Wakilii

Eddie Kwizera v Attorney General & Another (Constitutional Petition No. 20 of 2018)

Constitutional Court · [2019] UGCC 13 · 2019 Petition Partly Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional petition under Article 137 of the Constitution challenging a resolution of Parliament and the conduct of the Electoral Commission
Decision
Petition allowed in part; elections in the six municipalities of Apac, Sheema, Ibanda, Nebbi, Bugiri and Kotido declared null and void; petitioner awarded half the taxed costs against the second respondent.

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Holding

The Court considered whether Parliament's 9 August 2016 resolution dividing Uganda into 296 constituencies, and the creation of six municipalities as constituencies, were unconstitutional. It held that prescribing the number of constituencies is Parliament's function under Article 63(1) and may lawfully be done by resolution under section 11 of the Electoral Commission Act, while demarcation of boundaries remains the Electoral Commission's function under Article 63(2); the resolution was therefore valid and breached neither Article 61, 63, 91 nor 294. However, holding elections in the six new municipalities (Apac, Sheema, Ibanda, Nebbi, Bugiri and Kotido) before the next general election created no vacancy and was unconstitutional. The petition succeeded in part and those elections were nullified.

Facts

On 9 August 2016 Parliament passed a resolution, moved under Article 63(1) of the Constitution and section 11 of the Electoral Commission Act, prescribing that Uganda be divided into 296 constituencies. Six municipalities — Apac, Sheema, Ibanda, Nebbi, Bugiri and Kotido — were created and treated as new parliamentary constituencies after the 2016 general elections. In 2018 the Electoral Commission organised and conducted elections in those municipalities before the dissolution of the sitting Parliament. By the coming into force of the Constitution (Amendment) Act 2005 Uganda comprised 214 constituencies, a fact not in dispute. Eddie Kwizera petitioned the Constitutional Court, contending that Parliament had usurped the Electoral Commission's demarcation function, that the number of constituencies could be fixed only by an Act of Parliament, and that holding mid-term elections in the new constituencies deprived him of a right of appeal and was unconstitutional. No evidence was adduced of any actual demarcation of boundaries by Parliament or of any decision of the Electoral Commission on demarcation.

Issues

  1. Whether the petition is misconceived, frivolous, vexatious and misconstrued and raises no issue for interpretation by the court.
  2. Whether the resolution of Parliament creating 296 constituencies is inconsistent with or in contravention of Articles 61(1)(c), 63(2) and 91(1) of the Constitution.
  3. Whether the creation of the municipalities by Parliament without the involvement of the Electoral Commission is inconsistent with Article 63.
  4. Whether the resolution and the subsequent holding of elections deprived the petitioner of the right of appeal and is inconsistent with Article 64(2) and (3) of the Constitution.
  5. Whether organising, conducting and supervising mid-term elections that are neither general nor residual is inconsistent with Articles 61(1)(b), 61(2) and 81(2) and (3) of the Constitution.
  6. Whether the act of Parliament declaring that Uganda is divided into 296 constituencies as at 9 August 2016 is inconsistent with Article 294 of the Constitution.
  7. Whether the act of the Electoral Commission in organising, conducting and supervising elections in the municipalities of Apac, Sheema, Ibanda, Nebbi, Bugiri and Kotido is inconsistent with Article 63(6) of the Constitution.

Orders

  • The preliminary objection that the petition is misconceived, frivolous and vexatious is overruled.
  • Issues 2, 3, 4 and 6 are answered in the negative; the resolution of Parliament prescribing 296 constituencies is valid and constitutional.
  • Issues 5 and 7 are answered in the affirmative.
  • The elections conducted in the municipalities of Apac, Sheema, Ibanda, Nebbi, Bugiri and Kotido are for non-existent vacancies and are null and void.
  • In the next elections, Articles 63 and 294 of the Constitution shall be complied with, and any elections held in disregard thereof shall be void ab initio.
  • The second respondent shall, within one year, file in court evidence of the prescription of Parliament dividing Uganda into constituencies under Articles 294 and 63(1).
  • The second respondent shall file in court evidence that it has demarcated the boundaries of constituencies at least 10 months before the next general elections.
  • The petitioner shall be paid half the taxed costs of the petition by the second respondent.

