Wakilii

Saleh Kamba & Anor v Attorney General & 4 Ors (Constitutional Petition No. 16 of 2013)

Constitutional Court · [2014] UGCC 5 · 2014 Petition Granted ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Consolidated constitutional petitions and applications for interpretation under Article 137 of the Constitution
Decision
Constitutional Petitions Nos. 16, 19 and 21 of 2013 and the cross-petition in Petition No. 25 granted; Constitutional Petition No. 25 dismissed; the four expelled MPs ordered to vacate their seats and by-elections directed

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Holding

By a majority of four to one, the Constitutional Court held that the word 'leave' in Article 83(1)(g) is neutral as to cause, so a Member of Parliament expelled from the party on whose ticket he was elected thereby leaves that party and vacates his seat by operation of the Constitution. The four expelled MPs had become de facto independents and their continued stay was unconstitutional. The Speaker's ruling retaining them, and her reallocation of seats, was unconstitutional; she also offended natural justice by ruling on a matter in which she had earlier participated. The Attorney General's advice to the Speaker was a lawful exercise of his Article 119 mandate and did not contravene the Constitution. The petitions and the cross-petition were granted; Petition 25 was dismissed.

Facts

The 2nd to 5th respondents were elected to the 9th Parliament as candidates of the National Resistance Movement (NRM), representing constituencies in Sembabule, Kabale, Kampala and Kibale districts. On 14 April 2013 the NRM Central Executive Committee expelled the four MPs for conduct contravening the party constitution; they challenged the expulsion in the High Court. The Secretary General asked the Speaker to direct the Clerk to declare their seats vacant. On 2 May 2013 the Speaker ruled that, there being no express constitutional provision on expulsion, the MPs should retain their seats, and she reallocated them seats in the House. Several petitioners, including individual citizens and the NRM party, challenged the constitutionality of the Speaker's ruling. The Attorney General advised the Speaker to reverse her decision as unconstitutional; the Shadow Attorney General then challenged that advice. The petitions and arising applications were consolidated and heard together.

Issues

  1. Whether expulsion from a political party is a ground for a Member of Parliament to lose his or her seat under Article 83(1)(g) of the Constitution.
  2. Whether the continued stay in Parliament of the expelled MPs after their expulsion from the NRM is inconsistent with the Constitution and whether they vacated their seats.
  3. Whether the Speaker's ruling of 2 May 2013 retaining the expelled MPs, and her reallocation of seats to them, was unconstitutional and created a category of MP unknown to the Constitution.
  4. Whether the Speaker had jurisdiction to rule on the matter and whether she acted contrary to the principles of natural justice.
  5. Whether the Attorney General's advice to the Speaker contravened Articles 78, 83(1)(g), 86(1)(a), 119 and 137 of the Constitution.
  6. Whether a temporary or mandatory injunction should issue restraining the four MPs from sitting in Parliament pending determination of the petitions.

Orders

  • The 2nd, 3rd, 4th and 5th respondents are ordered to vacate their seats in Parliament forthwith.
  • The Electoral Commission is directed, upon service of the judgment, to conduct by-elections in the affected constituencies.
  • A permanent injunction issues restraining the Speaker and Deputy Speaker from allowing the four respondents to sit or take part in any parliamentary activity, and stopping payment of their salaries, allowances and emoluments save those already accrued.
  • The mandatory injunction issued on 10 September 2013 is vacated.
  • Costs granted to the successful parties with a certificate for two counsel.

Key headnotes

Constitutional Law — Tenure of MPs — Article 83(1)(g) — Meaning of 'leave' a political party
The word 'leave' in Article 83(1)(g) of the Constitution is clear and neutral as to cause; a Member of Parliament expelled from the political party on whose ticket he or she was elected thereby leaves that party and, becoming a de facto independent, vacates the parliamentary seat by operation of the Constitution.
Statutory Interpretation — Constitutional Interpretation — Purpose and mischief of Article 83(1)(g)
Article 83(1)(g) must be read purposively to protect multi-partism; its mischief extends beyond voluntary floor-crossing to any conduct, including expulsion, that allows an MP to remain in Parliament without the party's support, thereby distorting party representation.
Constitutional Law — Parliament — Powers of the Speaker — Reallocation of seats
The Speaker has no power to retain in Parliament, or reallocate seats to, persons who have ceased to be Members of Parliament; doing so contrary to the Rules of Procedure made under Article 94 is unconstitutional and creates a category of member unknown to the Constitution.
Administrative Law — Natural Justice — Rule against bias — Decision-maker a judge in own cause
A presiding officer who has participated in the party organ that determined a member's fate cannot validly adjudicate the same matter; a decision reached in breach of natural justice is no decision at law.
Constitutional Law — Attorney General — Article 119 — Scope of advisory mandate
As principal legal advisor to Government under Article 119, the Attorney General is mandated to advise all Government organs and public institutions, including the Legislature and the Speaker; offering such advice is a lawful exercise of constitutional power and does not contravene the Constitution.
Constitutional Law — Remedies — Mandatory injunction in constitutional litigation
A mandatory interlocutory injunction may be granted in constitutional litigation even where it substantially grants the relief sought, where the governing consideration is which party bears the greater risk of irremediable injustice and where a clear illegality of a constitutional nature requires immediate containment.

