Attorney General & Another & Basalirwa & 5 Others v Kwizera (Constitutional Appeal 2 of 2020; Constitutional Appeal 3 of 2020)

Supreme Court · [2022] UGSC 3 · 2022 Appeal Dismissed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Consolidated constitutional appeals from the Constitutional Court, with a purported cross-appeal by affected MPs challenged by preliminary objection

Decision

Appeals and cross-appeal dismissed; Constitutional Court decision nullifying the mid-term elections upheld

The full judgment

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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 dismissed consolidated appeals by the Attorney General and Electoral Commission against the Constitutional Court's nullification of mid-term parliamentary elections in six new municipalities. It held that Parliament's prescription of additional constituencies under Article 63(1), without demarcation by the Electoral Commission and an existing seat falling vacant under Article 83, did not create vacancies warranting elections. The affected MPs' right to a fair hearing was not derogated because no lawful vacancy existed. The purported cross-appeal by the six MPs was struck out: not having been parties before the Constitutional Court, they lacked locus standi, and the Court had no jurisdiction under Article 132(3) to entertain it. Costs followed the event.

Facts

In February 2016 Uganda held general elections for 290 constituencies. About seven months later, in August 2016, Parliament passed a resolution increasing the number of constituencies to 296, including six new municipalities: Apac, Sheema, Ibanda, Nebbi, Bugiri and Kotido. The Electoral Commission then organized and conducted elections in these municipalities in 2018. Before those elections, Eddie Kwizera petitioned the Constitutional Court under Article 137 challenging the creation of the constituencies and the holding of mid-term elections, seeking declarations of nullity and an injunction restraining the Electoral Commission. The Constitutional Court held the prescription of constituencies lawful but found that, absent demarcation by the Electoral Commission and a vacancy arising under Article 83, no vacancies existed; it nullified the elections and awarded the petitioner half the taxed costs. The Attorney General and Electoral Commission appealed. Six MPs elected in the impugned municipalities, who were not parties to the petition but had been served notices of appeal, filed a purported cross-appeal claiming they were condemned unheard.

Issues

Whether the purported cross-appeal by the six affected MPs, who were not parties to the constitutional petition, was competently before the Supreme Court.
Whether the creation of new constituencies before the dissolution of Parliament created vacancies in the 10th Parliament requiring the holding of elections.
Whether the right of the six affected MPs to be heard was derogated by the Constitutional Court's decision.
Whether the Constitutional Court rightly ordered that half the taxed costs be paid to the respondent.

Orders

The appeal is dismissed with costs to the respondent.
The respondent is awarded half the taxed costs in the Court below.
The cross appeal is dismissed with costs to the respondent.

Key headnotes

Appellate Jurisdiction — Supreme Court — No Inherent Appellate Jurisdiction

There is no such thing as inherent appellate jurisdiction; the appellate jurisdiction of the Supreme Court must be specifically created by law and cannot be inferred or implied.

Cross-Appeal — Competence — Locus Standi of Non-Party

A person who was not a party to the proceedings in the Constitutional Court, who did not prevail below and was not named as a respondent in the appeal, cannot qualify as a cross-appellant under Rule 87(1); mere service of a notice of appeal does not confer locus standi or a right to cross-appeal.

Parliamentary Constituencies — Prescription versus Demarcation — Article 63

Prescription of the number of constituencies by Parliament under Article 63(1) is distinct from demarcation of constituency boundaries by the Electoral Commission under Article 63(2); creation of new constituencies is incomplete in law until demarcation is undertaken, and no elections may be held in constituencies whose creation remains incomplete.

Parliamentary Seats — Creation of Constituencies Does Not Create Vacancies — Article 83

The mere prescription of additional constituencies does not ipso facto create vacancies in Parliament; a seat can only be vacated where it already exists under Article 83, and absent notification by the Clerk to Parliament under Article 81(2) no vacancy requiring a by-election arises.

Right to Fair Hearing — Audi Alteram Partem — Proof of a Right Capable of Breach

The audi alteram partem rule does not operate in a vacuum; a party alleging breach must prove that a right to be heard existed, that it was breached, and that the breach caused damage. Where the office of MP did not lawfully exist, no right to be heard was engaged and nullification of premature elections did not derogate from the right to a fair hearing.

Costs — Costs Follow the Event — Section 27 Civil Procedure Act

Under section 27 of the Civil Procedure Act costs follow the event; a petitioner who succeeds in part of a petition may properly be awarded a proportionate share of the taxed costs.

Legislation cited (22)

Constitution of Uganda Article 28(1)
Constitution of Uganda Article 44(c)
Constitution of Uganda Article 61
Constitution of Uganda Article 63
Constitution of Uganda Article 64
Constitution of Uganda Article 78
Constitution of Uganda Article 81(2)
Constitution of Uganda Article 83
Constitution of Uganda Article 86(1)
Constitution of Uganda Article 91(1)
Constitution of Uganda Article 132(3)
Constitution of Uganda Article 137
Constitution of Uganda Article 140
Constitution of Uganda Article 294
Judicature Act s.4
Civil Procedure Act s.27
Local Government Act s.3(4)
Judicature (Supreme Court Rules) Directions Rule 74
Judicature (Supreme Court Rules) Directions Rule 76
Judicature (Supreme Court Rules) Directions Rule 84
Judicature (Supreme Court Rules) Directions Rule 87(1)
Traffic and Road Safety Act s.90

Cases cited (9)

Attorney General v Tinyefuza (Constitutional Appeal No. 1 of 1997)
Baku Raphael Obudra and Another v Attorney General (Constitutional Appeal No. 1 of 2005)
Theodore Ssekikubo and 4 Others v Attorney General and 4 Others (Constitutional Appeal No. 1 of 2005)
David Wesley Tusingwire v Attorney General (Constitutional Appeal No. 4 of 2016)
Mpungu and Sons Transporters Ltd v Attorney General and Another (Civil Appeal No. 17 of 2001)
Hamid v Roko Construction (Civil Appeal No. 1 of 2013)
Crane Bank Ltd v Nipun Narottam Bhatia (Civil Appeal No. 2 of 2014)
Caroline Turyatemba and 4 Others v Attorney General (Constitutional Petition No. 15 of 2006)
Makula International Ltd v His Eminence Cardinal Nsubuga and Another [1982] HCB 15

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.