Eddie Kwizera v Attorney General & Another (Constitutional Petition No. 20 of 2018)

Observed later treatment

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Holding

The Court considered whether Parliament's 9 August 2016 resolution dividing Uganda into 296 constituencies, and the creation of six municipalities as constituencies, were unconstitutional. It held that prescribing the number of constituencies is Parliament's function under Article 63(1) and may lawfully be done by resolution under section 11 of the Electoral Commission Act, while demarcation of boundaries remains the Electoral Commission's function under Article 63(2); the resolution was therefore valid and breached neither Article 61, 63, 91 nor 294. However, holding elections in the six new municipalities (Apac, Sheema, Ibanda, Nebbi, Bugiri and Kotido) before the next general election created no vacancy and was unconstitutional. The petition succeeded in part and those elections were nullified.

Outcome

Petition allowed in part; elections in the six municipalities of Apac, Sheema, Ibanda, Nebbi, Bugiri and Kotido declared null and void; petitioner awarded half the taxed costs against the second respondent.

Facts

On 9 August 2016 Parliament passed a resolution, moved under Article 63(1) of the Constitution and section 11 of the Electoral Commission Act, prescribing that Uganda be divided into 296 constituencies. Six municipalities — Apac, Sheema, Ibanda, Nebbi, Bugiri and Kotido — were created and treated as new parliamentary constituencies after the 2016 general elections. In 2018 the Electoral Commission organised and conducted elections in those municipalities before the dissolution of the sitting Parliament. By the coming into force of the Constitution (Amendment) Act 2005 Uganda comprised 214 constituencies, a fact not in dispute. Eddie Kwizera petitioned the Constitutional Court, contending that Parliament had usurped the Electoral Commission's demarcation function, that the number of constituencies could be fixed only by an Act of Parliament, and that holding mid-term elections in the new constituencies deprived him of a right of appeal and was unconstitutional. No evidence was adduced of any actual demarcation of boundaries by Parliament or of any decision of the Electoral Commission on demarcation.

Issues

1. Whether the petition is misconceived, frivolous, vexatious and misconstrued and raises no issue for interpretation by the court.
2. Whether the resolution of Parliament creating 296 constituencies is inconsistent with or in contravention of Articles 61(1)(c), 63(2) and 91(1) of the Constitution.
3. Whether the creation of the municipalities by Parliament without the involvement of the Electoral Commission is inconsistent with Article 63.
4. Whether the resolution and the subsequent holding of elections deprived the petitioner of the right of appeal and is inconsistent with Article 64(2) and (3) of the Constitution.
5. Whether organising, conducting and supervising mid-term elections that are neither general nor residual is inconsistent with Articles 61(1)(b), 61(2) and 81(2) and (3) of the Constitution.
6. Whether the act of Parliament declaring that Uganda is divided into 296 constituencies as at 9 August 2016 is inconsistent with Article 294 of the Constitution.
7. Whether the act of the Electoral Commission in organising, conducting and supervising elections in the municipalities of Apac, Sheema, Ibanda, Nebbi, Bugiri and Kotido is inconsistent with Article 63(6) of the Constitution.

Orders

• The preliminary objection that the petition is misconceived, frivolous and vexatious is overruled.
• Issues 2, 3, 4 and 6 are answered in the negative; the resolution of Parliament prescribing 296 constituencies is valid and constitutional.
• Issues 5 and 7 are answered in the affirmative.
• The elections conducted in the municipalities of Apac, Sheema, Ibanda, Nebbi, Bugiri and Kotido are for non-existent vacancies and are null and void.
• In the next elections, Articles 63 and 294 of the Constitution shall be complied with, and any elections held in disregard thereof shall be void ab initio.
• The second respondent shall, within one year, file in court evidence of the prescription of Parliament dividing Uganda into constituencies under Articles 294 and 63(1).
• The second respondent shall file in court evidence that it has demarcated the boundaries of constituencies at least 10 months before the next general elections.
• The petitioner shall be paid half the taxed costs of the petition by the second respondent.