Legislation cited (24)

  • Constitution of Uganda 1995 art.83(1)(g)
  • Constitution of Uganda 1995 art.83(1)(h)
  • Constitution of Uganda 1995 art.83(3)
  • Constitution of Uganda 1995 art.1
  • Constitution of Uganda 1995 art.2
  • Constitution of Uganda 1995 art.29(1)(e)
  • Constitution of Uganda 1995 art.38(1)
  • Constitution of Uganda 1995 art.69
  • Constitution of Uganda 1995 art.71
  • Constitution of Uganda 1995 art.72
  • Constitution of Uganda 1995 art.73
  • Constitution of Uganda 1995 art.78(1)
  • Constitution of Uganda 1995 art.86(1)(a)
  • Constitution of Uganda 1995 art.94
  • Constitution of Uganda 1995 art.119
  • Constitution of Uganda 1995 art.126
  • Constitution of Uganda 1995 art.137
  • Constitution of Uganda 1995 art.28
  • Constitution of Uganda 1995 art.42
  • Civil Procedure Act, Cap 71 s.64
  • Civil Procedure Act, Cap 71 s.98
  • Judicature (Court of Appeal Rules) Directions S.I. 13-10 r.2(2)
  • Constitutional Court (Petitions and References) Rules S.I. No. 91 of 2005 r.23
  • Political Parties and Organizations Act 2005

Cases cited (22)

  • George Owor v Attorney General & Anor (Constitutional Petition No. 38 of 2010)
  • Attorney General v Major General David Tinyefuza (Constitutional Appeal No. 1 of 1997)
  • Attorney General v Salvatori Abuki (Constitutional Appeal No. 1 of 1998)
  • Paul K. Ssemwogerere & Anor v Attorney General (Constitutional Appeal No. 1 of 2002)
  • Bank of Uganda v Banco Arabe Espanol (Civil Appeal No. 1 of 2001)
  • Gordon Sentiba & 2 Ors v Inspectorate of Government (Civil Appeal No. 6 of 2008)
  • Parliamentary Commission v Twinobusingye Severino & Attorney General (Constitutional Application No. 53 of 2011)
  • Kabagambe Asol & 2 Ors v Electoral Commission & Dr. Kiiza Besigye (Constitutional Petition No. 1 of 2006)
  • Baku Raphael Obudra & Anor v Attorney General (Constitutional Appeal No. 1 of 2005)
  • Okello Okello John Livingstone & 6 Ors v Attorney General & Anor (Constitutional Petition No. 1 of 2005)
  • Brigadier Henry Tumukunde v Attorney General & Anor (Constitutional Appeal No. 2 of 2006)
  • Dr. Kizza Besigye v Y.K. Museveni (Presidential Election Petition No. 2 of 2006)
  • Humphrey Nzeyi v Bank of Uganda & Ors (Constitutional Application No. 39 of 2012)
  • Nasser Kiingi v Kampala Capital City Authority & Attorney General (Constitutional Application No. 29 of 2011)
  • Makula International Vs Cardinal Nsubuga Wamala [1982] HCB 11
  • James Sawabiri & Anor v Uganda (Criminal Appeal No. 5 of 1990)
  • SC CUV 9/2004 between Richard William Prebble, Ken Shirely, Rodney Hide & Muriel Newman and Donna Awatere Huata
  • De Souza Vs Tanga Town Council, Civil Appeal No. 89 of 1960 reported in 1961 EA 377
  • Films Rover International Ltd Vs Cannon Films Sales Ltd 1987 I WLR 670
  • American Cynamid [1975] AC 396
  • Woodford & Anor v Smith & Anor [1970] 1 All ER 1091
  • The Attorney General of Tanzania vs Rev. Christopher Mtikila [2010.] EA 13
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