Wakilii

Male Mabirizi & Ors v Attorney General (Constitutional Petitions No. 49 of 2017)

Constitutional Court · [2018] UGCC 4 · 2018 Petitions Partly Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Five consolidated constitutional petitions under Article 137 challenging the validity of the Constitution (Amendment) Act No. 1 of 2018 and the process of its enactment
Decision
On the lead judgment, the extension of the tenure of Parliament and Local Government Councils from five to seven years (and its retroactive effect) was found unconstitutional; the full consolidated orders are not contained in the available excerpt.

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Cited — treatment unverified cited in 2 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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Holding

On the available lead judgment of Owiny-Dollo DCJ, the Constitutional Court held that Parliament's amendment extending its own tenure, and that of Local Government Councils, from five to seven years was unconstitutional. Although Article 77(3) is not entrenched, Article 77(4) forms part of the Constitution's fundamental features: a sitting Parliament may extend its life only during a state of war or emergency that makes elections impossible, and then only for six months at a time. The extension breached the social contract between the people and their representatives under Article 1 and usurped power vested in the people. The retroactive operation (deemed effective from 2016) was further impermissible as self-serving rather than in the public interest.

Facts

In 2017, Hon. Raphael Magyezi, a member of the 10th Parliament, introduced a private member's bill (Constitutional (Amendment) Bill No. 2 of 2017) principally to lift the presidential age-limit provision in Article 102(b) of the Constitution. During the committee stage at the second reading, further motions were moved that extended the tenure of Parliament and of Local Government Councils from five to seven years (with retroactive effect from 2016) and reinstated presidential term limits. Parliament passed the bill as amended, and on Presidential assent it became the Constitution (Amendment) Act No. 1 of 2018. Five petitioners separately challenged the validity of specific provisions of the Act and the process of its enactment, alleging, among other things, invasion of Parliament and assault of members by security forces, exclusion of the public, and failure to follow constitutional and parliamentary procedures. The petitions were consolidated for joint hearing because they raised common issues.

Issues

  1. Whether sections 2 and 8 of the Constitution (Amendment) Act, extending the term of Parliament from five to seven years, are inconsistent with the Constitution.
  2. Whether applying that extension retrospectively is inconsistent with the Constitution.
  3. Whether sections 6 and 10 of the Act, extending the term of the current Local Government Councils from five to seven years, are inconsistent with the Constitution.
  4. Whether applying that extension retroactively is inconsistent with the Constitution.
  5. Whether the alleged violence inside and outside Parliament during the enactment of the Act contravened the Constitution.
  6. Whether the entire process of conceptualising, consulting, debating and enacting the Act contravened the Constitution, including Article 93 and the alleged conduct of the security forces.
  7. Whether Parliament's alleged failure to observe its own Rules of Procedure during enactment contravened the Constitution.
  8. Whether passing the Act without observing the 14 sitting days between the second and third readings contravened Articles 262 and 263(1).
  9. Whether Presidential assent without a valid certificate of compliance and a referendum certificate contravened Article 263(2).
  10. Whether section 5 of the Act, reintroducing and entrenching term limits subject to referendum, is inconsistent with Article 260(2)(a).
  11. Whether section 9 of the Act, harmonising the seven-year term of Parliament with the Presidential term, is inconsistent with Articles 105(1) and 260(2).
  12. Whether sections 3 and 7 of the Act, lifting the age limit without consulting the population, are inconsistent with Articles 21(3) and 21(5).
  13. Whether the continuance in office of the President on attaining the age of 75 years contravenes Articles 83(1)(b) and 102(c).
  14. What remedies are available to the parties.

Key headnotes

Constitutional Law — Jurisdiction of the Constitutional Court — Article 137
The jurisdiction of the Constitutional Court under Article 137 is confined to questions requiring the interpretation of the Constitution, and a petition must show on its face that interpretation of a constitutional provision is required; a mere allegation that a constitutional provision has been violated is insufficient.
Statutory Interpretation — Constitutional Construction — Holistic approach and presumption of constitutionality
The Constitution must be construed as a whole, with each provision treated as an integral part of the entire instrument, and a litigant challenging the validity of an enactment bears the burden of demonstrating its inconsistency under the presumption of constitutionality.
Constitutional Law — Amendment — Fundamental features and non-entrenched provisions
Even where a constitutional provision is not entrenched and its amendment appears procedurally permissible, an amendment that conflicts with the fundamental features or implicit limits of the Constitution may be declared unconstitutional.
Constitutional Law — Tenure of Parliament — Article 77(3) and (4)
A sitting Parliament cannot extend its own constitutionally fixed five-year tenure save where a state of war or emergency under Article 77(4) makes a normal general election impossible, and then only for a period not exceeding six months at a time; an extension to seven years outside those conditions is unconstitutional.
Constitutional Law — Sovereignty of the people — Social contract and Article 1
The relationship between the people and Parliament is a contractual agency relationship in which the people, as the sovereign principal, delegate power for a defined five-year term; Parliament cannot unilaterally vary that mandate, as ultimate power vests in the people under Article 1.
Constitutional Law — Retrospective and retroactive legislation
Retroactive or retrospective legislation may be justified only when enacted in the public interest or to protect guaranteed rights, and not to serve the narrow self-interest of a section of the people; the retroactive extension of Parliament's tenure deemed effective from its first sitting was impermissible.
Constitutional Law — Basic structure doctrine
The basic structure doctrine remains at a nascent and unsettled stage, but the 1995 Constitution possesses fundamental features and structural pillars — including the sovereignty of the people, supremacy of the Constitution, democratic governance, separation of powers and judicial independence — that constrain Parliament's amendment power.

