Second referendum Act overturned

By Alfred Wasike and Hillary Nsambu
THE Constitutional Court has declared invalid, the second Referendum Act under which the June 29, 2000 referendum on political systems was held and the Movement system adopted.

The court yesterday unanimously ruled that the law that formed the basis for the referendum was null and void because the way it was enacted by Parliament was kangaroo style and violated the Constitution.

The court made the judgements in a ruling on a June 22, 2000 petition by Democratic Party leaders, Paul Ssemogerere and Zachary Olum, who complained that the enactment of the political systems referendum law “denied political parties of their constitutional right to participate in the referendum to choose a political system under Article 271 but instead instituted the ‘Movement’ as the only recognised political system.”

Excited DP members including Ssemogerere, John Baptist Kakooza, Leander Komakech, Joseph Balikuddembe, Erias Lukwago, Sebuliba Mutumba (Kawempe South), Casiano Wadri (Terego), and others hugged one another in excitement after the ruling.

Also present was the Konrad Adenauer Foundation resident chief, Wolfgang Hilberer.

In five judgements delivered yesterday, Justices Galdino Okello, Alice Mpagi-Bahigeine, George Engwau, Amos Twinomujuni and Christine Kitumba also declared the Referendum (Political Systems) Act 2000, null and void.

In a related development, the Government has withdrawn an appeal from the Supreme Court in respect to of the nullification of sections of the Political Parties and Organisations Act.

The withdrawal was communicated to the court on June 21, according to documents.

In the Referendum Act ruling the judges lashed out at the Sixth parliament that passed the referendum law on June 7, 2000, saying the law was enacted “kangaroo style” because “the minister for constitutional affairs (Mayanja Nkangi) tabled the bill, read it three times in succession from 3:20pm and parliament passed it at 5:50pm.”

The law was assented to by President Yoweri Museveni on June 9 and published in the Uganda Gazette on June 12. Parliament backdated the law to July 2, 1999.

Justice Twinomujuni ruled, “The Act is null and void. It never became law, either on July 9, 1999 or June 9, 2000 when it was assented to. It could not expire when it never had a valid existence.”

“Anything that was done under the Act was invalid. To rule otherwise would be tantamount to authorising the stampeding of Parliament as was the case here, to pass kangaroo style legislation oblivious of the constitution, perform unconstitutional acts allegedly under the authority of such legislation with impunity, would be licencing anarchy,” Twinomujuni said.

Justice Okello said Parliament did not have the authority and did not follow the constitutional procedures when passing the law.
He said holding the referendum before passing a law under Article 269 to set free political parties contravened Article 69 of the same Constitution.

He said the law that should have been in place two years before, gave “less than a month to canvass for votes.”

Justice Bahigeine said, “Even where retrospective legislation might be valid, in certain circumstances, Parliament cannot alter certain past facts or events.
“The literal meaning of this impractical legal fiction was that people would campaign in arrears.

The result is that people were unjustifiably deprived of their fundamental rights to freely associate, exchange and express their political ideas and aspirations. They were incapacitated politically as they could not campaign to effect their political destiny,” she said.

Justice Engwau ruled, “The Act was null and void. The referendum held under that Act, the people of Uganda did not have a choice.”

Justice Kitumba ruled, “The Act was passed in contravention of the constitution, as there was no transparent voting. It also offended Article 271 and as such it was unable to support the purpose for which it was intended.”