Govt explains position

Jun 29, 2004

The Constitutional Court on Friday ruled that the Referendum Act (2000) was null and void, sparking a political storm

The Constitutional Court on Friday ruled that the Referendum Act (2000) was null and void, sparking a political storm. Yesterday, minister Mukwaya issued a statement.

Background
On June 7, 2000, Parliament passed the Referendum (Political Systems) Act, 2000 (the Act) which was assented to by the President on June 9, 2000. It came into force on June 12, 2000 when it was published in the Uganda Gazatte.
Parliament passed the Act solely to enable a Referendum to be held to determine the political system the people of Uganda wished to adopt in compliance with the provisions of article 271 of the Constitution.
On June 22, 2000, Dr. Paul Ssemogerere and Hon. Zachary Olum filed a Constitutional Petition No. 3 of 2000 in the Constitutional Court against the Attorney General.
In the petition, the petitioners alleged that the Act was passed by Parliament without following the procedures laid down in the Constitution.
The petitioners sought declarations that the Act was null and void because:
The Bill for the Act was not referred to a Standing Committee of Parliament.
The enactment of the Act reduced the time allowed by the Constitution for canvassing for the Referendum.
The enactment of the Act denied political parties their constitutional right to participate in the Referendum.
The dispute between the petitioners and Government, which the court was petitioned to resolve, was whether or not the Referendum should be held under the Act.
The contention of the petitioners was that the Referendum should not be held under the Act because the Act was not validly passed by Parliament.
The fact of the matter, however, is that by June, 29, 2000 when the Referendum in which the people of Uganda adopted the Movement political system was held, the court had not heard the petition to resolve the dispute as to whether or not the Act was validly passed by Parliament.
Consequently, the central legal argument of Government, among others, during the court proceedings conducted on April 28, 2004, four years after the holding of the referendum and the expiry of the Act under which the Referendum was held was that the Act was no longer in existence and therefore its Constitutional validity could not longer be a subject of challenge in the Constitutional Court.

Summary of the judgment
All the five justices of the Constitutional Court delivered detailed judgments. In summary the court decided as follows:

The passing of the Referendum (Political Systems) Act, 2000 by Parliament on June 7, 2000, was in contravention of Articles 89 and 90 (1) & (3) of the Constitution for failure to follow the voting procedure and to refer the Bill to the relevant Standing Committee of Parliament, respectively.
They said the Act, is therefore unconstitutional and null and void.
The holding of the Referendum under the Referendum (Political Systems) act, 2000 before passing a law under article 269 of the Constitution to set free political parties and organisations, contravened article 69 of the Constitution.
Parliament had no authority to pass the Referendum (Political Systems) Act, 2000 after the expiry of the period stated in article 271 (2), without first amending that provision of the Constitution.
The Referendum held under the Referendum (Political Systems) Act, 2000 was invalid.
No political system under article 69 of the Constitution was put in place.

Address of the President to the nation
On Sunday June 27, 2004, the President addressed the nation on the Judgment of the Constitutional Court in Constitutional Petition No. 3 of 2000: P. K. Ssemogerere and Zachary Olum Vs Attorney General.

Media reports
Following the delivery of the judgment of the Constitutional Court and the address of the President to the Nation, the media has reported extensively on the matter.
In many respects, media reports have been inaccurate. I would therefore like to make clarifications, explanations and corrections on the matter.
The decision of the President to address the nation on the matter was mainly influenced by the contents of the judgments and how they have been interpreted by the media.
The impression created was that as a result of the judgment, there was no political system in place in Uganda today, the referendum held in 2000 was unconstitutional, there is no government in place, decisions and actions by government are of no legal authority, there will be no referendum because article 74 is dead, Uganda is in a state of anarchy etc.
The essence of the President’s address was to assure the country that there is nothing really to worry about.
Government will ensure and maintain harmony and coherence in democratic governance, security of person and property and the rule of law.
The President emphasised that government lawyers are studying the judgments with a view to taking appropriate legal redress.

Legal redress
The Attorney general’s Chambers have studied the various judgments and have made a decision to appeal to the Supreme court against the judgments of the Constitutional Court.
A notice of appeal was lodged in the Supreme Court yesterday and while awaiting receipt of the record of proceedings from the Court, the Solicitor General and his team has, on the basis of the judgments, already started on the preparations of the grounds of appeal.
As soon as a record of proceedings is obtained from the Court, the grounds of appeal will be finalised and filed in the Supreme Court for the court to fix the hearing of the appeal.
Although the Appeal has been lodged, the preparation and disposal of the Appeal by the Supreme Court may take some months.
While waiting for the outcome of the appeal, there is nothing in the judgments which impinge on the ability of the Executive arm of Government to govern the country.
However, there is one aspect of the judgment which must be addressed by both the Executive and Parliament immediately.
The consequence of the ruling is that Parliament can only consider Bills which have been discussed by a Standing Committee.
The practice in Parliament has, in compliance with the Rules of Procedure, been that Bills are handled by the Sessional Committees.
In order to comply with the ruling of the court, it is imperative to consider whether existing Standing Committees should be assigned the additional role of discussing bills or whether article 90 of the Constitution should be amended to provide for a flexible method of handling bills by Committees of Parliament.
Government will therefore seek the Speaker’s views on the matter before an appropriate decision is taken.
The decisions of Government to appeal against the judgment and to make consultations with the Speaker to agree on how best Bills can be handled by committees in Parliament is living testimony that the movement government respects decisions of our courts and is committed to ensure respect and observance of the rule of law in this country.

Consequences of the judgment
Contrary to media reports, the Constitutional court did not make any declarations on the:
Legality or otherwise of the movement political system. In fact the judgment of Justice Twinomujuni which appears to be the darling of the media states that “on July, 28, 2000, the Electoral Commission announced that the people had chosen The Movement Political System. Up to this day, the system is in place.”
Legality or otherwise of the present government led by the President who was elected in March 2001 under the Presidential Elections Act, Cap. 142 and Parliament which was elected in June 2001 under the Parliamentary Elections Act, 2001.
The legality or otherwise of Appointments in any of the other two arms of Government, namely, the Executive and indeed the Judiciary.
The statement by one of the Judges that Article 74 is dead and that the holding of the referendum under the said article 74 does not arise was not shared by the other four Judges and therefore it does not form part of the judgment of the court.
In any case, it is settled principle that an Act of Parliament or any of its provisions cannot be repealed by a court.
Only Parliament can amend or repeal an Act of Parliament including making an Act of Parliament to amend or repeal a provision in the Constitution.

Conclusion
I would like to assure Parliament and the country that the Constitutional Court judgment does not impinge on the legality of the Movement Political System, the election of the current President and Members of Parliament or appointments in any of the other two arms of Government, namely, the Executive and indeed the Judiciary.
Furthermore, the judgment does not in any way prohibit the holding of the Referendum under article 74 of the Constitution.
The AG’s chambers has lodged an appeal to the Supreme Court against the Constitutional Court judgment.
This means that the matter is sub-judice.
In the event that there is need to enact legislation on a matter relating to the case, the Speaker will, in compliance with the Rules of Procedure of Parliament guide the House on how to proceed.

Ministry of Justice &
Constitutional Affairs
P.O. Box 7183
Kampala
29th June 2004

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