Part II: Ssemogerere wins case againt government
Part II<br><br>On ground 6, Mr. Lule contended that the majority learned Justices of the Constitutional Court erred in law in holding that they had no jurisdiction to construe one part of the constitution as against another or the rest of it
Part II
On ground 6, Mr. Lule contended that the majority learned Justices of the Constitutional Court erred in law in holding that they had no jurisdiction to construe one part of the constitution as against another or the rest of it.
Counsel contended that the appellants had presented convincing evidence in their respective affidavits. In Counsel's view, their affidavits dealt with matters of which they had personal knowledge since two of them are Members of Parliament and had been present when the Constitution (Amendment) Bill went through its various stages in Parliament.
Mr. Lule pointed out that on the other hand, the affidavit in support of the respondent's case was by a State Attorney who was not a Member of Parliament.
Counsel cited the cases of Paul Ssemogerere and Zachary Olum v. The Attorney General, Constitutional Appeal No. 1 of 2000, (S.C), (unreported), and Paul Ssemogerere and Zachary Olum v.
The Attorney General, Constitutional Appeal No. 3 of 1999, (Constitutional Court), (unreported), Major General Tinyefuza v. The Attorney General, Constitutional Appeal No.1 of 1997 (S.C.), (unreported), The Queen v. Big M. Drug Mart Ltd. [1986], LRC, 332, H.M. Seervai on the Constitutional Law of India and Teo Soh Lung v. Minister of Home Affairs and Others, [1990], LRC in support of his submissions.
For the respondent, Mr. Bireije supported the majority judgment of the Constitutional Court. He contended that Parliament had correctly followed the right procedure when enacting Act 13 of 2000.
Counsel contended that the only issue before the Constitutional Court for determination was whether Parliament had complied with the relevant constitutional provisions when amending articles 88, 89, 90 and 97 and in creating a new article 257A.
He further contended that the petitioners had failed to produce evidence to prove their allegation that Parliament had not followed the correct procedure. In Counsel's view, the provisions which were the subject of the amendment required conformity with articles 258, 261 and 262(2)(a) of the Constitution and Parliament fully complied with these provisions.
Counsel contended further that the amendments effected by Act 13 of 2000 did not require compliance with article 262(b), as claimed by counsel for the appellants. It was Mr. Bireije's further contention that all the constitutional provisions which Act 13 of 2000 affected had been clearly identified and expressly stated in the amending bill and consequently those other provisions named by the appellants as having been amended were not amended since the latter were not specifically named.
Counsel contended that the amendment did not in any way affect article 137 as alleged in the petition because even today people continue to enjoy the right to petition Court if they claim that any of their constitutional rights have been violated or threatened.
Mr. Bireije conceded that the Constitutional Court has jurisdiction to harmonise various parts of the Constitution but contended that in this particular case, the Court was only concerned with one issue, namely whether Parliament had enacted Act 13 of 2000 in accordance with the constitutional procedure applicable for this kind of legislation.
It was counsel's contention that Parliament had correctly complied with that procedure. He cited the cases of Uganda Law Society and Justine Semuyaba v. Attorney General, Constitutional Petition No. 8 of 2000, (Const. Court), (unreported), and Dr. Rwanyarare and Haji Badru Wegulo v. Attorney General (infra) in support of his submissions.
I will first consider the issue raised in ground 6 of this appeal which I regard as of a preliminary nature and on which the Constitutional Court made a finding. By a majority, the Constitutional Court held that it had no jurisdiction to consider and make a pronouncement on one part of the Constitution in relation to any other or more parts of the same Constitution. In her judgment, Mukasa-Kikonyogo, learned D.C.J. stated,
“Once the correct procedure for enacting a Constitutional Amendment Act is complied with, its provisions become part and parcel of the Constitution. They cannot be challenged in this Court. This Court by a majority of 3 to 2 in Constitutional Petition No 5 of 1999, Dr. Rwanyarare and Haji Badru Wegulo v. Attorney General, held that this Court would not have jurisdiction to construe parts of the constitution as against the rest of the Constitution … All that this Court could do was to determine whether the challenged Act was enacted in accordance with the procedure for enacting constitutional amendmentsâ€
Re-echoing the same view, Kato, J.A., as he then was, observed,
“When the petition came up for hearing on 10/11/2000, a preliminary objection was raised by Mr. Deus Byamugisha, Ag. Director for Civil Litigation on behalf of the respondent. In the objection, he challenged the jurisdiction of the Court to hear the petition since the petitioners were asking the Court to declare part of the Constitution to be inconsistent with another part.
