitutional Court took the
declarations they made as automatic
consequences of the finding (or assumption)
they had arrived at, that the referendum was not free and fair, and therefore
contravened
Article 69. A declaratory judgment is not a mere pronouncement. It
is sought and is given, as a binding legal remedy or relief from a wrong.
It is a court order like an order of injunction, certiorari, mandamus,
specific performance etc. Except in particular circumstances where the
appropriate remedy is fixed by statute, the court has inherent
discretion to determine what remedy is appropriate in the case before it.
When considering an application for such remedy, all considerations
pertaining to the justice of the case fall within the purview of
the court. The court has to weigh all the pertinent circumstances in
order to determine if it is just to grant the remedy. This is true
whether the remedy is sought for a wrong
against a private right or a wrong of a public nature such
as contravention of the Constitution. The position
under Uganda law is not different from that under
the English law, which is summarised in Halsbury's Laws of
England, 4th Ed. Reissue Vol. 1(1) at p. 272
Para. 165 thus -
"165. Remedy is discretionary. In both judicial review proceedings and in an ordinary action, the power to make a declaratory judgment is discretionary. The discretion should be exercised with due care and caution, and judicially with regard to all the circumstances of the case, and except in special circumstances should not be exercised unless all parties interested are before the court. It will not be exercised where the relief claimed would be unlawful or unconstitutional or inequitable for the court to grant or contrary to the accepted principles upon which the court exercises its jurisdiction." (Emphasis is added)
My learned brother Kanyeihamba JSC
has strongly expressed the view that in
constitutional disputes the court's role should be confined to precise
and objective interpretation of constitutional provisions and
empirical declarations of law, and that the court cannot, on basis of
extraneous issues, exercise discretionary powers to decline to grant a remedy
sought by a petitioner. I respectfully agree that the
court must be precise and pronounce its
interpretation of the constitutional provisions referred to it
objectively. I do not agree, however, that the court has no discretion
whether to grant the remedy or not. The discretion is in regard
to granting the
declaration as a remedy not in making the interpretation. The court has no
discretion to interpret the Constitution
other than it is, but it has
discretion to grant or refrain from granting a declaration as a remedy. It will
suffice to refer to two judicial precedents
where the discretion was invoked in
Uganda. In Opoloto vs. Attorney General, (1969) EA 631, the
appellant, formerly Chief of the Defence Staff in Uganda Army sought a
declaration that his discharge from the army was invalid.
The Court of Appeal for East Africa said -
"Under Order 2
rule 7 of the Civil Procedure Rules the court may make a binding declaration of
right whether or not any consequential
relief is or could be claimed. This is
a very wide power but it is a discretionary power and one, which should be
exercised if at all, only with the greatest caution."
(Emphasis added) The court, after reviewing surrounding
circumstances, including the fact that the position the appellant was discharged
from was connected with state security
and one requiring confidence of the head
of government, declined to grant that declaration. Similarly, in Andrew
Lutakome Kayira & Another vs. Edward Rugumayo & Others,
Constitutional Case No.1 of 1979, the Court of Appeal for Uganda, as the
court with exclusive original jurisdiction over constitutional
interpretation, refrained from granting a declaration that the removal of
Prof. Yusuf Lule from office of President of Uganda by the National
Consultative Council (NCC) was unconstitutional, though the majority held that
the NCC had no power to remove the President
from office.
The
Constitution, in Article 137, vests in the Constitutional Court jurisdiction to
interpret any of its provisions and power to grant
a declaration on basis
of its interpretation. It is however silent on the manner of
exercising that power. I find nothing in the
Article or else where that could be construed as
a restriction on the court's inherent discretion in
exercising the power to grant the remedy of a declaration. Upon finding that an
act or omission is inconsistent with or in contravention of a provision
of the Constitution, the court should consider if granting the declaration is an
appropriate
remedy. In the instant case, even if the court's finding that the
referendum contravened Article 69 was correct, the court in exercise
of that
discretion ought to have considered if in all the circumstances it would
be appropriate to grant the declaration that the referendum was invalid.
The pertinent circumstances were that the respondents' petition,
which had
pre-emptively challenged the referendum, was not tried and concluded until four
years after it was filed. Meanwhile the
referendum was held
in which the majority of the electorate voted in favour of the movement
political system and the system was duly adopted.
The following year,
Presidential and Parliamentary elections were conducted in accordance with that
system. Later the same was done in respect of local governments, and
generally the political affairs of the state were for more than four years
conducted on the basis of that system. A declaration that the referendum
was null and void would in all probability nullify not only the
referendum but also all that had been done in consequence of its
result. Needless to say, that would have created political and constitutional
instability and uncertainty, unproportional to the benefit the
country would have derived from such remedy. In my view those were
compelling circumstances, where the court would judicially exercise its
discretion
to refrain from granting the declaration. But, for avoidance of
doubt, I have to reiterate that in the instant
case the exercise of the discretion
did not arise since, as held by this Court, the referendum was not
invalid.
Doctrine of Prospective Overruling.
In ground 14 the appellant criticised the Constitutional Court for refusing to apply the doctrine of" prospective overruling" to the instant case. The ground reads -
"14. The learned Judges of the Constitutional Court erred in law and in
fact in holding that the doctrine of prospective over-ruling
could not apply to
the petition."
This ground was principally pursued in the alternative, in case
this Court upheld the Constitutional Court decision to nullify the
impugned Act and/or the referendum. To my understanding,
the appellant's objective was to save the
referendum from being nullified
consequent upon the nullification of the impugned Act. Counsel for
the appellant sought to persuade this Court to hold, pursuant to the doctrine
of
prospective overruling, that the nullity of the impugned Act, if any, should
take effect from the date of the court's decision;
and that anything previously
done on its authority, including the referendum, is
not vitiated by that nullity. Since we held
that the referendum was valid,
irrespective of the nullity of the impugned Act, it
was unnecessary to consider if the Constitutional Court should have applied the
doctrine to save it.
Accordingly ground 14 was not determined. In my view
however it had to fail since by the holding of this Court, the doctrine
did not arise.
Because the doctrine in issue has been
embraced by many jurisdictions, though still apparently a novelty
to our own jurisprudence, it is useful to express views, albeit
obiter, on its scope and to consider its viability as a tool in
our own constitutional interpretation. The learned Chief Justice has, in his
reasons, ably and exhaustively outlined the development and scope of the
doctrine by reviewing a substantial number of cases in
which courts in North America, Asia, Europe and South Africa considered and
applied the doctrine. I will confine myself
to a few observations on the
considerations on which the courts have based application of the
doctrine; and my opinion on the viability of the doctrine in our
jurisprudence.
Under the doctrine of prospective overruling, when a competent court declares a law to be invalid it may, in special circumstances, order that the declaration will apply only to the future, i.e. prospectively, and will have no retrospective effect. I would categorise the cases availed to us in which the doctrine has been applied into three. The first category includes cases where the court's decision declaring the law to be invalid amounts to a departure from its previous decisions holding or applying that law as valid law. Upon applying the doctrine and ordering that its new declaration shall have no retrospective effect, the previous decisions, remain undisturbed as if the law was valid when they were pronounced. That is the context in which the following courts applied the doctrine in the mentioned cases; namely the U.S. Court of Appeals, Fifth Circuit, in Linkletter vs. Walker, Warden 381 US (1965) 618; the Supreme Court of India in Golak Nath vs. State of Punjab (1967) AIR 1643; and the Supreme Court of Malaysia in Public Prosecutor vs. Dato Yap Pens (1988) LRC (Const) 69. Describing the doctrine in relation to that category, Abdoolcader S.C.J., in Dato Yap Pens case (supra) said at p.93, the doctrine is -
"to the effect that when a statute is held to be unconstitutional after overruling a long-standing current of decisions to the contrary, the court will not give retrospective effect to the declaration of unconstitutionality so as to set aside proceedings of convictions or acquittals which had taken place under that statute prior to the date of judgment, which declared it to be unconstitutional, and convictions or acquittals secured as a result of the application of the impugned statute previously will accordingly not be disturbed."
