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Prof .Dr. Kanyeihamba and 5 Others v Attorney General and 2 Others (Constitutional Petition No. 27 of 2021)

Constitutional Court · [2023] UGCC 4 · 2023 Petition Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional petition under Article 137 challenging an alleged threat to the right to bail arising from proposed legislative reforms
Decision
Petition dismissed for raising no cause of action under Article 137(3); case against the President dismissed on grounds of immunity

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Holding

The Court held the petition raised no cause of action under Article 137(3). A cause of action under Article 137(3)(a) requires an existing Act of Parliament or other law to be challenged; mere proposals for legal reform and public statements about amending the bail law are futuristic and speculative and cannot be adjudicated. Where a petition alleges only a threatened violation of a guaranteed right without raising a question of constitutional interpretation, redress must be sought under Article 50(1) before another competent court. The President enjoys immunity under Article 98(4), so the petition against the Second Respondent was dismissed, and the case was incompetent against the Third Respondent. The petition was dismissed with no order as to costs.

Facts

The petitioners, self-styled human rights activists, brought a constitutional petition alleging a threat to the right to bail. They relied on newspaper reports attributing to the Second Respondent statements published in 2021 proposing amendment of the law on bail, on the summoning of the National Resistance Movement parliamentary caucus to discuss the proposed amendments, and on a memorandum of proposed amendments to Article 23(6) of the Constitution and section 25 of the Police Act allegedly authored by the Attorney General. No formal reform proposals or memorandum were placed before the Court. Five of the six petitioners later withdrew. The petitioners did not furnish proof of personal service of the petition upon the Second Respondent, though service on the Third Respondent was proved. The proposed amendments had not been passed into law at the date of filing.

Issues

  1. Whether the Petition is competently before the Constitutional Court.
  2. Whether the Second and Third Respondents are proper parties to the Petition.
  3. Whether the Petitioners are entitled to the reliefs sought.

Orders

  • The case against the Second Respondent is dismissed with no order as to costs.
  • The Petition is determined inter partes against the First Respondent and ex parte against the Third Respondent.
  • The Petition is dismissed with no order as to costs.

Key headnotes

Constitutional Law — Constitutional Interpretation — Cause of Action under Article 137(3)(a)
A cause of action under Article 137(3)(a) arises only where an existing Act of Parliament or other law, or something done under the authority of such law, is challenged; a mere proposal for legal reform or a draft amendment cannot found a constitutional challenge.
Constitutional Law — Justiciability — Speculative and Premature Petitions
The Constitutional Court will not entertain premature, abstract or speculative disputes concerning uncertain or contingent future events that may or may never occur, as such matters disclose no justiciable cause of action.
Constitutional Law — Enforcement of Rights — Article 50 versus Article 137 Jurisdiction
Where a petition alleges only the threatened or actual violation of a guaranteed right without calling for an interpretation of the Constitution, redress must be sought under Article 50(1) before another competent court and not the Constitutional Court.
Constitutional Law — Presidential Immunity — Article 98(4)
A sitting President enjoys immunity from all court proceedings under Article 98(4), and a constitutional petition cannot be maintained against the person of a sitting President, notwithstanding his concurrent role as chairperson of a political party.
Civil Procedure — Service of Petition — Dismissal for Failure to Serve
Where a petitioner fails to furnish proof of personal service of a petition upon a respondent within one year and does not demonstrate best efforts to discover the respondent's address or the respondent's evasion of service, the petition may be dismissed against that respondent under Order 9 rule 19(1) of the Civil Procedure Rules as adapted.
Evidence — Hearsay — Newspaper Reports
Newspaper reports constitute inadmissible hearsay and cannot prove the matters in contention in a constitutional petition.
Constitutional Law — Doctrine of Stare Decisis
Under the doctrine of stare decisis a panel of an appellate court is bound by previous decisions of other panels of the same court, save where the earlier decision is distinguishable, was overruled by a higher court, or was reached per incuriam.

Legislation cited (20)

  • Constitution of Uganda art.137(1)
  • Constitution of Uganda art.137(3)(a)
  • Constitution of Uganda art.137(3)(b)
  • Constitution of Uganda art.137(4)
  • Constitution of Uganda art.50(1)
  • Constitution of Uganda art.50(4)
  • Constitution of Uganda art.98(4)
  • Constitution of Uganda art.126(2)(e)
  • Constitution of Uganda art.23(6)
  • Police Act s.25
  • Constitutional Court (Petitions and References) Rules SI No.91 of 2005 r.5
  • Constitutional Court (Petitions and References) Rules SI No.91 of 2005 r.6
  • Constitutional Court (Petitions and References) Rules SI No.91 of 2005 r.7
  • Constitutional Court (Petitions and References) Rules SI No.91 of 2005 r.23
  • Civil Procedure Rules O.9 r.5
  • Civil Procedure Rules O.9 r.10
  • Civil Procedure Rules O.9 r.11(2)
  • Civil Procedure Rules O.9 r.19(1)
  • Human Rights (Enforcement) Act 2019
  • Evidence Act

Cases cited (4)

  • Hon. Miria Matembe & 2 Others v Attorney General (Constitutional Petition No. 2 of 2005)
  • Attorney General v Major General David Tinyefuza (Constitutional Appeal No. 1 of 1997)
  • Attorney General v Uganda Law Society [2009] UGSC 21
  • Ismail Serugo v Kampala City Council & Another (Constitutional Appeal No. 2 of 1998)
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.