Darlington Sakwa and Another v The Electoral Commission and Others (Constitutional Petition No. 8 of 2006)

Constitutional Court · [2006] UGCC 3 · 2006 Petition Dismissed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Constitutional petition under Article 137(1) and (3)(b) seeking declarations that the nomination, election and gazetting of the respondents contravened Article 80(4) of the Constitution.

Decision

Petition dismissed with each party bearing its own costs; jurisdiction objection overruled.

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.

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Holding

The Constitutional Court dismissed the petition, holding that the Vice President, Cabinet Ministers and Ministers of State (2nd–35th respondents) are political leaders and not public officers or persons employed in a government department or agency within Article 80(4), and that the UPDF army representatives (36th–45th respondents) fell within Article 78(1)(c)'s special interest group, so Article 80(4) did not require any of them to resign 90 days before nomination. The Court further held that the operational law (the Parliamentary Elections Act) commenced too late for the 90-day requirement to be complied with for the 2006 elections, and the Court had jurisdiction under Article 137. The nomination, election and gazetting of the respondents were not unconstitutional.

Facts

The petitioners were unsuccessful candidates in the 2006 Parliamentary General Elections for Bungokho South and Rujumbura constituencies. In January 2006 the Electoral Commission nominated the 2nd to 35th respondents as candidates, and the President nominated the 36th to 45th respondents for the ten seats reserved for the Uganda Peoples Defence Forces. The nominations were approved on 12 or 13 February 2006 and the respondents were elected on 23 February 2006 to the 8th Parliament under the multiparty system. The 4th respondent had been appointed Vice President and others Cabinet Ministers and Ministers of State. None of the respondents had resigned office 90 days before nomination. Article 80(4), inserted by section 18(d) of the Constitution (Amendment) Act No. 11 of 2005, required a public officer or a person employed in any government department or agency wishing to stand for Parliament to resign at least 90 days before nomination day. The petitioners alleged the respondents were caught by Article 80(4). The Parliamentary Elections Act commenced on 21 November 2005, leaving fewer than 90 days before the nomination dates.

Issues

Whether the 2nd to 45th respondents were required to resign at least 90 days prior to their nomination as candidates in the 2006 Parliamentary General Elections under Article 80(4) of the Constitution.
Whether the nomination of the 2nd to 45th respondents as candidates in the 2006 Parliamentary General Elections contravened Article 80(4) of the Constitution.
Whether the election of the 2nd to 45th respondents as members of Parliament contravened Article 80(4) of the Constitution.
Whether the Constitutional Court had jurisdiction under Article 137 to hear the petition.
Whether the petitioners were entitled to the relief sought.

Orders

The objection to the jurisdiction of the Constitutional Court is overruled.
By unanimous declaration, the 2nd to 45th respondents did not have to resign their offices at least 90 days prior to nomination day.
By unanimous declaration, the nomination of the 2nd to 45th respondents was not inconsistent with and did not contravene any provision of the Constitution.
By unanimous declaration, the election and gazetting of the 2nd to 45th respondents as members of the 8th Parliament were not inconsistent with any provision of the Constitution.
The petition is dismissed.
Each party to bear its own costs, this being public interest litigation.

Key headnotes

Constitutional Law — Members of Parliament — Disqualification — Meaning of 'public officer' and 'person employed in a government department'

The Vice President, Cabinet Ministers and Ministers of State are political leaders, not public officers or persons employed in a government department or agency within the meaning of Article 80(4) of the Constitution; being appointed and removable at the President's pleasure without a contract of service, they are not employees of government and are excepted from the public service by Article 257(2)(b).

Constitutional Law — Army representatives in Parliament — Article 78(1)(c) special interest group — Application of Article 80(4)

Army representatives elected under Article 78(1)(c) as a special interest group must be serving members of the UPDF to qualify; requiring them to resign 90 days before nomination would disqualify them and defeat the purpose of their constitutional representation, so a general provision such as Article 80(4) cannot override the specific provision of Article 78(1)(c).

Statutory Interpretation — Constitutional construction — Rule of harmony — Avoidance of absurdity

The Constitution must be read as an integrated whole so that no provision destroys another; where a provision admits two constructions, the court adopts the one that avoids absurdity or injustice, and a general later amendment does not override a specific earlier provision absent clear language.

Statutory Interpretation — Retrospective operation — Inadequacy of time for compliance

A mandatory requirement that candidates resign 90 days before nomination could not apply to the 2006 elections where the operational law commenced too late for compliance, since legislation affecting substantive rights is not construed to operate retrospectively absent a clear intention to that effect.

Civil Procedure — Reframing of issues — Order 13 rule 5(1) — Right to be heard

Although a court may reframe or add issues under Order 13 rule 5(1) of the Civil Procedure Rules, where parties have closed pleadings and submitted on agreed issues the court must consult the parties and afford them a hearing before deciding the case on a new issue, and cannot, of its own motion, amend a petition so as to change its character.

Constitutional Law — Jurisdiction of the Constitutional Court — Article 137 — Acts and omissions inconsistent with the Constitution

Where the principal grievance is that an act or conduct of the Electoral Commission is inconsistent with or in contravention of the Constitution, the matter requires constitutional interpretation and falls within the jurisdiction of the Constitutional Court under Article 137(3), notwithstanding an element of validity of an election that might otherwise engage the High Court under Article 86(1)(a).

Legislation cited (15)

Constitution of Uganda 1995 art.80(4)
Constitution of Uganda 1995 art.137
Constitution of Uganda 1995 art.2
Constitution of Uganda 1995 art.21(1)
Constitution of Uganda 1995 art.78(1)(c)
Constitution of Uganda 1995 art.86(1)(a)
Constitution of Uganda 1995 art.113
Constitution of Uganda 1995 art.116
Constitution of Uganda 1995 art.175
Constitution of Uganda 1995 art.257(2)(b)
Constitution (Amendment) Act No. 11 of 2005 s.18(d)
Parliamentary Elections Act No. 17 of 2006
Civil Procedure Rules Order 13 r.5(1)
Civil Procedure Rules Order 13 r.2
Employment Act Cap 219

Cases cited (14)

Ssemwogerere and Others v Attorney General (Constitutional Appeal No. 1 of 2001)
Major General David Tinyefuza v Attorney General (Constitutional Appeal No. 12 of 1999)
Attorney General v Tinyefuza (Constitutional Appeal No. 1 of 1997)
Oriental Insurance Brokers Ltd v Transocean (U) Ltd (Civil Appeal No. 55 of 1995)
Makula International Ltd v His Eminence Cardinal Nsubuga & Another [1982] HCB 11
Attorney General v Salvatori Abuki (Constitutional Petition No. 1 of 1998)
Republic vs. EL Mann Mwenda Co. Int. 1969 EARLR 357
Gregory v Fearn [1953] 1 WLR 974
Municipality of Mombasa v Nyali Ltd [1963] EACA 371
Brig Henry Tumukunde v Attorney General & Another (Constitutional Petition No. 6 of 2005)
Kesavananda Bharati v State of Kerala AIR 1973 SC 1461
Col (Rtd) Dr. Kizza Besigye v Yoweri Kaguta Museveni (Presidential Election Petition No. 1 of 2001)
Rwanyarare & Wegulo v Attorney General (Constitutional Petition No. 5 of 1995)
Constitutional Petition No. 14 of 2005

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