Attorney General v Kwizera & Electoral Commission v Kwizera (Constitutional Application 1 of 2020; Constitutional Application 3 of 2020)

Supreme Court · [2020] UGSC 8 · 2020 Application Granted ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Consolidated applications to the Supreme Court for stay of execution of Constitutional Court orders, pending appeal

Decision

Applications allowed; execution of the Constitutional Court's orders stayed pending determination of the intended appeals

The full judgment

Read the complete, verbatim text of this 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 entertained two consolidated applications for stay of execution despite the applicants not first applying to the Constitutional Court, holding that Rule 41(2) permits direct application where exceptional circumstances exist — here the bearing on the 2021 general elections, the risk of further delay, and the constitutional rights of the electorate and their representatives. On the merits, the Court found the applicants had lodged notices of appeal without undue delay, raised serious points of law with a likelihood of success, and would have their appeals rendered nugatory if affected Members of Parliament were ejected before the appeals were heard. The Court granted the stay. Kisaakye JSC partly dissented, rejecting the "exceptional circumstances" competency requirement as inconsistent with Rule 41(2).

Facts

On 9 August 2016 Parliament resolved to prescribe 296 parliamentary constituencies. The Electoral Commission subsequently organised and conducted elections in 2018 in six contested municipalities (Apac, Sheema, Ibanda, Nebbi, Bugiri and Kotido). The respondent petitioned the Constitutional Court challenging the constitutionality of the resolution and the legality of holding those elections. The Constitutional Court, in Constitutional Petition No. 20 of 2018 (judgment delivered 27 December 2019), nullified the parliamentary elections in the six municipalities as contrary to Article 63(6), and directed the Electoral Commission to file evidence of constituency prescription and boundary demarcation within stated periods. The Attorney General and the Electoral Commission, dissatisfied with part of the judgment, filed notices of appeal on 30 December 2019 and then applied to the Supreme Court for stay of execution, contending that without a stay the six affected Members of Parliament would be ejected before their appeals were heard, rendering the appeals nugatory.

Issues

Whether the applications for stay of execution were competently before the Supreme Court when they had not first been lodged in the Constitutional Court as required by Rule 41(1) of the Rules of the Court.
Whether the applicants satisfied the conditions for the grant of an order for stay of execution pending the determination of their intended appeals.

Orders

The decision, decree and orders of the Constitutional Court in Constitutional Petition No. 20 of 2018 delivered on 27th December 2019 are stayed pending the determination of the applicants' intended appeals or until further orders of the Court.
The Registrar of the Constitutional Court is directed to expeditiously produce the record of proceedings to enable the applicants file their appeal.
The costs of this application shall abide the outcome of the intended appeals.

Key headnotes

Civil Procedure — Stay of Execution — Concurrent Jurisdiction — Rule 41(1) and 41(2)

Where the Supreme Court and the lower court have concurrent jurisdiction, an application must, under Rule 41(1) of the Rules of the Court, be made to the lower court first; an applicant who proceeds directly under the exception in Rule 41(2) must establish exceptional circumstances justifying departure from the general rule.

Civil Procedure — Stay of Execution — Conditions for Grant

An applicant for a stay of execution must establish the lodgment of a notice of appeal and a request for certified copies of the record, a high likelihood of success, that irreparable loss will be suffered or the appeal rendered nugatory if the stay is refused, and that the application was lodged without undue delay; the balance of convenience is considered only where likelihood of success and nugatory effect are not established.

Civil Procedure — Stay of Execution — Likelihood of Success — Merits Not Determined

In assessing the likelihood of success of an intended appeal on an application for stay of execution, the court need not, and should not, determine the substantive constitutionality of the matters complained of, as those questions fall to be decided at the hearing of the appeal.

Statutory Interpretation — Effect of "Notwithstanding" — Overriding a General Provision

A provision introduced by the word "notwithstanding" is intended to have overriding effect over the provision it references, creating an exception to it, but must be read together with that provision rather than in isolation so as to give effect to the drafters' intention.

Constitutional Law — Precedent — Power of the Supreme Court to Depart from its Decisions

Under Article 132(4) of the Constitution the Supreme Court, while treating its previous decisions as normally binding, may depart from them when it appears right to do so, and bears a duty of consistency in interpreting its own rules to avoid sending mixed signals to lower courts and litigants.

Legislation cited (23)

Constitution of Uganda Article 28
Constitution of Uganda Article 63
Constitution of Uganda Article 63(1)
Constitution of Uganda Article 63(6)
Constitution of Uganda Article 64(2)
Constitution of Uganda Article 86(1)(a)
Constitution of Uganda Article 61(2)
Constitution of Uganda Article 81(2)
Constitution of Uganda Article 132(4)
Constitution of Uganda Article 137
Constitution of Uganda Article 294
Judicature Act Cap 13 s.41(1)
Judicature (Supreme Court) Rules r.2(2)
Judicature (Supreme Court) Rules r.6(2)(b)
Judicature (Supreme Court) Rules r.41(1)
Judicature (Supreme Court) Rules r.41(2)
Judicature (Supreme Court) Rules r.42
Judicature (Supreme Court) Rules r.43(1)
Judicature (Supreme Court) Rules r.50
Judicature (Supreme Court) Rules r.51
Judicature (Supreme Court) Rules r.72
Local Governments Act
Civil Procedure Rules Order 1 rule 10

Cases cited (17)

National Housing Construction Corporation v Kampala District Land Board (Civil Appeal No. 6 of 2002)
Akankwasa Damian v Uganda (Constitutional Applications Nos. 7 & 9 of 2011)
Theodore Ssekikubo & Others v Attorney General & Others (Constitutional Application No. 6 of 2013)
Gashumba Maniraguha v Sam Nkudiye (Civil Appeal No. 24 of 2015)
Dr. Ahmed Muhammed Kisuule v Greenland Bank (in Liquidation) (Civil Appeal No. 7 of 2010)
J.W.R. Kazzoora v M.L.S. Rukuba (Civil Appeal No. 4 of 1991)
Hassan Basajjabalaba & Anor v Attorney General (Miscellaneous Application No. 4 of 2018)
Lawrence Musiitwa Kyazze v Eunice Busingye (Civil Application No. 18 of 1990)
Davis Wesley Tusingwire v Attorney General (Constitutional Application No. 1 of 2014)
Robert Kavuma v Hotel International Ltd (Civil Appeal No. 8 of 1990)
Joel and Margaret Kato v Nuulu Nalwoga (Civil Application No. 12 of 2011)
Wasswa David v Ssebiragala Ronald Lule (Civil Application No. 17 of 2018)
Yakobo Senkungu & Others v Cresensio Mukasa (Civil Application No. 5 of 2013)
Nyakaana & Sons Ltd v Kobusingye & 16 Others (Civil Application No. 13 of 2017)
Drake Lubega v Attorney General & Others (Miscellaneous Application No. 13 of 2018)
Lweza Clays Ltd & Anor v Tropical Bank Limited & Another (Miscellaneous Civil Application No. 31 of 2018)
Katayira Francis v Rogers Bosco Bugembe (Civil Application No. 22 of 2016)

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