Wakilii

Paul K. Ssemogerere and Others v Attorney-General (Constitutional Appeal No.1 of 2002)

Supreme Court · [2004] UGSC 54 · 2004 Appeal Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Appeal to the Supreme Court from the majority decision of the Constitutional Court dismissing a constitutional petition brought under Article 137.
Decision
Appeal allowed; Constitution (Amendment) Act No.13 of 2000 declared null and void and the declarations sought in the petition granted.

The full judgment

Read the complete, verbatim text of this judgment.

Sign in to read the full judgment

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions — always read the source judgment before relying on it.

Holding

The Supreme Court allowed the appeal and declared the Constitution (Amendment) Act No.13 of 2000 null and void. The Constitutional Court has unlimited jurisdiction under Article 137 to construe one constitutional provision against another and erred in declining it. Section 5 of the Act, restricting access to parliamentary information, expressly amended Article 41 and, by implication or infection, amended entrenched Articles 28, 44(c) and 137, requiring compliance with the mandatory amendment procedures in Chapter 18. Parliament failed to space the second and third readings by 14 sitting days, hold a referendum, and attach the Speaker's and Electoral Commission's certificates, so the President's assent was invalid and the Act void.

Facts

After the Constitutional Court nullified the Referendum and Other Provisions Act 1999 for want of quorum, Parliament enacted the Constitution (Amendment) Act No.13 of 2000, which was introduced, debated, passed and assented to on the same day, 31 August 2000. Section 5 amended Article 97 by adding clauses barring members and officers of Parliament from giving evidence elsewhere about parliamentary minutes or documents without Parliament's leave — reproducing section 15 of the National Assembly (Powers and Privileges) Act, earlier held unconstitutional as conflicting with the right of access to information. The appellants petitioned the Constitutional Court, contending that the Act, while expressly amending Article 41, also amended entrenched Articles 1, 2, 28, 44(c), 128 and 137 by implication or infection, and that Parliament had not followed the mandatory amendment procedures: the second and third readings were not separated by 14 sitting days, no referendum was held, and no Speaker's or Electoral Commission's certificate accompanied the bill. The respondent did not controvert the appellants' affidavit evidence on these procedural facts. The Constitutional Court, by majority, held it lacked jurisdiction to construe one provision against another and dismissed the petition.

Issues

  1. Whether the Constitutional Court has jurisdiction under Article 137 to construe one provision of the Constitution against another part of the Constitution.
  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, in addition to the Articles expressly named.
  3. Whether the mandatory procedural requirements in Chapter 18 of the Constitution (Articles 258, 259, 261 and 262) were complied with in enacting the Constitution (Amendment) Act No.13 of 2000.
  4. Whether, on the affidavit evidence, the onus of proving compliance with the amendment procedure (including the Speaker's certificate) shifted to the respondent.

Orders

  • Appeal allowed (substantially succeeding).
  • The Constitution (Amendment) Act No.13 of 2000 declared null and void.
  • Declarations and orders as set out in the judgment of Kanyeihamba JSC granted.
  • Costs of the appeal and in the courts below awarded to the appellants.
  • Certificate for two counsel allowed.

Key headnotes

Constitutional Law — Jurisdiction of the Constitutional Court — Power to construe one provision against another under Article 137
The Constitutional Court's jurisdiction under Article 137(1) and (3) to interpret the Constitution and to declare an Act inconsistent with it is unlimited and unfettered, and includes the power and responsibility to construe two or more provisions of the Constitution against one another so as to harmonise them; to decline that jurisdiction is an abdication of the court's function.
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 the amendment is effected expressly, by implication or by infection; it is the effect of the enactment, not any categorical statement of intention in the amending Act, that determines whether a provision has been amended.
Statutory Interpretation — Purpose and effect — Colourable legislation
Both the purpose and the effect of legislation are relevant to its constitutionality, and Parliament cannot do indirectly what it is prohibited from doing directly; legislation that, while appearing to exercise a permitted power, achieves a forbidden object is colourable legislation and is void.
Constitutional Law — Amendment procedure — Mandatory conditions under Chapter 18
The procedural requirements in Chapter 18 of the Constitution for amending the Constitution — including the interval of at least fourteen sitting days between the second and third readings, approval by referendum for provisions to which Article 259 applies, and the requisite certificates — are mandatory conditions precedent to a valid amendment which Parliament cannot waive through its own rules of procedure.
Constitutional Law — Presidential assent — Speaker's certificate under Article 262(2)
Presidential assent is an integral part of the law-making process and is mandatory, not discretionary; under Article 262(2) the President may assent to a constitutional amendment bill only if it is accompanied by the Speaker's certificate of compliance, and the absence of that certificate renders the assent invalid and the purported amendment void notwithstanding that assent was given.
Human Rights — Right of access to information — Article 41 and the entrenched right to a fair hearing
The right of access to information in the possession of the State guaranteed by Article 41 may be restricted only on the grounds specified in that Article; a provision that subjects access to parliamentary information to the unfettered discretion of Parliament conflicts with Article 41 and, by infection, derogates from the non-derogable right to a fair hearing protected by Articles 28 and 44(c).
Evidence — Burden of proof — Facts within the special knowledge of a party
Where a material fact is within the special knowledge of the respondent and the petitioner's affidavit evidence asserting non-compliance is uncontroverted, the onus shifts to the respondent to prove the contrary under section 105 of the Evidence Act; uncontradicted affidavit evidence is taken to be accepted and cannot be rejected without testing its cogency.

Legislation cited (25)

  • 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.88
  • Constitution of Uganda 1995 art.89
  • Constitution of Uganda 1995 art.90
  • Constitution of Uganda 1995 art.97
  • Constitution of Uganda 1995 art.128
  • Constitution of Uganda 1995 art.132(4)
  • Constitution of Uganda 1995 art.137
  • Constitution of Uganda 1995 art.257A
  • 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

Cases cited (21)

  • Attorney General v Tinyefuza (Constitutional Appeal No. 1 of 1997)
  • Paul Ssemogerere and Zachary 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)
  • Ismail Serugo v Kampala City Council and Another (Constitutional Appeal No. 2 of 1998)
  • Kesavananda Bharati v State of Kerala AIR 1973 SC 1461
  • The Bribery Commissioner v Ranasinghe [1965] AC 172
  • The Queen v Big M Drug Mart Ltd [1986] LRC (Const) 332
  • Teo Soh Lung v Minister for Home Affairs [1990] LRC (Const) 490
  • South Dakota v North Carolina 192 US 268 (1904)
  • Phato v Attorney General, Eastern Cape [1994] 3 LRC 587
  • Opolot v Attorney General [1969] EA 631
  • Stockdale v Hansard (1839) 9 Ad & E 1
  • Union Colliery Co of British Columbia v Bryden [1899] AC 580
  • Attorney General of Ontario v Reciprocal Insurers [1924] AC 328
  • K.C. Gajapati Narayan Deo v State of Orissa (1954) SCR 1
  • Dodhia v National & Grindlays Bank Ltd [1970] EA 195
  • Young v Bristol Aeroplane Co Ltd [1944] KB 718
  • Kiriri Cotton Co Ltd v Dewani [1958] EA 239
  • Sowabiri and Another v Uganda (Criminal Appeal No. 5 of 1990)
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.