Odonga v Nabillah Sempala & 2 Ors (Constitutional Petition No. 9 of 2016)

Constitutional Court · [2017] UGCC 4 · 2017 Petition Dismissed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Constitutional petition under Article 137(1) and (3)(a) of the Constitution challenging the constitutionality of statutory provision and conduct of elections

Decision

Petition dismissed; declarations sought refused; each party to bear own costs

The full judgment

Read the complete, verbatim text of this 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 Constitutional Court held that the petition raised questions for constitutional interpretation, but that the 1st respondent (the elected candidate) was wrongly sued as she disclosed no cause of action, the proper respondents being the Attorney General and Electoral Commission. On the merits, Section 8(1) of the Parliamentary Elections Act 2005, providing a woman representative for every District or city, is not inconsistent with Article 78(1)(b); it harmonises with and gives full effect to the Constitution and the National Objectives on equality and gender representation. The 2005 amendments did not abolish Kampala as a District or its woman MP, so disenfranchising Kampala voters would be absurd. The petition was dismissed, each party bearing its own costs.

Facts

On 18 February 2016 the Electoral Commission conducted parliamentary elections, including for the Woman Member of Parliament for Kampala, pursuant to Section 8(1) of the Parliamentary Elections Act 2005. The 1st respondent was declared the winner on 19 February 2016. The petitioner, a registered voter resident in Kampala, contended that Kampala is a capital city and not a District following the Constitution (Amendment) Acts of 2005, and that the Constitution under Article 78(1)(b) provides for a woman representative only for every District, not a city. He argued that Section 8(1) of the Act, in providing for a woman representative for a District or city, was inconsistent with the Constitution, and that the elections and declaration for a Kampala District woman representative were therefore unconstitutional. The 3rd respondent filed a notice of non-opposition but was ordered to participate. The petitioner sought declarations of unconstitutionality, orders prohibiting gazetting of the winner and future such elections, and costs.

Issues

Whether the petition raises questions for constitutional interpretation (whether the petitioner has a cause of action).
Whether Section 8(1) of the Parliamentary Elections Act, 2005 is inconsistent with Article 78(1) of the Constitution.
Whether the conduct of the elections by the Electoral Commission for a District woman representative in Parliament for Kampala and the declaration of the 1st respondent as winner contravened Article 61(1)(b) of the Constitution.
Whether the declaration of the 1st respondent as the duly elected District woman representative for Kampala contravened Article 61(1)(b) of the Constitution.
What remedies are available to the parties.

Orders

The Court declines to make the declarations sought by the petitioner.
The petition is dismissed.
Each party shall bear its own costs.

Key headnotes

Constitutional Law — Constitutional Petitions — Cause of Action under Article 137(3)

A cause of action is disclosed in a constitutional petition under Article 137(3) where the petitioner alleges the act or omission complained of, cites the constitutional provision said to be contravened, and prays for a declaration to that effect.

Constitutional Law — Parties to Petitions — Attorney General as Statutory Respondent

In every constitutional petition or reference the Attorney General is a statutory respondent representing the Government; an elected candidate sued merely for participating as a candidate, against whom no wrongdoing is shown, discloses no cause of action.

Statutory Interpretation — Constitutional Interpretation — Liberal, Purposive and Harmonious Construction

Constitutional provisions must be read together as an integrated whole and given a dynamic, progressive and liberal interpretation, harmonising with the National Objectives and Directive Principles of State Policy so as to extend the benefit of rights to those for whom they are intended.

Electoral Law — Woman Representatives — Status of Kampala as a District

Section 8(1) of the Parliamentary Elections Act 2005, providing for a woman representative in Parliament for every District or city, is not inconsistent with Article 78(1)(b) of the Constitution; the 2005 constitutional amendments did not abolish Kampala as a District nor its entitlement to a woman Member of Parliament, and a construction disenfranchising Kampala voters would produce an absurdity.

Constitutional Law — Costs — Public Interest Litigation

In public interest constitutional litigation costs do not automatically follow the event; courts ordinarily decline to burden parties with costs save in exceptional circumstances, and may order that each party bear its own costs.

Legislation cited (29)

Constitution of Uganda 1995 art.2(1)
Constitution of Uganda 1995 art.5
Constitution of Uganda 1995 art.21
Constitution of Uganda 1995 art.32
Constitution of Uganda 1995 art.33
Constitution of Uganda 1995 art.38(1)
Constitution of Uganda 1995 art.43
Constitution of Uganda 1995 art.61(1)(b)
Constitution of Uganda 1995 art.63
Constitution of Uganda 1995 art.78(1)
Constitution of Uganda 1995 art.78(2)
Constitution of Uganda 1995 art.126
Constitution of Uganda 1995 art.137(1)
Constitution of Uganda 1995 art.137(3)
Constitution of Uganda 1995 art.257(1)(f)
Constitution of Uganda 1995 art.289
Constitution of Uganda 1995 art.293
Parliamentary Elections Act 2005 s.8(1)
Parliamentary Elections Act 2005 s.8(3)
Constitution (Amendment) Act 2005
Constitution (Amendment) (No.2) Act 2005
Kampala Capital City Authority Act 2010 s.84
Civil Procedure Act s.98
Court of Appeal Rules r.2(2)
Constitutional Court (Petitions and References) Rules SI 91-2005 r.3
Constitutional Court (Petitions and References) Rules SI 91-2005 r.4
Constitutional Court (Petitions and References) Rules SI 91-2005 r.5
Constitutional Court (Petitions and References) Rules SI 91-2005 r.7
Constitutional Court (Petitions and References) Rules SI 91-2005 r.12

Cases cited (15)

Anifa Bangirana Kawooya v Attorney General (Constitutional Petition No. 42 of 2010)
Twinobusingye Severino v Attorney General (Constitutional Petition No. 47 of 2011)
Charles Onyango Obbo and Another v Attorney General (Constitutional Appeal No. 2 of 2002)
Serugo v Kampala City Council (Constitutional Appeal No. 2 of 1998)
Attorney General v Major General Tinyefuza (Constitutional Appeal No. 1 of 1997)
Baku Raphael v Attorney General (Constitutional Appeal No. 1 of 2003)
Advocates for Natural Resources Governance and Development v Attorney General & Another (Constitutional Petition No. 40 of 2013)
Advocates Coalition for Development and Environment and 40 Others v Attorney General & Another (Constitutional Petition No. 14 of 2011)
Paul K. Semwogerere & 2 Others v Attorney General (Constitutional Appeal No. 1 of 2002)
Uganda Law Society v Attorney General (Constitutional Petition No. 18 of 2005)
Republic v Elman [1969] EA 357
South Dakota v North Carolina 192 US 268
Corocraft Ltd v Pan American Airways Inc [1968] 3 WLR 714
Col (Rtd) Kizza Besigye v Yoweri Kaguta Museveni and Electoral Commission (Presidential Election Petition No. 1 of 2001)
Wambugu v Public Service Commission [1972] EA 296

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.