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THE REPUBLIC OF UGANDA
IN THE SUPREME COURT OF UGANDA
AT MENGO
[CORAM: ODOKI,CJ., ODER,
TSEKOOKO, KAROKORA, MULENGA, KANYEIHAMBA AND KATUREEBE, JJ.S.C].
CONSTITUTIONAL APPEAL No.1 OF 2005.
BETWEEN
1. BAKU RAPHAEL OBUDRA ]
2. OBIGA KANIA ] ................................. APPELLANTS
AND
ATTORNEY GENERAL ] RESPONDENT
[Appeal from the decision of the Constitutional Court at Kampala (Mpagi Bahigeine, Engwau, Twinomujuni, Byamugisha and Kavuma JJ.A) dated 11th March, 2005 in Constitutional Petitions No. 4/2002 and No.6 of 2002].
JUDGMENT OF TSEKOOKO. JSC.
This appeal is against the decision of the Constitutional Court arising from a petition by each of the two appellants. In their respective petitions, each appellant sought declarations that subsection (3) of S.67 of the Parliamentary Elections Act, 2001 is inconsistent with Articles 86 and 140 of the Constitution and that the subsection infringes on their rights of Appeal under the Constitution.
The appellants prayed the Constitutional Court to declare the subsection null and void.
The facts of this appeal are as follows: -
Each of the two appellants
contested elections in separate constituencies in the Parliamentary General
Elections which took place
throughout this country on 26th June,
2001. Each lost in those elections. As a consequence each filed a separate
election petition in the High Court, Gulu circuit.
Kania, J, dismissed the
petition of the first appellant on 23rd January, 2002 and Aweri Opio,
J, dismissed that of the second appellant on 24th January, 2002. Each
appealed to the Court of Appeal against the dismissal. The latter court upheld
the decisions of the High Court.
The appellants wanted to lodge a second appeal
to this Court. They could not do this because according to S.67 (3) of the
Parliamentary
Elections Acts, 2001, there is no appeal from the decision of the
Court of Appeal. Each of the appellants construed S.67 (3) to be
inconsistent
with Articles 86 and 140 of the Constitution which the appellants thought
permitted appeals arising from election petitions
to reach this Court.
Each appellant instituted respective Constitutional Petitions No.4 of 2002 and No.6 of 2002 asking the Constitutional Court by order to declare that;
• S.67 (3) of the Act is null and void for being inconsistent with Articles 86 and 140 of the Constitution; • S.67 (3) infringes the petitioners' right under the Constitution. • The appellants had a right of appeal to this Court.
The principal issue framed for decision by the Constitutional Court, was whether S.67(3) of the Parliamentary Elections Act, 2001, is inconsistent with Articles 140, 86(1) (2), and 2 (2) of the Constitution.
By a majority of three to two, the Constitutional Court held that the
subsection was not inconsistent with the Constitution and so
the Court declined
to grant the declarations sought and dismissed the two petitions. The appellants
have now come to this Court by
way of this appeal. The appeal is based on three
grounds. In substance, the three grounds are about the right of appeal. The
grounds
could have been conveniently argued together but counsel opted to argue
them separately.
The complaint in the first ground is that the learned Justices of Appeal
misdirected themselves in holding that Article 140 merely
sets out standards and
was not intended to confer appellate jurisdiction on the Supreme Court regarding
Parliamentary election petitions.
Mr. Rwaganika and Mr. Akampulira, from
separate firms, represented the appellants. Both filed joint written
submissions. Mr. Okello
Oryem, a Senior State Attorney, representing the
respondent also filed written submissions.
In their written arguments Mr. Rwaganika and Mr. Akampulira contended:
• That the majority in the Constitutional Court erred in holding that Article 140 only sets standards to be applied in hearing election matters.
• That the court wrongly applied the case of Attorney General Vs Shah (1971) EA 50 to the facts of the petitions.
• That the opinion of the minority that Article 86 of the Constitution on election petition appears to be hanging and this was cured by Article 140 (2) is the correct interpretation.
• That the Court should have applied the principle of harmonisation so as to conclude that Article 140 confers appellate jurisdiction on this Court.
Mr. Okello Oryem, SSA, opposed the appeal. He argued that the appellants'
arguments in support of the appeal are wrong. He relied
on my opinion which I
gave in interlocutory Constitutional Appeal No. 1 of 2003, between the same
parties and submitted that the
decision of the majority that Article 140 does
not confer jurisdiction on this Court is correct.
The substance of the
arguments presented in this appeal on behalf of the appellants are similar if
not the same as those which were
presented in Constitutional Appeal No.1 of 2003
(supra). I have not been persuaded to change the opinion I gave in that Appeal.
According
to the appellants' counsel, Article 86 of the Constitution is
inconclusive on whether or not the Supreme Court has appellate jurisdiction
in
election petitions. Learned counsel argued that it is Article 140 which is
conclusive and which confers jurisdiction on this Court
to hear such appeals
expeditiously. Counsel argued that harmonising Articles 64(4), 86 and 140 (2)
would show that this Court has
appellate jurisdiction.
I do not appreciate how harmonising Articles 64(4), 86 and 140 can confer
appellate jurisdiction on this Court as it has been argued
by counsel for the
appellants. I think that the scheme of the drafting of the Constitution supports
the view that Article 86 is conclusive
in the area of determination of
elections.
