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

Constitutional Court · [2022] UGCC 1 · 2022 Petition Partly Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional petition under Article 137(3) of the Constitution seeking declarations of unconstitutionality
Decision
Petition partly succeeds: declarations of unconstitutionality granted on the Electoral Commission's failure to review constituencies (2002 and 2014) and on the creation of counties without involving local governments; the ground on women MPs was dismissed; the ground on the competence of EC officers was left undetermined. Each party to bear its own costs.

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Holding

The Court considered whether the Electoral Commission's failure to review constituency demarcation after the 2002 and 2014 censuses, Parliament's retention of one woman MP per district, and Parliament's creation of counties and districts were unconstitutional. It held the EC's duty under Article 63(5) to review constituencies within twelve months of a census is mandatory and self-executing, independent of Parliament prescribing constituencies; failure to perform it violated Articles 61 and 63. Retaining one woman MP per district was a valid exercise of Parliament's discretion under Article 78(2). Parliament's creation of counties without involving local governments contravened Articles 63 and 179. The question of the EC officers' competence was left undetermined pending appeal. The petition succeeded in part; no costs.

Facts

The petitioners, registered voters (two of them advocates appearing in person), challenged the constitutionality of the conduct of the Electoral Commission and Parliament regarding the structure of parliamentary representation. They alleged that, despite censuses of the population conducted in 2002 and 2014 and publication of the results, the Electoral Commission never reviewed the division of Uganda into constituencies within twelve months as required by Article 63(5), so that constituency populations diverged widely from the population quota — some constituencies having as little as one-twentieth the population of others — debasing votes in densely populated areas such as Kampala, Wakiso, Masindi, Mbale and Jinja. They further challenged Parliament's repeated retention of one woman MP per district on each five-yearly review under Article 78(2), and Parliament's creation of new counties and districts by resolution without involving district local governments or amending the Constitution, contending these usurped the Electoral Commission's and local governments' mandates. The respondents argued the EC could only demarcate constituencies after Parliament prescribed their number, and that Parliament held exclusive constitutional authority over counties and districts.

Issues

  1. Whether the petition raises a question requiring interpretation of the Constitution within the jurisdiction of the Constitutional Court under Article 137.
  2. Whether the failure of the Electoral Commission to review the demarcation of Uganda into constituencies after the publication of the 2002 and 2014 census results was an abrogation of Articles 61 and 63 of the Constitution and therefore unconstitutional.
  3. Whether the resolutions by Parliament to maintain one woman Member of Parliament for each district violated the Constitution.
  4. Whether the creation of counties by Parliament contravened the Constitution.
  5. Whether districts created by Parliament without amending the Constitution or following the laid-down procedures violated the Constitution.
  6. Whether the holders of the offices of the Electoral Commission from 2003 to date were incompetent and should be referred for the charge of treason.

Orders

  • The omission by the Electoral Commission to review the division of Uganda into constituencies after the publication of the 2002 census results 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 publication of the 2014 census results 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 any provision of the Constitution.
  • The resolutions of the 7th, 8th, 9th and 10th Parliaments, and the failure to involve local governments in the creation of counties without amending the Constitution or following the laid-down procedures in the Constitution and the Local Governments Act, contravened Articles 63 and 179 of the Constitution and were unconstitutional.
  • The question of the competence of the Electoral Commission officers is the subject of an appeal and awaits the decision of the Supreme Court; no position is taken.
  • The petition succeeds in part.
  • Each party to bear its own costs.

