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Wakiso Miraa Growers and Dealers Association Limited v Attorney General (Constitutional Petition No. 1 of 2017)

Constitutional Court · [2023] UGCC 100 · 2023 Petition Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional petition under Article 137(3) challenging the constitutionality of the Narcotic Drugs and Psychotropic Substances (Control) Act for want of parliamentary quorum and inadequate public participation.
Decision
Petition substantially succeeded; the entire Narcotic Drugs and Psychotropic Substances (Control) Act declared null and void for lack of parliamentary quorum.

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Holding

The Court held that the petition disclosed genuine questions for constitutional interpretation, so it had jurisdiction under Article 137. On the merits it found, from the Hansards of 18–20 November 2014, that the Speaker never ascertained that a quorum was present before votes were taken on the Bill, and that no quorum in fact existed. Because compliance with the quorum rules in Rule 23 of the 2012 Rules of Procedure is a condition precedent to the majority vote required by Article 89(1), passing the Bill without quorum contravened Article 89(1) and rendered the entire Act null and void. The remaining issues became academic. Petition allowed with costs.

Facts

The petitioner, a company limited by guarantee advocating for growers and dealers of Catha edulis (khat, locally "mairungi"), challenged the Narcotic Drugs and Psychotropic Substances (Control) Act, which for the first time classified khat as a "prohibited plant" and "psychotropic substance" and criminalised dealings in it. The petitioner's central complaint was that the 9th Parliament passed the Bill without the quorum required by Rule 23 of the 2012 Rules of Procedure and the Constitution. The Bill went through the Committee of the Whole House on 18 and 19 November 2014 and was passed on its third reading on 20 November 2014. The Hansards recorded the motions being "put and agreed to" but did not record the Speaker ascertaining quorum or the number of members present, even after Hon. Muwanga Kivumbi, Hon. Alice Alaso and Hon. Ruth Nankabirwa raised the absence of quorum during the debate.

Issues

  1. Whether the petition discloses questions for constitutional interpretation under Article 137 of the Constitution.
  2. Whether the 9th Parliament lacked quorum while enacting the Catha edulis (khat) related provisions of the Narcotic Drugs and Psychotropic Substances (Control) Act in contravention of the Constitution and Rule 23 of the Parliamentary Rules of Procedure (2012).
  3. Whether the 9th Parliament failed to ensure adequate public participation in enacting the Act.
  4. Whether the blacklisting of Catha edulis (khat) as a prohibited plant and psychotropic substance is inconsistent with the Constitution.
  5. Whether the enumerated sections of the Act proscribing dealings in khat contravene the principles of equality, legality, necessity, rationality and proportionality.
  6. What remedies are available to the parties.

Orders

  • The preliminary objection as to the jurisdiction of the court was dismissed; the petition discloses questions for constitutional interpretation.
  • The Narcotic Drugs and Psychotropic Substances (Control) Act, 2015 is declared null and void for lack of quorum on the part of Parliament contrary to Articles 88 and 89 of the Constitution and Rule 23 of the Rules of Procedure of the 9th Parliament, 2012.
  • The petition is allowed.
  • Costs of the petition are awarded to the petitioner, to be borne by the Attorney General.

Key headnotes

Constitutional Law — Jurisdiction of the Constitutional Court — Article 137 — When a petition discloses a question for constitutional interpretation
A petition under Article 137(3) of the Constitution sufficiently discloses a question for constitutional interpretation where it describes the act or omission complained of, identifies the constitutional provision alleged to have been contravened, and prays for a declaration to that effect.
Constitutional Law — Legislative Process — Quorum of Parliament — Speaker's duty to ascertain quorum before a vote
Before a vote is taken, the Speaker is obliged under Rule 23(3) of the Rules of Procedure of Parliament to ascertain that at least one third of all members entitled to vote are present, and the record must reflect with certainty the numbers establishing that quorum.
Statutory Interpretation — Meaning of "ascertain" — Quorum need not be established exclusively by physical counting
The word "ascertain" in the quorum rules is wider than physical counting; the Speaker has discretion to adopt any method, including modern technological means, that is reasonably certain to establish with definiteness the number of members present, so long as the result is reflected in the Hansard.
Constitutional Law — Validity of Legislation — Passage of a Bill without quorum — Contravention of Article 89(1)
Compliance with the quorum requirements of the Rules of Procedure is a condition precedent to the majority vote required by Article 89(1) of the Constitution; a Bill passed without quorum cannot have received the majority of votes required by Article 89(1) and the resulting Act is null and void.
Constitutional Law — Principles of Interpretation — Purpose and effect — Application to acts and omissions under Article 137(3)(b)
The purpose-and-effect principle of constitutional interpretation, by which either an unconstitutional purpose or an unconstitutional effect invalidates a measure, applies not only to legislation but also when assessing the constitutionality of any act or omission of a person or authority under Article 137(3)(b).

Legislation cited (10)

  • Constitution of Uganda 1995 art.137
  • Constitution of Uganda 1995 art.88
  • Constitution of Uganda 1995 art.89(1)
  • Constitution of Uganda 1995 art.94
  • Constitution of Uganda 1995 art.91(1)
  • Constitution of Uganda 1995 art.78(1)(d)
  • Constitution (Amendment) Act No. 11 of 2005
  • Narcotic Drugs and Psychotropic Substances (Control) Act 2015 s.2
  • Rules of Procedure of Parliament 2012 r.23
  • Evidence Act Cap.6 s.101(1)

Cases cited (10)

  • Attorney General v Major General David Tinyefuza (Constitutional Appeal No. 1 of 1997)
  • Ismail Serugo v Kampala City Council & Another (Constitutional Appeal No. 2 of 1998)
  • Charles Kabagambe v Uganda Electricity Board (Constitutional Petition No. 2 of 1999)
  • Centre for Domestic Violence Prevention & 8 Others v Attorney General (Constitutional Petition No. 13 of 2014)
  • Paul K. Ssemwogerere & Another v Attorney General (Constitutional Petition No. 3 of 1999)
  • United States v Ballin 144 U.S. 1 (1892)
  • R v Big M Drug Mart Ltd (1986) LRC 332
  • Attorney General v. Silvatori Abuki Constitutional Appeal No. 1988 (SC)
  • Paul K. Ssemogerere & Others v Attorney General (Constitutional Appeal No. 1 of 2002)
  • David Wesley Tusingwire v Attorney General (Constitutional Appeal No. 4 of 2016)
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