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Zawedde v Attorney General and Another (Constitutional Petition No. 1 of 2014)

Constitutional Court · [2021] UGCC 15 · 2021 Petition Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional petition under Article 137(3) challenging the constitutionality of provisions of the Local Governments Act and the Parliamentary Elections Act.
Decision
Petition dismissed with no order as to costs.

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Holding

The petitioner challenged section 138(4) of the Local Governments Act and section 60(3) of the Parliamentary Elections Act—requiring election petitions to be filed within fourteen days after results are gazetted—as inconsistent with the fair-hearing right under Article 28(1). The Court held the section 60(3) challenge academic, as no live dispute affected the petitioner; the discrimination complaint under Articles 21 and 61 concerned enforcement and belonged to another competent court under Article 50, not the Constitutional Court. It held that section 138(4) does not deny aggrieved candidates access to court and is not inconsistent with Article 28(1). The petition was dismissed with no order as to costs, the Court observing that any legislative gap lies in section 137's failure to set a deadline for gazetting.

Facts

The petitioner contested a May 2011 Local Council election for the seat representing persons with disabilities in Kampala and was the runner-up. She alleged irregularities, including that the ballot paper bore 47 symbols when only four candidates contested under the NRM and as independents. After the declared winner was sworn in, she sought to challenge the result but was told the results had first to be gazetted. Her election petition filed in the Chief Magistrates Court at Mengo (No. 6 of 2011) before gazetting was struck out; her High Court appeal (No. 1 of 2012) was dismissed by Kabiito J; and her Court of Appeal appeal was struck out as filed out of time. The Electoral Commission had not gazetted results for the disability seats in 2001 and 2006, allegedly for lack of funds, though it gazetted the 2011 results on 17 February 2012. She petitioned the Constitutional Court contending that the requirement to file within fourteen days after gazetting, coupled with the absence of any deadline for gazetting, denied aggrieved candidates timely access to court.

Issues

  1. Whether section 138(4) of the Local Governments Act and section 60(3) of the Parliamentary Elections Act are inconsistent with or contravene Article 28(1) of the Constitution.
  2. Whether the Electoral Commission's failure to gazette the results of elections for representatives of persons with disabilities was discriminatory and contravened Articles 21(1), (2) and 61(1)(d) of the Constitution.
  3. Whether the petitioner is entitled to the orders sought.

Orders

  • Petition dismissed.
  • No order as to costs.

Key headnotes

Constitutional Law — Jurisdiction of the Constitutional Court — Article 137
The jurisdiction of the Constitutional Court is confined to the interpretation of the Constitution; unless the question before it depends for its determination on the interpretation or construction of a provision of the Constitution, the Court has no jurisdiction.
Constitutional Law — Constitutional Petitions — Academic Questions
The Constitutional Court will not determine a question that is merely academic where there is no live dispute between the parties before it whose resolution the answer could affect.
Constitutional Law — Enforcement versus Interpretation — Article 50
A complaint concerning the enforcement of constitutional rights, such as alleged discrimination, whose resolution does not depend on interpretation of the Constitution, must be pursued before a competent court under Article 50 and not under Article 137 in the Constitutional Court.
Electoral Law — Election Petitions — Time Limit and the Right to a Fair Hearing
The requirement in section 138(4) of the Local Governments Act that an election petition be filed within fourteen days after the results are gazetted does not deny an aggrieved candidate access to court and is not inconsistent with the right to a fair hearing under Article 28(1) of the Constitution.
Statutory Interpretation — Legislative Gaps — Gazetting of Election Results
Where section 137 of the Local Governments Act sets no deadline for the gazetting of election results, any delay that results is a legislative omission to be remedied by amendment, and does not render the separate fourteen-day filing requirement unconstitutional.

Legislation cited (17)

  • Constitution of Uganda art.137(3)
  • Constitution of Uganda art.137(1)
  • Constitution of Uganda art.28(1)
  • Constitution of Uganda art.21(1)
  • Constitution of Uganda art.21(2)
  • Constitution of Uganda art.61(1)(d)
  • Constitution of Uganda art.50
  • Local Governments Act s.138(4)
  • Local Governments Act s.138(2)
  • Local Governments Act s.138(3)
  • Local Governments Act s.137
  • Local Governments Act s.137(1)
  • Local Governments Act s.139
  • Local Governments Act s.187(1)
  • Parliamentary Elections Act s.60(3)
  • Civil Procedure Act s.27
  • Constitutional Court (Petitions and References) Rules, S.I. 91 of 2005, rule 3

Cases cited (8)

  • Behangana Domaro and Another v Attorney General (Constitutional Petition No. 53 of 2010)
  • Ismail Serugo v Kampala City Council and Another (Constitutional Appeal No. 2 of 1998)
  • Attorney General v Major General David Tinyefuza (Constitutional Appeal No. 1 of 1997)
  • Mugoya Kyawa Gaster v Attorney General (Constitutional Appeal No. 9 of 2008)
  • Paul K. Ssemogerere v Zachary Olum and Others (Constitutional Appeal No. 1 of 2002)
  • Amooti Godfrey Nyakana v National Environment Management Authority (Constitutional Appeal No. 5 of 2011)
  • Sun Life Assurance Co of Canada v Jervis [1944] 1 All ER 469
  • Charles Harry Twagira v Attorney General (Criminal Appeal No. 27 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.