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Mugisha and Another v Attorney General (Consitutional Petition 19 of 2017)

Constitutional Court · [2023] UGCC 122 · 2023 Petition Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional petition under Article 137 challenging executive appointments, a presidential statement, and provisions of the UPDF Act
Decision
Petition dismissed in its entirety with no order as to costs

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Holding

The Constitutional Court dismissed a petition challenging the appointment of General Katumba Wamala, a serving UPDF officer, as Minister of State for Works. It held that a serving army officer who is a Member of Parliament qualifies for appointment as a Minister under Article 113(1), and that holding Cabinet office does not strip UPDF representatives of their non-partisan character under Article 208(2). Sections 38(2) and 53 of the UPDF Act and the Oath of Allegiance were not inconsistent with the Constitution. The challenge to the Kyabazinga's never-implemented appointment was moot, and the President's statement that he is 'not your servant' raised no question of constitutional interpretation. Petition dismissed.

Facts

On 9 January 2017 the President appointed General Edward Katumba Wamala, a serving UPDF officer and one of the ten army representatives in Parliament, as Minister of State for Works, and Parliament's Committee on Appointments vetted and approved him. The President also indicated an intention to appoint the Kyabazinga of Busoga, William Wilberforce Kadhumbula Nadiope Gabula IV, as a Special Envoy, but the appointment was never implemented. On 26 January 2017 the President publicly stated that he was 'not your servant... I am just a freedom fighter.' The petitioners, acting in person, challenged these acts and the constitutionality of Sections 38(2) and 53 of the UPDF Act and the Oath of Allegiance in the Fifth Schedule. The appointment of General Katumba Wamala lapsed in December 2019.

Issues

  1. Whether the President's appointment of a serving UPDF officer, who was also a Member of Parliament, as Minister of State for Works is inconsistent with the Constitution and Section 99 of the UPDF Act.
  2. Whether Parliament's vetting and approval of the serving UPDF officer as Minister of State contravened Articles 2 and 79(3) of the Constitution.
  3. Whether Section 38(2) of the UPDF Act, permitting attachment or secondment of officers to government departments, is inconsistent with Articles 205(2), 208(2) and 257(1)(s) of the Constitution.
  4. Whether Section 53 of the UPDF Act and the Oath of Allegiance in the Fifth Schedule contravene Objective XXVI and Articles 1(3), 2, 5(1), 98(1) and 208(2) & (4) of the Constitution.
  5. Whether the challenge to the appointment of the Kyabazinga of Busoga as Special Envoy is moot and academic.
  6. Whether the President's statement that he is 'not your servant' raises a question for constitutional interpretation.
  7. Whether the petitioners are entitled to the declarations and orders sought.

Orders

  • Petition dismissed.
  • No order as to costs, the action being public interest litigation.

Key headnotes

Constitutional Law — Appointment of Ministers — Serving army officer who is a Member of Parliament
A serving UPDF officer who is a Member of Parliament, or who is qualified to be elected a Member of Parliament, qualifies for appointment as a Cabinet Minister or Minister of State under Article 113(1) of the Constitution.
Constitutional Law — Non-partisan character of the UPDF — Article 208(2)
Army representatives in Parliament do not lose their non-partisan character by being appointed to Cabinet or as Ministers of State, because the mandate of those offices is bi-partisan and exercised for the benefit of all citizens.
Statutory Interpretation — UPDF Act s.99 — Meaning of 'seeking political office'
The requirement in Section 99 of the UPDF Act that an officer resign or retire before seeking political office applies only to elective office contested through election, and does not apply to the office of Minister of State, which is attained by presidential appointment.
Statutory Interpretation — Constitutional construction — Harmonization and definition clauses
The Constitution must be read as an integrated whole so that no provision destroys another; a definition clause confined by its terms to a particular article (such as Articles 205(2) and 257(1)(s)) cannot be imported to invalidate an unrelated statutory provision.
Constitutional Law — Jurisdiction under Article 137 — Question as to interpretation of the Constitution
The Constitutional Court has jurisdiction under Article 137 only where the petition discloses a genuine, arguable controversy about the interpretation of the Constitution; a bare allegation of inconsistency, or a dispute over political and leadership concepts, does not invoke that jurisdiction.
Constitutional Law — Mootness doctrine — Continuing controversy exception
Courts will not adjudicate moot or academic matters where the controversy has ceased to exist, but the continuing-controversy exception permits adjudication of a question of great public importance that remains alive and is likely to recur.

Legislation cited (16)

  • Constitution of Uganda 1995 art.137
  • Constitution of Uganda 1995 art.113(1)
  • Constitution of Uganda 1995 art.114(1)
  • Constitution of Uganda 1995 art.205(2)
  • Constitution of Uganda 1995 art.208(2)
  • Constitution of Uganda 1995 art.257(1)(s)
  • Constitution of Uganda 1995 art.79(3)
  • Constitution of Uganda 1995 art.126(2)(e)
  • Constitution of Uganda 1995 art.29(1)
  • Constitution of Uganda 1995 art.43
  • Constitution of Uganda 1995 Objective XXVI (National Objectives and Directive Principles of State Policy)
  • UPDF Act 2005 s.38(2)
  • UPDF Act 2005 s.53
  • UPDF Act 2005 s.99
  • UPDF Act 2005 Fifth Schedule (Oath of Allegiance)
  • Constitutional Court (Petitions and References) Rules 2005 (S.I No. 91 of 2005)

Cases cited (12)

  • Ssewungu Joseph v Attorney General (Constitutional Petition No. 40 of 2013)
  • Semogerere and Others v Attorney General (Constitutional Appeal No. 1 of 2002)
  • Darlington Sakwa and Another v Electoral Commission and Others [2006] UGCC 3
  • Muyambi Ellady v Attorney General (Constitutional Petition No. 26 of 2011)
  • Matembe and Others v Attorney General (Constitutional Petition No. 2 of 2005)
  • Uganda Corporation Creameries Ltd and Another v Reamation Ltd (Civil Reference No. 11 of 1999)
  • The Environment Action Network v Joseph Eryau (Civil Application No. 98 of 2005)
  • Attorney General v Tinyefuza (Constitutional Appeal No. 1 of 1997)
  • Ismail Serugo v Kampala City Council and Another (Constitutional Appeal No. 2 of 1998)
  • Charles Kabagambe v Uganda Electricity Board (Constitutional Petition No. 2 of 1999)
  • Foundation for Human Rights Initiative v Attorney General (Constitutional Petition No. 52 of 2011)
  • Kizza Besigye v Attorney General (Constitutional Petition No. 52 of 2011)
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