May I first point out an important aspect of the three articles
which learned counsel for the appellants and the minority in the Constitutional
Court do not appear to have appreciated and yet the matter is helpful. In my
opinion it is important to appreciate properly the purpose
of each of these
Articles and context in which they are appear. If the purpose and
context of each of them is properly appreciated, the argument that
harmonisation of these articles would show that Article 140 confers
appellate
jurisdiction on this Court can not be tenable nor sustained. Appellants' learned
counsel argued, and minority decision
(Mpagi-Bahigeine, JA,) suggests, that
since clause (3) of Article 86 does not say that the decision of the Court of
Appeal on election
disputes shall be final, as does clause (4) of Article 64
states in respect of administrative appeals to the High Court from
administrative
decisions of the Electoral Commission, therefore, appeals on
Election matters to the Court of Appeal are not final and consequently
the
question of election appeals from the Court of Appeal.
Let me briefly
examine purposes and context of these articles. Article 64 deals with ante
election administrative matters whereas
Article 86 is concerned with
consequences of elections. In their respective areas each Article set out broad
principles, leaving
out details to be regulated by an appropriate law to be
enacted by Parliament. That is why Clause (5) Article 64 and Clause (3) of
Article 86 authorise Parliament to make appropriate procedural laws, to
operationalise those articles.
Article 64 is under that part of chapter five
of the constitution which regulates the activities and functions of the
Electoral Commission.
Clause (4) of the Article refers to appeals against the
administrative decisions of the Electoral Commission regarding complaints
raised
before and during polling [Art.61(f) and demarcation of constituencies (Article
63)]. Article 64 reads as follows:
(1) Any person aggrieved by a decision of the Electoral Commission in respect of any of the complaints referred to in paragraph (f) of article 61 of this Constitution, may appeal to the High Court. (2) A person aggrieved by a decision of the Commission in respect of a demarcation of a boundary may appeal to a tribunal consisting of three persons appointed by the Chief Justice; and the Commission shall give effect to the decision of the tribunal. (3) A person aggrieved by a decision of the tribunal made under clause
(2) of this
article, may appeal to the High Court.
(4) A
decision of the High Court on an appeal under clause (1) or clause
(3) of this Article shall be final.
(5) Parliament shall make laws providing for procedure for the
expeditious disposal of appeals referred to in this
article.
This article indites that settlement of disputes or
complaints from the administrative decisions of the Electoral Commission are
determined
finally by the High Court. The fact that Clause (4) of the article
says that the administrative appeals shall be final is most likely
based on
practical convenience namely to conclude such disputes within shortest possible
time. That appears to be its purpose.
Learned Counsel for the appellants argued that whereas Clause (2) of
Article 86 "gives special right to an aggrieved person to appeal to the
Court (of Appeal) it does not in any way preclude appeals beyond the
Court of
Appeal." Counsel therefore stretched this view by contending in effect, that by
applying the principle of harmonisation
in respect of Articles 86 and 140 the
necessary right of appeal from the Court of Appeal to this Court is created or
conferred.
In my view this argument is flawed. It ignores the context of the
2 articles. Article 86 is under chapter six of the constitution.
That chapter contains a series of articles regulating Parliamentary matters i.e
the establishment,
the composition and the functions of Parliament. Article
86 specifically makes provision for the hearing and determination of
questions of the membership of Parliament. Thus in Clause (1) the Article
confers on the High Court jurisdiction to hear and determine disputes arising
from the election of the members of Parliament,
the Speaker and the Deputy
Speaker of Parliament. Clause (2) which come immediately thereafter
confers on the Court of Appeal jurisdiction to hear appeals arising from
decisions made by the High
Court. As I stated earlier, Clause (3)
empowers Parliament to enact a law to operationalise the principal set out
in the article. The article reads: 86. (1) The High Court shall have
jurisdiction to hear and determine any question whether-
(a) a person has been validly elected a member of Parliament or the seat of a member of Parliament has become vacant; or (b) a person has been validly elected as Speaker or Deputy Speaker or having been so elected, has vacated that office.
(2) A person aggrieve by the determination of the High Court under this article may appeal to the Court of Appeal.
(3) Parliament shall, by law make provision with respect to-
(a) the persons eligible to apply to the High Court for determination of any question under this article; and
(b) the circumstances and manner in which and the conditions upon which
any such application may be made."
The marginal note to this Article is couched in the words: "Determination
of Questions of Membership." In effect that note defines the role and
purpose of the article which is to spell out in which for and how disputes about
membership
of Parliament are to be resolved. If Parliament intended at the time
that this Court should hear election petition appeals from the
decisions of the
Court of Appeal, Parliament would have surely included it here and not make a
passing reference in Article 140.
There is no provision for further appeal. I do
not appreciate the arguments of learned counsel for appellants that if the
majority
justices applied the principle of harmonisation, they should have
concluded that Article 140 (2) creates appellate jurisdiction for
this Court in
Parliamentary Election matters. Article 86 is exhaustive, definite and
conclusive. It cannot be harmonised with clause
(4) of Article 64 which is
concerned with appeals from administrative decisions of the Electoral
Commission. I can find no rational
basis upon which harmonisation can be made so
as to imply appellate jurisdiction of this Court.