The second category is where in making a declaration of invalidity the court, though not departing from any previous decisions to the contrary, is interpreting the law differently from what hitherto the public had mistaken it to be and on which they had in good faith regulated their affairs and relationships. Upon the court applying the doctrine, and ordering the declaration to have only prospective effect, the affairs and relationships previously entered into in accordance with the misinterpretation remain undisturbed. The judgment of the Court of Justice for the European Communities (CJEC) in Defrenne vs. Sabena (1981) 1 All ER 122 falls in this category. That judgment was on a reference from a Belgian court of two questions concerning the effect and implementation of Art.119 of the EEC Treaty regarding the principle that men and women should receive equal pay for equal work. Upon holding that national courts of member countries were under obligation to enforce the principle even in absence of national law to domesticate the provisions of Art.119, the CJEC applied the doctrine because employers had been led to believe the contrary. The holding is summarised in the head note of the report at p. 123 thus -
"(5) Since employers had been given the impression by the Commission of the European Communities and the member states themselves that discriminatory practices could be maintained until prohibited by national law, considerations of legal certainty required the court, as an exceptional measure, to declare the law for the future only except for those who had already commenced proceedings."
The third category is where, upon holding a legislation to be
unconstitutional, the court has applied the doctrine of prospective overruling
to suspend the declaration of invalidity in order
to give the legislature time
to rectify the defect(s) in that legislation. This category was evolved
by the Supreme Court of Canada in the cases of Reference re
Manitoba Language Rights (1985) 1 S.C.R. 721, and Schacher
vs. Canada (1992) 2 S.C.R. 679. This category was given recognition
in the South African Constitution, which empowers the court to annul a law
for
inconsistency with the Constitution, but provides that the court may
require the legislature to correct the defect in the law within a
specified period, and that such law shall remain in force pending correction or
expiry of the
period so specified.
I discern two important
characteristics common to the three categories. First, the application of
the doctrine is at the discretion of the court. Even in South Africa where the
doctrine is
embodied in the constitution, its application is at the
discretion of the court. Thus, in Case and Another vs. Minister
of Safety and Security (1996) S.A. 617 (CC), where
the Constitutional Court of South Africa, declared
provisions of a statute unconstitutional and therefore
invalid, it rejected an application for it to invoke the doctrine and
suspend the invalidity. In the court's view the immediate taking
effect of the
declaration would not create a lacuna in the law, as there were other laws that
covered the feared mischief. Secondly,
although the grounds on which the courts
have applied the doctrine are expressed in different formulations, the core
ground is that
if the invalidity is allowed to have retrospective effect it
would lead to injustice, hardship, lacuna in the law or legal chaos
involving
rights and obligations vested under the invalidated law. In
Linkletter vs. Walker (supra), (the apparent origin of the
doctrine of prospective overruling), the court considered if it should give
retrospective effect
to its recent decision in Mapp vs. Ohio
367 U.S. 643 in which it had overruled a long-standing decision in
Wolf vs. Colorado 338 U.S. 25 and held that "all
evidence obtained by searches and seizures in violation of the Constitution
is... inadmissible in a state court." In deciding to make the holding apply
to the future only, the majority judgment in Linkletter case
noted, inter alia, the numerous final decisions of state courts
in which such evidence had been admitted in accordance
with Wolf vs. Colorado (supra) that would be
liable for revision, and observed -
"Hearings would have to be held on the excludability of evidence long since destroyed, misplaced or deteriorated. If it is excluded, the witnesses available at the time of the original trial will not be available or if located their memory will be dimmed." The majority concluded thus -
"All that we decide today is that though the error complained of might be fundamental it is not of the nature requiring us to overturn all final convictions based upon it. After full consideration of all the factors we are not able to say that the Mapp rule requires retrospective application."
On the other hand the South African
Constitution empowers the court to apply the doctrine on a wider
criterion; namely "in the interest of justice and good
government". While every jurisdiction embracing the doctrine will
determine on what criteria it will apply the doctrine, in my view its legitimacy
can only be justified on the purpose for which it was evolved, namely to
alleviate unjust or other undesirable consequences from the strict
adherence to the much older common law doctrine to the effect that a law
declared by the court to be void is deemed to be void ab
initio. In other words, the doctrine of "prospective overruling" has
been evolved by the courts to counter the ills or excesses of the
absolute application of another doctrine, i.e. the doctrine of
"retrospective overruling" similarly evolved through case law. I understand
the
former to be a qualification, and not a substitute of the
latter.
In conclusion I am constrained to observe that
although the doctrine as named and described appears to be a
novelty in Uganda, its substance is not so alien. To my understanding, it
is a variety of, or improvement on the court's inherent discretion, which we
referred
to in the judgment and which I discussed earlier under grounds 4, 7 and
8. The difference between the two, which in my view is not very
substantial, is that under the doctrine of prospective overruling the
court grants the declaration of invalidity, but uses its discretion to
determine and order when the declaration takes effect, while invoking the
inherent discretion to decline
issuing the declaration as a remedy, is like the
proverbial burying of the head in the sand. In my view
therefore, there should be no difficulty in applying the doctrine
of prospective overruling in Uganda in appropriate circumstances. For example, I
would opine
that if it had been prayed that declarations of invalidity in
two recent cases, one by this Court and the other by the
Constitutional Court, be applied retrospectively, the court's inherent
discretion would most probably have been invoked to reject
the application. In Charles Onyango Obbo and Andrew Mwenda
vs. Attorney General,
Constitutional Appeal No.2 of 2002, (unreported), this Court declared
that section 50 of the Penal Code Act was unconstitutional.
The appellants had
been convicted and sentenced. No order was made to quash or annul the
conviction, though we criticised the Constitutional Court for
having ordered
that the prosecution under that section must precede the determination of its
validity. Obviously any attempt to apply that decision retrospectively to
review or revise previous convictions would not succeed. In Uganda
Association of Women Lawyers and 5 Others vs. Attorney General,
Constitutional Petition No.2 of 2002, (unreported), a public
interest petition, the Constitutional Court declared that several sections of
the Divorce Act violated the constitutional principle
of gender equality and
were therefore, null and void. Although the court was not asked to, and did not
express itself on the issue,
its declaration cannot be construed to have
implicitly affected the validity of court decrees and other orders made
previously on basis of those annulled sections of the Divorce Act.
Construing that declaration as having retrospective effect would lead to legal
chaos.
In the instant case the Constitutional Court expressed the view that
the doctrine of prospective overruling was applicable only to criminal
cases. Obviously, that view was per incurium as the jurisdictions
that have so far embraced it have not confined its application to
criminal cases only. Indeed the two Ugandan cases of Charles Onyango
Obbo (supra) and Uganda Association of Women Lawyers
(supra), illustrate that the distinction is
unjustified. The Constitutional Court also opined that only the
highest court could invoke the doctrine. I think that makes
sense in Uganda, but only where the
declaration of invalidity amounts to departing from its
previous decision that the law in question was
valid, since only the Supreme Court can depart from its previous decision
if it thinks it is right to do so. I see nothing to prevent the Constitutional
Court applying the doctrine in circumstances similar to those in
Defrenne case (supra).
Finally, while I
appreciate the concerns so eloquently articulated in his
reasons on the possibility of courts abusing
discretionary powers in their hands, with the
greatest respect, I do not share the of
my learned brother, Kanyeihamba JSC, that on account of that we
should not accept the doctrine in Uganda. Misapplication or abuse of
discretion is not a preserve of Uganda or developing countries, as the
many examples he has listed demonstrate. In my view, it is
irrefutable that strict application of the doctrine of retrospective
overruling at times leads to undesirable consequences. The doctrine of
prospective overruling used in a judicious manner enables the court to
avoid such consequences. What is important therefore, is to establish
criteria upon which the later doctrine should be applied. I go along with
the broad proposal made by the learned Chief Justice in his
reasons, that the doctrine is based on judicial discretion to do justice
in all cases while protecting such values and goals as "preservation of
the rule of law and a stable constitutional order and the prevention of chaos
and anarchy". To this I should add an observation that as
the doctrine entails the exercise of discretionary power, the
doctrine of prospective overruling ought to be
applied judicially and cautiously in exceptional
circumstances; and the fiat that it must never be
invoked if its application would result in legitimising
anything done mala fides, or in undermining the integrity or
wholesomeness of the Constitution.