The Court ruled that it had no power to declare one article of the Constitution inconsistent with another, but it could deal with the question as to whether or not a correct procedure was followed when Act 13 of 2000 was passed.â€
In her concurring judgment, Kitumba, J.A. said,
“It is clear from the Constitution (Amendment) Act that the articles of the Constitution which Parliament amended were specified and are articles 88, 89, 90, 97 and 257. It is not the duty of this Court to look into the effect or implication of those amendments as doing so would be trying to interpret one constitutional provision against another.
This Court declined to do that. See James Rwanyarare and Haji Badru Wegulo v. Attorney General, Constitutional Petition No. 5 of 1999 and this Court's ruling in the instant petition on 29th November, 2000.â€
I note that in the judgments of the majority Justices of the Constitutional Court, great reliance was placed on the decisions of that same court in Dr. Rwanyarare and Wegulo v. Attorney General, Constitutional Petition No. 5 of 1999, (Const. Court), (unreported), Uganda Law Society and Justine Semuyaba v. Attorney General, Constitutional Petition No. 8 of 2000, (Const. Court), (unreported), Karuhanga Chapaa and Two Others v. Attorney General, Constitutional Petition No. 6 of 2000, (Const. Court), (unreported).
It is also evident from both the record of proceedings and the judgments of the Constitutional Court that other authorities including binding ones from this Court were cited by Counsel for the appellants. In these other authorities such as Major General Tinyefuza v. Attorney General, (supra), Paul Ssemogerere and Zachary Olum v. Attorney General, (supra) and Ismail Serugo v. Kampala City Council and Another, Constitutional Appeal No. 2 of 1998, (S.C.), (unreported), judicial interpretation of constitutional instruments and other legal documents was extensively and, in my opinion, exhaustively examined, explained and pronounced upon by this Court. Other leading authorities were cited and relied upon by this court.
Moreover, in guiding the Constitutional Court, some of these authorities were cited by Counsel in favour of the appellants' petition.
The record of proceedings before the Constitutional Court indicates quite clearly that counsel for the appellants made submissions on how constitutional amendments are interpreted by courts. Thus, Mr. Lule, lead counsel for the appellants in the Constitutional Court submitted,
“Constitutional Appeal No. 1 of 2000 at pp.32 - Article 41 was held to be linked with Article 44 by Hon. Wambuzi, C.J. at pp.15 of his judgment. He linked various Articles - Amendment of one affects others. Hon. Tsekooko's, pp.7 and 8, Hon. Karokora's p.7 and 9, Hon. Mulenga's pp.15 and 19, Hon. Kanyeihamba's pp.10, 11 and 14. Hon. Oder pp.5 and 10. I submit Articles 41 and 44, 128 and 28(1) are all linked.â€
Counsel for the appellants cited additional authorities from the Commonwealth and other jurisdictions such as The Bribery Commissioner v. Pedrick Ranasinghe [1965] A.C. 132 Phato v. Attorney General of South Africa (1999) 3 LRC 587. The Queen v. Big M. Drug Mart, LRC (1986) 332. With great respect, I do not agree with the learned DCJ that all the authorities cited were irrelevant.
With great respect, the majority of the learned Justices of the Constitutional Court do not appear to have taken into account counsel's submissions and relevant authorities cited to that court. The approach they adopted is almost tantamount to taking a maiden voyage into the mystery of interpretation.