I reiterate that the
conclusiveness of Art.86 is emphasised in clause (3) which authorised Parliament
to make a law setting out the
procedure and the circumstances under which
election petitions to the High Court and election appeals to the Court of Appeal
are
to be made.
As a consequence in March 1996, barely five months after the promulgation of
the Constitution, the National Resistance Council (NRC)
which was the Interim
Parliament, enacted the Parliamentary Elections (Interim Provisions) Statute,
1996, (Statute 4 of 1996). In
that statute, there is S.96 which is identical in
every respect to section 67 of the Parliamentary Elections Act, 2001 (PEA). When
the NRC enacted S.96 of the statute, it complied with Art.86 (3) of the
Constitution. In its wisdom, the NRC appears to have seen
no need at the time to
provide for second appeals to this Court which was in existence then. Parliament
which succeeded the NRC and
which must have been aware of the existence of the
Court of Appeal and of this Court simply lifted the words of S.96 of the statute
and re-enacted them as S.67 of the PEA, 2001.
There can be no doubt that when
in 2001 Parliament enacted the Parliamentary Elections Act, 2001, and included
S.67 which provided
that the decision of the Court of Appeal in election appeals
is final, Parliament was operationising Clause (3) of Article 86. Messrs
Rwaganika and Akampulira referred to the reasoning of the minority
opinion in the Constitutional Court to the effect that appellate jurisdiction
for this
Court can be inferred. I do not agree. The ordinary jurisdiction of
this Court is clearly set out in Article 132 of the constitution.
It is framed
this way-
(1) The Supreme Court shall be the final court of appeal.
(2) An appeal shall lie to the Supreme Court from such decisions of the Court of Appeal as may be prescribed by law.
(3) Any party aggrieved by a decision of the Court of Appeal sitting as a Constitutional Court is entitled to
appeal to the Supreme Court against the decision; and accordingly, an
appeal shall lie to the Supreme Court under clause (2) of this
article."
Apart from S.6 of the Judicature Act which created the criminal
appellate jurisdiction of this Court all the essential appellate jurisdiction
of
this Court is set out here.
Jurisdiction cannot be created by mere
inference. Therefore learned counsel's attempt to distinguish the decision in
the Shah case (supra) is unhelpful. In that case, the East African Court
of Appeal considered the question of its jurisdiction. It held that because
of
Article 89 of the 1967 Constitution of Uganda, the court had only such
jurisdiction as was conferred on it by Parliament. This
is the same position as
is in these proceedings. I reiterate my opinion that Article 140 of the
Constitution is about procedure and
standards which must be applied in hearing
election disputes. Clause (2) thereof does not confer any jurisdiction on any
Court. Let
me again reiterate my earlier opinion that jurisdiction of the High
Court to hear cases and appeals not related to election petitions,
is conferred
by a separate Article (139) and not Article 140. Similarly, jurisdictions of the
Court of Appeal and of the Supreme
Court to hear and determine non- election
cases and appeals are conferred by Articles 134 (2), 137 and 132 respectively.
This puts
in sharp contrast the point that in matters to do with election, the
jurisdiction is conferred on the High Court and the Court of
Appeal only by
Art.86 and of course S.67 of the Parliamentary Election Act 2001. If this
obvious distinction is understood, the argument to the effect
that Art 140 (2)
prescribes appellate jurisdiction would not be tenable nor sustainable.
May I also add, if I may, that when Parliament enacted the Parliamentary Elections Act, 2001 and included the provisions of Section 67 (3), Parliament must have been aware of the above mentioned existing rights of appeal conferred by the Constitution. Sub section (3) reproduced the intention of Art 86 (2). Therefore, after the promulgation of the Constitution, in my view, the limiting of the right of appeal by section 96 (3) of statute 4 and subsequently by S.67 (3) of the Act of 2001 must have been deliberate. I therefore agree with the Constitutional Court majority opinion that Article 140 of the Constitution merely urges Courts to expedite the hearing of election disputes but does not create a substantive right of appeal. Nor does it confer any jurisdiction on this Court. If the latter were the case, I do not see any sound reason why that jurisdiction was not included or provided for in Article 132 which created appellate jurisdiction of the Supreme Court. Ground one must therefore fail. Grounds two and three were formulated in these words:
2. The Honourable Justices erred in law in failing to declare S.67 (3) of the Parliamentary Elections Act inconsistent with Articles 86 and 140 of the Constitution and therefore null and void under Article 2 (2) of the Constitution.
3. The learned Justices misdirected themselves in Law when they failed to declare that the petitioners had a right of appeal to the Supreme Court.
Counsel for appellant arguments on these two grounds revolve around the effects of Articles 86, 132 and 140 of the constitution, sections 4 and 7 of the
Judicature Act and S.67 (3) of the Parliamentary Elections Act, 2001. Counsel
argued that the Constitutional Court should have held
that the appellants had a
right of appeal to this Court. Counsel for the respondent is of a contrary view
and he supports the majority
decision of the Court below. In discussing ground
one, I covered the arguments raised under these two grounds. I see no merit in
either ground. In my opinion both should fail.
