Nobert Mao and Anor v Attorney General and Anor (Constitutional Petition No. 4 of 2016)

Constitutional Court · [2021] UGCC 36 · 2021 Petition Allowed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Constitutional petition under Article 137(1) and (3) seeking declarations that acts of the Electoral Commission were inconsistent with the Constitution

Decision

Petition allowed by majority; declarations issued that the Electoral Commission's retirement of the voters register and omission of the first petitioner were unconstitutional

The full judgment

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Holding

By majority (Buteera, DCJ dissenting on jurisdiction), the Constitutional Court held that the Electoral Commission's mandate under Article 61(1)(e) to compile, maintain, revise and update the voters register does not include power to 'retire' or discard an existing register; a register is a continuing document that may only be updated. By substituting a register compiled from National Identification Register data for its existing register and omitting the first petitioner, a long-registered voter, the Commission acted ultra vires Article 61(1)(e), surrendered its independence, and breached the first petitioner's rights to fair administrative treatment (Article 42) and to vote and stand (Articles 59 and 80(1)(b)). The Court declined to find a breach of Article 61(a) for want of evidence of scale, and confirmed the Commission may use national data to update the register. Petition allowed with costs.

Facts

The first petitioner, Norbert Mao, was a long-registered voter who had voted and stood for election in Gulu Municipality in successive general elections from 1994 to 2011, holding a voters' identity card issued by the Electoral Commission. Ahead of the 2015-2016 general elections, the Commission compiled a new National Voters Register by extracting data of verified citizens from the National Identification Register and, effective 31 March 2015, purported to 'retire' the 2011 register. The first petitioner's name was omitted from the new register because he had not registered under the national identity card project. Having fallen ill, he did not lodge an objection during the display period. When he presented himself for nomination as a parliamentary candidate in December 2015, the Commission declined to nominate him on the ground that he was not a registered voter, and refused to reinstate his name. The petitioners challenged the constitutionality of retiring the register and the omission of registered voters who lacked national identity cards.

Issues

Whether the petition raises a question as to the interpretation of the Constitution conferring jurisdiction on the Constitutional Court under Article 137(1).
Whether the Electoral Commission's act of retiring the voters register used for the 2011 general elections is inconsistent with Article 61(1)(e) (and Article 61(a)) of the Constitution.
Whether the Electoral Commission's act of not recognising the first petitioner and others holding voters' cards as registered voters contravenes Articles 28(1), 42, 44, 59 and 61(e).
Whether importing data from the National Identification Register to compile a new voters register contravenes Articles 61(e) and 62 of the Constitution.
Whether requiring the first petitioner to produce a national identity card for nomination contravenes Articles 61(e), 62 and 80 of the Constitution.
Whether declining to nominate the first petitioner for election as a Member of Parliament contravenes Article 80(1) of the Constitution.

Orders

The petition is allowed (by majority; Buteera, DCJ dissenting).
The second respondent's act of not recognising the first petitioner as a registered voter contravened Article 61(1)(e) of the Constitution.
The second respondent's act of retiring the voters register without maintaining validly registered voters contravened the first petitioner's right to just and fair treatment in administrative decisions under Article 42 of the Constitution.
The second respondent's act of declining to reinstate the first petitioner on the voters register contravened Articles 59(1), (3) and 80(1)(b) of the Constitution.
Declaration declined that retiring the voters register contravened Article 61(a), there being no evidence of the scale of omissions compromising free and fair elections.
The Electoral Commission has a right to use any national data bank to fulfil its mandate under Article 61(1)(e) of the Constitution.
The first petitioner is awarded the costs of the petition.

Key headnotes

Electoral Law — Functions of the Electoral Commission — Voters Register — No power to retire or discard an existing register

The Electoral Commission's mandate under Article 61(1)(e) of the Constitution to compile, maintain, revise and update the voters register does not include power to retire or discard an existing register; the voters register is a continuing document that can only be updated, not brought to an end.