REASONS OF TSEKOOKO, JSC, FOR THE DECISION OF THE COURT
We concluded the hearing of this appeal on 11/8/2004 and reserved our
judgment to be given on a date to be notified to the parties.
However, after
studying the record of appeal and considering the issues raised therein and
submissions made before us, we agreed
on the decision of the Court but we
realised that we would take time to write detailed reasons on some important
issues. We, therefore,
agreed to announce the ultimate decision which we
delivered on 2/9/2004 and promised to give detailed reasons individually later.
I have read in advance the draft reasons of my Lords the learned Chief Justice,
and of the other members of the Court. Because of
the importance of the matters
raised in the appeal, I want to give in my own words my reasons in support of
the decision of the court.
I will first summarise the background to this appeal.
The learned Chief Justice has set out the allegations which the respondents
listed in their petition and the prayers for declarations sought in the
Constitutional Court. Five issues were framed for decision
by the Constitutional
Court-Article 271 ["the Article"] of the Constitution provided for the holding
of a referendum in the fourth
year of the life of the Parliament which would be
elected after the promulgation of the 1995 Constitution. That Constitution was
promulgated on 8/10/1995. Elections for the first Parliament following the
promulgation took place in June, 1996 and the life of
the resultant Parliament
began on 2/7/1996. So the said referendum was due to be held before
1/7/2000.
Clause [4] of "the Article" empowered Parliament to enact a law to
give effect to the provisions of the Article. In effect this meant
enacting a law to regulate the holding of the referendum. On 2/7/1999,
Parliament enacted the Referendum and Other Provisions Act,
1999 [Act 2 of 1999] to that effect. The respondents in the present
proceedings challenged the validity of the enactment of that Act in
Constitutional
Petition No.3 of 1999. The Constitutional Court declared Act 2 of
1999 null and void on 20/8/2000. Prior to that judgment and because
the
Government appears to have anticipated the Court outcome of that Constitutional
Petition (No.3 of 1999), the Government caused
Parliament to debate and pass the
Referendum [Political Systems], Act, 2000 [Act 9 of 2000] within
three hours of the afternoon of 7/6/2000.
The respondents were aggrieved by
the procedure adopted in passing Act 9 of 2000 and were also dissatisfied with
the contents of some
of the provisions of the same Act. On 22/6/2000, the
petitioners instituted a Constitutional Petition from which this appeal arises.
In that petition, the respondents challenged the validity of Act 9 of 2000 on
several grounds and prayed the Constitutional Court
to declare the Act null and
void. Unfortunately and inspite of the urgency and importance of the petition,
the Constitutional Court
postponed indefinitely the hearing of the petition
despite the express provisions of Article 137(7) which require the Court to hear
and determine a constitutional petition as soon as possible. Consquently, on
17/10/2000, the hearing of the petition was adjourned
indefinitely pending the
outcome of another Constitutional Petition (No.7 of 2000) which hod been
instituted by some other persons. It was not until April, 2004 that the
Constitutional Court was able to hear and dispose of the petition, declaring Act
9 of 2000 null and void. The Court also made
other declarations including a
declaration that the referendum which was held on 29/6/2000 pursuant to
Articles 69 and 271, and the results of the referendum were of no effect.
The Attorney-General appealed to this Court against that decision. Fourteen
grounds
of appeal were formulated and filed in this Court.
During the hearing of the appeal, Hon. Amama Mbabazi the then Attorney General was assisted by Mr.J. Matsiko, Principal State Attorney (PSA), to prosecute the appeal. He abandoned ground 1 and indicated that appellant, would argue the rest of the grounds as follows: 2 and 3 together, 4,7 and 8 together, 5 and 6 together, 9 and 10 together, 11, 12, 13 and 14 separately. That order was followed except that grounds 11 and 12 were indirectly argued. I start with the second and third grounds which were formulated in these words:
2. The learned judges of the Constitutional Court erred in law and in fact in holding that the expired Referendum (Political Systems) Act, 2000 can be challenged as being unconstitutional. 3. The learned Judges of the Constitutional Court erred in law and in fact in hearing and deciding on a Petition challenging a non-existing dispute on the basis of a non-existing law.
These two grounds relate to the first issue which was framed in and decided by
the Constitutional Court.
The issue before that court read as follows:
-
Whether or not the Referendum (Political Systems) Act, 2000 is law and
can be challenged.
In our judgment which we delivered on
2/9/2004, we found that the Referendum (Political Systems) Act No.9 of 2000 was
enacted as an
Act of Parliament and was in force on 22/6/2000, when the
respondents filed the petition in the Constitutional Court, alleging that
the
Act was passed in contravention of diverse provisions of the Constitution, the
subsequent expiry of the Act, after its purpose
was accomplished, did not erase
its effects, nor did it extinguish the cause of action to which its enactment
gave rise. We concluded
that the Constitutional Court was seized of a live and
existing dispute and did not err in holding that the Act can be challenged
in
Court under Article 137 of the Constitution.
Mr. Joseph Matsiko, argued grounds 2 and 3 on behalf of the appellant. He opened his address by posing the question-
"At the time when the petition was heard (on 28/4/2004) was there a
dispute that required a resolution by the Constitutional Court?"
According to him, there was no dispute and, therefore, the Constitutional Court had no business in hearing a dispute which no longer existed in as much as the referendum had been held under an Act which had itself expired on 29/6/2000 on the day the Referendum was held. He contended that none of the rights created by the Referendum (Political Systems) Act, 2000, were under challenge in the Constitutional Court. The learned Principal State Attorney added that: -
"dormant law remains ineffective" and cited
Attorney-General Vs D. 3. Rwanyarare and 9
Others
[Constitutional Appeal No.2 of 2003] [unreported] in support. Mr.
Matsiko's arguments are similar to those which were advanced in
the
Constitutional Court by Mr. Tibaruha, the Solicitor-General. The Constitutional
Court rejected the learned Solicitor-General's
arguments.
Mr. G. Lule, for the respondents, adopted the arguments he had made during
the hearing of the petition, in the Constitutional Court,
where he prosecuted
the petition on behalf of the respondents. In his submissions before us, he
combined grounds 2,3 and 14. I will
here refer to those of his arguments as are
relevant to the first two grounds and to issue 1 as framed by the Constitutional
Court.
In the Constitutional Court, Mr. Lule contended, and he
repeated that contention before us, that Act No.9 of 2000 was law and can
be
challenged under clause [3] of Article 137 of the Constitution. He argued that
in the petition the respondents, as petitioners,
challenged the Act by alleging
that the Act was made in contravention of the Constitution. He further argued
that by virtue of Article
50 of the Constitution, a threatened wrong can be
challenged in Court and that by challenging Act No.9 of 2000, the respondents
intended
to stop the referendum. Therefore the holding of the referendum was
challenged before it was even held.
Clause [1] of Article 50, state -
"(1) Any person who claims that a fundamental or other right guaranteed under this Constitution has been infringed or threatened, is entitled to apply to a competent Court for redress...... "
In the pleadings, the respondents alleged that Act No.9 of 2000 was
inconsistent with some provisions of the Constitution, particularly
Articles
20,21,29,43, 73, 269 and 271.
The pleadings alleged;
"that omission by Parliament to enact the Political Organisations Bill under Article 269 of the Constitution had so corrupted the democratic process that the fundamental right to free and fair elections cannot be provided in the Referendum in contravention of Article 69 of the Constitution."