Rules and key headnotes

Legislation cited (32)

• Constitution of Uganda art.1
• Constitution of Uganda art.2
• Constitution of Uganda art.61(1)(b)
• Constitution of Uganda art.61(1)(c)
• Constitution of Uganda art.63
• Constitution of Uganda art.64(2)
• Constitution of Uganda art.64(3)
• Constitution of Uganda art.76
• Constitution of Uganda art.79
• Constitution of Uganda art.81(2)
• Constitution of Uganda art.83
• Constitution of Uganda art.84
• Constitution of Uganda art.91(1)
• Constitution of Uganda art.137
• Constitution of Uganda art.176
• Constitution of Uganda art.177
• Constitution of Uganda art.179
• Constitution of Uganda art.274
• Constitution of Uganda art.294
• Electoral Commission Act Cap.140 s.11
• Electoral Commission Act Cap.140 s.20
• Electoral Commission Act Cap.140 s.37
• Local Governments Act Cap.243 s.7
• Local Governments Act Cap.243 s.45
• Local Governments Act Cap.243 s.46
• Parliamentary Elections Act 2005 s.61
• Parliamentary Elections Act 2005 s.101
• Parliamentary Elections Act 2001 s.100
• Parliamentary Elections (Interim Provisions) Statute 1996 s.13
• Evidence Act Cap.6 s.101
• Evidence Act Cap.6 s.102
• Evidence Act Cap.6 s.103

Cases cited (15)

• David Wesley Tusingwire v Attorney General (Constitutional Appeal No. 4 of 2016)
• Shaban Mohammed Hassan v Attorney General (Civil Appeal No. 281 of 2012)
• Ssemwogerere v Attorney General (Constitutional Appeal No. 1 of 2003)
• Attorney General v Tinyefuza (Constitutional Appeal No. 1 of 1997)
• Ismail Serugo v Kampala City Council and Attorney General (Constitutional Appeal No. 2 of 1998)
• Minister of Home Affairs v Fisher [1979] 2 All ER 21
• Dow v Attorney General [1992] LRC (Const.) 623
• South Dakota v North Carolina 192 U.S. 286
• National Council for Higher Education v Anifa Kawooya Bangirana (Constitutional Appeal No. 4 of 2011)
• Attorney General v Oluoch (1972) EA 392
• Cullimore v Lyme Regis Corporation [1961] 3 All ER 1008
• Vita Food Products Inc v Unus Shipping Co Ltd [1939] 1 All ER 513
• Liverpool Borough Bank v Turner
• Montreal Street Railway Co v Normandin [1917] AC 170
• Jeroj Shariff & Co v Chotai Family Stores (1960) EA 374

Cases citing this judgment (10)

How later Ugandan judgments in the Wakilii corpus have cited this case. Treatment labels come from Sequitur — Uganda’s citator — each backed by a verbatim span from the citing judgment, and are not an assertion that this case is, or is not, good law.

• Muhumuza Edson v Kitone Ronald (Miscellaneous Application No. 1081 of 2025)
• Ojera Christopher v Electoral Commission and Another (Election Petition Appeal No. 29 of 2021)
• Attan Okia Moses and Another v Ariko Herbert Edmund Okworo (Election Petition Nos. 7 and 10 of 2021)
• Dr. Kamba and 2 Others v Electoral Commission and Another (Constitutional Petition No. 13 of 2019)
• Attorney General & Another & Basalirwa & 5 Others v Kwizera (Constitutional Appeal 2 of 2020; Constitutional Appeal 3 of 2020)
• Wadada and Another v The Electoral Commission and Another (CONSTITUTIONAL PETITION NO. 44 OF 2016) followed
• Kwiringira Magezi and Another v Attorney General (Constitutional Petition No. 24 of 2018)
• Dr. Kamba and 2 Others v The Electoral Commission and Another (Constitutional Petition No. 13 of 2019)
• Attorney General v Kwizera & Electoral Commission v Kwizera (Constitutional Application 1 of 2020; Constitutional Application 3 of 2020)
• Iddi Isabirye and Another v Electoral Commission and Another (Consolidated Election Petition Appeals Nos. 60 and 64 of 2021; Consolidated Election Petition Appeals Nos. 60 and 64 o

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