Wakilii

Kamba & 2 Ors v Attorney General & 4 Ors (Constitutional Application No. 14 of 2013)

Constitutional Court · [2013] UGCC 4 · 2013 Preliminary Objections Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Ruling on two preliminary objections in consolidated constitutional applications (Nos. 14 and 23 of 2013) for temporary injunctions arising from Constitutional Petitions Nos. 16 and 21 of 2013
Decision
Both preliminary objections dismissed; hearing of the consolidated applications ordered to proceed

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Cited — treatment unverified cited in 3 (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, sitting as three justices, dismissed both preliminary objections. It held that the five-member bench required by Article 137(2) applies only when the Court of Appeal sits as a Constitutional Court to determine a question of interpretation of the Constitution; interlocutory matters such as temporary injunctions arising from a constitutional petition may be entertained by three justices, and interim orders by a single justice, under section 12 of the Judicature Act. The Court further held that the administrative powers of the Acting Chief Justice / Acting Deputy Chief Justice are not a ground for recusal, that contention being speculative. The consolidated applications were ordered to proceed.

Facts

The applicants brought consolidated Constitutional Applications Nos. 14 and 23 of 2013, seeking temporary injunctions to restrain Honourable Members of Parliament Theodore Ssekikubo, Wilfred Niwagaba, Mohammed Nsereko and Barnabas Tinkasimire from sitting in or accessing Parliament pending disposal of Constitutional Petitions Nos. 16 and 21 of 2013. Those petitions challenged a ruling of the Speaker that the four MPs, having been expelled from the National Resistance Movement, did not vacate their seats. When the consolidated applications came up for hearing before a coram of three justices on 19 July 2013, counsel for the 2nd to 5th respondents raised two preliminary objections: that three justices do not constitute a Constitutional Court competent to hear the applications, and that the presiding judge, holding the offices of Acting Chief Justice and Acting Deputy Chief Justice, should not sit. The Court delivered this ruling on the two objections.

Issues

  1. Whether a coram of three justices of the Court of Appeal constitutes a Constitutional Court with jurisdiction to entertain interlocutory applications arising from a constitutional petition.
  2. Whether the Acting Chief Justice, who is also the Acting Deputy Chief Justice, should decline to sit on the coram because he may later give administrative directions concerning an appeal.

Orders

  • First preliminary objection dismissed.
  • Second preliminary objection disallowed.
  • Hearing of Constitutional Applications Nos. 14 and 23 of 2013, as consolidated, to proceed.
  • Costs of the preliminary objections to abide the outcome of the two applications.

Key headnotes

Constitutional Court — Composition — Coram for interlocutory matters
The five-member bench required by Article 137(2) of the Constitution applies only when the Court of Appeal sits as a Constitutional Court to determine to finality a question as to the interpretation of the Constitution; it is not mandatory for interlocutory or interim matters arising out of a constitutional petition or reference.
Interlocutory applications — Jurisdiction of single and three justices
Under section 12 of the Judicature Act a single justice of the Court of Appeal may entertain an interim order, and a panel of three justices may entertain any interlocutory application, arising out of a constitutional petition or reference.
Constitutional Court — Application of procedural rules subject to substantive law
Rule 23 of the Constitutional Court (Petitions and References) Rules allows the Civil Procedure Act, its rules and the Court of Appeal Rules to regulate the practice of the Constitutional Court, but those rules must be applied subject to section 12 of the Judicature Act, which is substantive legislation and not subsidiary; jurisdiction is conferred by the Constitution, not by rules of procedure.
Judicial recusal — Administrative functions of the Chief Justice and Deputy Chief Justice
The mere fact that a Chief Justice or Deputy Chief Justice has constitutional power to issue administrative orders and directions concerning a case is not a ground requiring the holder of those offices to withdraw from the coram hearing that case.
Per incuriam — Decision not addressing applicable statute
A prior decision (James Isabirye v Attorney General) holding that interlocutory applications arising from a constitutional petition must be entertained by five justices was made per incuriam to the extent that it failed to address section 13 (now section 12) of the Judicature Act, and is therefore not binding as a mandatory rule.

Legislation cited (22)

  • Civil Procedure Act s.98
  • Civil Procedure Act s.64(c)
  • Civil Procedure Act s.64(e)
  • Judicature Act s.33
  • Judicature Act s.12 (formerly s.13)
  • Constitutional Court (Petitions and References) Rules S.I. 91 of 2005 r.10
  • Constitutional Court (Petitions and References) Rules S.I. 91 of 2005 r.23
  • Judicature (Court of Appeal Rules) Directions S.I. 13-10 r.43
  • Judicature (Court of Appeal Rules) Directions S.I. 13-10 r.44
  • Judicature (Court of Appeal Rules) Directions S.I. 13-10 r.53(1)
  • Judicature (Court of Appeal Rules) Directions S.I. 13-10 r.53(2)(b)
  • Constitution of Uganda art.1
  • Constitution of Uganda art.2
  • Constitution of Uganda art.28(1)
  • Constitution of Uganda art.44
  • Constitution of Uganda art.131(1)
  • Constitution of Uganda art.131(2)
  • Constitution of Uganda art.133
  • Constitution of Uganda art.135
  • Constitution of Uganda art.136
  • Constitution of Uganda art.137(1)
  • Constitution of Uganda art.137(2)

Cases cited (13)

  • P.K. Ssemogerere & 2 Others v Attorney General (Constitutional Appeal No. 1 of 2002)
  • Kizza Besigye v Museveni Kaguta Yoweri (Presidential Election Petition No. 1 of 2006)
  • Hon. Sam Kuteesa and 2 Others v Attorney General (Constitutional Petition No. 46 of 2011 and Reference No. 54 of 2011)
  • Speaker of the National Assembly v De Lille 1999 (4) SA 863 (SCA)
  • South Africa Gauteng High Court: Johannesburg: Radio Pulpit Vs Chairperson of The Council of The Independent Africa and Another (09/19114) 2011 ZAP JHC 83 (8th March 2011)
  • Joseph Bossa v Attorney General (Constitutional Application No. 6 of 2011)
  • Komakech Geoffrey & Another v Rose Okullo and 2 Others (Civil Appeal No. 21 of 2010)
  • Supreme Court of Appeal of South Africa case No.Sl?/2011: The Judicial Service Commission & Another Vs The Cape Bar Council and Another
  • Supreme Court of Appeal of South Africa Case No.043/2013: In the matter between Boisile Amos Plaatjies and Director of Public Prosecutions, Transvaal
  • George Owor v Attorney General & Another (Constitutional Application No. 38 of 2010)
  • Major General Kazini v Attorney General (Constitutional Petition No. 8 of 2008)
  • James Isabirye v Attorney General and Another (Miscellaneous Application No. 1 of 2007)
  • Olara Otunnu v Attorney General (Constitutional Application No. 26 of 2010)
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