Clause [3] of Article 137 reads-
"[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;
is inconsistent with or in contravention of a provision of this
constitution, may petition the Constitutional Court for a declaration
to that
effect. "
There is no doubt in my mind that because of the allegations made by the
respondents, in their petition they had established a cause
of action entitling
them to institute the petition in the Constitutional Court challenging Act No.9
of 2000 and the activities intended
to be carried out or implemented under the
authority of the Act. The appellant argued in the Constitutional Court and in
this Court,
that because the Act was made for the sole purpose of holding a
referendum and that sole purpose was achieved, i.e., a referendum
was held on
29/6/2000 and the results were announced, the Act expired on that day, it has
since been wiped off from our statute books
and, therefore, there is no law to
challenge nor any dispute to settle. With due respect I cannot agree with this
type of reasoning
which is premised on wrong basis. In my opinion the policy or
scheme of the Act is instructive.
First of all the Act itself does not set
its life span or a dateline when it would expire after the conduct of the
referendum.
The argument by the learned Principal State Attorney that the Act
expired on the day the referendum was held ignores the effect or
policy of some
of the provisions of the same Act. For instance, S.5(4) provided for holding the
referendum on the same day in the
whole of Uganda unless it is impracticable to
do so. "In that case the referendum may be held on different dates in
different places as is practicable".
Here the Act itself shows the
legislature anticipated a possibility of the Act lasting beyond the day when a
referendum could be held
in different parts of the country. I think that if Act
9/2000 was intended to expire on the day the referendum was held or on the
day
the results of the referendum were announced or were published, the Act would
have clearly stated so. The Constituent Assembly Statute, 1993
[Statute No.6 of 1993] provides a clear illustration of this view. In
section 2 thereof, it stated: -
"2 This statute shall come into force on such date as the Minister may, by statutory instrument, appoint and shall remain in force until the day the new constitution comes into force, and on that day, shall expire."
These definitive words of an enactment
do not appear anywhere in Act 9 of 2000, nor even in S.29 which provides for
transitional matters
nor indeed in its interpretation section 3. The Act was
enacted like any other ordinary Act intended to endure for some unspecified
time
to cater for the consequences that would arise during the implementation of the
Act.
Second, the provisions under section 17 of the Act are equally instructive.
Under its subsection (1), any registered voter with the
support of 2% of the
total number of voters in Uganda can within 30 days after the results are
published in the Gazette petition
the High Court challenging the results of the
referendum. In this case the results were published in the Gazettee under
General Notice
No.280 on 28/7/2000. That gazetting was made under Act 9/2000
meaning that the Act never expired on 29/6/2000 as contended by the
appellant
because the gazetting was done under the authority of S.9 of the Act and this
was done a month after the referendum was
held and results thereof
declared.
In addition, because of the provisions of subsection (4) of S.17 of the Act,
any body could have lodged a petition challenging the
results, latest by
27/8/2000. Still, under subsection (6) of the same section 17, the High Court
had 30 days from 27/8/2000 within
which to try and dispose of the
petition.
Under S.8 where, in a referendum, no side obtains the majority..., the
referendum shall be repeated. Needless to say, repeating the
referendum would
have to be organised later than 29/6/2000 under Act 9 of 2000 in order for the
referendum to be lawful. This implies
the Act would still be in force at that
time.
Under subsection (13) of S.17, if the referendum were annulled, by the High Court, a fresh referendum
"shall be held not later than ninety days from the date of
annulment"
It seems to me that if there was such an annulment a fresh referendum would be held under the provisions of the same Act, meaning thereby that the Act would remain in force to enable the fresh referendum to be held.
It is noteworthy that if a petition were filed and determined by the High Court, a person aggrieved by the decision of the High Court had a right under the Act to appeal to the Court of Appeal. From the wording of the provisions of S.20, such an appeal could take some time before it would be disposed of, therefore, implying that though the appeal must be heard and disposed of expeditiously, one cannot be exact as to how long court proceedings from the High Court to Court of Appeal, could take to complete the Court process. Incidentally, under subsections (2) and (3) of section 13 of the Interpretation Act, investigations, inquiries, etc, commenced under a repealed or an expired Act, of Parliament are not affected. S.13 (2) and 13 (3) read as follows: -
(2) Where any Act repeals any other enactment, then unless the contrary intention appears, the repeal shall not -
(a) affect the previous operation of any enactment so repealed or anything duly done or suffered under any enactment so repealed;
(b) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed;
(c) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act had not been passed.
(3) Upon the expiry of any Act, this section shall apply as if the Act had been repealed."
These provisions reinforce the view I take that these proceedings were
properly conceived and have been conducted according to law.
Besides, in this
country, there is a growing body of constitutional case law supporting the view
that there should be no time limit
to litigation arising out of violations of
constitutional rights: See Attorney General Vs D. Tinyefuza
[Constitutional Appeal No. 1 of 1997], I. Serugo Vs Kampala City
Council and Another [Constitutional Appeal No.2 of 1998] [unreported]
especially pages 23/24 of the judgment of Mulenga, JSC.
From what I have discussed above it appears to me that the framers of Act No.
9 of 2000 were aware of many imponderables that would
arise from the
implementation of the Act and therefore those framers could not fix a dateline
when the Act would be deemed to have
expired or a date when enforcing of rights
thereunder would be extinguished.
The policy of Act 9 of 2000 was such that court proceedings in relation to the holding of the referendum could not die with the holding of the referendum and the announcement of results or indeed the expiry of the Act. It is a question of construction whether the effect of certain provisions in an expired statute survive its expiration. See Gill Vs British East Africa Timber (1956) 23 EACA 202. Where provisions of an expired statute have a continuing effect for certain purposes and the decision is based, not on specific words but on the general policy of the statute, the court should be greatly influenced by the justice of the case: A reasonable man would expect Court proceedings in the present case to run their full course including determination of this appeal. That is the legacy bequeathed by the Act.
Mr. Matsiko relied on our decision in Attorney General vs. Dr. 3.
Rwanyarare & 9 others [Supra] in support of his arguments that Act 9 of
2000 could not breach the Constitution because it had expired. He implied that
it was dormant. In my opinion, and with due respect to Mr. Matsiko, the basis of
our decision in that appeal is distinguishable from
the case before us.
At the risk of being lengthy I will summarise the facts of that petition.
Parliament enacted the Political Parties and Organisations Act, 2002 in
May, 2002. The Act received Presidential Assent on 2/6/2002 and was gazetted on
17/7/2002.
Dr. Rwanyarare and 9 others instituted Petition No.7 of 2002 in
the Constitutional Court on 31/7/2002 and in the petition the main
ground of
grievance was that the Act was inconsistent with and contravened the
Constitution. The Attorney General, as the respondent,
filed an answer to the
petition raising some points of law concerning the competence of the petition.
Subsquently, he filed a notice
of motion seeking to have the petition struck out
on the ground that the petition was filed outside the 30 days limitation period
prescribed by Rule 4 of Legal Notice No.4 of 1996. The Attorney General's
view was that the Act became law on 2/6/2002 upon receiving Presidential Assent
and not on 17/7/2002, the date
on which it was gazetted, as argued by the
petitioners in that petition.
The Constitutional Court accepted the arguments
of the petitioners and so it dismissed the notice of motion.
The Attorney
General appealed to this Court against the ruling of the Constitutional Court.
The central issue argued both in the Constitutional
Court, by the Attorney
General, and in this Court on appeal, by Mr. Matsiko, was that the Act became
effective on 2/6/2002 when it
received Presidential Assent. Mr. Walubiri,
counsel for the petitioners, argued that the Act became effective on
17/7/2002, the date it was gazetted as provided for by the Acts of Parliament
Act (Cap.2) and, therefore the petition which was filed
on 31/7/2002 was filed
within the 30 days period prescribed by the applicable law. We upheld the ruling
of the Constitutional Court
which had accepted the arguments of Mr.
