Wakilii

Kwizera Eddie v Attorney General (Constitutional Petition No. 14 of 2005)

Constitutional Court · [2006] UGCC 11 · 2006 Petition Allowed in Part ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional petition under Article 137 seeking declarations that a constitutional amendment is inconsistent with the Constitution
Decision
Petition allowed in part; Clause 4 of Article 80 declared inconsistent with Article 21(1) but not with Articles 1(4) and 38(1); each party to bear its own costs.

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Cited — treatment unverified cited in 1 (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 Court considered whether Article 80(4) (inserted by s.18(d) of the Constitution (Amendment) Act No. 11 of 2005), requiring public officers to resign ninety days before nomination, contravened Articles 1(4), 21(1) and 38(1). Unanimously the petition was held competent, although the Court has no power to nullify a provision of the Constitution (only to harmonise provisions or strike down an Act). By majority (3-2), Clause 4 was held not inconsistent with Articles 1(4) and 38(1) but inconsistent with Article 21(1), because it required only officers in a civil capacity, and not the exempted political class, to resign. By majority (4-1) the petition was allowed in part; each party to bear its own costs.

Facts

Parliament passed the Constitution (Amendment) Act No. 11 of 2005, which by section 18(d) inserted Clause 4 into Article 80 of the 1995 Constitution; the President assented on 26 September 2005. Clause 4 required a public officer, or a person employed in any government department or agency, or an employee of a local government or any body in which government has a controlling interest, who wished to stand in a general election as a Member of Parliament, to resign at least ninety days before nomination day. The petitioner, Kwizera Eddie, was employed as a Special Presidential Assistant in the Office of the President. He sought the Solicitor General's opinion, who advised that Article 80(4) applied to him. The Electoral Commission, acting under the Parliamentary Elections Act No. 17 of 2005, appointed 12 and 13 January 2006 as the nomination days for the 2006 Parliamentary General Elections, leaving less than ninety days between the date of appointment and the nomination day. Aggrieved by the resignation requirement, the petitioner filed this petition.

Issues

  1. Whether, in so far as the petition seeks to nullify part of the Constitution, it is competent.
  2. Whether Article 80(4) of the Constitution (inserted by the Constitution (Amendment) Act No. 11 of 2005) is inconsistent with and in contravention of Articles 1(4), 21(1) and 38(1) of the Constitution.
  3. Whether the petitioner is entitled to the remedies sought.
  4. Alternatively, what is the proper interpretation of the phrase 'a person employed in any government department or agency of the government' in Article 80(4).

Orders

  • Petition allowed in part.
  • By majority (3-2), Clause 4 of Article 80 declared not inconsistent with Articles 1(4) and 38(1) but inconsistent with and in contravention of Article 21(1) of the Constitution.
  • The alternative prayer for interpretation of the phrase 'person employed in any government department or agency of the government' granted.
  • Each party to bear its own costs of the petition.

Key headnotes

Constitutional Law — Jurisdiction of the Constitutional Court — Power to interpret and harmonise, not to nullify constitutional provisions
The Constitutional Court's jurisdiction under Article 137 empowers it to interpret and harmonise the provisions of the Constitution, and to strike down an Act of Parliament (including a constitutional amendment Act), but it has no power to nullify any provision of the Constitution itself.
Constitutional Law — Competence of petition — Article 137
A petition brought under Article 137 alleging that a provision introduced by a constitutional amendment is inconsistent with other provisions of the Constitution is competently before the Constitutional Court, notwithstanding that the Court cannot nullify a provision of the Constitution.
Electoral Law — Free and fair elections — Article 1(4)
A requirement that public officers resign at least ninety days before nomination does not of itself whittle away or infringe the elements of free and fair elections guaranteed by Article 1(4) of the Constitution.
Human Rights — Equality before the law — Discrimination — Article 21(1)
A provision requiring only officers serving in a civil capacity to resign before nomination, while exempting the political class, effects different treatment that is inconsistent with the equality guarantee in Article 21(1) of the Constitution.
Constitutional Law — Right to participate in government — Article 38(1)
A requirement to resign from public office before standing for election does not deny a citizen the right to participate in the affairs of government under Article 38(1), since participation in government does not depend on being employed.
Statutory Interpretation — Constitutional interpretation — Reading provisions as an integrated whole — Amendment by infection
All provisions of the Constitution bearing on a subject must be read together as an integrated whole; where an amendment widens the meaning of 'public officer' beyond Articles 175 and 257, it amends those articles by infection and may be inconsistent with the Constitution.
Electoral Law — Late enactment — Practical impossibility of compliance
Where enabling legislation is enacted too late to allow the full ninety days between the appointed nomination day and the resignation requirement, compliance with the resignation requirement is practically impossible, rendering it ineffective for that election.

Legislation cited (19)

  • Constitution of Uganda 1995 art.1(4)
  • Constitution of Uganda 1995 art.2(2)
  • Constitution of Uganda 1995 art.21(1)
  • Constitution of Uganda 1995 art.21(3)
  • Constitution of Uganda 1995 art.38(1)
  • Constitution of Uganda 1995 art.80(4)
  • Constitution of Uganda 1995 art.137(1)
  • Constitution of Uganda 1995 art.137(3)
  • Constitution of Uganda 1995 art.175
  • Constitution of Uganda 1995 art.252(2)
  • Constitution of Uganda 1995 art.257(1)
  • Constitution of Uganda 1995 art.257(2)(b)
  • Constitution of Uganda 1995 art.261
  • Constitution of Uganda 1995 art.287
  • Constitution of Uganda 1995 art.288
  • Constitution (Amendment) Act No. 11 of 2005 s.18(d)
  • Constitution (Amendment) Act No. 11 of 2005 s.46
  • Parliamentary Elections Act No. 17 of 2005
  • Employment Rights Act 1996 (UK)

Cases cited (9)

  • Paul Kawanga Semwogerere and 2 Others v Attorney General (Constitutional Appeal No. 1 of 2001)
  • Col. (Rtd) Dr. Kizza Besigye v Yoweri Museveni Kaguta (Presidential Election Petition No. 1 of 2001)
  • Uganda v The Kabaka's Government (1965) EA 395
  • Republic v El Mann (1969) EA 357
  • Abuki and Another v Attorney General (Constitutional Petition No. 2 of 1997)
  • Major General Tinyefuza v Attorney General (Constitutional Petition No. 1 of 1996)
  • South Dakota v North Carolina, 192 US 268 (1940)
  • The Queen v Big M Drug Mart Ltd (1996) LRC 332
  • Dr Rwanyarare & Wegulu v Attorney General (Constitutional Petition No. 5 of 1995)
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.