Wakilii

Ssemogerere and Others v Attorney General (Constitutional Appeal 1 of 2002)

Supreme Court · [2004] UGSC 10 · 2004 Appeal Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional appeal from the majority decision of the Constitutional Court dismissing Constitutional Petition No. 7 of 2000
Decision
Appeal allowed; section 5 of the Constitution (Amendment) Act No. 13 of 2000 declared unconstitutional, null and void.

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Cited — treatment unverified cited in 4 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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Holding

The Supreme Court allowed the appeal. It held the Constitutional Court has unlimited jurisdiction under Article 137 to interpret the Constitution and to construe one provision against another, and erred in declining that jurisdiction. Section 5 of the Constitution (Amendment) Act No. 13 of 2000, restricting access to information held by Parliament, expressly amended Article 41 and, by implication or infection, amended entrenched Articles 28, 44(c) and 137. The Chapter 18 amendment procedures are mandatory and cannot be waived by Parliament; the requirements of a 14-day interval, a referendum and the Speaker's and Electoral Commission's certificates were not met. Section 5 of the Act was accordingly declared null and void.

Facts

After the Constitutional Court struck down the Referendum and Other Provisions Act 1999 for want of quorum, Parliament passed the Constitution (Amendment) Act No. 13 of 2000, which was introduced, debated, passed and assented to by the President on the same day, 31 August 2000. Section 5 amended Article 97 by adding clauses barring any member, officer or person from giving evidence elsewhere about parliamentary minutes or documents without Parliament's special leave — reproducing section 15 of the National Assembly (Powers and Privileges) Act, previously held unconstitutional. The three appellants, two of them Members of Parliament present when the Bill was passed, petitioned the Constitutional Court (Petition No. 7 of 2000), alleging the Act indirectly amended entrenched Articles of the Constitution and was passed without complying with the Chapter 18 amendment procedures, including the required 14-day interval between readings, a referendum, and the Speaker's and Electoral Commission's certificates. The Constitutional Court, by majority, held it lacked jurisdiction to construe one constitutional provision against another, framed a single issue, and dismissed the petition.

Issues

  1. Whether the Constitutional Court has jurisdiction under Article 137 to construe one provision of the Constitution against another or others.
  2. Whether section 5 of the Constitution (Amendment) Act No. 13 of 2000 amended Articles 1, 2, 28, 41, 44(c), 128 and 137 of the Constitution by implication or infection.
  3. Whether Parliament complied with the mandatory procedural requirements in Chapter 18 of the Constitution (Articles 258, 259, 261 and 262) when enacting the Act.

Orders

  • Appeal allowed substantially, with the declarations and orders proposed by Kanyeihamba JSC.
  • Section 5 of the Constitution (Amendment) Act No. 13 of 2000 declared null and void for non-compliance with the Constitution.
  • Costs awarded to the appellants in the Supreme Court and in the Constitutional Court.
  • Certificate for two counsel granted.

Key headnotes

Constitutional Law — Jurisdiction of the Constitutional Court — Article 137 — Power to construe one provision against another
The Constitutional Court has unlimited and unfettered jurisdiction to determine any question of interpretation of the Constitution, which includes the power and responsibility to construe two or more provisions against each other in order to harmonise them; it cannot decline that jurisdiction merely because the impugned enactment has become part of the Constitution.
Constitutional Law — Amendment of the Constitution — Amendment by implication or infection
An Act amends a provision of the Constitution whenever it has the effect of adding to, varying or repealing that provision, whether expressly, by implication or by infection; it is the effect of the legislation, not its express mention of the affected provision, that determines whether an amendment has occurred.
Constitutional Law — Amendment procedure — Chapter 18 requirements are mandatory
The procedural requirements in Chapter 18 of the Constitution (Articles 258, 259, 261 and 262) for amending the Constitution are mandatory conditions of valid law-making that Parliament cannot waive through its own rules of procedure.
Constitutional Law — Presidential assent — Speaker's and Electoral Commission's certificates
Where a supreme-law clause requires the Speaker's certificate (and, where applicable, the Electoral Commission's certificate) to accompany an amendment bill, those certificates are a necessary part of the legislative process; a bill that lacks them remains invalid and ultra vires even after Presidential assent.
Human Rights — Access to information — Article 41 — Fair hearing
Legislation that restricts a citizen's right of access to information held by Parliament and makes that access subject to Parliament's unfettered discretion conflicts with Article 41, and by infection with the right to a fair hearing under Articles 28 and 44(c), and is null and void.
Statutory Interpretation — Constitutional construction — Reading the Constitution as a whole
No provision of the Constitution is to be segregated and considered alone; all provisions bearing on a particular subject must be brought into view and interpreted together, as an integrated and cohesive whole, to effectuate the purpose of the instrument.
Evidence — Burden of proof — Facts within special knowledge — Unchallenged affidavits
Where a fact is within the special knowledge of a party, the onus of proving it shifts to that party; a court is not entitled to reject affidavit evidence that the opposing party has not contradicted without first testing its cogency.

Legislation cited (22)

  • Constitution of Uganda 1995 art.137
  • Constitution of Uganda 1995 art.1
  • Constitution of Uganda 1995 art.2
  • Constitution of Uganda 1995 art.28
  • Constitution of Uganda 1995 art.41
  • Constitution of Uganda 1995 art.44(c)
  • Constitution of Uganda 1995 art.97
  • Constitution of Uganda 1995 art.128
  • Constitution of Uganda 1995 art.132(4)
  • Constitution of Uganda 1995 art.258
  • Constitution of Uganda 1995 art.259
  • Constitution of Uganda 1995 art.260
  • Constitution of Uganda 1995 art.261
  • Constitution of Uganda 1995 art.262
  • Constitution of Uganda 1995 art.273
  • Constitution (Amendment) Act No. 13 of 2000 s.5
  • Constitution (Amendment) Act No. 13 of 2000 s.6
  • Evidence Act s.121
  • Evidence Act s.105
  • National Assembly (Powers and Privileges) Act (Cap 249) s.15
  • Referendum and Other Provisions Act 1999
  • Rules of Procedure of Parliament 1996 rule 96

Cases cited (16)

  • Attorney General v Tinyefuza (Constitutional Appeal No. 1 of 1997)
  • Ssemogerere and Olum v Attorney General (Constitutional Appeal No. 1 of 2000)
  • Rwanyarare and Wegulo v Attorney General (Constitutional Petition No. 5 of 1999)
  • Uganda Law Society and Semuyaba v Attorney General (Constitutional Petition No. 8 of 2000)
  • Karuhanga Chapaa and Others v Attorney General (Constitutional Petition No. 6 of 2000)
  • Serugo v Kampala City Council and Another (Constitutional Appeal No. 2 of 1998)
  • The Queen v Big M Drug Mart Ltd [1986] LRC (Const) 332
  • The Bribery Commissioner v Ranasinghe [1965] AC 172
  • Kesavananda Bharati v State of Kerala AIR 1973 SC 1461
  • Teo Soh Lung v Minister for Home Affairs [1990] LRC (Const) 490
  • Phato Vs Attorney General (1994) 3 LRC
  • South Dakota v North Carolina 192 US 268
  • Opolot v Attorney General [1969] EA 631
  • Dodhia v National & Grindlays Bank Ltd [1970] EA 195
  • Young v Bristol Aeroplane Co Ltd [1944] KB 718
  • Stockdale v Hansard (1839) 9 Ad & E 1
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.