Wakilii

Adrapi v Drito and Ors (Consitutional Petition No. 9 of 2013)

Constitutional Court · [2021] UGCC 29 · 2021 Petition Struck Out ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional petition filed under Articles 80(1)(c) and 83(1)(b) of the Constitution
Decision
Petition struck out for want of jurisdiction; no order as to costs by majority

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Holding

The Constitutional Court, by majority, struck out the petition for want of jurisdiction. It held that the petition raised no question requiring constitutional interpretation under Article 137, being in substance a disguised election petition appeal seeking to remove a sitting MP whose academic-equivalence certificate had been cancelled by the NCHE. The proper procedure was an application to the Attorney General and petition to the High Court under section 86 of the Parliamentary Elections Act, which vests jurisdiction over questions of parliamentary membership in the High Court. Kasule, Ag. JA additionally observed that section 86(5) of the Act is void to the extent it purports to allow a further appeal to the Supreme Court, contrary to Article 86(1)(a) and (2).

Facts

The 1st respondent was elected Member of Parliament for Madi-Okollo Constituency, Arua District, on 18 February 2011. His nomination and election had been supported by a certificate of equivalence to Advanced Level standard issued on 11 January 2006 by the National Council for Higher Education (NCHE). On 1 October 2012, long after the expiry of the period for challenging the election by election petition under sections 60 and 61 of the Parliamentary Elections Act, the NCHE withdrew and cancelled that certificate while the 1st respondent was a sitting Member of Parliament. The 1st respondent refused to vacate his seat. The petitioner, contending that the law contained a lacuna in providing no procedure to disqualify an already-elected Member of Parliament, lodged a constitutional petition seeking declarations that the 1st respondent be disqualified, cease to be recognised as an MP, and that fresh elections be conducted in the constituency.

Issues

  1. Whether the petition raises any questions for constitutional interpretation under Article 137 of the Constitution.
  2. Whether Sections 60 and 61 of the Parliamentary Elections Act have a lacuna in failing to provide for the procedure of disqualification of a sitting Member of Parliament, thereby contravening the Constitution.

Orders

  • This petition is struck out.
  • By majority decision, each party shall bear its own costs.

Key headnotes

Constitutional Law — Jurisdiction of the Constitutional Court — Requirement of a question of constitutional interpretation under Article 137
The jurisdiction of the Constitutional Court under Article 137(3) is restricted to matters requiring interpretation of the Constitution; a petition must show on its face that interpretation of the Constitution is required, and it is not enough merely to allege that a constitutional provision has been violated.
Constitutional Law — Cause of action — Pleading requirements under Article 137(3)
A constitutional petition discloses a cause of action only where it describes the act or omission complained of, identifies the specific provision of the Constitution alleged to have been contravened, and prays for a declaration to that effect; failure to plead the specific article renders the petition devoid of a cause of action.
Electoral Law — Vacancy of parliamentary seat — Jurisdiction over questions of membership vested in the High Court under Article 86 and section 86 of the Parliamentary Elections Act
Questions whether the seat of a Member of Parliament has become vacant fall within the exclusive jurisdiction of the High Court under Article 86(1)(a) of the Constitution and section 86 of the Parliamentary Elections Act, by application to the Attorney General and, on his default, direct petition by not less than fifty registered voters of the constituency.
Electoral Law — Disguised election petition appeal — Abuse of the constitutional petition process
Where the orders and declarations sought reveal that a petition is in substance a disguised election petition appeal seeking relief obtainable from a competent court, the Constitutional Court has no jurisdiction and will strike it out.
Constitutional Law — Supremacy of the Constitution — Right of appeal in parliamentary membership disputes
Section 86(5) of the Parliamentary Elections Act is void to the extent that it purports to provide a right of appeal to the Supreme Court, because Article 86(1)(a) and (2) of the Constitution provides only for appeal to the Court of Appeal, and by Article 2 any inconsistent law is void to the extent of the inconsistency.

Legislation cited (14)

  • Constitution of Uganda Article 2
  • Constitution of Uganda Article 50
  • Constitution of Uganda Article 80(1)(c)
  • Constitution of Uganda Article 83(1)(b)
  • Constitution of Uganda Article 86
  • Constitution of Uganda Article 137(3)
  • Constitution of Uganda Article 137(4)(a)
  • Parliamentary Elections Act (17 of 2005) s.4
  • Parliamentary Elections Act (17 of 2005) s.60
  • Parliamentary Elections Act (17 of 2005) s.61
  • Parliamentary Elections Act (17 of 2005) s.84
  • Parliamentary Elections Act (17 of 2005) s.86
  • Civil Procedure Rules Order 7 rule 11
  • Constitutional Court (Petitions and References) Rules 2008

Cases cited (4)

  • Ismail Serugo v Kampala City Council (Constitutional Appeal No. 2 of 1998)
  • Attorney General v Tinyefuza (Constitutional Appeal No. 1 of 1997)
  • Tumukunde v Attorney General and Another [2005] 2 EA 291
  • Mbabaali Jude v Hon. Edward Kiwanuka Ssekandi (Constitutional Petition No. 28 of 2012)
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.