Rubaramira Ruranca v Electoral Commission and Anor (Constitutional Petition No. 21 of 2006)

Constitutional Court · [2007] UGCC 3 · 2007 Petition Allowed in Part ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Constitutional petition under Article 137(3) challenging the constitutionality of provisions of the Local Governments Act, National Women's Council Act, National Youth Council Act, their election regulations and Electoral Commission guidelines.

Decision

Petition allowed in part; several provisions of the Local Governments Act, National Women's Council Act, National Youth Council Act, their regulations and the Electoral Commission guidelines declared inconsistent with the Constitution; each party to bear own costs.

The full judgment

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Holding

The Court applied the purpose-and-effect test to assess the constitutionality of local, women's and youth council election laws. It held that the five-minute candidate introduction and exclusion of political parties from campaigning, oral nomination that bars corporate political parties, compulsory ('conscripted') membership of village councils, and the appointment of government chiefs as returning and presiding officers offend the multiparty system, free and fair elections (Art 1(4)), freedom of association (Arts 29(1)(e), 38(2)) and the Electoral Commission's independence (Arts 62, 65). Provisions merely limiting voter education to voting procedure, and lining-up voting (saved by Art 68(6)), were upheld. By a 4:1 majority (Kavuma JA dissenting) the petition was allowed in part.

Facts

The petitioner, Secretary for Electoral Affairs of the Forum for Democratic Change, brought a constitutional petition under Article 137(3) challenging numerous provisions of the Local Governments Act, the National Women's Council Act, the National Youth Council Act and their election regulations (SI 318-1 and SI 319-1), together with election guidelines issued by the Electoral Commission for local council, women's council and youth council elections. He contended that the laws limited voter education to voting procedure, allowed candidates only five minutes to introduce themselves, barred political parties from campaigning and from nominating, conscripted residents into council membership, made government chiefs returning and presiding officers, and lacked a proper voter register. The respondents denied any inconsistency and relied on Articles 273/274 to read the existing laws into conformity with the Constitution; the Commission had already suspended the women's and youth council elections. The parties agreed eleven issues at the scheduling conference.

Issues

Whether section 160 of the Local Governments Act and regulation 12(1) of the women's and youth council election regulations, by confining voter education to voting procedure, contravene Article 61(1)(g) of the Constitution.
Whether section 161(4) of the Local Governments Act and regulation 14(3) of the regulations, by limiting campaign and barring political party participation, contravene Articles 1(4) and 61(1)(a) of the Constitution.
Whether section 161(2) of the Local Governments Act and regulation 14(1), by providing for oral nomination that excludes corporate political parties, contravene Article 1(4) of the Constitution.
Whether sections 46(1)(c) and 160 of the Local Governments Act, section 6(1) of the council Acts and regulation 12(1), are inconsistent with Articles 61(1)(a) and (e) and 1(4) of the Constitution.
Whether regulations 3, 6(a), 7, 8, 9 and 11(3) of SI 319-1, which appoint government chiefs as returning and presiding officers, are inconsistent with Articles 1(4), 62 and 65 of the Constitution.
Whether voting by lining up behind one's candidate (regulation 22(3) of SI 319-1) contravenes Articles 1(4), 61(1)(a) and 68(1) of the Constitution.
Whether regulation 25 of SI 319-1 contravenes Articles 1(4), 61(1)(a) and 68(1) of the Constitution.
Whether section 46(c) of the Local Governments Act and sections of the council Acts conscripting members contravene Articles 29(b) and (e), 38(2) and 71 of the Constitution.
Whether regulation 23 of SI 319-1 and regulation 22(6) of SI 318-1 contravene Article 1(4) of the Constitution.
Whether the guidelines issued by the Electoral Commission contravene Articles 1(4), 72(4), 176(3), 180(3) and 292(1) of the Constitution.
Whether the impugned existing laws are protected or saved under Article 274 (now Article 273) of the Constitution.