Legislation cited (30)

  • Constitution of Uganda 1995 Article 137
  • Constitution of Uganda 1995 Article 1
  • Constitution of Uganda 1995 Article 2
  • Constitution of Uganda 1995 Article 77(3)
  • Constitution of Uganda 1995 Article 77(4)
  • Constitution of Uganda 1995 Article 79
  • Constitution of Uganda 1995 Article 91
  • Constitution of Uganda 1995 Article 93
  • Constitution of Uganda 1995 Article 94
  • Constitution of Uganda 1995 Article 96
  • Constitution of Uganda 1995 Article 105(1)
  • Constitution of Uganda 1995 Article 181
  • Constitution of Uganda 1995 Article 259
  • Constitution of Uganda 1995 Article 260
  • Constitution of Uganda 1995 Article 261
  • Constitution of Uganda 1995 Article 262
  • Constitution of Uganda 1995 Article 263
  • Constitution of Uganda 1995 Article 289
  • Constitution (Amendment) Act No. 1 of 2018 s.2
  • Constitution (Amendment) Act No. 1 of 2018 s.6
  • Constitution (Amendment) Act No. 1 of 2018 s.8
  • Constitution (Amendment) Act No. 1 of 2018 s.10
  • Evidence Act (Cap. 6) s.106
  • Acts of Parliament Act (Cap. 2) s.1(c)
  • Acts of Parliament Act (Cap. 2) s.3
  • Acts of Parliament Act (Cap. 2) s.14(4)
  • Budget Act s.10
  • Public Finance Management Act 2015 s.76
  • Expropriated Properties Act No. 9 of 1982
  • Leadership Code Act

Cases cited (26)

  • Ismail Serugo v Kampala City Council & Anor (Constitutional Appeal No. 2 of 1998)
  • Attorney General v Tinyefuza (Constitutional Appeal No. 1 of 1997)
  • Saleh Kamba & Others v Attorney General & Others (Constitutional Petition No. 16 of 2013)
  • Theodore Ssekikuubo & Others v Attorney General & Others (Constitutional Appeal No. 1 of 2015)
  • Ssemwogerere & Anor v Attorney General (Constitutional Appeal No. 1 of 2002)
  • Oloka-Onyango & Others v Attorney General (Constitutional Petition No. 8 of 2014)
  • Amama Mbabazi v Museveni & 2 Others (Presidential Election Petition No. 1 of 2016)
  • Minerva Mills Ltd v Union of India AIR 1980 SC 1789
  • Kesavananda Bharati v State of Kerala AIR 1973 SC 1461
  • Golaknath v State of Punjab AIR 1967 SC 1643
  • Shankari Prasad Singh Deo v Union of India AIR 1951 SC 458
  • Sajjan Singh v State of Rajasthan AIR 1965 SC 845
  • Anwar Hossain Chowdhury v Bangladesh 41 DLR (1989) AD 165
  • Al-Jehad Trust v Federation of Pakistan PLD 1996 SC 367
  • Njoya & Others v Attorney General & Others [2004] LLR 4788
  • Rev. Christopher Mtikila v Attorney General [2006] TZHC 5
  • Premier, KwaZulu-Natal v President of the Republic of South Africa 1996 (1) SA 769 (CC)
  • Executive Council of the Western Cape Legislature v President of the Republic of South Africa 1995 (10) BCLR 1289 (CC)
  • Attorney General of Trinidad and Tobago v McLeod [1985] LRC 81
  • Hinds v The Queen [1977] AC 195
  • Harrikissoon v Attorney General of Trinidad and Tobago [1981] AC 265
  • Attorney General v Morgan [1985] LRC 770
  • Phillips v Eyre (1870) LR 6 QB 1
  • S v Marwane 1982 (3) SA 717 (A)
  • Citizens United v Federal Election Commission 558 US 310 (2010)
  • Raila Odinga v Uhuru Kenyatta (Presidential Election Petition No. 1 of 2017)
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.