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Kagimu v Attorney General & 2 Others (Constitutional Petition 32 of 2018)

Constitutional Court · [2025] UGCC 4 · 2025 Petition Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional petition under Article 137(3) challenging provisions of a political party's constitution and the appointment of party officers
Decision
Petition dismissed; the 1st and 3rd respondents struck out as wrong parties; each party bears its own costs.

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Holding

The Constitutional Court, by a majority, dismissed the petition challenging provisions of the National Resistance Movement constitution. Kazibwe Kawumi JCC (Obura and Luswata JJCC concurring) held that appointing non-voting ex-officio secretariat officers (Secretary General, Treasurer and deputies) to party organs does not contravene Article 71(1)(d), the Secretariat being an administrative unit and the officers performing largely administrative roles. Mugenyi JCC held the petition incompetent for raising no question of constitutional interpretation, disclosing no cause of action, and not exhausting internal Electoral Commission remedies. Egonda-Ntende JCC dissented, finding the impugned articles inconsistent with Article 71(1)(c),(d). The 1st and 3rd respondents were also found to be wrong parties. Each party bears its own costs.

Facts

Hamzah Kagimu, a member and office bearer of the National Resistance Movement (NRM), petitioned the Constitutional Court contending that Articles 11(5), 12(4), 13(5) and 40(4) of the NRM constitution, as amended in 2014, were inconsistent with Article 71(1)(d) of the Constitution. Those articles provide that the Secretary General, National Treasurer and their deputies are appointed by the National Chairperson (with the approval of the National Executive Committee) and sit as ex-officio, non-voting members of the National Conference, National Executive Council and Central Executive Committee. The petitioner argued that members of national party organs must be regularly elected, and that appointing these officers denied members their right to vote and served the interests of the Chairman. He also alleged the Electoral Commission, gazetting the amendment, failed in its mandate, attributing this to the Attorney General. The 3rd respondent, Chairman of the NRM, is also the President of Uganda. The petitioner did not appear at the hearing.

Issues

  1. Whether the petition is incompetent and ought to be struck out for failing to raise a question requiring constitutional interpretation and for disclosing no cause of action.
  2. Whether the 1st respondent (Attorney General) and 3rd respondent (Chairman of the NRM, who is the President) are proper parties to the petition.
  3. Whether Articles 11(5), 12(4), 13(5) and 40(4) of the National Resistance Movement constitution, providing for the appointment rather than election of the Secretary General, Treasurer and their deputies as ex-officio members of party organs, contravene Article 71(1)(d) of the Constitution.
  4. Whether the appointment of those officers violated Articles 29, 38, 71 and 72 of the Constitution.
  5. Whether the Electoral Commission's gazetting of the 2014 amendment, and the 1st respondent's alleged failure to protect the Constitution, contravened Articles 62 and 119.
  6. Whether the petitioner is entitled to the reliefs sought.

Orders

  • Articles 11(5), 12(5), 13(5) and 40(1) of the NRM Constitution are not in contravention of or inconsistent with Article 71(d) of the Constitution (per Kazibwe Kawumi JCC, majority).
  • The act of appointing the Secretary General, Deputy Secretary General, Treasurer and Deputy Treasurer by the 3rd respondent is not in contravention of Article 71(d) of the Constitution (majority).
  • The petition is dismissed.
  • Each party shall bear its own costs of the petition.