Walubiri.
In our judgment we referred to subsections (1) and (2) of section 14 of Cap.2 and said:
"According to these provisions an Act of Parliament passed following the normal parliamentary law enacting process, becomes a law when it is assented to by the President. However, we understand subsection (2) to imply that a law remains dormant until the day upon which it becomes enforceable and that day is the date of commencement which may be set out in the Act itself or upon publication in the Gazette. Needless to say, a dormant law can not break the constitution, because it is ineffective."
It is very clear from this passage that in the interlocutory Appeal No.2 of
2003 [supra] we were considering a period during which
the relevant law had not
yet become operational and, therefore, Rwanyarare and his co-petitioners could
not challenge a dormant law.
The limitation period had not begun to run because
the Act was dormant until 17/7/2002. In the present appeal Act 9 of 2000 was
operational
and effective when the present respondents challenged its
validity.
It was because of the reasons I have endeavoured to give and those set out in
our decission of 2/9/2004 that I supported the decision
of the Court that
grounds 2 and 3 must fail.
This brings me to grounds 5 and 6 which were
formulated as under:
5. The learned Judges of the Constitutional Court erred in law and in fact in holding that the Referendum [Political Systems] Act, 2000 was passed in contravention of Article 271 [2] of the Constitution. 6. The learned Judges of the Constitutional Court erred in law and in fact in holding that the Referendum [Political Systems] Act, 2000 amended Article 271 (2) of the Constitution.
These two grounds relate to issue No.3 as framed in the Constitutional Court. It was framed this way: -
"Whether or not the Act [9/2000] was made in contravention of Article
271 of the Constitution." All the five Justices of the Constitutional
Court answered this issue in the affirmative. I respectfully agree with their
conclusions.
We stated in our decision of 2/9/2004 that under its Transitional Provisions
in Chapter 19, the Constitution required Parliament under
Article 271, to enact
laws to give effect to the provisions of the Article. We upheld the conclusion
of the Constitutional Court
that Act 9 of 2000 was passed by Parliament in
contravention of the provisions of Clause [2] of Article 271.
Before us Hon. Mbabazi, the learned Attorney General, in his submissions on
these two grounds, opened his address by contending that
the Constitutional
Court had no legal and factual basis for holding that Act 9 of 2000
contravened Article 271 or that the Act amended clause [2] of the
Article. In reference to the holding by the Constitutional Court that
Ugandans did not have time for canvassing in support of their sides,
the learned
Attorney-General submitted that the combined effect of clauses [2] and [3] of
Article 271 was that any person was free to canvass for one year and that
the right to canvass had been granted by the Constitution. The learned
Attorney
General further contended that the petitioners did not discharge the burden of
proving that there was no canvassing or that
there was no law authorising
canvassing. He relied on Presidential Election Petition No.1 of
2001, Col. Dr. Kiiza Besigye Vs Y.K. Museveni & Another
[unreported] in which this Court alluded to the normal rules
of the burden of proof in civil cases. The learned Attorney-General argued that
all the five Justices of Appeal erred
because there was no evidence before them
to support their conclusions that the right given to the public to canvass was
violated.
He again contended that the affidavit evidence in the supplementary
affidavit of Hon. Zachary Olum, the second Respondent, could
not be relied on
for the view that Ugandans were prevented from canvassing. In his view, the
Referendum and Other Provisions Act, 1999 [Act 2/99] which had
been enacted on 2/9/1999 (of which the Constitutional Court and the Petitioners
were aware) was enacted in compliance with
clause (2) of Article 271 and it
enabled anybody to canvass for support. By 29/6/2000 when the referendum was
held, that same Act
[No.2/99] was still in force. The Act was only struck down
on 20/8/2000. He also submitted that Regulations designed to guide canvassing
made under it were saved by Act 9/2000. He referred us to the opinions of a
separate panel of Justices of Appeal in a separate Constitutional
Petition No.5
of 1999 [Dr. James Rwanyarare & Haji Badru Wegulo] in which Berko and
Engwau JJA, had implied that both sides were in the field soliciting for votes.
The learned Attorney General, therefore,
argued that since those Justices
delivered their judgments in June, 2002, their judgments are proof that there
was canvassing in
June, 2000 at the time when Act 9/2000 was enacted by
Parliament. Consequently the Constitutional Court in the present case ought
to
have taken judicial notice of the findings of their bretheren in
Constitutional Petition No.5/1999. For the same view he further cited
Constitutional Petition No.4 of 2000. Dr. J.Rwanyarare & Another
Vs Attorney-General [unreported], in which, according to him, the
Petition sought declarations similar to those sought in the petition from which
arises this appeal
and the Constitutional Court [Manyindo, DC, Kato, Berko,
Engwau and Kitumba, JJA], held the view that there was a law allowing
canvassing.
Mr. Lule when making submissions on this issue in the Constitutional Court
argued that Act 9 of 2000 contravened clause [2] of Article
271, in that it
narrowed to a lesser period the time provided for canvassing under the Article.
That this amounted to a variation
of Article 271 and in effect it amounted to
the amendment of the Article without following the constitutionally prescribed
procedure,
by abridging the time stipulated in Clause [2] of Article 271. So
people could not canvass in arrears since Act 9/2000 in effect
provided a period
of less than one month instead of one year within which to canvass.
In his arguments before us and in reply to the Attorney- General, Mr. Lule
opined that the issue before this Court was whether the
laws put in place were
valid laws. According to Mr. Lule, the nullification of Act 2 of 1999 on
20/8/2000 went back to its beginning
and so any regulations made under that Act
were nullified along with the Act itself. According to learned counsel,
Section.27 of
Act No.9/2000 excludes anything done under any other law. He cited
Boddington Vs Wisson [1951] I ALL E.R.166 in support of his contention,
with which I agree in part, that when regulations were revoked, they are treated
as having had no existence from the beginning.
Relying on the supplementary affidavit of Hon. Olum, the second Respondent,
Mr. Lule argued that many people were excluded from canvassing
and were deprived
of the right to canvass. Learned counsel submitted that Article 271 [2] was put
in place to free people from the
restrictions imposed on political parties by
Article 269 for purposes of canvassing to change a political system. He
contended that
the decisions of the Constitutional Court in
Constitutional Petition No.4 of 2000, Dr. James Rwanyarare &
Another Vs Attorney General [supra] and Constitutional Petition No.5 of
1999, Dr. James Rwanyarare & Haji Badru Wegulo Vs Attorney General
[supra] relied upon by the learned Attorney-General to show that there was
canvassing, are not relevant. Learned Counsel argued that
there had to be
evidence proving that in fact there was canvassing.
As I understand grounds 5 and 6, the crux is whether Act 9 of 2000 is valid
law. The question of whether there was or there was no
canvassing was secondary.
I think that the issues raised in both of Dr. Rwanyarare Petitions No.5 of
1999 and No.4 of 2000 [supra] are not quite relevant to the issues raised by
grounds 5 and 6. It is convenient to dispose of the relevancy of decisions
in
these two petitions at this stage.
The learned Attorney - General relied on the two Rwanyarare Constitutional
Petitions [No.5 of 1999 and No.4 of 2000] in support of his arguments
that there was a law authorising canvassing and that indeed the canvassing did
in fact take place. He
contended that therefore in the present case, the
Constitutional Court erred first to hold that Act 9 of 2000 gave very
short time for Ugandan's to canvass when the attention of the Constitutional
Court had been drawn to the existence of Act
2 of 1999 which allowed canvassing.
He also argued that the Constitutional Court should have taken judicial notice
of its judgments
in constitutional petitions No.5 of 1999 and No.4 of 2000
on the fact of canvassing.
CONSTITUTIONAL PETITION No.5 OF
1999.
