Part I: Judges nullify Amendment Act

Jan 30, 2004

Sometime in 1999, Paul K. Ssemogerere and Zachary Olum petitioned the Constitutional Court in constitutional petition No. 3 of the same year seeking a declaration that the Referendum and Other Provisions Act of 1999 which was passed by Parliament on 1st July, 1999 was null and void on the ground tha

JUDGEMENT OF KANYEIHAMBA, J.S.C.

The background to this appeal is as follows: -

Sometime in 1999, Paul K. Ssemogerere and Zachary Olum petitioned the Constitutional Court in constitutional petition No. 3 of the same year seeking a declaration that the Referendum and Other Provisions Act of 1999 which was passed by Parliament on 1st July, 1999 was null and void on the ground that Parliament had passed it without a quorum. The Constitutional Court dismissed the petition as incompetent and decided that it had no jurisdiction to entertain the petition. The petitioners appealed to this court by way of Constitutional Appeal No. 1 of 2000.

On May 31st, 2000, we delivered judgment in which we allowed the appeal and held that the Constitutional Court had jurisdiction to decide whether or not the Referendum and Other Provisions Act was passed in accordance with the provisions of the Constitution. We directed that the Constitutional Court should hear the petition on its merits.

Following our judgment in that appeal, the Constitutional Court heard Constitutional Petition No. 3 of 1999 between the same parties and delivered its judgment on 10th August, 2000.

In that judgment, the Constitutional Court declared null and void the Referendum and Other Provisions Act No. 2 of 1999 which had been passed by Parliament without the requisite quorum and in disregard of the Constitutional provisions applicable.

As a result of that judgment, Parliament passed the first amendment to the 1995 Constitution, namely the Constitution (Amendment) Act No. 13 of 2000. It was introduced in Parliament, debated, passed and received the Presidential Assent on the same day, namely the 31st of August, 2000.

The three appellants, Messrs Paul Ssemogerere, Zachary Olum and Ms. Juliet Rainer Kafire, filed a constitutional petition against the Attorney General challenging, amongst other things, the constitutionality of the Constitution (Amendment) Act No. 13 of 2000.

The petitioners, filed their petition in the Constitutional Court under Article 137 of the Constitution. In the petition, they, inter alia, challenged the validity of the Constitution (Amendment) Act 13 of 2000. The petition was supported and opposed by several affidavits.

The petition contained several grounds and prayers. However, the Constitutional Court, having held that it was bound by its previous decisions on similar matters, declared by a majority that it had no jurisdiction to interpret one provision of the Constitution against another or others.

It decided that it could only hear one ground which was framed by the Court itself, namely, whether Act 13 of 2000 was passed in compliance with the procedural requirements for the amendment of the Constitution.

In consequence, by a majority of three to two, the Constitutional Court dismissed the petition and held that the Constitution (Amendment) Act 13 of 2000 had properly amended articles 88, 89, 90, 97 and 257 which were specifically enumerated in the long title to the amending Bill.

The Court further held that the Act had not amended any other Articles of the Constitution as alleged by the petitioners. The appeal before this Court is against the judgment of the majority learned Justices of the Constitutional Court.

The Memorandum of Appeal in this Court contains six grounds which are framed as follows: -

1. The learned majority Justices of the Constitutional Court erred in law and fact when they held that Section 5 of the Constitution (Amendment) Act 2000 did not amend Articles 28, 41(1) and 44(c) of the Constitution by implication and infection which Articles require amendment in accordance with Articles 259 and 262 of the Constitution.

2. The learned majority Justices of the Constitutional Court erred in law and fact when they held that Section 5 of the Constitution (Amendment) Act 2000 did not amend Articles 1 and 2(1) and (2) of the Constitution by implication and infection, which Articles require any amendment to be in accordance with Articles 259 and 262.

3. The learned majority Justices of the Constitutional Court erred in law and fact when they held that Section 5 of the Constitution (Amendment) Act, 2000 did not amend Articles 128(1) (2) and (3) and 137(3) of the Constitution by implication and infection - which Articles require amendment in accordance with Articles 259 and 262.