I may observe in passing that although the appellants have not benefited by
way of succeeding in these proceedings, their effort would
seem to have
influenced the creation of appellate jurisdiction for this Court in the shape of
section 66 of the new Parliamentary
Elections Act, 2005. Parliamentary Election
disputes to be determined under this new Act will not doubt be heard and
determined by
this Court in accordance with the standards set by Art 140
(2).
I would dismiss this appeal. I would make no order as to costs.
JUDGMENT OF ODER, JSC.
This is an appeal against a decision of the Constitutional Court, dismissing,
by a majority of three to two, the
appellants' Constitutional petitions. In
their respective petition, each appellant sought declarations that:
1. Section 67 (3) of the Parliamentary Elections Act (hereinafter referred to as "the Act") is inconsistent with Articles 140 and 86 of the Constitution and therefore null and void.
2. The section infringes the appellants' right under the constitution.
3. Make an order declaring the appellants' right of appeal to the Supreme Court.
4. Costs of the petition be awarded to them
The facts of the appeal are as follows: The appellants were candidates who
contested in the Parliamentary Elections that were held
throughout the country
on 26.6.2001, standing in separate Constituencies. They lost the elections.
Being dissatisfied with the outcome
of the elections, they filed separate
election petitions in the High Court Registry at Gulu High Court circuit. On
23.1.2001 the
High Court Judge (Kania, J), dismissed the petition of Baku
Raphael Obudra and the following day, the same court (Aweri Opio,J) dismissed
the petition of Obiga Kania. Consequently, they both filed appeals to the Court
of Appeal, which were dismissed with costs. The failure
of those appeals gave
rise to the petitions in the Constitutional Court The petitions were
consolidated and heard together, and
were dismissed by the Constitutional court.
Hence this appeal.
As set out in the memorandum of appeal the three grounds of appeal are as follows:
1. The learned Justices of the Constitutional Court misdirected themselves when they held that article 140 merely sets standards and was not intended to confer appellate jurisdiction on the Supreme Court regarding Parliamentary election petitions. 2. The Hon. Justices erred in law in failing to declare S.67(3) of the Parliamentary Election Act inconsistent with Articles 86 and 140 of the Constitution and therefore null and void under article 2(2) of the constitution. 3. The learned Justices misdirected themselves in law when they failed to declare that the petitioners had a right of appeal
The parties to the appeal filed written submissions. Those of the appellants were filed by M/S Rwaganika & Co. Advocates, and the respondent's were filed by Attorney General's Chambers.
Arguing ground 1 first the appellant's learned counsel submitted that the learned Justices of Appeal contradicted themselves when Byamugisha J.A said that Article 140(1) enjoins the Court of Appeal and the Supreme Court to determine questions referred to them under article 86 expeditiously and at the same time said that Article 140 does not confer jurisdiction on any of the said courts. According to Longman Dictionary of Contemporary English "enjoin" means to order someone to do something. Learned Counsel contended that having thus recognized that the courts were ordered to determine questions referred to them, the learned Justices of Appeal should have proceeded to make a finding that the courts could not be commanded or ordered to hear election petitions and appeals expeditiously without jurisdiction to do so. Accordingly they should have come to the conclusion that the Supreme Court had jurisdiction to hear election petition appeals. Learned counsel contended that standards could not be set for the courts unless they have a right to exercise them. That right is the jurisdiction to hear and determine election petitions and appeals.
Learned Counsel contended that the learned Justices of Appeal wrongly applied the decision in Attorney General -Vs- Shah (1971) E.A 50, and came to the conclusion that only the constitution, not a statute, confers jurisdiction and that jurisdiction cannot be inferred by cross-reference. Learned counsel contended that Attorney General Vs Shah (supra) is distinguishable from the instant case. In the former, the court was involved in hearing an application for mandamus and that case is distinguishable from the instant case, where the Constitutional Court was required to interpret the constitution.. Secondly, in Shah, (supra) the appeal sought was against a provision of the Judicature Act, a statute which did not provide for the right of appeal, while in the present case, the petitioners wanted to appeal to the Supreme Court and that right is provided for in Articles 132 and 140 of the Constitution. Had the learned Justices of Appeal directed themselves properly, they would have come to the same conclusion as the dissenting learned Justices of Appeal did. They would have looked at Articles 86 and 132 and applied the principle of harmonization and come to the only conclusion that article 140, confers appellate jurisdiction on the Supreme Court on election matters.
In His submission, under ground 2, the appellant's learned counsel referred to what Engwau, JA. said, to the effect that the cross-reference in article 140 to article 86 does not confer jurisdiction on the Supreme Court on election matters and that if that was the intention of the framers of the constitution they would have said so explicitly and that the omission was deliberate; and that the Court of Appeal was intended to be the final appellate court in election petitions. Therefore S.67(3) of the Act is not in consistent with articles 140, 86(1),(2) and 2(2) of the Constitution. The learned counsel contended that the learned Justice of Appeal misdirected himself on the law when he adopted the said reasoning. Had he directed his mind to the proper law, he would have decided as Twonomujuni, J.A, did in his dissenting judgment to the effect that Section 67(3) was not only made under the authority of article 86(3), but that Article 86 as a whole left the issue of appellate jurisdiction unresolved. The article was not conclusive on the matter, nor did it authorise Parliament to resolve it, and that therefore Parliament was not authorised to enact Section 67(3) to bar appeals in election matters to the Supreme
Court. Learned Counsel also contended that the majority learned Justices of
Appeal should have applied Section 7 of the Judicature
Act which provides for
appeals to the Supreme Court in civil matters.
