Wakilii

Mbabali v Sekandi (Constitutional Petition No. 28 of 2012)

Constitutional Court · [2014] UGCC 15 · 2014 Petition Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional petition under Article 137(3)(b) challenging the constitutionality of the respondent's conduct, with a preliminary question of jurisdiction.
Decision
Petition dismissed with costs to the respondent for disclosing no question requiring constitutional interpretation.

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Cited — treatment unverified cited in 4 (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 petitioner, a defeated parliamentary candidate, sought declarations that the respondent's use of government resources during campaigns was unconstitutional, plus his removal from Parliament and the Vice-Presidency and restitution. The Constitutional Court held that its jurisdiction under Article 137 is confined to interpretation of the Constitution: unless the determination of a question depends on interpreting or construing a constitutional provision, the court has no jurisdiction. The petition raised only questions of fact and electoral law remediable by an election petition in the High Court, which the petitioner had filed and withdrawn. It was a disguised election petition and an abuse of process. The petition was dismissed with costs to the respondent.

Facts

The petitioner contested the Bukoto Central parliamentary seat in the 18 February 2011 general elections and lost to the respondent, then the Speaker of Parliament. He alleged that the respondent had diverted five government vehicles, fuel estimated at about UGX 120,000,000, government employees and other facilities enjoyed as Speaker to his personal campaign, and had refused to hand over a government vehicle on a claim that it had been donated to him. The petitioner first filed Election Petition No. 19 of 2011 in the High Court at Masaka to annul the result on grounds of illegal practices and electoral offences, including misuse of public resources. He withdrew that petition before it was heard. He then brought this constitutional petition under Article 137(3)(b) as a concerned citizen, seeking declarations that the respondent's conduct contravened named constitutional provisions, the Parliamentary Elections Act and the Leadership Code Act, his removal from Parliament and from the office of Vice President, restitution of the loss to government, general damages and costs.

Issues

  1. Whether the petition discloses any matter for constitutional interpretation within the jurisdiction of the Constitutional Court under Article 137 of the Constitution.
  2. If so, whether the respondent's use of government vehicles, personnel, fuel and other facilities was inconsistent with or in contravention of the named provisions of the Constitution.

Orders

  • Petition dismissed.
  • Costs of the petition awarded to the respondent.

Key headnotes

Constitutional Law — Jurisdiction of the Constitutional Court — Article 137 — Limited to interpretation
The jurisdiction of the Constitutional Court is exclusively derived from Article 137 of the Constitution and is limited to the interpretation of the Constitution; unless the question before the court depends for its determination on the interpretation or construction of a provision of the Constitution, the court has no jurisdiction.
Constitutional Law — Jurisdiction — Distinction between interpreting and applying the Constitution
A court that applies a provision of the Constitution to the facts of a case before it is not interpreting the Constitution; a person seeking redress for infringement of a guaranteed right under Article 50 whose claim does not call for interpretation must apply to any other competent court, the Constitutional Court being competent only on a petition under Article 137(3) brought principally for interpretation.
Constitutional Law — Pleadings — Mere allegation of violation insufficient
It is not enough to allege merely that a constitutional provision has been violated; the petitioner must show prima facie, on the face of the petition, that interpretation of a provision of the Constitution is required before the Constitutional Court is clothed with jurisdiction.
Civil Procedure — Abuse of process — Disguised election petition
A petition framed as a constitutional matter but which in substance seeks reliefs obtainable through an election petition, particularly after the petitioner has withdrawn an election petition raising the same grievances, is a disguised election petition and an abuse of court process liable to be dismissed.
Electoral Law — Election petitions — Jurisdiction and procedure
A challenge to a parliamentary election on grounds of electoral offences, including misuse of public resources, must be brought by election petition filed in the High Court within thirty days of gazettement under the Parliamentary Elections Act; jurisdiction to question such an election lies with the High Court and not the Constitutional Court.

Legislation cited (21)

  • Constitution of Uganda art.137
  • Constitution of Uganda art.137(3)(b)
  • Constitution of Uganda art.137(4)
  • Constitution of Uganda art.50
  • Constitution of Uganda art.2
  • Constitution of Uganda art.17(d)(i)
  • Constitution of Uganda art.21(1)
  • Constitution of Uganda art.25(3)
  • Constitution of Uganda art.27(2)
  • Constitution of Uganda art.43(1)
  • Constitution of Uganda art.61(a)
  • Constitution of Uganda art.82(10)
  • Constitution of Uganda art.83(1)(e)
  • Constitution of Uganda art.164(2)
  • Constitution of Uganda art.233(2)
  • Parliamentary Elections Act 2005 s.60
  • Parliamentary Elections Act 2005 s.61
  • Parliamentary Elections Act 2005 ss.60-67
  • Leadership Code Act s.13(3)
  • Leadership Code Act s.15(7)
  • Statutory Instrument No. 91 of 2005

Cases cited (15)

  • Ismail Serugo v Kampala City Council and Attorney General (Constitutional Appeal No. 2 of 1998)
  • Uganda v Francis Atugonza (Constitutional Reference No. 31 of 2010)
  • Pepper (Inspector of Taxes) v Hart [1993] AC 593
  • Hassan Ali Joho v Suleiman Shahbal [2013] eKLR
  • Edwards v Canada [1930] AC 124
  • Attorney General v Major General David Tinyefuza (Constitutional Petition No. 1 of 1997)
  • Joyce Nakacwa v Attorney General and 2 others (Constitutional Petition No. 2 of 2001)
  • Darlington Sakwa v Electoral Commission and 44 others (Constitutional Petition No. 8 of 2006)
  • Paul Semogerere and others v Attorney General (Constitutional Petition No. 1 of 2002)
  • Charles Kabagambe v Uganda Electricity Board (Constitutional Petition No. 2 of 1999)
  • Herman Semujju v Attorney General (Constitutional Petition No. 1 of 1998)
  • Attorney General and Uganda Land Commission v James Mark Kamoga (Civil Application No. 8 of 2004)
  • Uganda Network on Toxic Free Malaria Control Ltd v Attorney General (Constitutional Petition No. 14 of 2009)
  • Asiimwe Gilbert v Barclays Bank Uganda Ltd and 2 others (Constitutional Petition No. 22 of 2010)
  • the Alenyo Petition (Supra)
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.