4. The learned majority Justices of the Constitutional Court erred in law and fact when they held that the Petitioners/Appellants had not proved that Parliament did not follow the required procedure under Articles 259 and 262 of the Constitution when enacting the Constitution (Amendment) Act 2000.

5. The learned majority Justices of the Constitutional Court erred in law when they failed to distinguish between a waiver of Parliamentary procedure and non-compliance with the Constitutional Provisions under Articles 258, 259 and 262 of the 1995 Constitution of Uganda.

6. The Constitutional Court erred in law and fact and misconstrued the gist of the Petition and the petitioners' contention when they held that a Constitutional Court would have no jurisdiction to construe part of the Constitution as against the rest of the Constitution and thereby came to a wrong conclusion.

Mr. Lule, S.C. and Mr. Balikuddembe represented the appellants and Mr. Bireije, Commissioner for Civil Litigation assisted by Mr. Okello Oryem, Senior State Attorney, both from the Attorney General's Chambers, appeared for the respondent.

Mr. Lule, for the appellants argued grounds 1, 2, 3, 4 and 5 together and ground 6 separately. He submitted that the appeal had arisen because of the failure by the majority learned Justices of Appeal to resolve several allegations brought before them including the allegation that the enactment of the Constitution (Amendment) Act 13 of 2000 did not comply with the constitutional provisions for amending certain provisions of the 1995 Constitution and that some provisions of that same Act contravene or are at variance with several provisions of the 1995 Constitution.

Mr. Lule contended that Chapter 18 of the Constitution prescribes in Articles 258, 259, 261 and 262 the procedure which an amendment of the Constitution must follow. Counsel contended further that the Constitution classifies those provisions into three groups each of which requires its own special procedure that Parliament ignored when enacting Act 13 of 2000. He pointed out those provisions with which Parliament did not comply. I will be discussing them in this judgment.

Mr. Lule contended that the majority of the Justices of the Constitutional Court erred in holding that only those provisions of the Constitution which were expressly mentioned by the Act were amended. Counsel contended that whether or not a provision of a constitution is amended depends on the purpose and effect of the purported amending instrument. In law, a provision can be amended by implication or by infection. In Mr. Lule's view, even though not specifically mentioned in Act 13 of 2000, the reading of its sections indicate clearly that Articles 1, 2(1), 2(2), 28, 41(1), 44(c), 128 (1), (2), (3) and 137 (3)(a), were all amended either by implication or infection.

It was also Mr. Lule's contention that by amending Article 41, the Constitution (Amendment) Act infected Article 44(c) which prohibits any derogation from the enjoyment of the right to a fair hearing. Counsel further contended that by re-enacting Article 41 and adding on it two more clauses, Parliament not only diluted that Article's original authority, but amended it without following the procedural rules required of it by the Constitution.

Counsel submitted that previously, both this Court and the Constitutional Court had held Section 15 of the National Assembly (Powers and Privileges) Act, Cap 249 inoperative in so far as it was in conflict with the provisions of Article 41 and yet, the Constitution (Amendment) Act 13 of 2000 had restored the provisions of that earlier Act which had also been held to be in conflict with the constitutional right to a fair hearing. Counsel contended that the necessity to seek leave from Parliament to release information from therein or to require a member of Parliament to give evidence, adversely affects the provisions of Article 41.

Mr. Lule contended that if Parliament were to effectively amend the provisions of the Constitution it had to strictly follow the procedures and conditions prescribed by the Constitution itself and therefore the majority Justices of the Constitutional Court erred in law in holding that such procedures and conditions are internal to Parliament and failure to follow them cannot affect the legislation made by that august house. In Counsel’s opinion these constitutional requirements are mandatory and Parliament cannot do indirectly what it is prohibited from doing directly. In Counsel's view, for Parliament to do so would result in colourable legislation.

Continued:
Part II: Ssemogerere wins case againt government
Part II: The Act held no substance
Part IV: Supreme Court overturns ruling

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