The view of the majority learned Justices of the Constitutional Court that once Parliament has passed a constitutional amendment correctly that amendment becomes part of the constitution and thereafter cannot be questioned in a court of law is, to say the least, a negation of Article 137(3)(a) which provides that a person who alleges that “an Act of Parliament or any other law or anything in or done under the authority of any law is inconsistent with or in contravention of this constitution may petition the Constitutional Court for a declaration to that effect, and for redress where appropriate.â€
In my view, an Act of Parliament which is challenged under Article 137(3) remains uncertain until the appropriate court has pronounced itself upon it. The Constitutional Court is under a duty to make a declaration, one way or the other. In denying that they had jurisdiction to make a declaration on this petition, the learned majority Justices of the Constitutional Court abdicated the function of that court.
Only the dissenting learned Justices of the Constitutional Court found it necessary to refer to these other authorities. Thus, Twinomujuni, J.A., observed in his judgment,
“Following its earlier decisions and those of the Supreme Court of Uganda in Tinyefuza v. Attorney General, Constitutional Case No. 1 of 1996, Attorney General v. Tinyefuza, Constitutional Appeal No. 1 of 1997 and Ssemogerere and Olum v. Attorney General, Constitutional Appeal No. 1 of 2000, this Court held that: -
(a) Section 15 of the National Assembly (Powers and Privileges) Act contravened Article 41 of the Constitution.
(b) Section 15 of the National Assembly (Powers and Privileges) Act contravened Article 28(1), 41 and 44 (c) of the Constitution.
It was a result of these decisions that Paul Ssemogerere and Hon. Zachary Olum were able to obtain the evidence that enabled them to succeed in Constitutional Petition No. 3 of 1999.â€
Justice Mpagi-Bahigeine, J.A., the other dissenting learned Justice of the Constitutional Court referred to those same binding and leading authorities including The Attorney General v. Major General David Tinyefuza (supra), Paul Ssemogerere and Another v. Attorney General (supra) and The Queen v. Big M. Drug Mart Ltd., (1986) LRC, 332, in her judgment.
In the case of Tinyefuza v. Attorney General (supra), the petition was considered by the Constitutional Court differently constituted from that which heard this appeal and on the constitutional interpretation, Manyindo, D.C.J. as he then was, observed,
“The entire Constitution has to be read as an integrated whole, and no one particular provision destroying the other but each sustaining the other. This is the rule of harmony, rule of completeness and exhaustiveness and the rule of paramountcy of the written Constitution. The third principle is that the words of the written constitution prevail over all unwritten conventions, precedents and practices. I think it is now also widely accepted that a court should not be swayed by considerations of policy and propriety while interpreting provisions of the Constitution.â€
The other learned Justices of the Court, Ag. Justice Okello, Ag. Justice Mpagi-Bahigeine, Ag. Justice Tabaro and Ag. Justice Egonda-Ntende agreed or expressed the same views.
Guidance as to how to interpret a constitutional instrument in relation to other documents including those which are not specifically mentioned by that instrument, may be discerned from Article 273 of the Constitution. It provides,
“273(1) subject to the provisions of this article, the operation of the existing law after the coming into force of this Constitution shall not be affected by the coming into force of this Constitution, but the existing law shall be construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring it into conformity with this Constitution.â€
This provision shows quite clearly that provisions of the Constitution or any other law do not have to be specifically mentioned to be amended by implication or infection. I am therefore not persuaded by the arguments of respondent's counsel that if constitutional provisions are not specifically mentioned in an amending bill they cannot be held to have been amended.
This argument is not founded in logic or precedent. It attempts to clothe Parliament with an apparent authority to do what it is not permitted to do by the Constitution with the result that what it enacts has the appearance of a law, but it is a law which has no substance to it.
This is what the learned lead counsel for the appellants called colourable legislation. Curiously however, this assertion managed to find comfortable accommodation in the judgments of some of the learned Justices of the Constitutional Court.
