Foundation for Human Rights Initiatives and Another v Attorney General and Another (Consitutional Petition No. 39 of 2017)

The full judgment

Read the complete, verbatim text of this judgment.

Facts

Two non-governmental human rights organisations petitioned the Constitutional Court alleging that section 12(a) and (b) of the Local Government (Amendment) Act, No. 16 of 2015, and the Electoral Commission Guidelines 2017 were inconsistent with the Constitution. The impugned provisions allowed elections of village or cell council and parish/ward council chairpersons to be conducted by voters lining up behind a nominated candidate, their representatives, portraits or symbols, rather than by secret ballot. Section 111 of the Local Government Act 1997 had previously required all local government and administrative-unit elections to be by secret ballot; the 2015 amendment created an exception for village and parish elections. The Guidelines prescribed registration, polling, candidate nomination and a roughly 1½-hour lining-up procedure for the 2017 lower-administrative-unit elections, which had last been held in 2001. The petition was supported by the affidavit of Dr. Livingstone Sewanyana; the respondents opposed it through affidavits of State Attorney Allan Mukama and Abu Baker Kayondo, contending that article 68(6) of the Constitution permits Parliament to exempt non-presidential and non-parliamentary public elections from the secret-ballot requirement.

Issues

1. Whether elections by means of lining up as provided in section 12(a) and (b) of the Local Government Act are inconsistent with and in contravention of articles 1(4), 8A, 21, 33, 35, 59(1),(2) and (3), 61(a),(e),(f) and (g) and 68(1) of the Constitution.
2. Whether section 12(a) and (b) of the Local Government Act is inconsistent with article 79(1) of the Constitution.
3. Whether the Electoral Commission Guidelines 2017 are inconsistent with and in contravention of articles 1(4), 28, 29(1)(e), 45, 59, 61(a),(e) and (f), 64(1) and 65 of the Constitution.
4. What remedies are available to the parties.

Legislation cited (19)

• Local Government (Amendment) Act, No. 16 of 2015 s.12(a) and (b)
• Local Government Act 1997 s.111
• Local Government Act s.111(2)
• Constitution of Uganda 1995 art.1(4)
• Constitution of Uganda 1995 art.8A
• Constitution of Uganda 1995 art.21
• Constitution of Uganda 1995 art.33
• Constitution of Uganda 1995 art.35
• Constitution of Uganda 1995 art.45
• Constitution of Uganda 1995 art.59
• Constitution of Uganda 1995 art.61
• Constitution of Uganda 1995 art.64(1)
• Constitution of Uganda 1995 art.65
• Constitution of Uganda 1995 art.68(1)
• Constitution of Uganda 1995 art.68(6)
• Constitution of Uganda 1995 art.79(1)
• Constitution of Uganda 1995 art.137
• Non-Governmental Organisations Act, 2016
• Electoral Commission Guidelines 2017

Cases cited (10)

• Kwizera Eddie vs Attorney General
• Besigye v Museveni and Electoral Commission (Election Petition No. 1 of 2001)
• Mifumi Uganda and 12 Others vs Attorney General and Kenneth Kakuru
• Uganda Law Society v Attorney General (Constitutional Petition No. 2 and 8 of 2002)
• Centre for Health and Human Rights and Another vs the Attorney General of Uganda; Constitutional Petition No 6h of 2011
• Supreme Court of India Writ Petition No 161 of 2004
• Rubaramira Ruranga v Electoral Commission and Attorney General (Constitutional Petition No. 21 of 2006)
• David Wesley Tusingwire v Attorney General (SCCA No. 4 of 2016)
• P.K. Semwogerere and Others v Attorney General (Constitutional Petition No. 1 of 2001)
• Attorney General vs Susan & Constitutional Appeal No 6