Key headnotes

Constitutional Law — Jurisdiction of the Constitutional Court — Article 137 — Question requiring interpretation
The Constitutional Court's jurisdiction under Article 137(1) is limited to the interpretation of the Constitution; a constitutional question arises only where an issue requires interpretation of the Constitution for the resolution of the cause from which it arises, and questioning whether the acts or omissions of Parliament or the Electoral Commission breach Articles 61 and 63 raises such a question.
Statutory Interpretation — Constitutional Interpretation — Rule of harmony — Reading the Constitution as an integral whole
The Constitution must be read in its entirety as an integral whole; no provision is to be construed so as to oust or rescind another, but each article enhances and gives meaning to the others, and where words are clear and unambiguous they must be given their ordinary, natural and plain meaning.
Electoral Law — Constituencies — Article 63(5) — Duty of the Electoral Commission to review constituency demarcation after a census
The Electoral Commission has an imperative and self-executing duty under Article 63(5) to review the division of Uganda into constituencies within twelve months after publication of the results of a population census, and that duty does not depend on Parliament prescribing constituencies afresh; failure to perform it abrogates Articles 61 and 63 and is unconstitutional.
Electoral Law — Constituencies — Distinct roles of Parliament and the Electoral Commission — Prescription versus demarcation
Under Article 63, the power to prescribe the number of constituencies belongs exclusively to Parliament under clause (1), while the demarcation of the boundaries of those prescribed constituencies belongs to the Electoral Commission under clause (2); these are distinct functions and Parliament need not be prompted by the Electoral Commission to prescribe constituencies.
Human Rights — Right to vote — Equality of the vote — Mal-apportionment and debasement of votes
Legislators represent people, not areas; weighting votes differently according to where citizens reside is discriminatory, and the right of suffrage is denied by the debasement or dilution of a citizen's vote, so electoral units must as nearly as practicable be of equal population on the principle of one person, one vote.
Constitutional Law — Composition of Parliament — Article 78(2) — Women representatives — Discretion to retain, increase or abolish
Article 78(2) confers on Parliament a discretion, on review every five years, to retain, increase or abolish the representation of women Members of Parliament; Parliament's exercise of that discretion by maintaining one woman MP per district, the representatives being elected by universal adult suffrage as affirmative action, does not contravene the Constitution.
Constitutional Law — Local government — Creation of counties — Articles 63 and 179 — Devolution
It was never envisaged that Parliament would solely be responsible for the creation of local government units; by creating counties without involving local governments and without following the procedures in the Constitution and the Local Governments Act, Parliament acted against the spirit of devolution and contravened Articles 63 and 179 of the Constitution.

Legislation cited (31)

  • Constitution of Uganda 1995 art.1
  • Constitution of Uganda 1995 art.2
  • Constitution of Uganda 1995 art.5(2)
  • Constitution of Uganda 1995 art.8A
  • Constitution of Uganda 1995 art.21
  • Constitution of Uganda 1995 art.32
  • Constitution of Uganda 1995 art.33(5)
  • Constitution of Uganda 1995 art.38
  • Constitution of Uganda 1995 art.43
  • Constitution of Uganda 1995 art.44
  • Constitution of Uganda 1995 art.59
  • Constitution of Uganda 1995 art.60(5)
  • Constitution of Uganda 1995 art.61
  • Constitution of Uganda 1995 art.63
  • Constitution of Uganda 1995 art.78
  • Constitution of Uganda 1995 art.80
  • Constitution of Uganda 1995 art.137(1)
  • Constitution of Uganda 1995 art.137(3)
  • Constitution of Uganda 1995 art.176
  • Constitution of Uganda 1995 art.177
  • Constitution of Uganda 1995 art.179
  • Constitution of Uganda 1995 art.207
  • Constitution of Uganda 1995 art.260
  • Constitution of Uganda 1995 art.294
  • Parliamentary Elections (Interim Provisions) Statute, Statute 4 of 1996 s.13
  • Electoral Commission Act, Act 2 of 1997 s.11
  • Parliamentary Elections Act, Act 8 of 2001 s.100
  • Local Governments Act, Cap 243 s.7
  • Local Governments Act, Cap 243 s.45
  • Uganda Bureau of Statistics Act No. 12 of 1998
  • Constitution (Amendment) Act, 2005

Cases cited (20)

  • Eddie Kwizera v Attorney General and Another (Constitutional Petition No. 20 of 2018)
  • Baker v Carr, 369 US 186 (1962)
  • Reynolds v Sims, 377 US 533 (1964)
  • Dow v Attorney General [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 Tinyefuza (Constitutional Appeal No. 1 of 1997)
  • Centre for Rights Education and Awareness & Anor v Speaker of the National Assembly (Petition No. 371 of 2016)
  • Kesavananda Bharati v State of Kerala (1973) 4 SCC 225
  • Cullimore v Lyme Regis Corporation [1961] 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)
  • Attorney General of Tanzania v Rev. Christopher Mtikila [2010] EA 15
  • Otello Okello John Livingstone and 6 Others v Attorney General and Another (Constitutional Petition No. 1 of 2005)
  • Kabagambe Asol and 2 Others v Electoral Commission and Dr. Kizza Besigye (Constitutional Petition No. 1 of 2006)
  • South Dakota v South Carolina 792, U.S.A 268, 1940
  • Col. (Rtd) Dr. Kizza Besigye v Y.K. Museveni (Presidential Election Petition No. 2 of 2006)
  • Brigadier Henry Tumukunde v Attorney General and Another (Constitutional Appeal No. 2 of 2006)
  • Advocates for Natural Resources Governance and Development, Irumba Asuman and Peter Magelah v Attorney General and UNRA (Constitutional Petition No. 40 of 2013)
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.