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Part III: The Act held no substance
Part IV: Supreme Court overturns ruling
On ground 6, Mr. Lule contended that the majority learned Justices of the Constitutional Court erred in law in holding that they had no jurisdiction to construe one part of the constitution as against another or the rest of it.
Counsel contended that the appellants had presented convincing evidence in their respective affidavits. In Counsel's view, their affidavits dealt with matters of which they had personal knowledge since two of them are Members of Parliament and had been present when the Constitution (Amendment) Bill went through its various stages in Parliament.
Mr. Lule pointed out that on the other hand, the affidavit in support of the respondent's case was by a State Attorney who was not a Member of Parliament.
Counsel cited the cases of Paul Ssemogerere and Zachary Olum v. The Attorney General, Constitutional Appeal No. 1 of 2000, (S.C), (unreported), and Paul Ssemogerere and Zachary Olum v.
The Attorney General, Constitutional Appeal No. 3 of 1999, (Constitutional Court), (unreported), Major General Tinyefuza v. The Attorney General, Constitutional Appeal No.1 of 1997 (S.C.), (unreported), The Queen v. Big M. Drug Mart Ltd. [1986], LRC, 332, H.M. Seervai on the Constitutional Law of India and Teo Soh Lung v. Minister of Home Affairs and Others, [1990], LRC in support of his submissions.
For the respondent, Mr. Bireije supported the majority judgment of the Constitutional Court. He contended that Parliament had correctly followed the right procedure when enacting Act 13 of 2000.
Counsel contended that the only issue before the Constitutional Court for determination was whether Parliament had complied with the relevant constitutional provisions when amending articles 88, 89, 90 and 97 and in creating a new article 257A.
He further contended that the petitioners had failed to produce evidence to prove their allegation that Parliament had not followed the correct procedure. In Counsel's view, the provisions which were the subject of the amendment required conformity with articles 258, 261 and 262(2)(a) of the Constitution and Parliament fully complied with these provisions.
Counsel contended further that the amendments effected by Act 13 of 2000 did not require compliance with article 262(b), as claimed by counsel for the appellants. It was Mr. Bireije's further contention that all the constitutional provisions which Act 13 of 2000 affected had been clearly identified and expressly stated in the amending bill and consequently those other provisions named by the appellants as having been amended were not amended since the latter were not specifically named.
Counsel contended that the amendment did not in any way affect article 137 as alleged in the petition because even today people continue to enjoy the right to petition Court if they claim that any of their constitutional rights have been violated or threatened.
Mr. Bireije conceded that the Constitutional Court has jurisdiction to harmonise various parts of the Constitution but contended that in this particular case, the Court was only concerned with one issue, namely whether Parliament had enacted Act 13 of 2000 in accordance with the constitutional procedure applicable for this kind of legislation.
It was counsel's contention that Parliament had correctly complied with that procedure. He cited the cases of Uganda Law Society and Justine Semuyaba v. Attorney General, Constitutional Petition No. 8 of 2000, (Const. Court), (unreported), and Dr. Rwanyarare and Haji Badru Wegulo v. Attorney General (infra) in support of his submissions.
I will first consider the issue raised in ground 6 of this appeal which I regard as of a preliminary nature and on which the Constitutional Court made a finding. By a majority, the Constitutional Court held that it had no jurisdiction to consider and make a pronouncement on one part of the Constitution in relation to any other or more parts of the same Constitution. In her judgment, Mukasa-Kikonyogo, learned D.C.J. stated,
“Once the correct procedure for enacting a Constitutional Amendment Act is complied with, its provisions become part and parcel of the Constitution. They cannot be challenged in this Court. This Court by a majority of 3 to 2 in Constitutional Petition No 5 of 1999, Dr. Rwanyarare and Haji Badru Wegulo v. Attorney General, held that this Court would not have jurisdiction to construe parts of the constitution as against the rest of the Constitution … All that this Court could do was to determine whether the challenged Act was enacted in accordance with the procedure for enacting constitutional amendmentsâ€
Re-echoing the same view, Kato, J.A., as he then was, observed,
“When the petition came up for hearing on 10/11/2000, a preliminary objection was raised by Mr. Deus Byamugisha, Ag. Director for Civil Litigation on behalf of the respondent. In the objection, he challenged the jurisdiction of the Court to hear the petition since the petitioners were asking the Court to declare part of the Constitution to be inconsistent with another part.
