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Rwanyarare & Another v Attorney General (Constitutional Petition 5 of 1999)

Constitutional Court · [2000] UGCC 8 · 2000 Petition Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional petition under Article 137 of the Constitution challenging the constitutionality of provisions of the Referendum and Other Provisions Act No. 2 of 1999
Decision
Petition dismissed by majority; impugned provisions of the Referendum and Other Provisions Act 1999 held constitutional

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Holding

By a 3:2 majority the Constitutional Court dismissed a petition challenging provisions of the Referendum and Other Provisions Act 1999. The majority held that section 4(2), requiring judges to frame the referendum question, did not violate the right to a fair hearing (art.28) or judicial independence (art.128), which protects judges only in the exercise of judicial power; that the publication and electronic-media restrictions in section 21(3)-(7) were reasonable limits justified under article 43 and did not contravene freedom of expression (art.29(1)(a)); and that sections 4(1)(d), 10, 13(2)-(3) and 26 did not contravene the free-and-fair-referendum guarantee in article 69. Twinomujuni and Okello JJA dissented, holding all impugned provisions unconstitutional.

Facts

The petitioners, leaders of the Uganda Peoples Congress, opposed the referendum on political systems scheduled for June 2000 under Article 271(3) of the 1995 Constitution. Parliament had enacted the Referendum and Other Provisions Act No. 2 of 1999 to govern that referendum. The petitioners challenged several provisions: section 4(2), under which the Minister refers the framing of the referendum question to the Chief Justice, who appoints a panel of three judges; section 21(3)-(7), which requires authors of referendum publications to disclose their identity and criminalises specified electronic-media conduct; and sections 4(1)(d), 10, 13(2)-(3) and 26, which govern how the referendum is organised, including the requirement that each side establish a National Referendum Committee. They contended these provisions undermined judicial independence and the right to a fair hearing, unjustifiably restricted freedom of expression, and prevented a free and fair referendum because political parties, restricted by Article 269, could not organise to participate. After preliminary rulings, only three issues proceeded to trial.

Issues

  1. Whether section 4(2) of the Referendum and Other Provisions Act 1999, requiring a panel of three judges to frame the referendum question, is inconsistent with Articles 28 and 128 of the Constitution (right to a fair hearing and independence of the judiciary).
  2. Whether section 21(3) to (7) of the Referendum and Other Provisions Act 1999, requiring identification of authors of referendum publications and prohibiting specified electronic-media conduct, contravenes Article 29(1)(a) of the Constitution (freedom of speech and expression).
  3. Whether sections 4(1)(d), 10, 13(2) and (3) and 26 of the Referendum and Other Provisions Act 1999 contravene Article 69 of the Constitution (the right to a free and fair referendum).

Orders

  • Petition dismissed.
  • The contested sections of the Referendum and Other Provisions Act 1999 declared not inconsistent with Articles 28, 29(1)(a), 69 and 128 of the Constitution.
  • Costs of the petition awarded to the respondent.

