Wakilii

Rwanyarare & Another v Attorney General (Constitutional Petition 5 of 1999)

Supreme Court · [2000] UGSC 26 · 2000 Preliminary Objections Overruled in Part ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Ruling on preliminary objections in a constitutional petition for declarations and prohibitory orders
Decision
Preliminary objections largely overruled; the petition to proceed to a hearing on the merits limited to the declarations sought in paragraph 20(c), (e) and (f).

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Cited — treatment unverified cited in 2 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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Holding

On preliminary objections in a constitutional petition challenging the referendum and the Referendum and Other Provisions Act 1999, the court held that constitutional petitions are civil proceedings, so service on the Attorney General must comply with rule 5(1) of the Civil Procedure (Government Proceedings) Rules and is incomplete until acknowledged; the Attorney General's answer was therefore in time. Objections that the objections were improperly raised, that supporting evidence was lacking, and that the petition was time-barred were overruled, time running from the petitioners' perception of the breach. By majority, the court held it has no jurisdiction under article 137(3) to declare one constitutional provision inconsistent with another, limiting the petition to prayers 20(c), (e) and (f).

Facts

Dr James Rwanyarare and Haji Badru Kendo Wegulo petitioned the Constitutional Court seeking declarations that the choice of a political system through a referendum or election under article 69, certain provisions of the Constitution including article 269, and several sections of the Referendum and Other Provisions Act No. 2 of 1999 were inconsistent with various articles of the Constitution, together with orders prohibiting officials from acting under that Act. The petition was initially filed without naming a respondent; the Attorney General was later joined and an amended petition was filed on 7 March 2000. The petitioners' clerk purported to serve the amended petition on a clerk in the Attorney General's civil registry on 10 March 2000, but no State Attorney endorsed an acknowledgement of service. The court Registry served the Attorney General with a hearing notice and the amended petition on 29 March 2000, and the Attorney General filed his answer on 4 April 2000. The petitioners said they perceived the alleged breaches on about 16 August 1999 after studying the Referendum Act, and filed the petition on 6 September 1999.

Issues

  1. Whether the Attorney General's answer to the amended petition was filed out of time, given that service on him is governed by rule 5(1) of the Civil Procedure (Government Proceedings) Rules.
  2. Whether the preliminary objections were properly before the court despite counsel not citing the specific law under which they were raised.
  3. Whether the petition raised questions calling for interpretation of the Constitution so as to confer jurisdiction on the court under article 137(3), and whether the court has jurisdiction to declare one provision of the Constitution inconsistent with another.
  4. Whether the petition was supported by sufficient affidavit evidence as required by the Rules.
  5. Whether the petition was time-barred under rule 4(1) of Legal Notice No. 4 of 1996.

Orders

  • The objection that the Attorney General's answer was filed out of time is overruled.
  • The objection that the preliminary objections were not properly before the court is overruled.
  • The objection that the petition lacked supporting evidence is overruled.
  • The objection that the petition was time-barred is overruled.
  • The objection to jurisdiction is upheld in part: the court has jurisdiction only over the prayers in paragraph 20(c), (e) and (f).
  • The petition is to proceed for determination of the questions in paragraph 20(c), (e) and (f).

