Wakilii

K Ssemwogerere and Another v Attorney General (Consitutional Petition No. 3 of 1999)

Constitutional Court · [2000] UGCC 7 · 2000 Petition Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Constitutional petition under Article 137(3) of the Constitution challenging the constitutionality of the enactment of the Referendum and Other Provisions Act No. 2 of 1999; heard on the merits after the Supreme Court set aside an earlier dismissal on preliminary objection.
Decision
Petition granted; the Referendum and Other Provisions Act No. 2 of 1999 declared null and void for having been passed without the constitutionally required quorum, inconsistent with Articles 88 and 89 of the Constitution.

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Holding

The Constitutional Court unanimously held that the Speaker/Chairman did not properly ascertain quorum: a one-third quorum under Article 88 can only be established by physical head count, not by visual observation or attendance registers that include members in the lobby and precincts. On the evidence, fewer than the required 93 of 279 members were present, so the Referendum and Other Provisions Act No. 2 of 1999 was passed without quorum, contrary to Articles 88 and 89. Voice voting under Rule 76 also conflicted with Article 89(1)'s requirement of a majority of members present and voting. The Act was declared null and void and the petition granted with costs.

Outcome

Petition granted; the Referendum and Other Provisions Act No. 2 of 1999 declared null and void for having been passed without the constitutionally required quorum, inconsistent with Articles 88 and 89 of the Constitution.

Facts

In April 1999 the Minister of Justice presented to Parliament a Bill for the Referendum and Other Provisions Act 1999. On the morning of 1 July 1999 the Chairman of the Committee of the whole House adjourned debate for lack of quorum after Hon. Omara-Atubo raised the issue. When the House resumed that afternoon and debated clause 13(6)(b), Hon. Lukyamuzi again raised the issue of quorum. The Chairman/Speaker, Hon. Francis Ayume, ruled there was a quorum by reference to attendance registers (105 plus 52 MPs registered) and visual observation, treating members in the lobby and precincts as present. The petitioners' witnesses, Hon. Zachary Olum and Hon. Reiner Kafiire, made a head count and found fewer than 50 members in the chamber. The Bill was nonetheless passed by voice vote ('Aye'/'No') under Rule 76. Parliament had 279 members, of whom 93 were required to constitute a quorum.

Issues

  1. Whether the Speaker/Chairman conducted the proceedings of the House on the afternoon of 1 July 1999 in a manner consistent with Articles 79, 88 and 89 of the Constitution.
  2. Whether there was a quorum in Parliament when Hon. Lukyamuzi raised the issue and when the Referendum and Other Provisions Act 1999 was passed.
  3. Whether lack of a quorum at any stage invalidates the Referendum and Other Provisions Act No. 2 of 1999.
  4. Whether voting by voices of 'Aye' and 'No' under Rule 76 of the Rules of Procedure of Parliament complies with Article 89(1) of the Constitution.
  5. Whether the petitioners are entitled to the declarations and relief prayed for.

Orders

  • The petition succeeds.
  • Declared that the Referendum and Other Provisions Act of 1999 was passed in a manner inconsistent with Articles 88 and 89 of the Constitution and is therefore null and void.
  • Costs of the petition awarded to the petitioners with a certificate for two counsel.

Rules and key headnotes

Constitutional Law — Parliamentary Procedure — Quorum — Ascertainment by Physical Count
Where the Constitution fixes the quorum of Parliament at one-third of all members, that quorum can only be ascertained by an accurate physical head count of members present in the chamber; reliance on visual observation or attendance registers, which may include members in the lobby or precincts, does not satisfy Article 88.
Constitutional Law — Parliamentary Procedure — Voting — Majority of Members Present and Voting
A rule of procedure providing for voting by voices of 'Aye' and 'No' conflicts with Article 89(1)'s mandatory requirement that questions be determined by a majority of votes of members present and voting, since it cannot show how many members voted; such a rule is null and void to the extent of the inconsistency.
Constitutional Law — Enactment of Legislation — Mandatory Constitutional Requirements
Constitutional provisions prescribing the manner of enacting legislation are mandatory and not merely directory; an Act passed without a quorum at any stage is null and void and has no force of law.
Constitutional Law — Rules of Procedure of Parliament — Inconsistency with the Constitution
Parliament may formulate its own rules of procedure, but a rule that conflicts with the Constitution is void to the extent of the inconsistency, by virtue of Articles 2 and 94 of the Constitution.
Evidence — Affidavits — Personal Knowledge — Hearsay
Except in interlocutory applications, an affidavit must be confined to facts within the deponent's own knowledge (Order 17 rule 3 of the Civil Procedure Rules); a constitutional petition is not an interlocutory proceeding, so an affidavit based on information and belief is hearsay and inadmissible.
Evidence — Burden of Proof — Negative Allegation
The burden of proof lies on the person asserting a fact (Evidence Act ss.101–102); one who rests a claim on a negative allegation is not relieved of the onus, but a lesser quantum of proof rendering the negative probable may shift the evidential burden to the other party.
Constitutional Law — Severability — Whole Statute
Where the complaint is against the manner in which an entire Act was passed, the court cannot sever individual sections; the Act must stand or fall as a whole.

Legislation cited (16)

Cases cited (5)

  • Nassanand & Sons (Uganda) Ltd v East African Records Ltd (1959) EA 360
  • Standard Goods Corporation Ltd v Harakhachand Nathu & Co (1950) 17 EACA 99
  • Aristella Kabwinukya v John Kasiggwa (1978) HCB
  • Gilbert v Endean (1878) 9 Ch D 259
  • Stockdale v Hansard (1839) 9 Ad & El 1

Full judgment

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K Ssemwogerere and Another v Attorney General (Consitutional Petition No. 3 of 1999) [2000] UGCC 7 (10 August 2000)
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.