In July, 1999 Parliament enacted Act 2 of 1999. Although it
received presidential assent on 3/7/1999 commencement date was 2/7/1999
which
must have been done to comply with constitutional requirements. The long title
of the Act reads as follows: -
"An Act to make provision for the holding of referenda in pursuance of the provisions of articles 74 and 76 of the Constitution; to give effect to Articles 255,259 and 271 of the Constitution; to cater for any other referendum required to determine any matter; to cater for a change in the political system by petition of district councils and a resolution of Parliament under clause [2] of article 74 of the Constitution: to repeal and replace the Referendum Statute, 1994 and to provide for other matters connected with or incidental to the foregoing."
Dr.J. Rwanyarare and Haji B.K. Wagulo, as leaders of the Uganda People
Congress [UPC] felt that the Act was inconsistent with and
it contravened
certain provisions of the Constitution. The two petitioned the constitutional
Court seeking for diverse declarations
among which was a prayer asking the court
to declare the Act null and void.
Three issues were framed for decision namely -
1. Whether S.4 [2] of the referendum and other provisions Act, 1999 is consistent with and contravened Articles 28 and 128 of the Constitution.
2. Whether S.21[3], [4], [5] [6] and [7] of the Act contravenes Article 29 [1] [a] of the Constitution and
3. Whether sections 4[I] [d], 10; 13[2] and [3] and 26 of the Act are inconsistent with and contravene Article 69 of the constitution.
The learned Deputy Chief Justice, Engwau
and Berko, JJ.A., answered all the three issues in the negative and so declined
to grant
the prayers. On the other hand Twinomujuni and Okello, JJA, answered
the three issues in the positive and were inclined to grant
the declaration. So
by a majority of three to two the petition was dismissed. It is important to
note that none of the three framed
issues was about canvassing.
During the submissions, however Mr. Walubiri who represented the two
petitioners appears to have argued that if one were to canvass
for multiparty
political systems, one had to be allowed to come out in party colours in order
to show that canvassing [campaigning]
was fair. According to him the existing
law, Act 2/1999, prohibited use of party colours and symbols. It was mainly
because of those
contentions that the learned justices alluded to either
canvassing or campaigning in the course of their judgments while considering
the
third issue. That issue was about contravention of Article 69 which is about
choosing a political system.
When arguing the present appeal the learned Attorney-General referred to
those parts of the judgments of Manyindo DCJ, Engwau and
Berko JJA, when each
concluded consideration of the third issue. Even then I do not see anything in
the same judgements pointing
to evidence from which the learned Justices could
conclude that canvassing took place.
Although the present appeal is not from a decision in Constitutional Petition No. 5 of 1999 to warrant long discussion of that decision I am obliged to refer to a portion of Engwau JA's judgement. Without pointing out supporting evidence he stated:
"Both sides are on board soliciting for votes during the referendum. It is a statutory duty for the Electoral Commission to ensure that the referendum is conducted in a free and fair manner. Article 269 of the Constitution is still valid law. I do not see how multiparty political system can operate under individual political party banner in breach of article 269."
I think that this statement does not dispel the point raised by the second
respondent in this appeal in his supplementary affidavit
sworn in October 2000
that whenever he and his group attempted to canvass for support, they were
prevented from doing so.
As I said earlier, whether or not there was
canvassing was not the issue for determination by the Constitutional Court in
Constitutional
petition No.5 of 1999. The issue which was decided on 6/6/2000
was the validity and effect of Act 2 of 1999. In my opinion, any reference
to
canvassing by either counsel or any of the justices was a by the way. Therefore
the Constitutional Court cannot be criticised
in these proceedings for not
relying on by-the-way comments in petition No.5 of 1999.
Constitutional Petition No.4 of
2000
The same two petitioners [Rwanyarare & Haji Wegulo]
instituted Constitutional Petition No.4 of 2000. The petitioners
challenged the manner of the enactment of Act 9 of 2000 [Supra] and
sought to have the Act declared null and void because of the manner of enacting
the Act and also because its provisions
were inconsistent with and contravened
certain articles of the Constitution especially Articles 79, 90 and 271. Out of
the seven
issues framed for decision, the 1st and the 4th
were considered decisive. Those two issues were in effect similar to the third
issue in the present case. This is about contravention
of Article 271.
Like
in petition No.5 of 1999, none of the seven issues was framed specifically on
whether or not there was canvassing.
In effect the learned Attorney General submitted that since petition No.4 of 2000 was on all fours with the petition giving rise to this appeal, the Constitutional Court in the latter petition was bound by decision in No.4. I think that the Constitutional Court's decision in petition No.4 of 2000 is distinguishable. The learned Attorney General referred to certain passages in the judgements of the Constitutional Court in support of his submission that actions, such as alleged canvassing, carried out under Act 2 of 1999, were validated by Act 9 of 2000. These arguments relate to issue No.5 which was framed as follows:-
Whether sections 2 and 29 of Act No.9 of 2000 are inconsistent with and contravene article 79 [1] and [3] of the constitution.
Article 79 sets out the functions of Parliament. Be that as it may, Kitumba
JA summarised the arguments of both sides on the 5th issue and
concluded:-
"I agree with Mr. Byamugisha. According to Article 271 [2]
of the Constitution a person was free to canvass for public support for
a
political system of ones choice two years before the expiry of the first term of
Parliament. The Referendum and other Provision
Act was in place. The citizens
who so wished participated in the referendum process." She does not
show evidence proving canvassing. Indeed none of the five justices quoted in
their judgements any portions of any affidavit as evidence for the purpose of
proving or disproving
the fact of canvassing which in any case was not framed as
an issue for decision.
As I understand the provisions of Articles 1,69,74, and 271 of the
Constitution, these were intended to assure Ugandans that individually
and
collectively Ugandans are masters of their own destiny and further that Ugandans
will always be afforded adequate constitutional
time and opportunities to shape
the destiny of this country. It is Art. 269 which imposed transitional
restrictions. I must quote
these Articles.
Art.1. [1] All power
belongs to the people who shall exercise
their sovereignty in accordance with this Constitution.
(2) Without limiting the effect of clause [1] of this article, all authority in the State emanates from the people of Uganda; and the people shall be governed through their will and consent.
(3) All power and authority of Government and its organs derive from this Constitution, which in turn derives its authority from the people who consent to be governed in accordance with this Constitution.
(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.
According to clauses [1] and [2] of Article 69, the people of Uganda shall have the right to choose and adopt a political system of their choice through free and fair elections or referenda.
The Justices stressed the existence of the right to canvass. With respect Kato and Engwau JJA misunderstood the importance of canvassing and time for doing so. Thus the former stated:
"I am not persuaded by Mr. Walubiri's arguments' that there was not enough time for candidates to canvass. The issue of whether time is enough or not is subjective. In any case neither Articles 69 nor 70 states as to how much time should be taken by the parties to canvass."
Equally, Engwau, JA misdirected himself on the issue of time for canvassing. He wrote in part:-
"Time might have been too short for canvassing for support for a political systems of ones choice for purposes of referendum but that per se does not make sections 2 and 29 of Act 9 of 2000 violate the provisions of Article 271 [2], [3] and [4] or Article 271 [1] and [3] of the Constitution."
With all due respect, I think that this passage reflects a fundamental
misunderstanding of the import of Article 271 because certainly
abridging time
contravened Article 271 [2].
I am satisfied that the decision of the
Constitutional Court in petition No.4 of 2000 was partially based on failure on
the part of
that Court to understand the correct import of Article 271 regarding
the period for canvassing and, therefore, the petition was decided
on wrong
ASSUMPTIONS. In my opinion the decision cannot support the arguments of the
learned Attorney General that grounds 5 and
6 should succeed. I proceed to
indicate why they cannot succeed.
69 [i] The people of Uganda shall have the right to chose and adopt a political system of their choice through free and fair elections or referenda.
(2) The political systems referred to in clause [1] of this article shall include: -
(a) the movement political system; (b) the multiparty political system; and (c) any other democratic and representative political
system.
269.