Regarding ground 3 of appeal the appellant's learned counsel submitted that
the decision to declare the petitioners right of appeal
to the Supreme Court
depended on how the Justices of Appeal individually interpreted the relevant
statutory provisions discussed
above by counsel. It depended on the line of
reasoning each Justice of Appeal took of the pertinent provisions. It so
happened that
the majority of them misdirected themselves and failed to declare
the appellants' right; while the dissenting Justices of Appeal
followed the
right line and correctly came to the right conclusions and declared the right.
The learned counsel urged us to find
as Twinomujuni and Mpagi-Bahigeine JJ.A.
did, that the appellants were entitled to appeal to the Supreme Court against
the dismissal
of their respective petition in the High Court.
In opposition to the appeal the respondents learned counsel supported the majority decision of the Constitutional Court.
They reiterated their submission in the Constitutional Court which Correctly
found that Article 140 does not confer jurisdiction to
any of the courts
mentioned therein. This is so because Article 86 does not refer any matter to
the Supreme Court. Therefore the
reference to the Supreme Court in Article 140
(2) is no more than superfluous. It certainly does not confer a right of appeal
in
election matters from the Court of Appeal to the Supreme Court. Learned
Counsel relied on the judgment of Tsekooko, JSC in Constitutional
Appeal No.
1 of 2003. Baku R. Obudra & Obiga Kania Vs The Attorney General, in
support of his submission. In his judgment in that constitutional appeal,
Tsekooko, JSC concluded that article 140 of the Constitution
does not confer
appellate jurisdiction in election matters on the Supreme Court. Consequently,
the appellants did not have a right
of appeal to the Supreme Court.
The respondent's learned counsel does not agree with the appellant's counsel
that Attorney General -Vs- Shah (supra) is distinguishable from the
instant case. On the contrary, the respondent's counsel contended that Shah
(supra) was on all
fours I forms with the instant case. Both cases concerned the
right of appeal where none is expressly created by statute.
Learned counsel contended that contrary to the submission of the appellants'
counsel the majority learned Justices of Appeal properly
applied the decision in
Attorney General vs. Shah (supra) to the instant case. They agreed with
and applied the decision by considering whether articles 86 and 140 of the
Constitution
confer appellate jurisdiction on the Supreme Court in election
matters and whether the appellant had a right of appeal to the Supreme
Court
from the judgment of the Court of Appeal in their Election Petitions. Learned
counsel contended that the attack by the appellant's
learned counsel on the
Constitutional Court for following Attorney General -Vs- Shah (supra) was
misconceived. The respondent's learned counsel disagreed with the submission by
the appellant's learned counsel that it
was wrong of the majority of the Hon.
Justices of Appeal not to find for the appellants as the minority did. Counsel
contended that
the implication is gross misconception and represents an unholy
attack or the independence of the Judiciary, which is guaranteed
by Article 128
(1) and (2) of the Constitution. Learned Counsel also invited us to disregard
the insinuation of the appellant's counsel
as the Constitution does not envisage
a situation where a Justice of Appeal of the Constitutional Court can be
compelled to concur
with a decision of another. Learned Counsel contended that
the minority decision of the Hon. Justices of Appeal and the submissions
of the
appellants' counsel in support thereof are misconceived for the following
reasons:
Firstly it is more conceivable than not that the framers of the Constitution
were conclusive on election petition appeals in article
86 and maintained that
conclusiveness in Article 104 regarding election of the President.
Secondly, in view of clause 2 of Article 86, it is an inescapable conclusion that the framers of the Constitution were aware that they needed to legislate on the right of appeal in election matters. If they wanted to create the right of a second appeal they would have done so in article 86 or article 140. It is inconceivable that they were express on the right of the first appeal in article 86 and 104 and then decided to be vague about it in article 140.
Thirdly, the right of appeal cannot be inferred either from the constitution
itself or the Judicature Act, Cap 13.
The respondent's learned counsel argued grounds 2 and 3 of appeal together. In essence, the learned Counsel's submission under these grounds is that section 67 (3) of the Act merely echoes the intention of the framers of articles 86 (2) and 140 and 2(2) of the constitution, which is that there will be no 2nd appeals in election matters; that the Supreme Court has no appellate jurisdiction in election matters. This means, therefore that the appellants have no right of appeal to the Supreme Court from the judgment of the Court of Appeal in their election petition appeals. The learned Counsel submitted, therefore, that in so doing section 67(3) does not run contrary to but in conformity with, the Constitution, the same having been properly legislated pursuant to Article 79 of the Constitution. It is therefore not inconsistent with articles 86(1) and (2), 140, (2) and of any other article of the Constitution. The minority of the learned Justices of Appeal therefore, misdirected themselves. Learned Counsel prayed that all the grounds of appeal should be rejected and the appeal dismissed.
