No time limit for filing constitutional petitions

Apr 07, 2004

The Constitutional Court had to answer a question on time limits to filing a petition before delving into the substance of a petition by the Uganda Association of Women Lawyers. The petition successfully sought for orders to declare certain sections of the Divorce Act unconstitutional.

By Chibita wa Duallo

The Constitutional Court had to answer a question on time limits to filing a petition before delving into the substance of a petition by the Uganda Association of Women Lawyers. The petition successfully sought for orders to declare certain sections of the Divorce Act unconstitutional.

Below are excerpts of the ruling of Justice Twinomujuni on whether a Constitutional petition can be time-barred:
“At the beginning of the trial, M/s Carol Mayanja raised a preliminary objection. She submitted that the petition was time-barred and therefore, unsustainable.

She relied on the provisions of rule 4(I) of the Fundamental Rights and Freedoms (Enforcement Procedure) Rules, 1992, (Legal Notice No. 4 of 1996).

She submitted that the Divorce Act was enacted in 1904 and was saved by Article 273(1) of the Constitution.

To be able to challenge the provisions of the Act therefore, one had to file the petition in the Registry within 30 days from the date the Act came into force, October 8, 1995. This petition was filed nine years after the Act came into force and therefore it is time barred.

In reply, Mr. Philip Karugaba submitted that the petition was not time barred. He contended that from the date the Constitution came into force, the provisions of the Divorce Act complained of breach of the Constitution. In his view, therefore, rule 4(I) cannot apply to acts which constitute continuing breaches of the Constitution.

Moreover the Constitution places a duty on all citizens of Uganda to, “at all times,” defend it. The matter raised has been a subject of many decisions of this court, many of them not consistent admittedly. We admitted that much in the case of Attorney General vs. Dr Rwanyarare and nine others.

We then considered relevant decisions of the Supreme Court and indicated that their Lordships had not finally pronounced themselves on the 30 days rule because the issue did not call for determination.

On this occasion, like on several other earlier occasions, we held that the 30 days began to run from the day when the practitioner perceives the breach of the Constitution.

We stated that the decision was intended, in the words of Mulenga, JSC to “make the rule workable and encourage, rather than constrain, the culture of constitutionalism.”

We resisted the temptation to declare the rule to be in conflict with the Constitution because, firstly, we hoped that the relevant authorities would urgently act on the concerns of the Supreme Court and those of this Court expressed in Attorney General vs. Rwanyarare. Todate, nothing has been done. Secondly, the provisions of article 3(4) of the Constitution had not yet been brought to our attention.

The issue, which we must decide now, is whether section 4(I) of Legal Notice No. 4 of 1996 has the effect of amending the Constitution of Uganda.

If the answer is yes, then we must hold that the citizens of Uganda have a right to come to this court to have it nullified. The Constitution gives the people of Uganda the right under Article 137 to have unimpeded access to this court to seek declaration and redress where any law or act is inconsistent with or in contravention of any provision of the Constitution.

In pursuit of this objective, they have a duty at all times to come to court in resistance to any violation of the Constitution.

I have examined the practical implication of this rule since this court came into being. Its role has been to restrict access to this court.

It has acted as an impediment, and a nuisance to those seeking access to constitutional justice.

The framers of the Constitution could not have intended this result. If they had intended such a result, they would have expressly provided so in Article 137.

I am aware that the Attorney General has argued elsewhere that Article 3(4) of the Constitution only applies when the Constitution is threatened or has been violated through physical violence. With respect, I do not see any justification in giving the article a narrow interpretation.

The people of Uganda have a right and a duty at all times using all means available, peaceful or violent, constitutional or unconstitutional, to resist attempts to unconstitutionally: “Suspend, overthrow, abrogate or amend the Constitution.”

The Supreme Court has considered the phrase “amendment of the Constitution” in their recent decision in Paul Ssemogerere and others vs. Attorney General.

To the extent that rule 4(I) of Legal Notice No. 4 of 1996 imposes restrictions to the right of access to the Court, which the Constitution does not provide for, it is seeking to add to and/or vary the Constitution and therefore to amend it without doing so through the amendment provisions of the Constitution.

It is clearly against the spirit of the Constitution and it is now high time that this Court restored, in full, the citizen’s right to access to the Constitutional Court by declaring that the Rule is in conflict with the Constitution and is therefore null and void. I would so declare.”
March 10, 2004
Justice Amos Twinomujuni
Justice of Appeal

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