Key headnotes

Constitutional Law — Jurisdiction of the Constitutional Court — Interpretation under Article 137 distinguished from enforcement of rights under Article 50
The Constitutional Court has jurisdiction under Article 137 only where the petition shows on its face that interpretation of a provision of the Constitution is required in relation to an impugned law, act or omission; a mere allegation that a constitutional provision has been violated, where the substance is enforcement of a right, must be pursued under Article 50 in a competent court.
Civil Procedure — Proper parties — Presidential immunity under Article 98(4)
A sitting President is immune from civil and criminal proceedings under Article 98(4) and may only be joined as a party to a petition challenging the validity of his election; joining the party Chairman, who holds the office of President, in any other proceeding is impermissible.
Civil Procedure — Proper parties — Body corporate status of statutory bodies and political parties
A registered political party and the Electoral Commission are each bodies corporate that sue and are sued in their own names; the Attorney General is not a proper party to answer for acts or omissions of the independent Electoral Commission, and acts of the Commission cannot be visited upon the Attorney General.
Constitutional Law — Political parties — Article 71(1)(d) — Appointment of non-voting ex-officio officers to national organs
The appointment, rather than election, of non-voting ex-officio secretariat officers (Secretary General, Treasurer and their deputies) to a party's organs does not contravene Article 71(1)(d), where the Secretariat is an administrative unit not listed among the party's organs and the officers, lacking voting rights, perform largely administrative and coordinating functions (per the majority).
Statutory Interpretation — Constitutional interpretation — Meaning of 'member' of a national organ and avoidance of absurdity
A constitution must be given a broad and liberal interpretation; on the majority view a non-voting ex-officio member is not a full 'member' of a national organ within Article 71(1)(d), and a purely literal reading that ignores the roles of party organs may produce absurd results. (Per the dissent, the requirement that members of national organs be elected applies regardless of whether a member has voting rights.)

Legislation cited (19)

  • Constitution of Uganda art.2
  • Constitution of Uganda art.29
  • Constitution of Uganda art.38
  • Constitution of Uganda art.50
  • Constitution of Uganda art.62
  • Constitution of Uganda art.69
  • Constitution of Uganda art.71(1)(c)
  • Constitution of Uganda art.71(1)(d)
  • Constitution of Uganda art.72
  • Constitution of Uganda art.98(4)
  • Constitution of Uganda art.104
  • Constitution of Uganda art.119
  • Constitution of Uganda art.126(2)(e)
  • Constitution of Uganda art.137
  • Political Parties and Organisations Act 2005 s.6(3)
  • Political Parties and Organisations Act 2005 s.10
  • Political Parties and Organisations Act 2005 s.11
  • Political Parties and Organisations Act 2005 s.21
  • Electoral Commission Act Cap 140 s.2

Cases cited (22)

  • Attorney General v Major General David Tinyefuza (Constitutional Appeal No. 1 of 1997)
  • Ismail Serugo v Kampala City Council and Another (Constitutional Appeal No. 2 of 1998)
  • Ivan Samuel Ssebadduka v Chairman, Electoral Commission and 3 Others [2020] UGSC 52
  • Baku Raphael and Obiga Kania v Attorney General (Constitutional Appeal No. 1 of 2003)
  • Rwanyarare & Another v Attorney General (Constitutional Petition No. 5 of 1999)
  • Kenneth Adrapi v Hon. Dritoo Martin, Attorney General and the Electoral Commission (Constitutional Petition No. 9 of 2013)
  • Foundation for Human Rights Initiative v Attorney General (Constitutional Petition No. 53 of 2011)
  • Kamba and 2 Others v Attorney General (Constitutional Applications Nos. 14 and 23 of 2013)
  • Ssekikubo Theodore & 10 Others v National Resistance Movement (Constitutional Petition No. 9 of 2019)
  • Mbabali Jude v Edward Sekandi [2014] UGCC 15
  • Legal Brains Trust (LBT) Ltd v Hassan Basajjabalaba and 18 Others [2020] UGCC 5
  • Prof. Gilbert Balibaseka Bukenya v Attorney General [2011] UGCC 9
  • Rubaramira Ruranga v The Electoral Commission & Another [2007] UGCC 3
  • Satya Peter Chapa v Attorney General [2016] UGCC 5
  • Saleh Kamba & Another v Attorney General & Others [2014] UGCC 5
  • Salomon v Salomon & Co Ltd [1897] AC 22
  • Auto Garage v Motokov (No. 3) [1971] EA 514
  • Read v Brown (1888) 22 QBD 128
  • Hunter v Southam Inc (1985) 11 DLR (4th) 641 (SCC)
  • R (Barclay) v Lord Chancellor and Secretary of State for Justice [2009] 3 WLR 1270
  • Centre for Health, Human Rights and Development (CEHURD) and 3 others v Attorney General
  • Gordon Sentiba ... UGSC 30
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