Wakilii

Hon. Theodore Ssekikubo & Others v Attorney General & Others (Constitutional Appeal 1 of 2015)

Supreme Court · [2015] UGSC 19 · 2015 Appeal Partly Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional appeal from the majority decision of the Constitutional Court sitting as a trial court in consolidated Constitutional Petitions Nos. 16, 19, 21 and 25 of 2013
Decision
Appeal allowed on the majority of grounds; the basis for ordering the appellants to vacate their parliamentary seats was set aside, the Constitutional Court having erred in holding that expulsion from a party causes vacation of a seat under Article 83(1)(g)

The full judgment

Read the complete, verbatim text of this judgment.

Sign in to read the full judgment
Treatment recorded in citing cases followed in 1 · applied in 2 Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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 on most grounds. It held that the word 'leave' in Article 83(1)(g) is clear and connotes a voluntary act of leaving a party to join another or to sit as an independent; an MP expelled from his party therefore does not vacate his seat under that Article. Jurisdiction to determine whether a seat has fallen vacant lies with the High Court under Article 86, not the Constitutional Court. The Attorney General's advice under Article 119(3) is not generally binding; treating it as binding on the Speaker breaches separation of powers. A sitting President is immune from proceedings under Article 98(4) but is a competent, non-compellable witness. Grounds on cross-examination and bias failed.

Facts

Four Members of Parliament (Ssekikubo, Niwagaba, Nsereko and Tinkasimire) were elected on the National Resistance Movement (NRM) ticket. On 14 April 2013 the NRM Central Executive Committee expelled them for breaching the party constitution; they challenged the expulsion in the High Court, where the matter remained pending. The NRM Secretary General asked the Speaker to declare their seats vacant. On 2 May 2013 the Speaker declined. Several parties then filed consolidated Constitutional Petitions challenging the Speaker's decision, and a further petition challenged the Attorney General's advice that the Speaker reverse her ruling. The Constitutional Court, by majority, held that expulsion caused the members to leave the party and vacate their seats under Article 83(1)(g), ordered them to vacate, and directed by-elections. The expelled members and the Shadow Attorney General appealed to the Supreme Court on ten grounds concerning jurisdiction, the meaning of 'leave', the President's affidavit, the Attorney General's advice, and alleged bias.

Issues

  1. Whether the High Court or the Constitutional Court has jurisdiction to determine whether the seat of a Member of Parliament has become vacant.
  2. Whether expulsion of a Member of Parliament from the political party for which he or she stood causes that member to vacate his or her seat under Article 83(1)(g) of the Constitution.
  3. Whether the Constitutional Court properly admitted the affidavit of the President in light of the immunity in Article 98(4), and whether it erred in declining to allow cross-examination of the President.
  4. Whether the legal opinion of the Attorney General under Article 119(3) is generally binding on the Government and the Speaker of Parliament.
  5. Whether the Speaker created a category of Members of Parliament unknown to the Constitution by allowing the expelled members to remain in Parliament.
  6. Whether the majority Justices of the Constitutional Court were biased in their conduct of the proceedings and in granting a mandatory injunction.

Orders

  • Appeal majorly succeeds (allowed on grounds 1, 4, 6, 7 and 8; grounds 2, 3, 5, 9 and 10 dismissed).
  • The appellants are awarded three-quarters (¾) of their costs both in the Supreme Court and in the Constitutional Court, with a certificate for two counsel.

