Parties must register in 6 months
Nov 24, 2004
Constitutional Petition No. 7 of 2002 Rwanyarare and others vs Attorney General: Excerpts from the judgement This petition was filed in July 2002 to challenge the constitutionality of various sections of the Political Parties and Organisations Act, 2002.
By Chibita wa Duallo
Constitutional Petition No. 7 of 2002 Rwanyarare and others vs Attorney General: Excerpts from the judgement This petition was filed in July 2002 to challenge the constitutionality of various sections of the Political Parties and Organisations Act, 2002. The petition was supported by affidavits sworn by the petitioners. Petitioners were represented by Mr Peter Walubiri, Mr Kiyemba-Mutale and Mr Moses Ojakol. The respondent was represented by Mr Joseph Matsiko, Acting Director of Civil litigation, Mr. Alfred Okello Oryem and M/s Victoria Ssekandi.
Issue No. 1: Whether the definition of a political party or organisation in Section 2 of the Act is inconsistent with and contravenes Article 21 and 75 of the Constitution.
To us, the definition clearly excludes the Movement Political System referred to in article 70 of the Constitution. This is because the political system defined therein is not a political party or organisation. However, the political organs of that system set up by the Movement Act are quite different.
In Petition No. 5 of 2002 we held that the Movement set up by the Movement Act was a political organisation despite the disclaimer in section 2(2) thereof. This is because we found credible overwhelming evidence to the effect that:
(a) It had a political agenda to obtain and retain political power.
(b) It was a statutory body corporate.
(c) It sponsored candidates for political offices.
(d) It participated in the governance of Uganda at all levels.
(e) It was no longer inclusive or non-partisan.
(f) It had abandoned the principle of individual merit as a basis for election.
(g) It has a caucus in Parliament.
The decision of this court still stands. Therefore, the Movement Political Organisation set up by the Movement Act is a political organisation within the meaning of section 2 of the Act.
Issue No. 2: Whether the Act requiring existing political parties to register within six months is inconsistent with the Constitution.
We observe that the requirement does not apply to existing political parties alone. It is a requirement for all political parties. In our view, any organisation, which hopes to compete for political power in this country and to be accountable to the country and its members should be a body corporate. It should be able to own and hold property and to sue and be sued in its own name.
This will also help to reduce trifling parties, which are formed purely for financial gain and have no fixed abode or address. This will also reduce proliferation of numerous political parties, which are capable of creating political instability in the country. This condition for registration is quite reasonable, applies to all political organisations and is not derogation to any rights and freedoms granted by the Constitution.
Regarding the requirement to register in six months, we think that there must be a time frame. The old parties are already recognised by Article 270. They are deemed to have structures and membership. They should find it easier to register as long as obnoxious provisions to this Act are removed. The six months requirement is not unreasonable.
Issue No. 3: Whether Section 5 requires parties to be of a national character.
We think an organisation, which hopes to take political power in Uganda under this Constitution should be representative of the people of Uganda. The requirement will also prevent the registration of opportunistic parties. The numbers required both in terms of membership and districts are not unreasonable. We think the requirements are within the spirit of the Constitution and they neither contravene nor are they inconsistent with any of its articles.
Issue No. 4: Whether Section 8 is unconstitutional.
In our view, the section provides protection to the existing parties to stop their names, colours, symbols, slogans and initials from being adopted and registered by any new parties. We cannot construe it as a restriction but as a protection, which is justified. We hold that the section neither contravenes nor is it inconsistent with any article of the Constitution.
Issue No. 5: Whether Section 10(4) contravenes Articles of the constitution.
We presume that a national conference is such a conference as is defined in section 2 of the Act. It is intended to be the top most policy-making organ of every party. We do not see how a single orderly meeting of a political party in one place can cause disruptions, even if it is held once every year.
The parties should be free to determine for themselves what period is suitable for electing their top organ. We do not appreciate why the election must occur in the 4th year of Parliament. A party contending for ascendancy should not be made subject to legislative measures that limit its capacity to associate, engage in dialogue and communication. It is, therefore, null and void.
Issue No. 6: Whether Section 10(8) and (9) is inconsistent with the Constitution.
We shall be brief on this issue because Section 10 is very similar to sections 18 and 19 of the Act. This court has already condemned those sections as unconstitutional and a flagrant violation of the freedom of association enshrined in the Constitution.
Issue No. 7: Whether Section 13(b) is inconsistent with the Constitution.
The section provides that no person can hold political office if he is not a citizen of Uganda or has lived outside Uganda for more than three years. In our view, the section contravenes the right and freedom to associate and the right to participate in the affairs of government individually or through representatives. Yet no justification has been made as to why a citizen who has resided outside the country for more than three years should not be permitted to stand in a free and democratic country like ours.
We, therefore, make the following declarations and orders:
1) This petition fails on issues 1, 2, 3 and 4
2) The petition succeeds on issues 5, 6 and 7.
