Wakilii

Dr. Kamba and 2 Others v The Electoral Commission and Another (Constitutional Petition No. 13 of 2019)

Constitutional Court · [2021] UGCC 42 · 2021 Petition Partly Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional petition under Article 137(3) of the Constitution challenging the constitutionality of the Electoral Commission's and Parliament's conduct in relation to constituency demarcation and the creation of counties and districts
Decision
Petition partly successful; declarations of unconstitutionality made in respect of the Electoral Commission's failure to review constituency demarcation and Parliament's creation of counties; no order as to costs

The full judgment

Read the complete, verbatim text of this judgment.

Sign in to read the full judgment

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions — always read the source judgment before relying on it.

Holding

The Constitutional Court held that the Electoral Commission's failure to review the division of Uganda into constituencies within twelve months after the 2002 and 2014 census results was an unconstitutional abrogation of its self-executing duty under Articles 61 and 63(5), independent of Parliament's prescription of constituency numbers. It further held that Parliament's creation of counties without involving local governments, and otherwise than under the laid-down procedures, contravened Articles 63 and 179. However, Parliament's retention of one woman MP per district under its Article 78(2) discretion was constitutional. The court declined to decide the Electoral Commission chairperson's competence, that matter being on appeal. The petition succeeded in part, with no order as to costs.

Facts

Three petitioners challenged the constitutionality of the State's handling of constituency demarcation and the creation of counties and districts. They contended that the Electoral Commission, after the Uganda Bureau of Statistics published the results of the 2002 and 2014 population censuses, was obliged under Article 63(5) to review the division of Uganda into constituencies within twelve months and to re-demarcate them so that each constituency's population approached the population quota, but failed to do so. They asserted this produced gross malapportionment, with some constituencies having a fraction of others' populations, debasing the votes of those in densely populated areas such as Wakiso, Kampala and Arua. They further challenged Parliament's practice of creating counties and new districts by resolution without involving local governments or amending the Constitution, and the retention of one woman MP per district. The respondents argued the Electoral Commission could only demarcate constituencies once Parliament prescribed their number, and that Parliament's creation of counties and districts fell within its mandate under Articles 176 and 179.

Issues

  1. Whether the failure of the Electoral Commission to review the demarcation of Uganda into constituencies after publication of the 2002 and 2014 census results was an abrogation that violated the Constitution and was unconstitutional.
  2. Whether the resolutions by Parliament to maintain one woman Member of Parliament for each district violated the Constitution and were unconstitutional.
  3. Whether the creation of counties by Parliament contravened the Constitution and was unconstitutional.
  4. Whether districts created by Parliament without amending the Constitution or following the laid-down procedures violated the Constitution and were unconstitutional.
  5. Whether the holders of the offices of the Electoral Commission from 2003 to date were incompetent, abrogated the Constitution, and should be referred to the High Court on a charge of treason.

Orders

  • The omission by the Electoral Commission to review the division of Uganda into constituencies after the 2002 census was an abrogation that violated Articles 61 and 63 of the Constitution and was unconstitutional.
  • The omission by the Electoral Commission to review the division of Uganda into constituencies after the 2014 census was an abrogation that violated Articles 61 and 63 of the Constitution and was unconstitutional.
  • The resolutions by the 7th, 8th, 9th and 10th Parliaments to retain one woman representative for every district did not contravene the Constitution.
  • The resolutions by Parliament and its failure to involve local governments in the creation of counties, without amending the Constitution or following laid-down procedures and the Local Government Act, contravened Articles 63 and 179 and were unconstitutional.
  • The question of the competence of the Electoral Commission office-holders was left undecided as it is the subject of an appeal awaiting the Supreme Court.
  • The petition succeeds in part.
  • Each party to bear its own costs.

