Wakilii

Kasozi & 3 Ors v Attorney General & 2 Ors (Constitutional Petition No. 37 of 2010)

Constitutional Court · [2015] UGCC 2 · 2015 Petition Granted in Part ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Three consolidated constitutional petitions under Article 137 challenging the constitutionality of the laws governing election of special interest group representatives to Parliament
Decision
Petitions partly succeeded: the laws governing election of army, youth and workers' representatives declared void and an injunction granted; the provisions governing persons with disabilities upheld

The full judgment

Read the complete, verbatim text of this judgment.

Sign in to read the full judgment
Cited — treatment unverified cited in 1 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions — always read the source judgment before relying on it.

Holding

The Court held that Article 78(4) of the Constitution casts on Parliament a non-delegable duty to prescribe by law the procedure for electing representatives of the army, youth, workers and persons with disabilities; by delegating that duty to the Minister under section 8(4) of the Parliamentary Elections Act, Parliament acted unconstitutionally (delegata potestas non potest delegari). The provisions and regulations for the army, youth and workers were declared void and an injunction granted. The earlier law for persons with disabilities was also unconstitutional, but the National Council for Disability (Amendment) Act 2013 cured the defect, so those elections may proceed. All preliminary objections were rejected.

Facts

Three petitions filed in 2010 challenged the constitutionality of the laws governing the election of special interest group representatives (army, youth, workers and persons with disabilities) to Parliament. Article 78(4) of the Constitution required Parliament to prescribe by law the procedure for these elections. Instead, Parliament, through section 8(4) of the Parliamentary Elections Act 2005, delegated the task to the Minister, who made regulations; for the army the Minister sub-delegated to the Uganda People's Defence Council. The 2011 elections for persons with disabilities were conducted through the electoral college structures of the National Union of Disabled Persons of Uganda (NUDIPU), a voluntary non-governmental organisation, so that persons with disabilities who were not members of NUDIPU could not participate. The petitions remained unheard while the 2011 elections took place and amendments to the relevant statutes (including the National Council for Disability (Amendment) Act 2013) came into force. The petitioners sought declarations of inconsistency, a permanent injunction, and an order compelling Parliament to enact compliant legislation.

Issues

  1. Whether section 8(4)(b), (c), (d) and (e) of the Parliamentary Elections Act is inconsistent with and contravenes Articles 29(1)(e) and 78(4) of the Constitution.
  2. Whether section 20 of the National Youth Council Act and section 16 of the National Women's Council Act contravene Article 155 of the Constitution.
  3. Whether section 8(4)(e) of the Parliamentary Elections Act and Regulation 10 of the Parliamentary Elections (Special Interest Groups) Regulations 2001, as used to hold the 2011 elections, contravened the constitutional rights of persons with disabilities.
  4. Whether section 31A of the National Council for Disability Act 2003 (as amended) contravenes the Constitution.
  5. Whether the impugned provisions infringe the United Nations Convention on the Rights of Persons with Disabilities, 2006.
  6. Whether a permanent injunction should issue restraining elections for persons with disabilities under the National Council for Disability Act 2003.
  7. Whether workers' representatives participating in partisan politics contravenes Articles 29 and 40 of the Constitution.
  8. Whether Regulation 12 of the Parliamentary Elections (Special Interest Groups) Regulations 2001 (as amended) contravenes Articles 29(1)(e) and 40(3).
  9. Whether workers' representatives holding salaried and permanent trade union offices contravenes Article 40(3).

Orders

  • All preliminary points of law raised by the respondents are rejected.
  • The impugned law relating to the election of the representatives of the army, youth and workers is void and is declared so under Article 2 of the Constitution.
  • An injunction is granted against the respondents restraining them from conducting elections for the special interest groups of the army, youth and workers under the law found to be unconstitutional.
  • The election for representatives of persons living with disabilities may go ahead, the applicable law passing constitutional muster.
  • Each party to bear their own costs.

Key headnotes

Constitutional Law — Delegation of Legislative Power — Non-delegable constitutional duties
Where the Constitution casts a specific law-making duty on Parliament, Parliament cannot delegate that duty to another person or body, in accordance with the principle delegata potestas non potest delegari.
Statutory Interpretation — Constitutional Construction — Specific provision prevails over general
A specific constitutional command directed at Parliament (Article 78(4)) overrides the general power of Parliament to delegate law-making authority under Article 79(2), which is confined to matters authorised under an Act of Parliament and does not extend to constitutional imperatives.
Electoral Law — Right to Vote — Disenfranchisement through a voluntary organisation
Restricting participation in the election of special interest group representatives to members of a voluntary non-governmental organisation disenfranchises eligible voters who are not members, contrary to Article 59 of the Constitution.
Human Rights — Freedom of Association — Right not to associate
A statutory body that is open to the voluntary participation of all members of a special interest group does not infringe the freedom of association under Article 29(1)(e) merely because an individual chooses not to participate, provided participation is not compelled.
Constitutional Law — Equality and Non-discrimination — Differential procedures
Prescribing different election procedures for different special interest groups is not in itself evidence of discrimination under Article 21, provided each procedure conforms to the Constitution.
Constitutional Law — Bill of Rights — Articles 20(2) and 45 cannot be invoked alone
Article 20(2) is a promotional provision that must be coupled with a specific Chapter 4 right before any infringement can be found, and Article 45 applies only where an unenumerated right outside Chapter 4 is identified.
Constitutional Law — Remedies — Prospective overruling declined
A court may decline to grant prospective overruling of an unconstitutional law where there is no timetable for corrective action and the order would leave unconstitutional laws in force in an important area of governance.

Legislation cited (30)

  • Constitution of Uganda art.2
  • Constitution of Uganda art.20(2)
  • Constitution of Uganda art.21(1), (2) & (3)
  • Constitution of Uganda art.24
  • Constitution of Uganda art.29(1)(e)
  • Constitution of Uganda art.35(1) & (2)
  • Constitution of Uganda art.38(1)
  • Constitution of Uganda art.40(3)
  • Constitution of Uganda art.45
  • Constitution of Uganda art.59
  • Constitution of Uganda art.61(1)(e)
  • Constitution of Uganda art.62
  • Constitution of Uganda art.63
  • Constitution of Uganda art.78(1), (3) & (4)
  • Constitution of Uganda art.79(2)
  • Constitution of Uganda art.137
  • Constitution of Uganda art.155
  • Constitution of Uganda art.208(2)
  • Parliamentary Elections Act 2005 (Act 17 of 2005) s.8(4)(b), (c), (d) & (e)
  • Parliamentary Elections Act 2005 (Act 17 of 2005) s.100
  • Parliamentary Elections (Special Interest Groups) Regulations 2001 (SI 30 of 2001) reg.3
  • Parliamentary Elections (Special Interest Groups) Regulations 2001 (SI 30 of 2001) reg.10
  • Parliamentary Elections (Special Interest Groups) Regulations 2001 reg.12 (as amended by SI 6 of 2011)
  • National Council for Disability Act 2003 s.31A
  • National Council for Disability (Amendment) Act 2013 (Act 6 of 2013)
  • National Youth Council Act Cap 319 s.18-20
  • National Youth Council (Amendment) Act 2010
  • National Women's Council Act Cap 318 s.16
  • National Women's Council (Amendment) Act 2010 (Act 10 of 2010)
  • United Nations Convention on the Rights of Persons with Disabilities 2006 arts.3, 4, 5, 12 & 29

Cases cited (1)

  • Rubaramira Ruranga v Attorney General (Constitutional Petition No. 7 of 2003)
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.