I shall consider all the three grounds of appeal together
In my opinion the main issue in this appeal is whether the Supreme Court has appellate Jurisdiction in election petitions. The appellants would be entitled to or have a right of, appeal to it if the Court has such a jurisdiction and if section 67(3) of the Act is not inconsistent with articles 86 and 140 of the constitution. Section 67 provides:
(1) "A person aggrieved by an election petition may appeal to the Court of Appeal against the decision
(2) The Court of Appeal shall proceed to hear and determined an appeal under this section expeditiously and may for that purpose suspend any other matter before it (3) The decision of the Court of Appeal in an appeal under this section is final."
Article 132 of the Constitution provides:
"132(1) The Supreme Court shall be the final court of appeal. (2) An appeal shall lie to the Supreme Court from such decision of the Court of Appeal as may be prescribed by Law"
This section, in my view,
provides a general appellate jurisdiction of the Supreme Court only as
prescribed by law. As far as I know, no law had prescribed for the Supreme
Court an appellate jurisdiction in election matters at the time the petitions in
this instant
case were filed in the Constitutional Court.
In my opinion, clause (2) of Article 132 recognized the long standing legal
principle that appellate jurisdiction is a creature of
statue. There is no such
thing as an inherent
appellate jurisdiction. Section 4 of the Judicature Act,
makes similar provisions:-
"An appeal shall lie to the Supreme Court from such decisions of the Court of Appeal as may be prescribed by Law".
The decision in the case of the Attorney General vs. Shah (supra) was consistent with that principle. The brief facts in that case were that the High Court of Uganda made orders of mandamus against two officers of the government under section 34 of the Judicature Act 1967. Sub-section (3) of that section provided as followers: -
"Subject to any right of appeal the order shall be final" The Attorney General filed an appeal against the orders of mandamus basing himself on that sub-section. The respondent objected to the appeal on the ground that the Court of Appeal had no jurisdiction to hear the appeal. Upholding the objection spry, Ag. P(as he then was) in the lead judgment with which other members of the Court agreed, said:
"It has long been established and we think there is ample authority for
saying that appellate jurisdiction springs only from statute.
There is no such
thing as inherent appellate jurisdiction".
I agree with that statement of the law.
The following articles of the Constitution provide for determination of election disputes:
"86(1) The High Court shall have jurisdiction to hear and determine any question whether:-
(a) a person has been validly elected a member of Parliament or the seat of a member of Parliament has become vacant
(b)
(2) A person aggrieved by the determination of the High Court under this article may appeal to the Court of Appeal. (3) Parliament shall by law make provision with respect to: -
(a) a person eligible to apply to the High Court for determination of any question under this article; and (b) the circumstances and manner in which any suction application may be made."
In my opinion article 86 confers appellate jurisdiction in election matters
on the Court of Appeal only. If the framers of the Constitution
intended to
confer a second appellate jurisdiction on the Supreme Court, they would have
done so under this Article, since they were
legislating under that Article on
determination of questions of membership of Parliament. I think that the
omission to provide for
Appeal on election matters from the Court of Appeal to
the Supreme Court was deliberate. The reference to the Supreme Court in Article
140(2) was superfluous. It did not create an appellate jurisdiction in election
matters on the Supreme Court.
It is evident, in my opinion, that according to the decision in Attorney-General vs. Shah (supra) which is still good law, and the provisions of the Constitution and the Judicature Act to which I have referred in this judgment the appellate jurisdiction of the Supreme Court in election matters can only be created by the Constitution or Statute.
With respect, I am unable, therefore to accept the contention of the appellants' learned counsel that article 140 of the Constitution confers appellate jurisdiction in election matters on The Supreme Court, not even by cross-reference to article 86. The article provides:
"140 (1) where any question is before the High Court for determination under clause (1) of article 86 of this Constitution, the High Court shall proceed to hear and determine the question expeditiously and may, for the purpose, suspend any other matter pending before it
(2) This article shall apply in a similar manner to the Court of Appeal and the Supreme Court when hearing and determination appeals on question referred to in clause (1) of this article".
In considering whether article 140 gives the Supreme Court appellate jurisdiction in election petitions, Byamugisha, JA said:
"On the authority of Attorney General vs. Shah (supra) jurisdiction being a creature of statute and the Constitution being the statute that confers jurisdiction it cannot be said in my view that jurisdiction can be inferred by cross-reference. If the framers of the Constitution had wanted a election matters to proceed to the highest appellate Court in the land they would have stated so in no uncertain terms under article 86. The omission to mention the Supreme Court in article 86 as one of the appellate courts was, in my view, deliberate. I think they intended the Court of Appeal to be the last and final court of appeal in election matters. I am not persuaded by the submissions of learned counsel for the petitioners that article 86 is incomplete. I do not consider that the words of article 140(2) on their proper interpretation can be said to confer to the Supreme Court to hear and determine such appeals.
It is therefore my considered opinion that section 67(3) is not inconsistent with articles 86 and 140 of the constitution".
I agree with what the learned Justice of
Appeal said in this passage.
What I have said in this judgment disposes of
all the grounds of appeal. I would therefore dismiss the appeal. I would make no
order
for costs.
In view of the provisions of section 66 of the Parliamentary Election Act,
2005, jurisdiction to entertain second appeals in Parliamentary
election
petitions has been conferred on the Supreme Court.
