Ayena Odongo v Attorney General and Others (Consitutional Petition No. 14 of 2017)

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Interpreting Article 246, the Constitutional Court held that traditional or cultural leaders may be instituted in any area of Uganda, not only where they existed before 1966, but every such leader must derive allegiance from birth or descent. By majority it declared section 4(1)(b) of the Institution of Traditional or Cultural Leaders Act, 2011 inconsistent with Article 246 because politically partisan district and sub-county local government councils are ill-suited to determine cultural leadership, and suspended its operation pending parliamentary review. Disputes over the legality of the Lango leadership were remitted to the High Court under Article 50. The petition partially succeeded; each party bore its own costs.

Outcome

Petition partially succeeded; section 4(1)(b) of the Institution of Traditional or Cultural Leaders Act, 2011 declared inconsistent with the Constitution and its operation suspended pending parliamentary review; disputes over the legality of the Lango leadership remitted to the High Court under Article 50.

Facts

The petitioner, a Lango legal advisor, challenged the installation of Yosam Odur (the 2nd respondent), and the purported election of Eng. Dr M.M. Odongo Okune (the 4th respondent), as traditional or cultural leader (Won Nyaci) of Lango. He contended that the Langi are a republican people without hereditary leadership, that Article 246 of the Constitution only revived cultural institutions existing before their 1966 abolition, and that any new institution required a method prescribed by Parliament. He further argued that section 4(1)(b) of the Institution of Traditional or Cultural Leaders Act, 2011 — permitting institution of a leader through a two-thirds resolution of district and sub-county local government councils — was ultra vires Article 246 because it subjected cultural matters to partisan political organs. The respondents maintained that Article 246 permits cultural leaders in any area by consent, that the Lango Council of Clan Leaders had elected Odur under the Lango Cultural Foundation Constitution of 2003/2016, and that the petition raised no genuine constitutional question. The Lango Cultural Foundation, lacking legal personality, was struck out as improperly joined.

Issues

1. Whether the petition raised a question requiring interpretation of the Constitution and disclosed a cause of action under Article 137.
2. Whether section 4(1)(b) of the Institution of Traditional or Cultural Leaders Act, 2011 is inconsistent with or contravenes Article 246 of the Constitution.
3. Whether Article 246 limited the institution of traditional or cultural leaders to areas of Uganda that had such leaders before 1966 when such institutions were abolished.
4. Whether all traditional or cultural leaders must derive allegiance from the fact of birth or descent in accordance with the customs, traditions, usage or consent of the people led.
5. Whether prescription by Parliament was the only mode of resolving the question of a traditional or cultural leader, and whether Parliament resolved it for Lango.
6. Whether the parties were entitled to the remedies claimed.

Orders

• The petition partially succeeds.
• Section 4(1)(b) of the Institution of Traditional and Cultural Leaders Act, 2011 is inconsistent with and contravenes the provisions of Article 246(1) and (2) of the Constitution.
• The operation of section 4(1)(b) of the Act is suspended until Parliament reviews it and enacts an appropriate provision prescribing a method for resolving the issue of traditional or cultural leaders in communities where it has not yet been resolved.
• The complaints about the legality or constitutionality of the institution of a traditional or cultural leader in Lango shall be resolved by the High Court pursuant to Article 50 of the Constitution.
• The petitioner is ordered to desist from using abusive and/or derogatory language in proceedings before the courts.
• The petition against the 3rd respondent (Lango Cultural Foundation), which lacks legal personality, is dismissed with no order as to costs.
• Each party to bear its own costs in the petition.

Rules and key headnotes

Legislation cited (21)

• Constitution of Uganda 1995 art.137
• Constitution of Uganda 1995 art.246
• Constitution of Uganda 1995 art.50
• Constitution of Uganda 1995 art.37
• Constitution of Uganda 1995 art.21
• Constitution of Uganda 1995 art.176
• Constitution of Uganda 1995 art.180
• Constitution of Uganda 1995 art.257
• Institution of Traditional or Cultural Leaders Act 2011 s.4(1)(b)
• Institution of Traditional or Cultural Leaders Act 2011 s.5
• Institution of Traditional or Cultural Leaders Act 2011 s.2
• Institution of Traditional or Cultural Leaders Act 2011 s.16
• Civil Procedure Rules O.6 r.28
• Civil Procedure Rules O.19 r.3
• Constitutional Court (Petitions and References) Rules SI 91 of 2005 r.23
• Advocates Act s.4
• Advocates Act s.17
• Advocates (Professional Conduct) Regulations reg.31
• Traditional Rulers (Restitution of Assets and Properties) Act (Cap 243) s.2
• Constitution of Uganda 1967 art.118
• Constitution of Uganda 1962 art.2

Cases cited (7)

• Attorney General v Major General David Tinyefuza (Constitutional Appeal No. 1 of 1997)
• Ismael Serugo v Kampala City Council (Constitutional Appeal No. 2 of 1998)
• Paul K Semogerere and 2 Others v Attorney General (Constitutional Appeal No. 1 of 2002)
• Rubaramira Ruranga v Electoral Commission and Attorney General (Constitutional Petition No. 12 of 2010)
• David Wesley Tusingwire v Attorney General [2017] UGSC 11
• South Dakota v North Carolina, 192 U.S. 268 (1904)
• Kay v Ehrler, 499 U.S. 432 (1991)

The original judgment as reported. Read the original PDF before relying on any passage.