Wakilii

Dr James Rwanyarare and Ors v Attorney General (Constitutional Petition No. 7 of 2002)

Constitutional Court · [2004] UGCC 5 · 2004 Petition Partly Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional petition challenging the constitutionality of provisions of the Political Parties and Organisations Act, 2002
Decision
Petition partly succeeded: sections 10(4), 10(8), 10(9) and 13(b) of the Political Parties and Organisations Act, 2002 declared null and void; remaining challenges dismissed

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Cited — treatment unverified cited in 11 (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 Constitutional Court upheld the definition of political organisation (s.2), the requirement to register as a body corporate within six months (s.6), the national-character membership thresholds (s.5/7) and the protective symbols/names provision (s.8). It struck down three provisions as unjustifiable derogations from the freedom of association (article 29(1)(e)) and the right to participate in government (article 38): s.10(4) tying election of a party's National Conference to the fourth year of Parliament; s.10(8) and (9) restricting party meetings to elect the National Conference; and s.13(b) barring party office for citizens resident abroad for over three years. The petition succeeded on issues 5, 6 and 7 and failed on issues 1 to 4.

Facts

Nine petitioners, members and leaders of political parties, filed a petition in July 2002 challenging the constitutionality of several sections of the Political Parties and Organisations Act, 2002. Hearing was delayed by preliminary matters, one of which generated an appeal to the Supreme Court. In the interim the Constitutional Court, in Constitutional Petition No. 5 of 2002 (Ssemogerere and Others), had struck down sections 18 and 19 of the same Act and held that the Movement set up by the Movement Act 1997 was a political organisation within the Act. The surviving challenge was reduced to seven agreed issues concerning the statutory definition of political organisation, mandatory incorporation within six months, national-character membership thresholds, protection of party symbols and names, restriction of National Conference elections to the fourth year of Parliament, restrictions on party meetings, and a bar on party office for citizens long resident abroad. All affidavit evidence was admitted as non-controversial.

Issues

  1. Whether the definition of 'political organisation' under section 2(1) and (2) of the Political Parties and Organisations Act, 2002 is inconsistent with articles 21 and 75 of the Constitution.
  2. Whether section 6(2)(3) and (4) of the Act, requiring existing political parties to register as bodies corporate within six months, contravenes the Constitution.
  3. Whether section 5 and the national-character requirement of the Act contravene the Constitution.
  4. Whether section 8 of the Act, prohibiting registration of identifying symbols, names and colours similar to existing parties, is unconstitutional.
  5. Whether section 10(4), restricting election of a party's National Conference to the fourth year of Parliament, contravenes the freedom of association.
  6. Whether section 10(8) and (9), restricting party meetings to elect the National Conference, is unconstitutional.
  7. Whether section 13(b), barring appointment to party office of a citizen who has lived outside Uganda for more than three years, is unconstitutional.

Orders

  • The petition fails on issues 1, 2, 3 and 4.
  • The petition succeeds on issues 5, 6 and 7.
  • The order dated 16th January 2003 in Constitutional Application No. 6 of 2002 staying the operation of section 6(3) and (4) of the Act is vacated.
  • Sections 10(4), 10(8), 10(9) and 13(b) of the Act are declared null and void.
  • Political parties referred to in article 270 of the Constitution must register within six months from the date of this judgment.
  • Each party bears its own costs of the petition.

Key headnotes

Constitutional Law — Interpretation — Principles governing construction of the Constitution
The Constitution must be read as an integrated whole, given a generous and purposive construction especially of the entrenched fundamental rights; where human rights provisions conflict with other provisions, the human rights provisions take precedence.
Human Rights — Limitation of rights — Articles 43 and 73(2) — Justification of derogable rights
Rights under Chapter Four other than the non-derogable rights in article 44 may be limited, but only where the restriction is within article 43(2) and, for the political system, does not exceed what is necessary under article 73(2) to enable the adopted system to operate; the onus to justify a limitation lies on the State.
Electoral Law — Registration of political parties — Incorporation and national-character requirements
A requirement that all political parties register as bodies corporate within a defined six-month period, and meet defined national-character membership thresholds across districts, is a reasonable and constitutionally justified condition for registration and does not unlawfully derogate from the freedom of association.
Electoral Law — Political party identity — Protection of existing symbols, names and colours
A provision barring registration of symbols, slogans, colours or names that are the same as or similar to those of existing political parties operates as protection of those parties' identities rather than a restriction on association, and is not inconsistent with the Constitution.
Human Rights — Freedom of association (article 29(1)(e)) — Internal party governance
Legislation compelling political parties to elect their top policy-making organ only in the fourth year of Parliament's term, or restricting the meetings by which they elect that organ, is an unjustifiable derogation from the freedom of association that exceeds what is necessary to enable any political system to operate, and is null and void.
Human Rights — Participation in government (article 38) — Eligibility for party office
A statutory bar preventing a citizen from holding political office in a party solely because he or she has lived outside Uganda for more than three years contravenes the freedom of association and the right to participate in the affairs of government, and cannot be justified under article 43 or 73(2).

Legislation cited (25)

  • Political Parties and Organisations Act 2002 s.2
  • Political Parties and Organisations Act 2002 s.3(2)
  • Political Parties and Organisations Act 2002 s.5
  • Political Parties and Organisations Act 2002 s.6(2)
  • Political Parties and Organisations Act 2002 s.6(3)
  • Political Parties and Organisations Act 2002 s.6(4)
  • Political Parties and Organisations Act 2002 s.7
  • Political Parties and Organisations Act 2002 s.8
  • Political Parties and Organisations Act 2002 s.10(4)
  • Political Parties and Organisations Act 2002 s.10(8)
  • Political Parties and Organisations Act 2002 s.10(9)
  • Political Parties and Organisations Act 2002 s.13(b)
  • Political Parties and Organisations Act 2002 s.20(1)
  • Constitution of Uganda 1995 article 21
  • Constitution of Uganda 1995 article 29(1)(e)
  • Constitution of Uganda 1995 article 38
  • Constitution of Uganda 1995 article 43
  • Constitution of Uganda 1995 article 44
  • Constitution of Uganda 1995 article 70
  • Constitution of Uganda 1995 article 71
  • Constitution of Uganda 1995 article 72
  • Constitution of Uganda 1995 article 73(2)
  • Constitution of Uganda 1995 article 75
  • Constitution of Uganda 1995 article 270
  • Movement Act 1997

Cases cited (3)

  • Paul K. Ssemogerere and 5 Others v Attorney General (Constitutional Petition No. 5 of 2002)
  • South Dakota v North Carolina 192 US 268 (1940)
  • Attorney General vs. Momoddon Jobo (1984) AC 689
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.