On the commencement of this Constitution and until Parliament makes laws
regulating the activities of political organisations
in accordance with article
73 of this Constitution political activities may continue except: -
(a) opening and operating branch offices; (b) holding delegates' conferences; (c) holding public rallies;
271. [1] Notwithstanding the provisions of article 69 of this Constitution, the first presidential, parliamentary, local government and other public elections after the promulgation of this Constitution shall be held under the movement political system.
(2) Two years before the expiry of the term of the first parliament elected under this Constitution, any person shall be free to canvass for public support for a political system of his or her choice for purposes of a referendum.
(3) During the last month of the fourth year of the term of Parliament referred to in clause [2] of this article, a referendum shall be held to determine the political system the people of Uganda wish to adopt.
(4) Parliament shall enact laws to give effect to the provisions of this article.
The provisions of Articles 1 and 271 contain ideals that recognise the
sovereignty of the people and how the people exercise that
sovereignty in
shaping their destiny and ultimately the destiny of Uganda. The transitional
Article 269 in its present form severely
curtails those ideals. I think that
clause [4] of Article 271 makes the effectiveness of clause [2] subject to a
proper law to be
passed by the Parliament to operationalise the latter
clause.
Clause [2] of Article 271 shows that the people of Uganda were supposed to be
given an unhindered opportunity to canvass for public
support for a political
system of their choice for purposes of a referendum. The scheme of Article 271
shows that after the first
three years of undisturbed Movement System of
Government elected under clause [1] thereof, an appropriate law would be enacted
to
enable all shades of political opinion to be let free to propagate their own
views in support of a political system they would want
to be established in
Uganda. In such a scenario those who support the movement system would urge
Ugandans not to change. While those
who believe in multiparty system would urge
Ugandans for change of the system. I note that section 13 of Act 2 of 1999 and
section
12 of Act 9 of 2000 introduced canvassing for sides whereas clause 2 of
Article 271 provided for "any person to be free to
canvass for public support for a political system of his or her choice".
A "side" was defined in both Acts to mean supporters of an
affirmative or of negative "answer to question in the
referendum"
Because of the provisions of Articles 69 and 271, canvassing in the field would be for either the movement system of Government or multiparty system of
Government or any other democratic political system. The inevitable
conclusion is that the competition to woo voters would be between
the adherents
of the movement system and the adherents of the multiparty system. Therefore it
seems to me to be rather unrealistic
to contend, as did the learned
Attorney-General, that Ugandans who happen to belong to any political party and
who took advantage
of the new law allowing all Ugandans space to canvass for
peoples' support for multiparty system in the referendum violated the law
because DP members went out as members of the Democratic Party. Although
paragraph 5 of Olum's affidavit does not mention the dates
when he was prevented
from holding meetings, I do not read in that affidavit that he and group went
out to canvass for DP when the
canvassing was for political systems. It wasn't
the Democratic Party alone which stood for multiparty system. If an adherent of
any
of the recognised political parties went out in the field to canvass for
multiparty political system, it would not be unimaginable
for his/her listeners
who know him/her as belonging to a certain political party to treat him as a
member of a particular party,
however neutral he or she may attempt to be at the
arena of canvassing. I doubt whether any ordinary Ugandan would differentiate
between the canvass as an idealistic multipartist wholly divorced from his
party. In my opinion, therefore, the unchallenged affidavit
evidence by Olum
that he and his colleagues were prevented from holding meetings in diverse
places in Uganda, constitute evidence
that at least a section of Ugandan
multipartyists were prevented from meeting. Because of the restrictions imposed
by Art. 269, absence
of a valid law allowing parties to canvass created
hurdles.
I should allude at this juncture to Act 2 of 1999 and Act 9/2000 and the effect of their co-existence at the time relevant to holding the referendum. Section 27 of Act 9 of 2000 states:
"Notwithstanding the provisions of any other law, the referendum required to be held under Article 271 of the Constitution shall be held in accordance with this Act"
This provision meant that as from 7/6/2000, or indeed at anytime, except the
constitution, no law other than Act 9/2000 regulated
the management and holding
of a referendum under Article 271.
It is common ground between the parties in
these proceedings that Act 9 of 2000 was enacted because the Government
anticipated that
the fate of Act 2 of 1999 was sealed. Consequently, a new law
in the shape of Act 9 of 2000 was enacted giving less than one month
within
which anybody could canvass for support to change the political system. I have
indicated that the two decisions of the Constitutional
Court [Rwanyarare
Petitions No.4 and No.5] mentioned earlier in this judgment and cited
to us and relied upon by the learned Attorney General, in support of the view
that Ugandans
were free to canvass in the field do not help. Olum's unchallenged
affidavit evidence explains this.
I think that the transplanting of certain provisions from Act 2 of 1999 into Act 9 of 2000 on 7/6/2000 meant that the latter Act removed the application of the relevant provisions from Act 2 of 1999. Thus section 13 of Act 2/99 was re-enacted wholesale in identical terms as Section. 12 of Act 9 of 2000. This was one of the most important provisions of either Act. In each enactment the objective and ultimate purpose of that section was to regulate the manner of canvassing by imposing stringent restrictions. Thus a side was to appoint a national committee of not more than 20 members. The Electoral Commission was to issue guidelines for purposes of canvassing and the committees and their agents had to comply with such guidelines.
In my opinion the one year freedom to canvass created by clause [2] of Article 271 was virtually wiped out by subsections [8] [9] and [10] of section 12 of Act 9 of 2000 which read as follows: -
"S.12[8] Any person or group of persons who wishes to canvass for any side in a referendum in any place, by way of meeting or public address, shall, in writing, notify the Subcounty or Division Chief of the area and the police officer in charge of the area, not less than seventy two hours before the canvassing, meeting or public address which he or she wishes to undertake.
(9) A person or group wishing to canvass and referred to in subsection [8], shall give the police officer in charge of the area or the Subcounty or Division Chief such information relating to the activity that person or group wishes to undertake as the police officer may reasonably require, [underlining supplied].
(10) Canvassing for a referendum shall cease twenty four hours before the date of polling in a referendum."
Contravention of any of subsections [8] to [10] attracted
penalty.
Given that the referendum was due to be held before 1/7/2000, the stringent conditions imposed by these subsections especially the requirement for a notice of 72 hours [3 days] before holding a meeting to canvass substantially further curtailed the remaining short period of the canvassing. This was made worse by the requirement for prospective canvassers to give to the police or chiefs further information relating to the activity to take place. All these were in my opinion wholly inconsistent with and they contravened the clear provisions of clause [2]of Article 271.
For the foregoing reasons and those set in our decision both grounds 5 and 6
had to fail. That is why I supported the unanimous decision
of the Court on
2/9/2004.
I will now briefly consider grounds 4,7 and 8 which were argued together. This is how they are framed:
4. The learned Judges of the Constitutional Court erred in law and in fact in holding that the referendum which was held on 29th June, 2000 was invalid.
7. The learned Judges of the Constitutional Court erred in law and in
fact in holding that the 2000 Referendum on choice of Political Systems was held in contravention of Article 69 of the Constitution.
8. The learned Judges of the Constitutional Court erred
in law and in fact in holding that the people of Uganda in a referendum held
on
29th June, 2000 never adopted a Political Systems under Article 69 of
the Constitution.
The background to these grounds of appeal has been set out. Both the learned
Chief Justice and Mulenga JSC have ably considered these
grounds. The
Constitutional Court declared the referendum held on 29/6/2000 and the result
announced on the same day to be of no
effect because the Court had declared Act
9 of 2000 null and void. The Constitutional Court reached the latter conclusions
because
the Court considered these conclusions as natural consequences of its
decision that the Act was null and void. In our decision of
2/9/2004 concerning
this appeal, we noted that both Articles 69(1) and 271(3) provided for holding a
referendum and that a referendum
was held. The respondents challenged its
validity and the Constitutional Court upheld the challenge. We gave considerable
thought
to the matter before we concluded that despite the irregularities and
the imperfections in the holding of the referendum, because
of the two articles,
the referendum itself is valid. The referendum became reality and was accepted
in that the system put in place
on 29/6/2000 is working, and the state functions
are operating. Therefore the three grounds had to succeed partially, principally
because the referendum was held as a Constitution requirement.
