Tumukunde v Attorney General & Anor (Constitutional Petition No. 6 of 2005)

Constitutional Court · [2005] UGCC 1 · 2005 Petition Dismissed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Constitutional petition under article 137 of the Constitution seeking declarations and redress

Decision

Petition dismissed by a majority of three to two; each party to bear its own costs

The full judgment

Read the complete, verbatim text of this judgment.

Cited — treatment unverified cited in 5 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions — always read the source judgment before relying on it.

Holding

The Constitutional Court, by a majority of three to two, dismissed Brigadier Tumukunde's petition. The court held that the acts of the President/Commander-in-Chief are challengeable through the Attorney General, though the person of the President is immune from proceedings while in office (Kavuma JA dissenting). The petitioner's letter of 28 May 2005, though written under a directive, was an effective resignation under article 83(1)(a), so notifying the Electoral Commission of the vacancy was lawful. The majority held that requiring a soldier member of Parliament to obtain permission before contacting the press was a reasonable limitation and that charging him did not contravene articles 20, 21 and 29 (Mpagi-Bahigeine and Twinomujuni JJA dissenting). No damages were awarded.

Facts

Brigadier Henry Tumukunde was an elected army representative in Parliament. After he made statements on radio talk shows that displeased the President and Commander-in-Chief of the UPDF, he was summoned to a meeting of the UPDF High Command on 27 May 2005 and directed to resign his parliamentary seat within 12 hours. On 28 May 2005 he wrote to the Speaker of Parliament stating that he had been directed to resign and was complying. The Speaker accepted the letter as a resignation, and the Clerk notified the Electoral Commission that the seat had fallen vacant; the process to replace him proceeded and a successor was elected. Shortly afterwards the petitioner was arrested and charged before the General Court Martial with offences including making statements prejudicial to good order and discipline of the army and spreading harmful propaganda, and he remained in detention. He petitioned the Constitutional Court alleging that the directive to resign, the Speaker's acceptance and declaration of the vacancy, and the charges against him contravened various constitutional provisions, and sought declarations and damages.

Issues

Whether the actions of the Commander-in-Chief/President can be challenged in a court of law.
Whether the petitioner's letter dated 28 May 2005 amounted to a resignation of his seat in Parliament.
Whether the notification to the Electoral Commission that the petitioner's seat had fallen vacant contravened articles 80, 83(1) and 84 of the Constitution.
Whether the UPDF, in pressing charges against the petitioner, contravened articles 20, 21 and 29 of the Constitution.
What reliefs are available to the parties.

Orders

Petition dismissed by a majority of three to two.
No damages awarded to the petitioner (unanimous).
Each party to bear its own costs.

Key headnotes

Constitutional Law — Presidential Immunity — Challengeability of acts of the President/Commander-in-Chief under articles 98 and 137

Any act or omission of the President, including in his capacity as Commander-in-Chief, is justiciable under article 137 and may be challenged in court through the Attorney General; however, by virtue of article 98(4) the person of the President cannot, while holding office, be made a party or witness or be otherwise liable to proceedings in any court, the sole exception being a presidential election petition under article 104(8).

Constitutional Law — Membership of Parliament — Effective resignation under article 83(1)(a)

A member of Parliament effectively resigns his seat once the resignation is in writing, signed by him, and addressed to the Speaker; no reasons need be given and the Speaker need not investigate the reasons. A resignation written by a soldier member of Parliament under a directive of the Commander-in-Chief is nonetheless an effective resignation where these formal requirements are met.

Constitutional Law — Vacancy of Parliamentary Seat — Notification to the Electoral Commission

Where a member of Parliament has effectively resigned, the Speaker does not contravene articles 80, 83 or 84 of the Constitution by notifying the Electoral Commission that the seat has fallen vacant; he is merely complying with the law.

Human Rights — Limitation of fundamental rights — Soldier members of Parliament and military discipline

The fundamental rights and freedoms under articles 20, 21 and 29 are not absolute and may be limited within article 43; a requirement that a soldier obtain permission before contacting the press is a reasonable limitation, and preferring charges under military law against a soldier member of Parliament for unauthorised press statements does not contravene articles 20, 21 and 29 (per the majority; Mpagi-Bahigeine and Twinomujuni JJA dissenting).

Statutory Interpretation — Constitutional construction — Reading the Constitution as a harmonious whole

The Constitution is a logical whole and no single provision is to be read in isolation; provisions bearing on the same subject (such as articles 2, 98 and 137) must be read together so as to give them a harmonious existence and effectuate the spirit and purpose of the instrument.

Legislation cited (29)

Constitution of Uganda 1995 art.1
Constitution of Uganda 1995 art.2
Constitution of Uganda 1995 art.20
Constitution of Uganda 1995 art.21
Constitution of Uganda 1995 art.29
Constitution of Uganda 1995 art.43
Constitution of Uganda 1995 art.44
Constitution of Uganda 1995 art.78
Constitution of Uganda 1995 art.79
Constitution of Uganda 1995 art.80
Constitution of Uganda 1995 art.83
Constitution of Uganda 1995 art.84
Constitution of Uganda 1995 art.98
Constitution of Uganda 1995 art.99
Constitution of Uganda 1995 art.104(8)
Constitution of Uganda 1995 art.105
Constitution of Uganda 1995 art.106
Constitution of Uganda 1995 art.107
Constitution of Uganda 1995 art.119
Constitution of Uganda 1995 art.128
Constitution of Uganda 1995 art.137
UPDF Act (Cap 307) s.10(4)
UPDF Act (Cap 307) s.38(1)
Evidence Act s.92
Evidence Act s.94
Parliamentary Elections Act 2001 s.11(3)(b)
Parliamentary Elections Act 2001 s.99
Army Standing Orders (Vol. I) rule 20
Constitutional Court (Petitions for Declarations under article 137) Directions, Legal Notice No. 4 of 1996

Cases cited (6)

Nighell vs Sultan of Jahore (1894) QB 149
Baker vs Cart 369 U.S. 1962
Clinton v Jones, 520 U.S. 681 (1997)
South Dakota Vs. North Carolina 192 U.S. 268 (1940)
Gopal Vs. State of Madras (1950) 5 CR 88
Attorney General v Major General David Tinyefuza (Constitutional Appeal No. 1 of 1997)

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.