JUDGMENT OF KAROKORA, JSC:
I have had the advantage of reading in draft the judgment prepared by my
learned brother Justice Tsekooko, JSC, and with all due respect
I feel a little
bit un-easy with his interpretation of section 67(3) of the Parliamentary
Elections Act 2001 vis-a-vis articles 86
and 140 of the Constitution. In their
respective petitions each appellant sought declaration that section 67(3) of the
Parliamentary
Elections Act 2001 is inconsistent with Article 140 and 86 of the
Constitution and that sub
section 3 of section 67 infringes on their rights
of appeal under the
l
Constitution. They prayed the Constitutional Court to declare the sub-section
null and void.
In the elections held on 26th June 2001,
each of the petitioners lost elections in their separate Constituencies. As a
result, each petitioned in the High Court
sitting at Gulu. Kania, J, dismissed
the petition of 1st petitioner on 23rd January 2002, and
Aweri Opio J, dismissed the petition of the 2nd petitioner on
24th January, 2002. Each of them appealed to the Court of Appeal
against the dismissal of their appeals which upheld the decisions of
the High
Court. They wanted to appeal to the Supreme Court, but could not do so because
according to Section 67(3) of the Parliamentary
Elections, Act, 2001, there was
no right of appeal from the decision of the Court of Appeal. Each of the
appellants felt aggrieved,
because they considered that Section 67(3) of the Act
was inconsistent with Articles 86 and 140 of the Constitution which they contend
permit appeals in election matters to the Supreme Court.
The appellants instituted respective Constitutional Petitions Nos. 4 and 6 of 2002, praying the Constitutional Court to declare:
1) That section 67(3) of the Act is null and void for being inconsistent with Articles 86 and 140 of the Constitution.
2) That section 67(3) of the Act infringes the Petitioners' right under the Constitution.
3) That the appellants had a right of appeal to the Supreme Court.
The principle issue before the
Constitutional Court was whether section 67(3) of the Parliamentary Elections
Act, 2001, is inconsistent
with Articles 140, 86(1)(2) and 2(2) of the
Constitution.
By majority of 3 Justices to 2, the Constitutional
Court held that the Act was not inconsistent with the Constitution and
therefore,
declined to grant the relief prayed and consequently dismissed the
petitions. The appellants have appealed to this court on three
grounds.
The complaint in ground one is that the learned Justices of the Court of
Appeal misdirected themselves when they held that Article
140 of the
Constitution merely set out standards and was not intended to confer appellate
jurisdiction on the Supreme Court regarding
Parliamentary election
petitions.
Mr. Rwaganika and Mr. Akampurira from separate
firms, represented the appellants. They filed joint written submission. Mr.
Okello Oryem S.S.A. represented the respondent.
He also filed written
submission.
In their written submission counsel for the appellants contended that the majority of Justices of Appeal in the Constitutional Court erred when they held that Article 140 sets standards to be applied in hearing election petitions.
- That the Constitutional Court wrongly applied the case of the Attorney General - vs - Shah [1971] E.A. 50 to the facts of the petition. - That the opinion of the minority Justices of the Constitutional Court to the effect that article 86 of the constitution on election petition appears to be hanging and this was cured by Article 140(2) is the correct interpretation. - That the court should have applied the principle of harmonisation so as to conclude that Article 140 confers appellate jurisdiction.
On the other hand, Mr. Okello Oryem, SSA opposed the appeal. He argued that
the appellants' arguments in support of the appeal were
wrong. He relied on the
decision of Tsekooko, JSC, in Constitutional Appeal No. 01 of 2003 between the
same parties and submitted
that the decision of the majority Justices of the
Constitutional Court is correct.
With due respect, I am unable to
understand why the majority in the Constitutional Court came to hold that
Article 140 merely sets
standards to be followed but does not confer
jurisdiction, when the article enjoins the courts mentioned therein to proceed
expeditiously
in determining questions referred to them under article 86. In my
opinion, the courts' decision on this question must turn on interpretation
of
section 67 of the Parliamentary Elections Act, 2001 together with Articles 86
and 140 of the Constitution of Uganda, 1995.
Section 67 of the Act states:
"67(1) A person aggrieved by the determination of the High Court on hearing an election petition may appeal to the Court of Appeal against the decision.
(2) The Court of Appeal shall proceed to hear and determine an appeal under this section expeditiously and may for that purpose suspend any other matter pending before it.
(3) The decision of the Court of Appeal in an appeal under this section shall be final."
On the other hand, article 86 of the Constitution provides:
"86(1) The High Court shall have jurisdiction to hear and determine any question whether-
(a) a person has been validly elected a member of Parliament or the seat of a member of Parliament has become vacant; or
(b) a person has been validly elected a Speaker or Deputy Speaker or having been so elected, has vacated that office.
(2) A person aggrieved by the determination by the High Court under this article may appeal to the Court of Appeal.
(3) Parliament shall by law make provisions with respect to:-
(a) the persons eligible to apply to the High Court for determination of any question under this article; and
(b) the circumstances and manner in which and conditions upon which any such applications may be made."
The
article is silent about what happens when any of the parties is aggrieved with
the decision of the Court of Appeal.
Article 140 provides that:
"(1) where any question is before the High Court for determination under clause (1) of article 86 of this Constitution, the High Court shall proceed to hear and determine the question expeditiously and may for that purpose suspend any other matter pending before it.