Orders

Petition allowed in part by a majority of four to one, Kavuma JA dissenting.
Declared section 160 of the Local Governments Act and regulation 12(1) of the women's council election regulations inconsistent with Article 61(1)(g) of the Constitution.
Declared section 161(4) of the Local Governments Act and regulation 14(3) of SI 318-1 and SI 319-1 inconsistent with Article 1(4) of the Constitution.
Declared section 161(2) of the Local Governments Act and regulation 14(1) of SI 318-1 and SI 319-1 inconsistent with Article 1(4) of the Constitution.
Declared sections 46(1)(c) and 160 of the Local Governments Act, section 6(1) of the National Youth Council Act and regulation 12(1) of SI 318-1 and SI 319-1 inconsistent with Articles 61(1)(a) and (e) and 1(4) of the Constitution.
Declared regulations 3, 6(a), 7, 8, 9 and 11(3) of SI 319-1 inconsistent with Articles 1(4) and 62 of the Constitution.
Declared the guidelines issued by the Electoral Commission inconsistent with Articles 1(4) and 180(3) of the Constitution.
Held that regulation 22 of SI 318-1 and regulation 25 of SI 319-1 are neither inconsistent with nor contravene Articles 1(4), 61(1)(a) and 68(1).
Each party to bear its own costs.

Key headnotes

Constitutional Interpretation — Test of Constitutionality — Purpose and Effect

In determining whether a statute or other instrument conforms to the Constitution, both its purpose and its effect are relevant; either an unconstitutional purpose or an unconstitutional effect can invalidate legislation.

Voter Education — Scope under Article 61(1)(g) — Inadequacy Not Per Se Unconstitutional

A provision that confines voter education to the procedure of voting is narrower than the wide educational programme contemplated by Article 61(1)(g), but the mere inadequacy of the scope of education provided does not of itself render the provision inconsistent with that Article where the provision still provides for the education of voters.

Free and Fair Elections — Campaign Time and Political Party Participation in a Multiparty System

Free and fair elections under Articles 1(4) and 61(1)(a) require sufficient time for all stages of an election; allowing a candidate only five minutes to present a party's programmes is insufficient, and any law that restricts or bars political parties from campaigning or participating in elections at any level is incompatible with the multiparty system chosen by the people.

Nomination — Oral Nomination Excluding Corporate Political Parties

Oral nomination on polling day cannot be undertaken by political parties, which are bodies corporate able to nominate only in writing under hand and seal; a nomination procedure that thereby excludes political parties from participation renders the election neither free nor fair under Article 1(4).

Freedom of Association — Compulsory ('Conscripted') Membership of Councils

Statutory provisions that compel all persons of a given age or sex resident in a village to be members of a local, women's or youth council conscript members against their will and are inconsistent with the freedom of association guaranteed by Article 29(1)(e) and the right to voluntary participation in civic organisations under Article 38(2).

Independence of the Electoral Commission — Imposition of Returning and Presiding Officers

Officers and employees of the Electoral Commission must, under Article 65, be appointed by the Commission in consultation with the Public Service Commission; regulations appointing chief administrative officers and chiefs as returning or presiding officers impose staff on the Commission and are inconsistent with Articles 62 and 65, which guarantee the Commission's independence.

Secret Ballot — Parliamentary Power to Exempt under Article 68(6)

Article 68(6) empowers Parliament by law to exempt any public election, other than a presidential or parliamentary election, from the secret-ballot requirement; regulations providing for voting by lining up behind one's candidate at council elections are therefore not inconsistent with Article 68(1).

Legislation cited (26)

Constitution of Uganda 1995 art.1(4)
Constitution of Uganda 1995 art.29(1)(e)
Constitution of Uganda 1995 art.38(2)
Constitution of Uganda 1995 art.61(1)(a)
Constitution of Uganda 1995 art.61(1)(e)
Constitution of Uganda 1995 art.61(1)(g)
Constitution of Uganda 1995 art.62
Constitution of Uganda 1995 art.65
Constitution of Uganda 1995 art.68(1)
Constitution of Uganda 1995 art.68(6)
Constitution of Uganda 1995 art.137(3)
Constitution of Uganda 1995 art.180(3)
Constitution of Uganda 1995 art.273
Constitution of Uganda 1995 art.274
Local Governments Act s.46(1)(c)
Local Governments Act s.160
Local Governments Act s.161(2)
Local Governments Act s.161(4)
National Women's Council Act s.2(2)
National Women's Council Act s.5(2)
National Women's Council Act s.6(1)
National Youth Council Act s.2(2)
National Youth Council Act s.6(1)
National Youth Council Act s.6(7)
Political Parties and Organizations Act s.6(3)
Electoral Commission Act s.1(8)

Cases cited (4)

The Queen v Big M Drug Mart Ltd (Others Intervening) [1996] LRC (Const) 332
Attorney General v Salvatori Abuki (Constitutional Appeal No. 1 of 1998)
Kwezira Eddie v Attorney General (Constitutional Petition No. 14 of 2005)
Col. (Rtd) Dr. Kizza Besigye v Museveni Yoweri Kaguta (Presidential Election Petition No. 1 of 2001)

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