Key headnotes

Constitutional Interpretation — Rule of Harmonisation — Reading the Constitution as an integral whole
The entire Constitution must be read together as an integral whole, with no provision destroying another but each provision sustaining the others, so that every provision is given effect.
Constituencies — Prescription distinguished from Demarcation
The prescription of the number of constituencies under Article 63(1) is the exclusive function of Parliament, while the demarcation of constituency boundaries under Article 63(2) is the function of the Electoral Commission; the two functions are distinct and severable and must not be conflated.
Prescription of constituencies — Form of prescription — Resolution versus Act of Parliament
Parliament may validly prescribe the number of constituencies by resolution under section 11 of the Electoral Commission Act and is not obliged to do so by an Act of Parliament; such a resolution does not contravene Articles 61(1)(c), 63(2) or 91(1) of the Constitution.
Parliamentary elections — Mid-term elections — Requirement of a vacancy
Elections for a constituency cannot be held where no vacancy exists; the creation of new constituencies after a general election does not create a vacancy because the sitting member continues to represent the area, and any alteration of boundaries takes effect only upon the next dissolution of Parliament.
Local Government — Creation of municipalities — Distinct from creation of constituencies
The creation of municipalities under Article 179 is a function of district councils acting with the approval of Parliament under the Local Governments Act and is distinct from, and does not amount to, the creation or demarcation of electoral constituencies.
Burden of proof — Party asserting a fact must prove it
A petitioner who alleges that Parliament or the Electoral Commission demarcated constituency boundaries bears the burden of proving that fact under sections 101 to 103 of the Evidence Act, and the claim fails where no such evidence is adduced.
Statutory and constitutional provisions — Mandatory versus directory — Effect of non-compliance
Where a constitutional or statutory provision regulating the holding of elections is mandatory, non-compliance renders the resulting act invalid; elections conducted in disregard of the requirement that boundary alterations take effect only on the next dissolution of Parliament are null and void.

Legislation cited (32)

  • Constitution of Uganda art.1
  • Constitution of Uganda art.2
  • Constitution of Uganda art.61(1)(b)
  • Constitution of Uganda art.61(1)(c)
  • Constitution of Uganda art.63
  • Constitution of Uganda art.64(2)
  • Constitution of Uganda art.64(3)
  • Constitution of Uganda art.76
  • Constitution of Uganda art.79
  • Constitution of Uganda art.81(2)
  • Constitution of Uganda art.83
  • Constitution of Uganda art.84
  • Constitution of Uganda art.91(1)
  • Constitution of Uganda art.137
  • Constitution of Uganda art.176
  • Constitution of Uganda art.177
  • Constitution of Uganda art.179
  • Constitution of Uganda art.274
  • Constitution of Uganda art.294
  • Electoral Commission Act Cap.140 s.11
  • Electoral Commission Act Cap.140 s.20
  • Electoral Commission Act Cap.140 s.37
  • Local Governments Act Cap.243 s.7
  • Local Governments Act Cap.243 s.45
  • Local Governments Act Cap.243 s.46
  • Parliamentary Elections Act 2005 s.61
  • Parliamentary Elections Act 2005 s.101
  • Parliamentary Elections Act 2001 s.100
  • Parliamentary Elections (Interim Provisions) Statute 1996 s.13
  • Evidence Act Cap.6 s.101
  • Evidence Act Cap.6 s.102
  • Evidence Act Cap.6 s.103

Cases cited (15)

  • David Wesley Tusingwire v Attorney General (Constitutional Appeal No. 4 of 2016)
  • Shaban Mohammed Hassan v Attorney General (Civil Appeal No. 281 of 2012)
  • Ssemwogerere v Attorney General (Constitutional Appeal No. 1 of 2003)
  • Attorney General v Tinyefuza (Constitutional Appeal No. 1 of 1997)
  • Ismail Serugo v Kampala City Council and Attorney General (Constitutional Appeal No. 2 of 1998)
  • Minister of Home Affairs v Fisher [1979] 2 All ER 21
  • Dow v Attorney General [1992] LRC (Const.) 623
  • South Dakota v North Carolina 192 U.S. 286
  • National Council for Higher Education v Anifa Kawooya Bangirana (Constitutional Appeal No. 4 of 2011)
  • Attorney General v Oluoch (1972) EA 392
  • Cullimore v Lyme Regis Corporation [1961] 3 All ER 1008
  • Vita Food Products Inc v Unus Shipping Co Ltd [1939] 1 All ER 513
  • Liverpool Borough Bank v Turner
  • Montreal Street Railway Co v Normandin [1917] AC 170
  • Jeroj Shariff & Co v Chotai Family Stores (1960) EA 374
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.