Wakilii

Ssemwogerere and Others v Attorney General (Constitutional Petition 7 of 2000)

Constitutional Court · [2002] UGCC 1 · 2002 Petition Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional petition challenging the validity of an Act of Parliament for non-compliance with the procedure for amending the Constitution
Decision
Petition dismissed by a majority of 3:2; the Constitution (Amendment) Act No. 13 of 2000 held to have been validly passed.

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Cited — treatment unverified cited in 4 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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Holding

The petitioners challenged the Constitution (Amendment) Act No. 13 of 2000, alleging Parliament ignored the Chapter 18 procedure — no referendum, no 14-day interval between the second and third readings, and no Speaker's certificate. By a 3:2 majority the Constitutional Court dismissed the petition, holding that the amended articles (88, 89, 90, 97, 257) were not entrenched under Articles 259/260, so no referendum, spacing, or Electoral Commission certificate was required; that the petitioners had not proved the entrenched articles were amended by implication or infection; and that absence of the Speaker's certificate was a non-fatal administrative matter, the President's assent raising a presumption of regularity. The minority (Mpagi-Bahigeine and Twinomujuni JJA) would have allowed the petition.

Facts

The Constitution (Amendment) Bill No. 16 of 2000 was published in the Uganda Gazette on 28 August 2000, the preamble stating an intention to amend Articles 88, 89 and 90. It was debated and on 1 September 2000 passed as the Constitution (Amendment) Act No. 13 of 2000, receiving Presidential assent the same day. In addition to the gazetted articles, the Act amended Articles 97 and 257 and inserted a new Article 257A. Section 5 amended Article 97 by transplanting section 15 of the National Assembly (Powers and Privileges) Act, restricting the use of parliamentary records as evidence. The petitioners — two of them members of Parliament present when the Act was passed — contended the Act also amended entrenched Articles 1, 2, 28, 41 and 44 by necessary implication or infection, which required a referendum, a 14-day interval between the second and third readings, and certificates from the Speaker and the Electoral Commission, none of which occurred. The Act was passed within two days. By consent the sole issue was whether the Act complied with the Chapter 18 amendment procedure.

Issues

  1. Whether the Constitution (Amendment) Act No. 13 of 2000 complied with the procedural requirements prescribed in Chapter 18 of the Constitution for amendment of the Constitution.
  2. Whether the Act, in amending Articles 88, 89, 90, 97 and 257, also amended entrenched Articles 1, 2, 28, 41 and 44 by implication or infection, so as to require a referendum and the other special procedures.
  3. Whether the absence of a certificate of compliance from the Speaker of Parliament rendered the Act invalid.

Orders

  • Petition dismissed by a majority of 3:2.
  • Each party to bear its own costs.

Key headnotes

Constitutional Law — Amendment of the Constitution — Entrenched provisions and the referendum requirement
A referendum, ratification by district councils, the 14-day interval between the second and third readings, and certificates of the Electoral Commission are required only where an amendment touches provisions entrenched under Articles 259 and 260; amendments made under the general power in Article 258 require only the support of not less than two-thirds of all members of Parliament at the second and third readings.
Statutory Interpretation — Amendment by implication or infection — Proof required
A court will not impute to the legislature an intention to amend provisions of the Constitution that an amending Act does not expressly name; a petitioner alleging amendment by necessary implication or infection must prove it, and the court will not read unnecessary implications into the Act without evidence.
Constitutional Law — Speaker's certificate of compliance — Article 262(2)(a)
The absence of the Speaker's certificate of compliance is a procedural and administrative requirement that does not go to the root of the law-making process; where the President has assented to the Act, it is presumed in the absence of contrary evidence that all formalities were complied with (omnia praesumuntur rite et solemniter esse acta donec probetur in contrarium).
Evidence — Burden of proof — Allegation of non-compliance with legislative procedure
The burden of proving that an Act was passed without compliance with the prescribed procedure rests on the petitioner who asserts it; an affidavit by a member of Parliament who is not shown to have knowledge of whether the Speaker certified or transmitted the Bill does not discharge that burden.
Constitutional Law — Jurisdiction of the Constitutional Court — Challenge to a Constitution (Amendment) Act
Once the correct procedure for enacting a constitutional amendment is complied with, the amendment becomes part and parcel of the Constitution and its provisions cannot be challenged; the court's jurisdiction is confined to determining whether the Act was passed in accordance with the prescribed procedure.
Constitutional Law — Severability of an invalid amendment (dissent)
Where an amendment to an entrenched provision is passed without the required procedure but can be severed from valid amendments contained in the same Act, only the offending amendment is declared void while the remaining amendments stand.

Legislation cited (32)

  • Constitution of Uganda 1995 art.1
  • Constitution of Uganda 1995 art.2
  • Constitution of Uganda 1995 art.28
  • Constitution of Uganda 1995 art.41
  • Constitution of Uganda 1995 art.44
  • Constitution of Uganda 1995 art.79
  • Constitution of Uganda 1995 art.88
  • Constitution of Uganda 1995 art.89
  • Constitution of Uganda 1995 art.90
  • Constitution of Uganda 1995 art.92
  • Constitution of Uganda 1995 art.94(1)
  • Constitution of Uganda 1995 art.97
  • Constitution of Uganda 1995 art.126(1)
  • Constitution of Uganda 1995 art.128
  • Constitution of Uganda 1995 art.137
  • Constitution of Uganda 1995 art.257
  • Constitution of Uganda 1995 art.258
  • Constitution of Uganda 1995 art.259
  • Constitution of Uganda 1995 art.260
  • Constitution of Uganda 1995 art.261
  • Constitution of Uganda 1995 art.262
  • Constitution of Uganda 1995 art.269
  • Constitution (Amendment) Act No. 13 of 2000 s.3
  • Constitution (Amendment) Act No. 13 of 2000 s.5
  • Constitution (Amendment) Act No. 13 of 2000 s.6
  • National Assembly (Powers and Privileges) Act (Cap.249) s.15
  • Evidence Act (Cap.43) s.100
  • Evidence Act (Cap.43) s.102
  • Evidence Act (Cap.43) s.121
  • Rules of Procedure of the Parliament of Uganda rule 8
  • Rules of Procedure of the Parliament of Uganda rule 96(4)
  • Rules of Procedure of the Parliament of Uganda rule 163

Cases cited (15)

  • James Rwanyarare and Badru Wegulo v Attorney General (Constitutional Petition No. 5 of 1999)
  • Uganda Law Society and Justin Semuyaba v Attorney General (Constitutional Petition No. 8 of 2000)
  • Karuhanga Chapaa and Others v Attorney General (Constitutional Petition No. 6 of 2000)
  • Kesavananda Bharati v State of Kerala AIR 1973 SC 1461
  • Paul K. Ssemwogerere and Another v Attorney General (Constitutional Appeal No. 1 of 2000)
  • Attorney General v Tinyefuza (Constitutional Appeal No. 1 of 1997)
  • Tinyefuza vs. Attorney General Constitutional Case No. ... of 1996
  • Ssemwogerere and Another v Attorney General (Constitutional Petition No. 3 of 1999)
  • Constitutional Petition No. 6 of 1999
  • Jim Muhwezi Kaluguga v Attorney General (Constitutional Cause No. 4 of 1998)
  • Patrick Kisundu and Another v Attorney General (Constitutional Cause No. 6 of 1998)
  • The Bribery Commissioner v Ranasinghe [1965] AC 172
  • Attorney General v Alli and Others (1989) LRC (Const) 474
  • The Queen v Big M Drug Mart Ltd (1986) LRC 332
  • Phato v Attorney General (1994) 3 LRC 506
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.