Wakilii

Businge Police Fred v Attorney General and Another (Constitutional Petition No. 24 of 2012)

Constitutional Court · [2015] UGCC 98 · 2015 Petition Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional petition under Article 137 for interpretation and redress
Decision
Petition allowed; second respondent's parliamentary seat declared vacant and ordered refunded of emoluments drawn after conviction

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Holding

The Constitutional Court held that a petition under Article 137 may seek both interpretation and redress, giving the Constitutional Court and the High Court concurrent jurisdiction over the vacation of a sitting MP's seat. Embezzlement and uttering false documents are crimes involving dishonesty and moral turpitude under Article 80(2)(f); read with Article 83(1)(b), a serving member convicted of such crimes must vacate his seat upon conviction. The second respondent's seat fell vacant on his conviction of 3 April 2012, and his continued drawing of emoluments contravened Article 85(1) as an illegality the court could not sanction. The petition was allowed.

Facts

The petitioner, a registered voter and anti-corruption activist in Bukonzo East Constituency, Kasese District, challenged the continued membership of the second respondent, the elected Member of Parliament for that constituency. On 3 April 2012 the second respondent was convicted in the Anti-Corruption Division of the High Court, on his own plea of guilty, of two counts of uttering false documents contrary to sections 347 and 351 of the Penal Code Act and of embezzlement of public funds contrary to section 19 of the Anti-Corruption Act, and was sentenced to fines or, in default, imprisonment. Despite the conviction the second respondent remained in Parliament, continued participating in parliamentary business as a Member, and continued drawing salaries, allowances and other emoluments. The petitioner and other voters asked the second respondent, the Speaker, and the Attorney General to give effect to the Constitution, but no action was taken, prompting the petition.

Issues

  1. Whether the petition raises any question requiring constitutional interpretation.
  2. Whether embezzlement contrary to section 19 of the Anti-Corruption Act and uttering false documents contrary to sections 347 and 351 of the Penal Code Act are crimes involving dishonesty or moral turpitude within the meaning of Article 80(2)(f) of the Constitution.
  3. Whether a conviction occurring while a person is already a Member of Parliament is contemplated under Article 80(2)(f) read with Article 83(1)(b) as a basis for vacation of that Member's seat.
  4. Whether the second respondent's continued drawing of salaries, allowances and emoluments after conviction is inconsistent with or in contravention of Article 85(1) of the Constitution.

Orders

  • The petition is allowed.
  • Declaration that the seat of Member of Parliament for Bukonzo County East Constituency fell vacant when the second respondent was convicted on 3 April 2012 of offences involving dishonesty and moral turpitude.
  • Declaration that from 3 April 2012 the second respondent ought to have ceased to receive any salary, allowances and other emoluments accorded to a Member of Parliament.
  • The second respondent shall vacate his seat in Parliament immediately; his seat is declared vacated.
  • The second respondent shall refund to the Consolidated Fund all monies received illegally as remuneration after 3 April 2012.
  • The second respondent shall bear the costs of the petition, awarded to the petitioner.

Key headnotes

Constitutional Law — Constitutional Interpretation — Article 137 — Jurisdiction to grant redress and concurrent jurisdiction over vacation of an MP's seat
A petition brought under Article 137 for interpretation of the Constitution may also seek redress, which the Constitutional Court has power and duty to grant where appropriate; consequently the Constitutional Court and the High Court have concurrent jurisdiction over the question whether a sitting Member of Parliament must vacate his or her seat.
Criminal Law & Procedure — Crimes of dishonesty and moral turpitude — Embezzlement and uttering false documents
Embezzlement of public funds and uttering a false document are crimes involving both dishonesty and moral turpitude within the meaning of Article 80(2)(f) of the Constitution.
Constitutional Law — Tenure of Members of Parliament — Article 80(2)(f) read with Article 83(1)(b) — Automatic vacation of seat on conviction
Where a serving Member of Parliament is convicted of a crime involving dishonesty or moral turpitude, circumstances arise under Article 83(1)(b) that require the member to vacate his or her seat upon conviction; the obligation to vacate is mandatory and automatic and does not depend on any further direction.
Constitutional Law — Emoluments of Members of Parliament — Article 85(1) — Illegality of payments after vacation
A Member of Parliament who has ceased to hold office upon conviction is not entitled to emoluments under Article 85(1); continued drawing of emoluments after that date is earned illegally and a court cannot sanction such an illegality.
Statutory Interpretation — Constitutional construction — Rule of harmony, completeness and exhaustiveness
The Constitution must be read together as an integral whole, with no provision destroying another but each sustaining the other, in accordance with the rule of harmony, completeness and exhaustiveness.
Civil Procedure — Pleadings — Party bound by pleadings — Departure without leave to amend
A party is bound by its pleadings and may not depart from them or advance a case inconsistent with them without leave of court to amend; counsel who departs from filed pleadings without such leave will not be permitted to succeed on the departed case.

Legislation cited (11)

  • Constitution of Uganda Article 137
  • Constitution of Uganda Article 80(2)(f)
  • Constitution of Uganda Article 83(1)(b)
  • Constitution of Uganda Article 85(1)
  • Constitution of Uganda Article 86
  • Constitution of Uganda Article 79
  • Constitution of Uganda Article 8A
  • Constitution of Uganda National Objective and Directive Principle XXVI
  • Penal Code Act s.351
  • Penal Code Act s.347
  • Anti-Corruption Act 2009 s.19

Cases cited (11)

  • Interfreight Forwarders (U) Ltd v East African Development Bank [1990-1994] EA 117
  • Uganda Breweries Ltd v Uganda Railways Corporation (Civil Appeal No. 6 of 2001)
  • Captain Harry Fandy vs. Caspair Air Charter
  • Baku Raphael Obudra and Obiga Kania v Attorney General (Constitutional Appeal No. 1 of 2003)
  • Major General Tinyefuza v Attorney General (Constitutional Appeal No. 1 of 1997)
  • Ismail Serugo v Kampala City Council and Attorney General (Constitutional Appeal No. 2 of 1998)
  • Saleh M. W. Kamba v Attorney General and 4 Others (Constitutional Petition No. 16 of 2013)
  • National Resistance Movement v Attorney General and 4 Others (Constitutional Petition No. 21 of 2013)
  • P. K. Ssemwogerere and Another v Attorney General (Constitutional Appeal No. 1 of 2002)
  • Attorney General of Tanzania v Christopher Mtikila [2010] EA 13
  • Makula International Ltd v His Eminence Cardinal Nsubuga and Another (Civil Appeal No. 4 of 1981)
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.