Wakilii

Attorney General v Ssemwogerere and Olum (Constitutional Appeal 3 of 2004)

Supreme Court · [2005] UGSC 29 · 2005 Appeal Partly Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Appeal to the Supreme Court from a decision of the Constitutional Court on a constitutional petition (detailed reasons for the court's judgment given by Kanyeihamba, J.S.C.)
Decision
Appeal partially succeeded; the Referendum (Political Systems) Act 2000 held unconstitutional but the 2000 referendum held validly under the Constitution.

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Holding

The Supreme Court held that the Referendum (Political Systems) Act 2000 was unconstitutional, having been passed in contravention of the procedures for amending the Constitution. However, the 2000 referendum was nonetheless validly held, not under the void Act, but as a direct mandatory obligation imposed on the country by Articles 69 and 271 of the Constitution; its results were therefore binding. Kanyeihamba, J.S.C. held that a judicially nullified statute confers no rights and that the doctrine of prospective overruling, which validates acts done under an unconstitutional law, has no proper place in constitutional disputes and should not legitimise what was done in bad faith. The appeal partially succeeded.

Facts

The respondents, Paul K. Ssemogerere and Hon. Zachary Olum, petitioned the Constitutional Court challenging the Referendum (Political Systems) Act 2000, by which Parliament had purported to provide for the holding of a referendum on Uganda's political system. The referendum was held on 29 June 2000; its results were generally accepted in the country and were not challenged in court for about four years. The Constitutional Court declared the Act unconstitutional and also declared that the referendum held under it contravened the Constitution. Evidence was led that some members of the Democratic Party had been prevented from canvassing before the referendum, but the court found this evidence insufficient. The Attorney General appealed to the Supreme Court on fourteen grounds, contending among other things that the Act had been validly passed and that, even if it was void, the acts and decisions done bona fide under it should be validated through the doctrine of prospective overruling.

Issues

  1. Whether the Referendum (Political Systems) Act 2000 was validly enacted in conformity with the constitutional requirements for amending the Constitution.
  2. Whether the referendum held on 29 June 2000 was constitutional and valid notwithstanding the invalidity of the enabling Act.
  3. Whether the doctrine of prospective overruling should be applied to validate acts and decisions done under the unconstitutional Act.
  4. Whether a court may, in the exercise of discretion, decline to grant a constitutional remedy on grounds of the consequences of the declaration.

Orders

  • Grounds 4, 7 and 8 of the appeal allowed; the referendum held under Articles 69 and 271 of the Constitution declared validly held.
  • Declaration (b) of the Constitutional Court, that the referendum contravened the Constitution, set aside.
  • Ground 14 (application of the doctrine of prospective overruling) dismissed.
  • Each party to bear its own costs of the appeal.
  • Respondents to recover half their costs in the Constitutional Court.

Key headnotes

Constitutional Law — Amendment of the Constitution — Mode of voting in Parliament
A bill to amend the Constitution cannot be passed by voice voting; the two-thirds majority of all members of Parliament required for the second and third readings must be ascertained by head count of members, by lobby or division, or by some other mode capable of establishing that the supporters are two-thirds of the total membership.
Electoral Law — Referendum — Constitution as direct source of the obligation to hold a referendum
Where the Constitution itself imposes a mandatory obligation to hold a referendum, that referendum is validly held directly under the Constitution and its results are binding, even though the statute enacted to provide the procedure for holding it is declared unconstitutional and void.
Administrative Law — Void and nullity — Effect of a judicially nullified statute
A statute or order declared null and void is utterly without existence or effect in law; there are no degrees of nullity, and such a law confers no rights or obligations on anyone, the court's judgment operating erga omnes.
Constitutional Law — Doctrine of prospective overruling — Inapplicability to constitutional disputes
The doctrine of prospective overruling, which validates acts done under an unconstitutional law, is confined to criminal justice and administrative matters involving discretionary powers; it has no place in constitutional disputes and should never be used to legitimise what was done in bad faith.
Constitutional Law — Interpretation — Judicial discretion to decline a constitutional remedy
Constitutional provisions should be interpreted objectively and impartially without regard to consequences save in very exceptional circumstances; a court should not, on the basis of extraneous consequences, exercise discretion to decline a remedy to which a petitioner is constitutionally entitled.

Legislation cited (12)

  • Constitution of Uganda 1995 art.3
  • Constitution of Uganda 1995 art.69
  • Constitution of Uganda 1995 art.90
  • Constitution of Uganda 1995 art.258
  • Constitution of Uganda 1995 art.259
  • Constitution of Uganda 1995 art.260(1)
  • Constitution of Uganda 1995 art.262(1) and (2)
  • Constitution of Uganda 1995 art.269
  • Constitution of Uganda 1995 art.271
  • Referendum (Political Systems) Act 2000 (Act No. 9 of 2000)
  • Constitution (Amendment) Act 13 of 2000
  • Interpretation Act Cap. 3

Cases cited (24)

  • Paul K. Ssemogerere and Others v Attorney General (Constitutional Appeal No. 1 of 2002)
  • Uganda v Commissioner of Prisons, ex parte Matovu [1966] EA 514
  • Republic v. Micheal Kamaliza and Others, Crim. Sess. Case No. 103 of 1970
  • lbingira and Others v. Uganda [1966], H.C. Crim. Sess.306
  • R v Halliday, ex parte Zadig [1917] AC 260
  • Liversidge v Anderson [1942] AC 206
  • Burmah Oil Co v Lord Advocate [1965] AC 75
  • Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147
  • Ridge v Baldwin [1964] AC 40
  • Credit Suisse v Allerdale Borough Council [1997] QB 306
  • Hoffmann-La Roche & Co v Secretary of State for Trade and Industry [1975] AC 295
  • Boddington v British Transport Police [1999] 2 AC 143
  • Smith v East Elloe RDC [1956] AC 736
  • Franklin v Minister of Town and Country Planning [1948] AC 87
  • Practice Statement (Judicial Precedent) [1966] 1 WLR 1234
  • Bush v Gore, 531 US 98 (2000)
  • Bush v Palm Beach County Canvassing Board, 531 US 70 (2000)
  • State of Wisconsin v. Waylon Picotte, No. 01-3063, Croi-3063 CR of 2003
  • State v Esser, 16 Wis 2d 567, 115 NW 2d 505 (1962)
  • United States v Chase, 18 F 3d 1166 (1994)
  • Baker v Carr, 369 US 186 (1962)
  • Rogers v Tennessee, 532 US 451 (2001)
  • The State v Dosso PLD 1958 SC 533
  • R v Ndhlovu 1968 (4) SA 515
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.