I do not consider it desirable to give more reasons on grounds 9, 10, 11 and
13 than those set out in our judgement of 2/9/2004.
I would like to consider the doctrine of prospective overruling which is the
subject of ground 14 of the appeal which is alternative
to ground 4. I have
already considered ground 4 together with grounds 7 and 8.
Ground 14 reads:
"The learned Judges of the Constitutional Court erred in law and in fact in holding that the doctrine of prospective overruling could not apply to the petition."
In our practice overruling normally connotes over-turning a judicial
precedent. Be that as may)
I have read the admirable and exhaustive treatment of this ground by my Lord,
the learned Chief Justice. I have also read the reasons
of each of my learned
brothers. Kanyeihamba JSC strongly argues that the doctrine of prospective
overruling should be confined to
criminal justice, administrative actions and
other cases where discretionary powers and decisions relating to res in personam
abound.
That it should have no place in constitutional disputes where courts'
role should be confined to empirical declarations of law and
the precise
interpretation of constitutional provisions. With respect I do not share this
view. As the learned Chief Justice and
Mulenga JSC have demonstrated exercise of
discretion whether or not to grant a declaration in a constitutional matter is
possible:
See the Uganda Court of Appeal decision in Constitutional Petition No.
1 of 1979.
[Andrew Lutaro me Kayira and another vs Edward
Rugumayo and others] [unreported].
Mr. Matsiko contended that when a court declares a statute to be
unconstitutional, that court should not give retrospective effect
to the
unconstitutionality and relied on court decisions from USA, UK, India and
Malasia. These decisions include Link-letter Vs Walker, Warden 381 US
[1965] 618; Public Prosecutor Vs Dato Yap Peng [1988] LRC [Const.] 69 and
Sumpson Vs Attorney-General of New Zealand [1955] NLR 279 and the House
of Lords Practice Statement [Judicial Precedent] [1966] IWLR 1234.
He urged that even if this Court upholds the decision of the Constitutional Court that Act No. 9 of 2000 is unconstitutional, the actions done or taken under that Act should be saved. He also relied on Section 13 of the Interpretation Act for the same arguments. He criticised the Constitutional Court for nullifying the results of the referendum held under Act 9 of 2000. Mr. Lule for the respondents, as noted earlier, adopted the submissions which he had made in the Constitutional Court. He argued grounds 2, 3 and 14, together and urged us to uphold the decision of the Constitutional Court. Earlier I considered those of his arguments relevant to grounds 2 and 3.
Mr. Lule contended that if the doctrine of prospective overruling were
applied there would be no election petitions because election
petitions relate
to past events. He opined that the cases cited by the appellant relate to series
of events or decisions and not
to legislative enactment and so the cases are
distinguishable.
Mr. Lule appears to harbour the notion that in election petitions,
prospective overruling doctrine does not apply. I understood learned
counsel to
argue that when an election petition is successful, a bye-election which is held
after a successful election petition
is based on the doctrine of retrospective
overruling. With respect, I think that Mr. Lule is not quite correct here.
By-elections
are held, at any rate in Uganda, because of the relevant electoral
laws which do normally require such a course to be taken. For
instance,
subsection (2) of Section 62 of our Parliamentary Elections Act, 2001,
stipulates that where an election is set aside, a fresh election shall be held.
Indeed the impugned Act (9/2000) made provision
to the same effect in the event
of a successful petition in the High Court resulting in annulling the
referendum. A fresh referendum
would be held.
The doctrine of prospective overruling is well developed in the USA and some other common law countries as cases cited to us illustrate. It is my opinion that this doctrine has recently been emerging in Uganda without the courts stating so. There are examples like Charles Onyango Obbo & A.Mwenda Vs Attorney General - Constitutional Appeal No.2 of 2002(unreported). This Court declared S.50 of the Penal Code null and void, because it was inconstent with the constitution. The appellants had been tried on criminal charges. The Court did not say that that trial or all previous trials, convictions or acquittals which had been held or secured before that decision would be reversed. Similarly, the Editor of Shariat, Haruna Kanabi in H. Kanabi
Vs Uganda (High Court CRIM. Appeal 12/95) had been tried and
convicted. His trial was not declared a nullity because of our decision in
Onyango Obbo case. Again Constitutional Appeal No.1 of 1998 Attorney
General Vs Salvatori Abuki (page 245 of 1999 - 2000 DS.Ct., Constitutional
Appeals), the majority held that S.7 of the Witchcraft Act was void
because it was inconsistent with Articles 24 and 44 (a) of the Constitution.
Although he did not say so, this again must have been a prospective
overruling because we did not nullify all previous exclusion court
orders made
under that Act. We only nullified the order made in respect of the petitioner,
Abuki. Indeed even in this Courts Criminal
Appeal No.16 of 1999, Kyamanywa Vs
Uganda, which we referred to the Constitutional Court to consider the
Constitutionality of corporal punishment, subsequently the Constitutional
Court
ruled [in constitutional Ref. 10 of 2000] that inflicting corporal punishment is
inconsistent with Article 24 of constitution.
It is my considered opinion that
this must be prospective overruling because the Constitutional court did not
nullify previous infliction
of corporal caning. Initially When I was reflecting
on the doctrine of prospective overruling, I formed the opinion that subsection
(3) of section 13 of the Interpretation Act (Cap 3 of the Laws of Uganda)(supra)
which specifically deals with the effect of repeal
or expiry of an enactment is
instructive as regards expiry of an Act on vested rights. Indeed Mr. Matsiko
urged us to save the referendum
under that provision. Upon further reflection, I
realised that the effect of a Court declaring an Act of Parliament null and void
is deferent from the effect of a repeal or an expiry of an Act which was
initially a valid and proper law but ceases to be law because
of its repeal by
another Act of Parliament or because it expires by operation of law. The
rationale is that an Act which is declared
null and void is treated as one which
had no existence from the beginning.
Turning to the Public
Prosecutor case, with respect I think that the Constitutional Court in some
respects misunderstood that decision. The facts of that case appear
in law
reports and have been set out in the judgement of my Lord the Chief Justice. On
the doctrines of prospective and retrospective
overruling; the Supreme Court of
Malasia stated this: -
"When a statute was declared unconstitutional after a long standing current of decisions to the contrary, the court would not give retrospective effect to the declaration so as to set aside proceedings which had taken place under the statute prior to the date of the judgment declaring it to be unconstitutional. The doctrine of prospective over-ruling could be applied by the Supreme Court to give such retrospective effect to its decision as it considered just. But in this case no retrospective effect would be given to the decision." [Emphasis Added]
The Malaysian Supreme Court followed the USA Case of Linkletter v
Walker [1965] 381 US 618 and the Indian case of IC Golak Nath v State of
Punjab AIR 1967 SC 1643, whose facts have been set out in the
judgment of the learned Chief Justice.
In my view and with the greatest respect to the Constitutional Court and to Mr. Lule, the holding in Public Prosecutor case does not confine the application of the doctrine of prospective overruling to only criminal cases. Like in the Practice Statement of the House of Lords, it applies to all cases, Civil, Criminal or Constitutional. However, the House of Lords Practice Statement appears to relate only to overruling its decision but not Acts of Parliament. Its effect is like the effect of jurisdiction conferred on this Court by clause [4] of Art.132 of our Constitution. This appears to give power to make prospective overruling for it reads:-
"The Supreme Court may, while treating its own previous decisions as normally binding, depart from a previous decision when it appears to it right to do so; and ail other courts shall be bound to follow the decisions of the Supreme Court on questions of law."
Again the learned Justices of the Constitutional Court held the vie
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