Key headnotes

Constitutional Law — Membership of Parliament — Vacation of Seat — Article 83(1)(g) — Expulsion versus Voluntary Leaving
A Member of Parliament vacates his or her seat under Article 83(1)(g) only by voluntarily leaving the political party for which he or she stood, either to join another party or to remain as an independent member; expulsion from a party does not amount to such voluntary leaving and does not cause the member to vacate the seat.
Statutory Interpretation — Constitutional Interpretation — Literal Rule — Words Read in Context — Limits on Extrinsic Aids
Where the words of the Constitution are clear and unambiguous they must be given their plain, ordinary and natural meaning read in the context in which they appear; a court should not resort to extrinsic aids such as the Hansard or constitutional history to interpret words that are already clear.
Constitutional Law — Jurisdiction — Determination of Vacancy of a Parliamentary Seat — Article 86 and Parliamentary Elections Act 2005 s.86
Jurisdiction to hear and determine whether the seat of a Member of Parliament has become vacant lies with the High Court under Article 86 of the Constitution and section 86 of the Parliamentary Elections Act 2005, not with the Constitutional Court.
Constitutional Law — Presidential Immunity — Article 98(4) — Competent but Not Compellable Witness
While holding office a President is not liable to proceedings in any court under Article 98(4), but the immunity does not preclude a sitting President from voluntarily giving evidence; the President is a competent but not a compellable witness who may waive the privilege.
Evidence — Cross-examination of a Deponent — Discretion of the Court — Appellate Interference
Leave to cross-examine a person who has sworn an affidavit in a constitutional petition is a discretionary power of the court under Rule 12(2) of the Constitutional Court (Petitions and References) Rules 2005, and an appellate court will not interfere with its exercise unless the court took into account an irrelevant matter, ignored a relevant one, or plainly went wrong.
Administrative Law — Attorney General's Legal Opinion — Article 119(3) — Whether Generally Binding
The legal opinion of the Attorney General as principal legal adviser of the Government under Article 119(3) is not generally binding on Government and public institutions; it must be accorded the highest respect and is binding only in circumstances such as contracts, agreements or transactions to which Government is party under Article 119(5).
Constitutional Law — Separation of Powers — Executive Advice and the Legislature
Treating the legal opinion of the Attorney General, a member of the Executive, as binding upon the Speaker of Parliament in the exercise of her constitutional functions violates the principle of separation of powers, which must be observed to avoid erosion of the constitutional functions of the arms of government.

Legislation cited (17)

  • Constitution of Uganda 1995 art.83(1)(g)
  • Constitution of Uganda 1995 art.83(1)(h)
  • Constitution of Uganda 1995 art.86(1)(a)
  • Constitution of Uganda 1995 art.86(2)
  • Constitution of Uganda 1995 art.86(3)
  • Constitution of Uganda 1995 art.78(1)
  • Constitution of Uganda 1995 art.98(4)
  • Constitution of Uganda 1995 art.119(3)
  • Constitution of Uganda 1995 art.119(5)
  • Constitution of Uganda 1995 art.132(4)
  • Constitution of Uganda 1995 art.137
  • Constitution of Uganda 1995 art.8A
  • Constitution of Uganda 1995 art.28
  • Constitution of Uganda 1995 art.42
  • Constitution of Uganda 1995 art.44
  • Parliamentary Elections Act 2005 s.86
  • Constitutional Court (Petitions and References) Rules 2005 (S.I. 91 of 2005) r.12(2)

Cases cited (20)

  • Baku Raphael Obudra and Another v Attorney General (Constitutional Appeal No. 1 of 2005)
  • Brigadier Henry Tumukunde v Attorney General and Another (Constitutional Petition No. 6 of 2005)
  • Nixon v Fitzgerald, 457 US 731 (1982)
  • Mbogo and Others v Shah [1968] EA 93
  • Pinmen Vs. Everett (1969) 3 All ER 257
  • Chowdrey Vs. Uganda Electricity Board
  • Attorney General v Maj. Gen. David Tinyefuza (Constitutional Appeal No. 1 of 1997)
  • Richard William Prebble and Others v Donna Awatere Hauta (New Zealand Supreme Court Appeal No. SC CIV 9/2004)
  • Attorney General v George Owor (Constitutional Appeal No. 1 of 2011)
  • Pepper (Inspector of Taxes) v Hart [1993] 1 All ER 42
  • Darlington Sakwa v Electoral Commission (Constitutional Petition No. 8 of 2006)
  • Malawi Supreme Court Presidential Reference Appeal No. 44 of 2006, In Re: Question of Crossing the Floor by Members of the National Assembly
  • Kabagambe and Others v Electoral Commission and Dr. Kizza Besigye (Constitutional Petition No. 1 of 2006)
  • Gordon Sentiba and Others v Inspector General of Government (Civil Appeal No. 6 of 2009)
  • Bank of Uganda v Bank Arabe Espanol (Civil Appeal No. 8 of 1998)
  • Attorney General v Aboki and Another (Constitutional Appeal No. 1 of 1998)
  • Prof. Isaac Newton Ojok v Uganda (Criminal Appeal No. 33 of 1991)
  • Attorney General (Kenya) v Blick and Another (1959) EA 180
  • Redland Bricks Ltd v Morris and Another [1969] 2 All ER 576
  • Hon. Ssekikubo and Others (Constitutional Application No. 6 of 2013)
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.