(2) This article shall apply in a similar manner to the Court of Appeal and the Supreme Court when hearing and determining appeals on questions referred to in clause (1) of this article."
I find
submissions of counsel for the appellants tenable because articles 86 read
together with 140 confer a right of appeal in election
petitions from the
decisions of the Court of Appeal to the Supreme Court. Counsel submitted that
Article 140(1) makes a cross-reference
to article 86 where it is spelt out that
appeals in the Supreme Court and the Court of Appeal must be handled
expeditiously as in
the High Court. For emphasis, the article states that for
that purpose, the High Court may suspend any other matter pending before
it.
Then under clause 2 of article 140, it is clearly stated that:
"(2) This article shall apply in a similar manner to the Court of
Appeal and the Supreme Court when hearing and determining appeals on questions
referred
to in clause (1) of this article."
(Emphasis is
added).
Therefore, since articles 86 and 140 of the constitution give
a right of appeal from the Court of Appeal to the Supreme Court an attempt
by
Section 67(3) to limit that right of appeal provided by articles 86 and 140
cannot stand and must be unconstitutional and hence
null and void by virtue of
article 2(1)(2) of the constitution, which provides that:
"2(1) This constitution is the supreme law of Uganda and shall have binding force on all authorities and persons throughout Uganda.
(2) If any other law or any custom is inconsistent with any of the provisions of this constitution, the constitution shall prevail, and that other law or custom shall, to the extent of inconsistency, be void." (Emphasis is added).
Clearly, if the framers of
the Constitution had intended to limit the right of appeal to the Court of
Appeal in election matters,
they would have expressly stated so in article 86 to
the effect that the decision of the Court of Appeal shall be final like they
did
under article 64(4) when they were dealing with appeals from decisions of the
Electoral Commission when they expressly stated
in clause 4 that:
"A decision of the High Court on an appeal under clause (1) or clause
(3) of this article shall be final."
In the instant case, the framers of the constitution never ruled out any
right of appeal by any candidate under article 86 who would
feel aggrieved with
the decision of the Court of Appeal. They inserted article 140 in the
constitution which commands the Court of
Appeal and the Supreme Court to deal
with election petition expeditiously as the High Court was required to do so
under article 140(1)
of the constitution. Therefore, by implication clause (2)
of article 140 provides the answer to the question which had been left
hanging
under article 86 on the question of what would happen if the unsuccessful party
felt dissatisfied with the decision of the
Court of Appeal.
In my
view, since article 132 of the constitution provides for an appeal to the
Supreme Court if one is dissatisfied with the decision
of the Court of Appeal,
when there is no provision in the constitution precluding such appeal I think
that the appellants were perfectly
entitled to appeal to the final Court of
Appeal in the land. Article 132(1) provides as follows:
"132(1) The Supreme Court shall be the final Court of Appeal.
(2) An appeal shall lie to the Supreme Court from such decision of the Court of Appeal as may be prescribed bylaw."
The law which may prescribe such right may be the constitution such as articles 86 and 140 which prescribed the appellate jurisdiction of the Supreme Court in election petition and the manner in which it should handle such appeal. Another law which prescribes right of appeal to the Supreme Court is the Judicature Act, 1996 sections 4 and 7.
Section 4 provides that:
"An appeal shall lie to the Supreme Court from such decisions of the
Court of Appeal as are prescribed by the Constitution, this Act
or any other
law."
Section 7(1) provides that:
"An appeal shall lie as of right to the Supreme Court where the Court
of Appeal confirms, varies or reverses a judgment or order including
interlocutory order given by the High Court in the exercise of its original
jurisdiction and either confirmed, varied or reverse
by the Court of
Appeal.
Therefore, in view of the provisions of articles 86,
140 of the constitution sections 4 and 7 of the Judicature Act, 1996, there is
an apparent conflict between the provisions of Section 67(3) of the
Parliamentary Elections Act 2001 which limits the right of appeal
to the Court
of Appal in election matters and the provisions of articles 86 and 140(2) of the
constitution which command the Court
of Appeal and the Supreme Court to deal
with election matters.
Clearly the constitution commands the Court of Appeal and Supreme Court expeditiously to suspend any other business and dispose of election matters. Therefore, the constitution confers jurisdiction to Supreme Court to deal with election matters.
Consequently, therefore, this conflict between the provisions of Section
67(3) of the Parliamentary Elections Act, 2001 and articles
86 and 140 of the
Constitution calls for interpretation of the Constitution under article 137(3)
of the Constitution. See: Attorney General - vs - Major General Tinyefuza
Constitutional Appeal No. l.of 1997 (SC) and Serugo - vs - KCC, Constitutional
Appeal
No. 2 of 1998 (SC).
In conclusion, since under Article 2(1) of the Uganda Constitution, the
Constitution is the Supreme law of Uganda, any other law in
conflict with the
Constitution is null and void under clause (2) of Article 2 of the Constitution.
Therefore, sub-section 3 of section
67 of the Parliamentary Elections Act, 2001
does not take away jurisdiction of the Supreme Court from hearing appeals
emanating from
election petition as it is null and void.
I would therefore, allow this appeal by upholding the decisions of minority
Justices of Appeal.
I would award costs to the appellants in this court and in the courts
below.
Dated at Mengo this: 15th day of March 2006.
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