Key headnotes

Civil Procedure — Service on the Attorney General — Government Proceedings
Service of a document on the Attorney General in proceedings to which the Government is a party is governed by rule 5(1) of the Civil Procedure (Government Proceedings) Rules and is not complete until the Attorney General or a State Attorney has endorsed an acknowledgement of service on the document; service merely accepted by a clerk in the civil registry is ineffective.
Constitutional Law — Constitutional Petitions — Nature as Civil Proceedings
Constitutional petition proceedings are civil proceedings, though by article 137(7) they take precedence over other matters; accordingly, by rule 13(1) of Legal Notice No. 4 of 1996, the Civil Procedure Act and the rules made under it apply to such petitions with necessary modifications.
Civil Procedure — Preliminary Objections — Points of Law
A preliminary objection on a point of law may be raised and determined at the commencement of a hearing without being brought formally by Notice of Motion or Chamber Summons, and failure to cite the specific law under which the objection is raised does not of itself occasion a miscarriage of justice, though citing the relevant law is desirable.
Constitutional Law — Jurisdiction — Article 137(3) — Interpretation Required on the Face of the Petition
For the Constitutional Court to have jurisdiction under article 137(3), the petition must show on its face that interpretation of a provision of the Constitution is required; it is not enough merely to allege that a constitutional provision has been violated.
Constitutional Law — Jurisdiction — Internal Inconsistency and Harmonisation of the Constitution
By majority, the Constitutional Court has no jurisdiction under article 137(3) to declare that one provision of the Constitution is inconsistent with or contravenes another provision of the same Constitution, the Constitution being the supreme yardstick against which other laws are measured; alleged internal inconsistencies are to be cured by constitutional amendment through Parliament.
Civil Procedure — Limitation — Constitutional Petitions — Perception of Breach
Under rule 4(1) of Legal Notice No. 4 of 1996, time within which to file a constitutional petition begins to run when the petitioner perceives the alleged breach or inconsistency, not necessarily from the date the impugned law or constitutional provision came into force.
Civil Procedure — Affidavit Evidence — Sufficiency of Support for a Petition
Where a petition alleges that a law or an act is inconsistent with a provision of the Constitution, it is sufficient for the supporting affidavit to state in what way the law or act is inconsistent; lack of evidence is distinct from sufficiency of evidence, the latter going to the merits.

Legislation cited (21)

  • Constitution of Uganda 1995 art.2
  • Constitution of Uganda 1995 art.69
  • Constitution of Uganda 1995 art.126(2)(e)
  • Constitution of Uganda 1995 art.137(1)
  • Constitution of Uganda 1995 art.137(3)
  • Constitution of Uganda 1995 art.137(7)
  • Constitution of Uganda 1995 art.269
  • Referendum and Other Provisions Act No. 2 of 1999 s.4(2)
  • Referendum and Other Provisions Act No. 2 of 1999 s.21(3)-(7)
  • Referendum and Other Provisions Act No. 2 of 1999 s.4(1)(d)
  • Civil Procedure (Government Proceedings) Rules SI 69-1 r.5(1)
  • Government Proceedings Act Cap. 69
  • Fundamental Rights and Freedoms (Enforcement Procedure) Rules 1992 (Legal Notice No. 4 of 1996) r.3(6)
  • Fundamental Rights and Freedoms (Enforcement Procedure) Rules 1992 (Legal Notice No. 4 of 1996) r.4(1)
  • Fundamental Rights and Freedoms (Enforcement Procedure) Rules 1992 (Legal Notice No. 4 of 1996) r.6(3)
  • Fundamental Rights and Freedoms (Enforcement Procedure) Rules 1992 (Legal Notice No. 4 of 1996) r.12(1)
  • Fundamental Rights and Freedoms (Enforcement Procedure) Rules 1992 (Legal Notice No. 4 of 1996) r.13(1)
  • Civil Procedure Rules Order 1 r.10(2)
  • Civil Procedure Rules Order 7 r.11
  • Civil Procedure Rules Order 13 r.2
  • Evidence Act s.121

Cases cited (8)

  • Ismail Serugo v Kampala City Council and Attorney General (Constitutional Appeal No. 2 of 1998)
  • Zachary Olum and Another v Attorney General (Constitutional Petition No. 6 of 1999)
  • Major General Tinyefuza v Attorney General (Constitutional Petition No. 1 of 1996)
  • Makula International Ltd v His Eminence Cardinal Nsubuga and Another [1982] HCB 11
  • South Dakota v North Carolina 192 US 268 (1904)
  • Republic v El Maun [1969] EA 357
  • Uganda v Kabaka's Government [1965] EA 393
  • Rev. Christopher Mtikira v Attorney General (Civil Case No. 5 of 1993)
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.