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Attorney General v Paul K. Ssemogerere and Anor [2004] UGSC 35

Supreme Court · 2004 Appeal Partly Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Appeal from a decision of the Constitutional Court allowing a petition that declared the Referendum (Political Systems) Act 2000 unconstitutional and void
Decision
Appeal partly allowed; the Act held void for inconsistency with Article 271(2), but the declarations under Articles 89, 90 and 69 set aside

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Holding

The Supreme Court allowed the appeal in part. An expired Act could still be challenged as its effects and the resulting cause of action survived (Article 137). The Court upheld the finding that the Act was enacted in contravention of Article 271(2), being passed long after the prescribed time and abridging the canvassing period, rendering it void. However, it held that Parliament was not obliged to refer a Bill to a Standing Committee and did not contravene Articles 89 or 90, setting aside the first declaration. It also set aside the declaration that the referendum contravened Article 69, finding the Constitutional Court should have declined that relief given the far-reaching consequences of nullifying a referendum acted upon for over four years.

Facts

Parliament passed the Referendum (Political Systems) Act No.9 of 2000 on 7th June 2000, to provide for the referendum required under Article 271 of the Constitution. The referendum was held on 29th June 2000, and the movement political system was retained. The respondents petitioned the Constitutional Court on 22nd June 2000, alleging the Act was passed in contravention of numerous constitutional provisions, including the prescribed time under Article 271(2), parliamentary procedure under Articles 89 and 90, and the right to a free and fair referendum under Article 69 owing to the absence of a law regulating political organisations under Article 269. The term of the first Parliament ran from 2nd July 1996 to 1st July 2001; canvassing was to be free from 2nd July 1999 and the referendum held in June 2000. The Act, passed on 7th June 2000, came long after it was due. The Constitutional Court allowed the petition and declared the Act void. The Attorney General appealed on fourteen grounds.

Issues

  1. Whether an expired Act, the Referendum (Political Systems) Act 2000, could still be challenged as unconstitutional after its purpose was accomplished.
  2. Whether the Referendum (Political Systems) Act 2000 was passed in contravention of Article 271(2) of the Constitution by being enacted outside the prescribed time.
  3. Whether Parliament's failure to refer the Bill to a Standing Committee and the voting method adopted contravened Articles 89 and 90 of the Constitution.
  4. Whether the referendum held on 29 June 2000 was invalid for contravening Article 69, given the absence of a law regulating political organisations under Article 269.

Orders

  • Appeal partially succeeds.
  • The first declaration that the Act contravened Articles 89 and 90 is set aside.
  • The third declaration is upheld but modified to read that the enactment of the Referendum (Political Systems) Act 2000 on 7th June 2000 was inconsistent with Article 271(2) and rendered the Act null and void.
  • The second declaration that holding of the referendum contravened Article 69 is set aside and substituted with an order declining to make a declaration in that regard.
  • Each party bears its own costs of this appeal, but the respondents get half of the costs in the Constitutional Court.

Key headnotes

Constitutional Law — Justiciability — Challenge to an Expired Statute
The subsequent expiry of an Act after its purpose has been accomplished does not erase its effects nor extinguish the cause of action to which it gave rise, so the Act remains capable of being challenged for unconstitutionality under Article 137 of the Constitution.
Constitutional Law — Transitional Provisions — Time Limits for Legislation under Article 271(2)
Legislation enacted under the transitional provisions of Article 271 must comply with the time prescribed by the Constitution; an Act passed after the prescribed time which abridges the period for canvassing for the referendum is inconsistent with Article 271(2) and void, and provisions giving retrospective effect or validating prior actions cannot cure that invalidity.
Constitutional Law — Parliamentary Procedure — Reference of Bills to Standing Committees
Article 90 does not make it mandatory for Parliament to refer a Bill to a Standing Committee before exercising its legislative power under Article 79(1); the function of Standing Committees to discuss and recommend on Bills is not a restriction on, nor a condition precedent to, the exercise of Parliament's legislative power.
Constitutional Law — Parliamentary Procedure — Method of Voting under Article 89
The voting procedure of 'Ayes' and 'Noes' under Article 89(1) is applicable to questions requiring only a simple majority of members present and voting in non-contentious matters; it does not contravene the Constitution where ordinary legislation, not a constitutional amendment requiring a special majority, is being passed.
Electoral Law — Referenda — Judicial Reluctance to Nullify a Concluded Referendum
Where the actual conduct and results of a referendum were not challenged or inquired into, and the result has been acted upon over a substantial period, a court should exercise its discretion to decline granting a declaration that the referendum was a nullity, given the far-reaching consequences of such a declaration.

Legislation cited (16)

  • Constitution of Uganda art.271(2)
  • Constitution of Uganda art.271(3)
  • Constitution of Uganda art.89
  • Constitution of Uganda art.90
  • Constitution of Uganda art.69
  • Constitution of Uganda art.137
  • Constitution of Uganda art.79(1)
  • Constitution of Uganda art.257A
  • Constitution of Uganda art.269
  • Referendum (Political Systems) Act No.9 of 2000 s.2
  • Referendum (Political Systems) Act No.9 of 2000 s.29
  • Referendum and Other Provisions Act 1999
  • Electoral Commission Act No.3 of 1997
  • Parliamentary Election (Interim Provisions) Statute No.4 of 1996
  • Rules of Procedure of Parliament r.99
  • Rules of Procedure of Parliament r.100

Cases cited (1)

  • P.K. Ssemogerere and Two Others v Attorney General (Constitutional Appeal No. 1 of 2000)
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.