Key headnotes

Constitutional Law — Interpretation — Generous and Purposive Construction of Fundamental Rights
Constitutional provisions, and particularly those protecting fundamental rights and freedoms, are to be given a generous, liberal and purposive construction, unfettered by technicalities, so as to give the fullest effect to the rights conferred and not to whittle them down.
Constitutional Law — Independence of the Judiciary — Non-judicial Functions Performed by Judges
Article 128 protects judicial officers only in the exercise of judicial power; the assignment to a panel of judges of a non-judicial function, such as framing a referendum question, does not of itself compromise the independence of the judiciary as an institution.
Constitutional Law — Fair Hearing — Bias — Objective Test of Reasonable Apprehension
The right to a fair hearing under Article 28 is not infringed where judges who performed a non-judicial task would not sit on disputes arising from it; the question of bias is determined objectively by the impression created on reasonable onlookers, not by the subjective feelings of the judge.
Human Rights — Limitation of Rights — Burden of Justification under Article 43
Fundamental rights and freedoms are inherent and not granted by the state; a party seeking to restrict the enjoyment of a Chapter Four right bears the burden of proving that the restriction is justified under Article 43 as acceptable and demonstrably justifiable in a free and democratic society.
Human Rights — Freedom of Expression — Restrictions on Referendum Campaign Speech
Statutory restrictions on referendum campaigning that require authors of published material to identify themselves and prohibit false, malicious or abusive use of electronic media do not necessarily contravene freedom of expression under Article 29(1)(a) where they are reasonable limits compatible with Article 43; the court divided on whether the particular restrictions in section 21 were so justified.
Electoral Law — Free and Fair Referendum — Statutory Implementation of Article 69
A statute governing a referendum need not expressly cite Article 69 to require a free and fair referendum; the Electoral Commission remains bound by Articles 61 and 69 to organise referenda in accordance with the Constitution, so the omission does not render the enabling provisions unconstitutional.

Legislation cited (24)

  • Constitution of Uganda 1995 art.28
  • Constitution of Uganda 1995 art.29(1)(a)
  • Constitution of Uganda 1995 art.43
  • Constitution of Uganda 1995 art.61
  • Constitution of Uganda 1995 art.69
  • Constitution of Uganda 1995 art.76
  • Constitution of Uganda 1995 art.79
  • Constitution of Uganda 1995 art.126
  • Constitution of Uganda 1995 art.128
  • Constitution of Uganda 1995 art.129
  • Constitution of Uganda 1995 art.137
  • Constitution of Uganda 1995 art.269
  • Constitution of Uganda 1995 art.271
  • Referendum and Other Provisions Act 1999 s.4(2)
  • Referendum and Other Provisions Act 1999 s.4(1)(d)
  • Referendum and Other Provisions Act 1999 s.10
  • Referendum and Other Provisions Act 1999 s.13(2)
  • Referendum and Other Provisions Act 1999 s.13(3)
  • Referendum and Other Provisions Act 1999 s.21
  • Referendum and Other Provisions Act 1999 s.26
  • Movement Act 1997
  • Parliamentary Elections (Interim Provisions) Statute 1996 s.50
  • Parliamentary Elections (Interim Provisions) Statute 1996 s.51
  • Local Government Act 1997 s.15

Cases cited (21)

  • Major General David Tinyefuza v Attorney General (Constitutional Petition No. 1 of 1996)
  • Major General Tinyefuza v Attorney General (Constitutional Appeal No. 1 of 1997)
  • Salvatori Abuki v Attorney General (Constitutional Petition No. 2 of 1997)
  • Republic v El-Mann [1969] EA 357
  • Uganda v Kabaka's Government [1965] EA 393
  • Attorney General v Momodou Jobe [1984] AC 689
  • R v Big M Drug Mart Ltd [1985] 18 DLR (4th) 321
  • The Queen v Big M Drug Mart Ltd [1986] LRC (Const) 332
  • Unity Dow v Attorney General of Botswana (1992) LRC (Const) 623
  • De Clerk & Snot -vs- Du Plassis & Anor 91990) 6 BLR 124
  • Trop v Dulles 356 US 86 (1958)
  • Waterside Workers' Federation of Australia v Alexander (1918) 25 CLR 434
  • Muskrat v United States 219 US 346 (1911)
  • Marbury v Madison 5 US 137 (1803)
  • Attorney General of Australia v The Queen and Boilermakers' Society of Australia [1957] 2 All ER 45
  • McGowan v Maryland 366 US 420 (1961)
  • Lindauer v Allen 85 Nev 430 (1969)
  • R v Sussex Justices, ex parte McCarthy [1924] 1 KB 256
  • R v Higgins [1895] 1 QB 563
  • Attorney General v Morgan [1985] LRC (Const) 770
  • R v Oakes [1986] 1 SCR 103
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