The Court ruled that it had no power to declare one article of the Constitution inconsistent with another, but it could deal with the question as to whether or not a correct procedure was followed when Act 13 of 2000 was passed.â€
In her concurring judgment, Kitumba, J.A. said,
“It is clear from the Constitution (Amendment) Act that the articles of the Constitution which Parliament amended were specified and are articles 88, 89, 90, 97 and 257. It is not the duty of this Court to look into the effect or implication of those amendments as doing so would be trying to interpret one constitutional provision against another.
This Court declined to do that. See James Rwanyarare and Haji Badru Wegulo v. Attorney General, Constitutional Petition No. 5 of 1999 and this Court's ruling in the instant petition on 29th November, 2000.â€
I note that in the judgments of the majority Justices of the Constitutional Court, great reliance was placed on the decisions of that same court in Dr. Rwanyarare and Wegulo v. Attorney General, Constitutional Petition No. 5 of 1999, (Const. Court), (unreported), Uganda Law Society and Justine Semuyaba v. Attorney General, Constitutional Petition No. 8 of 2000, (Const. Court), (unreported), Karuhanga Chapaa and Two Others v. Attorney General, Constitutional Petition No. 6 of 2000, (Const. Court), (unreported).
It is also evident from both the record of proceedings and the judgments of the Constitutional Court that other authorities including binding ones from this Court were cited by Counsel for the appellants. In these other authorities such as Major General Tinyefuza v. Attorney General, (supra), Paul Ssemogerere and Zachary Olum v. Attorney General, (supra) and Ismail Serugo v. Kampala City Council and Another, Constitutional Appeal No. 2 of 1998, (S.C.), (unreported), judicial interpretation of constitutional instruments and other legal documents was extensively and, in my opinion, exhaustively examined, explained and pronounced upon by this Court. Other leading authorities were cited and relied upon by this court.
Moreover, in guiding the Constitutional Court, some of these authorities were cited by Counsel in favour of the appellants' petition.
The record of proceedings before the Constitutional Court indicates quite clearly that counsel for the appellants made submissions on how constitutional amendments are interpreted by courts. Thus, Mr. Lule, lead counsel for the appellants in the Constitutional Court submitted,
“Constitutional Appeal No. 1 of 2000 at pp.32 - Article 41 was held to be linked with Article 44 by Hon. Wambuzi, C.J. at pp.15 of his judgment. He linked various Articles - Amendment of one affects others. Hon. Tsekooko's, pp.7 and 8, Hon. Karokora's p.7 and 9, Hon. Mulenga's pp.15 and 19, Hon. Kanyeihamba's pp.10, 11 and 14. Hon. Oder pp.5 and 10. I submit Articles 41 and 44, 128 and 28(1) are all linked.â€
Counsel for the appellants cited additional authorities from the Commonwealth and other jurisdictions such as The Bribery Commissioner v. Pedrick Ranasinghe [1965] A.C. 132 Phato v. Attorney General of South Africa (1999) 3 LRC 587. The Queen v. Big M. Drug Mart, LRC (1986) 332. With great respect, I do not agree with the learned DCJ that all the authorities cited were irrelevant.
With great respect, the majority of the learned Justices of the Constitutional Court do not appear to have taken into account counsel's submissions and relevant authorities cited to that court. The approach they adopted is almost tantamount to taking a maiden voyage into the mystery of interpretation.
