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Hon. Sewungu Joseph and Another v The Attorney General of Uganda (Constitutional Petition No. 40 of 2013)

Constitutional Court · [2022] UGCC 16 · 2022 Petition Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional petition under Article 137(3) challenging the constitutionality of the appointment of a serving army officer to Cabinet
Decision
Petition dismissed; appointment of the serving army officer to Cabinet held constitutional

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Holding

The Constitutional Court held the petition was neither moot nor academic despite the appointee's death, applying the public-interest exception because the case was a public-law action in rem raising a question of great national importance likely to recur. The petition disclosed a question for constitutional interpretation, namely whether appointing army representatives in Parliament to Cabinet contravenes the Constitution. On the merits the Court held that a serving army officer who is an army representative in Parliament qualifies for appointment as a Cabinet Minister under Article 113, since all Members of Parliament so qualify; the appointment did not breach the non-partisan duty in Article 208(2), Article 71(1)(f), or the resignation requirement in Article 80(4). The petition was dismissed with no order as to costs.

Facts

The petition was filed in August 2013 following the appointment of General Aronda Nyakairima, a serving officer of the Uganda Peoples' Defence Forces and one of the army representatives in Parliament, to Cabinet as Minister of Internal Affairs. The petitioners contended the appointment of a serving military officer to Cabinet contravened numerous constitutional provisions, principally the requirement that the army be non-partisan and subordinate to civilian authority (Article 208(2)), the bar on forceful recruitment by political parties (Article 71(1)(f)), and the resignation requirement for public officers seeking election (Article 80(4)). Before the petition was heard, General Aronda Nyakairima died, as did the second petitioner, Hon. Susan Namaganda. The first petitioner, Hon. Sewungu, prosecuted the petition alone. The Attorney General denied the claims, raised preliminary objections that the petition was moot and that it disclosed no question for constitutional interpretation, and argued that an army officer who is a Member of Parliament is qualified for appointment as a Minister.

Issues

  1. Whether the Petition is moot and academic following the death of the appointee.
  2. Whether the Petition discloses questions for constitutional interpretation under Article 137.
  3. Whether the appointment of General Aronda Nyakairima, a serving army officer, to the position of Minister of Internal Affairs is inconsistent with and in contravention of the Constitution.
  4. What remedies are available to the Petitioner.

Orders

  • Petition dismissed.
  • No order as to costs, the Petition being of public benefit on a matter of great public importance.

Key headnotes

Constitutional Law — Mootness — Public Interest Exception
A constitutional petition challenging the appointment of a public officer is not rendered moot or academic by the death of that officer where it is a public-law action in rem against the Attorney General raising a constitutional question of great public importance that remains live and is likely to recur.
Constitutional Law — Jurisdiction — Article 137
The Constitutional Court is clothed with jurisdiction under Article 137 only where the subject matter of the petition prima facie requires interpretation of the Constitution; a petition sufficiently discloses a cause of action where it describes the act complained of and identifies the constitutional provisions allegedly contravened.
Constitutional Law — Cabinet Appointments — Army Representatives in Parliament
A serving army officer who is an army representative in Parliament qualifies for appointment as a Cabinet Minister under Article 113, because all Members of Parliament fall within the class of persons eligible for such appointment, and the appointment does not of itself render the officer partisan or breach Article 208(2).
Statutory Interpretation — Constitution — Principle of Harmonization
When interpreting the Constitution the court must read the entire Constitution as an integrated whole, with no particular provision destroying another but each sustaining the other so as to promote the harmony of the Constitution.
Constitutional Law — Article 80(4) — Resignation Requirement
The requirement in Article 80(4) that a public officer resign before standing for election does not apply to army representatives in Parliament, as applying it would defeat the army representation expressly provided for by Article 78(1)(c).

Legislation cited (8)

  • Constitution of Uganda 1995 art.137(3)
  • Constitution of Uganda 1995 art.137(1)
  • Constitution of Uganda 1995 art.111
  • Constitution of Uganda 1995 art.113
  • Constitution of Uganda 1995 art.208(2)
  • Constitution of Uganda 1995 art.78(1)(c)
  • Constitution of Uganda 1995 art.80(4)
  • Constitution of Uganda 1995 art.71(1)(f)

Cases cited (12)

  • Uganda Corporation Creameries Ltd & Another v Reamaton Ltd (Civil Reference No. 11 of 1999)
  • R (Howard League for Penal Reform) v Secretary of State for the Home Department [2002] EWHC 2497
  • Southern Pacific Terminal Co. v ICC 219 U.S. 498 (1911)
  • R (Crompton) v Wiltshire Primary Care Trust [2009] EWCA Civ 749
  • R v Secretary of State for the Home Department, ex parte Salem [1999] 2 All ER 42
  • Attorney General v Major General David Tinyefuza (Constitutional Appeal No. 1 of 1997)
  • Ismail Serugo v Kampala City Council & Attorney General (Constitutional Appeal No. 2 of 1998)
  • Mbabaali Jude v Hon. Edward Kwanuka Ssekandi (Constitutional Petition No. 28 of 2012)
  • Charles Kabagambe v Uganda Electricity Board (Constitutional Petition No. 2 of 1999)
  • Dr. Paul K. Ssemogerere and 2 Others v Attorney General (Constitutional Appeal No. 1 of 2002)
  • Muyambi Ellady v Attorney General (Constitutional Petition No. 26 of 2011)
  • Darlington Sakwa & Another v Electoral Commission and 44 Others [2006] UGCC 3
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.