Key headnotes

Electoral Law — Constituency Demarcation — Duty of Electoral Commission to Review After Census
The duty of the Electoral Commission under Article 63(5) of the Constitution to review the division of Uganda into constituencies within twelve months after publication of a population census is a self-executing constitutional duty that arises independently of any fresh prescription of constituency numbers by Parliament; failure to perform it is an unconstitutional abrogation.
Electoral Law — Prescription versus Demarcation — Division of Functions Between Parliament and Electoral Commission
Under Article 63 the function of prescribing the number of constituencies belongs exclusively to Parliament, while the function of demarcating and delimiting the boundaries of the prescribed constituencies belongs to the Electoral Commission; the two roles are distinct and the Electoral Commission cannot increase or reduce the number of constituencies.
Constitutional Law — Equality of the Vote — Malapportionment and Debasement of Votes
Weighting votes differently according to where citizens reside is discriminatory; the right of suffrage is denied by the debasement or dilution of a citizen's vote, and electoral units must as nearly as practicable have equal populations consistent with the principle of one person, one vote.
Constitutional Law — Local Government — Creation of Counties and Districts by Parliament
Parliament's creation of counties and electoral units without involving the local governments and otherwise than in accordance with the laid-down procedures in the Constitution and the Local Government Act contravenes Articles 63 and 179 and offends the principle of devolution.
Constitutional Law — Affirmative Action — Women's Representation in Parliament
Article 78(2) confers on Parliament a discretion, on each five-yearly review, to retain, increase or abolish the affirmative-action representation of women members of Parliament; Parliament's decision to maintain one woman representative per district is a valid exercise of that discretion and does not contravene the Constitution.
Constitutional Interpretation — Rule of Harmony — Constitution Read as an Integral Whole
The Constitution must be read in its entirety as an integral whole, with no provision construed to oust or rescind another; each provision enhances and gives meaning to the others, and where words are clear and unambiguous they must be given their ordinary, natural and plain meaning.

Legislation cited (22)

  • Constitution of Uganda 1995 Article 1
  • Constitution of Uganda 1995 Article 5(2)
  • Constitution of Uganda 1995 Article 21
  • Constitution of Uganda 1995 Article 38
  • Constitution of Uganda 1995 Article 59
  • Constitution of Uganda 1995 Article 60(5)
  • Constitution of Uganda 1995 Article 61
  • Constitution of Uganda 1995 Article 63
  • Constitution of Uganda 1995 Article 78
  • Constitution of Uganda 1995 Article 137(3)
  • Constitution of Uganda 1995 Article 176
  • Constitution of Uganda 1995 Article 179
  • Constitution of Uganda 1995 Article 207
  • Constitution of Uganda 1995 Article 260
  • Constitution of Uganda 1995 Article 294
  • Local Governments Act Cap 243 s.7
  • Local Governments Act Cap 243 s.45
  • Parliamentary Elections (Interim Provisions) Statute 1996 s.13
  • Electoral Commission Act 1997 s.11
  • Parliamentary Elections Act 2001 s.100
  • Uganda Bureau of Statistics Act No. 12 of 1998
  • Constitution (Amendment) Act 2005

Cases cited (13)

  • Eddie Kwizera v Attorney General and Another (Constitutional Petition No. 20 of 2018)
  • Baker et al v Carr 369 US 185
  • Reynolds v Sims US 1964 533
  • Dow v Attorney General (of Botswana) [1992] LRC (Const.) 623
  • Male Mabirizi and Others v Attorney General (Constitutional Petitions Nos. 49 of 2017, 3, 5, 10 and 13 of 2018)
  • Fox Odoi v National Resistance Movement Party and Attorney General (Constitutional Petition No. 37 of 2015)
  • Attorney General v Major General David Tinyefunza
  • Centre for Rights Education and Awareness & Anor v The Speaker of the National Assembly, Kenya, Petition No. 371 of 2016
  • Kesavananda Bharati v The State of Kerala [1973] ISCC 225
  • Cullimore v Lyme Regis Corporation [1951] 3 All ER 1008
  • Bob Kasango v Attorney General (Constitutional Petition No. 16 of 2016)
  • Attorney General v Salvatori Abuki (Constitutional Appeal No. 1 of 1998)
  • P.K. Ssemogerere and Another v Attorney General (Constitutional Appeal No. 1 of 2002)
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.