Constitutional Law — Independence of the Electoral Commission — Reliance on external data from the National Identification Register

The Electoral Commission may use information in the National Identification Register to compile, maintain, revise and update the voters register, but may not abdicate its mandate by substituting that data for its own register; the duty to maintain the register under Articles 61(1)(e) and 62 cannot be shifted to another authority without surrendering the Commission's constitutional independence.

Administrative Law — Just and fair treatment — Article 42 — Omission of a validly registered voter

Retiring a voters register and omitting a person who is already validly registered, without maintaining his existing registration, contravenes the right to just and fair treatment in administrative decisions guaranteed by Article 42 of the Constitution.

Human Rights — Right to vote and to stand for election — Articles 59 and 80(1)(b) — Effect of separate registration exercises

A citizen already on the voters register cannot be disenfranchised or denied nomination for failing to participate in a separate national identity registration exercise; once a person has discharged the duty to register under Article 17(1)(h), the right to vote under Article 59 and to be nominated under Article 80(1)(b) cannot be defeated by reliance on another authority's data.

Constitutional Law — Jurisdiction of the Constitutional Court — Article 137 — Question of interpretation distinct from cause of action

The Constitutional Court has jurisdiction under Article 137(1) only where the petition, on its face, raises a genuine controversy as to the interpretation of a provision of the Constitution; this is distinct from whether the petition discloses a cause of action under Article 137(3), and a mere allegation that a constitutional provision has been violated is enforceable under Article 50 by another competent court.

Statutory Interpretation — Constitutional construction — Reading the Constitution as an integrated whole

Provisions of the Constitution concerned with the same subject must be construed as complementing, and not contradicting, one another and read as an integrated and cohesive whole, so that no provision detracts from another; items in a list such as the functions in Article 61(1) must be read as related to each other and to the purpose of the provision.

Legislation cited (19)

Constitution of Uganda 1995 art.61(1)(e)
Constitution of Uganda 1995 art.61(1)(f)
Constitution of Uganda 1995 art.64(1)
Constitution of Uganda 1995 art.137(1)
Constitution of Uganda 1995 art.137(3)
Constitution of Uganda 1995 art.42
Constitution of Uganda 1995 art.59(1)
Constitution of Uganda 1995 art.17(1)(h)
Constitution of Uganda 1995 art.80(1)(b)
Constitution of Uganda 1995 art.62
Constitution of Uganda 1995 art.76
Constitution of Uganda 1995 art.274
Constitution of Uganda 1995 art.126(2)(e)
Electoral Commission Act s.15
Electoral Commission Act s.18
Electoral Commission Act s.19
Electoral Commission Act s.25
Registration of Persons Act 2015 s.65(2)
Registration of Persons Act 2015 s.66(2)

Cases cited (12)

Paul K. Ssemwogerere and Others v Attorney General (Constitutional Appeal No. 1 of 2002)
South Dakota v North Carolina 192 US 268 (1940)
Rtd Dr Col Kiiza Besigye v Y.K. Museveni (Presidential Election Petition No. 2 of 2006)
Attorney General v Salvatore Abuki (Constitutional Appeal No. 1 of 1998)
The Attorney General of Tanzania v Rev. Christopher Mtikila [2010] EA13
Okello Okello John Livingstone and Others v Attorney General (Constitutional Petition No. 1 of 2005)
Uganda Revenue Authority v Siraje Hassan Kasura and Others (Civil Appeal No. 9 of 2015)
Amama Mbabazi v Electoral Commission and Yoweri Kaguta Museveni (Presidential Election Petition No. 1 of 2016)
Ismail Serugo v Kampala City Council and Attorney General (Constitutional Appeal No. 2 of 1998)
Hon. Ssekikubo Theodore and Others v National Resistance Movement (Constitutional Petition No. 9 of 2019)
Attorney General v Major General David Tinyefuza (Constitutional Appeal No. 1 of 1997)
Col (Rtd) Dr Kiiza Besigye v Yoweri Kaguta Museveni and Electoral Commission (Presidential Election Petition No. 1 of 2001)

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