Dated at Kampala this 17th day of November 2004
Justices of Appeal Mpagi-Bahigeine, Engwau, Twinomujuni, Kitumba and Byamugisha
Constitutional Petition No. 7 of 2002 Rwanyarare and others vs Attorney General: Excerpts from the judgement This petition was filed in July 2002 to challenge the constitutionality of various sections of the Political Parties and Organisations Act, 2002. The petition was supported by affidavits sworn by the petitioners. Petitioners were represented by Mr Peter Walubiri, Mr Kiyemba-Mutale and Mr Moses Ojakol. The respondent was represented by Mr Joseph Matsiko, Acting Director of Civil litigation, Mr. Alfred Okello Oryem and M/s Victoria Ssekandi.
Issue No. 1: Whether the definition of a political party or organisation in Section 2 of the Act is inconsistent with and contravenes Article 21 and 75 of the Constitution.
To us, the definition clearly excludes the Movement Political System referred to in article 70 of the Constitution. This is because the political system defined therein is not a political party or organisation. However, the political organs of that system set up by the Movement Act are quite different.
In Petition No. 5 of 2002 we held that the Movement set up by the Movement Act was a political organisation despite the disclaimer in section 2(2) thereof. This is because we found credible overwhelming evidence to the effect that:
(a) It had a political agenda to obtain and retain political power.
(b) It was a statutory body corporate.
(c) It sponsored candidates for political offices.
(d) It participated in the governance of Uganda at all levels.
(e) It was no longer inclusive or non-partisan.
(f) It had abandoned the principle of individual merit as a basis for election.
(g) It has a caucus in Parliament.
The decision of this court still stands. Therefore, the Movement Political Organisation set up by the Movement Act is a political organisation within the meaning of section 2 of the Act.
Issue No. 2: Whether the Act requiring existing political parties to register within six months is inconsistent with the Constitution.
We observe that the requirement does not apply to existing political parties alone. It is a requirement for all political parties. In our view, any organisation, which hopes to compete for political power in this country and to be accountable to the country and its members should be a body corporate. It should be able to own and hold property and to sue and be sued in its own name.
This will also help to reduce trifling parties, which are formed purely for financial gain and have no fixed abode or address. This will also reduce proliferation of numerous political parties, which are capable of creating political instability in the country. This condition for registration is quite reasonable, applies to all political organisations and is not derogation to any rights and freedoms granted by the Constitution.
Regarding the requirement to register in six months, we think that there must be a time frame. The old parties are already recognised by Article 270. They are deemed to have structures and membership. They should find it easier to register as long as obnoxious provisions to this Act are removed. The six months requirement is not unreasonable.
Issue No. 3: Whether Section 5 requires parties to be of a national character.
We think an organisation, which hopes to take political power in Uganda under this Constitution should be representative of the people of Uganda. The requirement will also prevent the registration of opportunistic parties. The numbers required both in terms of membership and districts are not unreasonable. We think the requirements are within the spirit of the Constitution and they neither contravene nor are they inconsistent with any of its articles.
Issue No. 4: Whether Section 8 is unconstitutional.
In our view, the section provides protection to the existing parties to stop their names, colours, symbols, slogans and initials from being adopted and registered by any new parties. We cannot construe it as a restriction but as a protection, which is justified. We hold that the section neither contravenes nor is it inconsistent with any article of the Constitution.
Issue No. 5: Whether Section 10(4) contravenes Articles of the constitution.
We presume that a national conference is such a conference as is defined in section 2 of the Act. It is intended to be the top most policy-making organ of every party. We do not see how a single orderly meeting of a political party in one place can cause disruptions, even if it is held once every year.
The parties should be free to determine for themselves what period is suitable for electing their top organ. We do not appreciate why the election must occur in the 4th year of Parliament. A party contending for ascendancy should not be made subject to legislative measures that limit its capacity to associate, engage in dialogue and communication. It is, therefore, null and void.
Issue No. 6: Whether Section 10(8) and (9) is inconsistent with the Constitution.
We shall be brief on this issue because Section 10 is very similar to sections 18 and 19 of the Act. This court has already condemned those sections as unconstitutional and a flagrant violation of the freedom of association enshrined in the Constitution.
Issue No. 7: Whether Section 13(b) is inconsistent with the Constitution.
The section provides that no person can hold political office if he is not a citizen of Uganda or has lived outside Uganda for more than three years. In our view, the section contravenes the right and freedom to associate and the right to participate in the affairs of government individually or through representatives. Yet no justification has been made as to why a citizen who has resided outside the country for more than three years should not be permitted to stand in a free and democratic country like ours.
We, therefore, make the following declarations and orders:
1) This petition fails on issues 1, 2, 3 and 4
2) The petition succeeds on issues 5, 6 and 7.
Dated at Kampala this 17th day of November 2004
Justices of Appeal Mpagi-Bahigeine, Engwau, Twinomujuni, Kitumba and Byamugisha