The view of the majority learned Justices of the Constitutional Court that once Parliament has passed a constitutional amendment correctly that amendment becomes part of the constitution and thereafter cannot be questioned in a court of law is, to say the least, a negation of Article 137(3)(a) which provides that a person who alleges that “an Act of Parliament or any other law or anything in or done under the authority of any law is inconsistent with or in contravention of this constitution may petition the Constitutional Court for a declaration to that effect, and for redress where appropriate.â€
In my view, an Act of Parliament which is challenged under Article 137(3) remains uncertain until the appropriate court has pronounced itself upon it. The Constitutional Court is under a duty to make a declaration, one way or the other. In denying that they had jurisdiction to make a declaration on this petition, the learned majority Justices of the Constitutional Court abdicated the function of that court.
Only the dissenting learned Justices of the Constitutional Court found it necessary to refer to these other authorities. Thus, Twinomujuni, J.A., observed in his judgment,
“Following its earlier decisions and those of the Supreme Court of Uganda in Tinyefuza v. Attorney General, Constitutional Case No. 1 of 1996, Attorney General v. Tinyefuza, Constitutional Appeal No. 1 of 1997 and Ssemogerere and Olum v. Attorney General, Constitutional Appeal No. 1 of 2000, this Court held that: -
(a) Section 15 of the National Assembly (Powers and Privileges) Act contravened Article 41 of the Constitution.
(b) Section 15 of the National Assembly (Powers and Privileges) Act contravened Article 28(1), 41 and 44 (c) of the Constitution.
It was a result of these decisions that Paul Ssemogerere and Hon. Zachary Olum were able to obtain the evidence that enabled them to succeed in Constitutional Petition No. 3 of 1999.â€
Justice Mpagi-Bahigeine, J.A., the other dissenting learned Justice of the Constitutional Court referred to those same binding and leading authorities including The Attorney General v. Major General David Tinyefuza (supra), Paul Ssemogerere and Another v. Attorney General (supra) and The Queen v. Big M. Drug Mart Ltd., (1986) LRC, 332, in her judgment.
In the case of Tinyefuza v. Attorney General (supra), the petition was considered by the Constitutional Court differently constituted from that which heard this appeal and on the constitutional interpretation, Manyindo, D.C.J. as he then was, observed,
“The entire Constitution has to be read as an integrated whole, and no one particular provision destroying the other but each sustaining the other. This is the rule of harmony, rule of completeness and exhaustiveness and the rule of paramountcy of the written Constitution. The third principle is that the words of the written constitution prevail over all unwritten conventions, precedents and practices. I think it is now also widely accepted that a court should not be swayed by considerations of policy and propriety while interpreting provisions of the Constitution.â€
The other learned Justices of the Court, Ag. Justice Okello, Ag. Justice Mpagi-Bahigeine, Ag. Justice Tabaro and Ag. Justice Egonda-Ntende agreed or expressed the same views.
Guidance as to how to interpret a constitutional instrument in relation to other documents including those which are not specifically mentioned by that instrument, may be discerned from Article 273 of the Constitution. It provides,
“273(1) subject to the provisions of this article, the operation of the existing law after the coming into force of this Constitution shall not be affected by the coming into force of this Constitution, but the existing law shall be construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring it into conformity with this Constitution.â€
This provision shows quite clearly that provisions of the Constitution or any other law do not have to be specifically mentioned to be amended by implication or infection. I am therefore not persuaded by the arguments of respondent's counsel that if constitutional provisions are not specifically mentioned in an amending bill they cannot be held to have been amended.
This argument is not founded in logic or precedent. It attempts to clothe Parliament with an apparent authority to do what it is not permitted to do by the Constitution with the result that what it enacts has the appearance of a law, but it is a law which has no substance to it.
This is what the learned lead counsel for the appellants called colourable legislation. Curiously however, this assertion managed to find comfortable accommodation in the judgments of some of the learned Justices of the Constitutional Court.
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Part I: Judges nullify Amendment Act
Next:
Part III: The Act held no substance
Part IV: Supreme Court overturns ruling