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Kwizera Eddie v Attorney General (Constitutional Petition No. 14 of 2005)

Court of Appeal · [2006] UGCA 2 · 2006 Petition Partly Succeeded AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Constitutional petition under Article 137 challenging the constitutionality of Article 80(4) of the Constitution as amended by Act No. 11 of 2005
Decision
Petition succeeded in part; Article 80(4) declared inconsistent with Articles 1(4) and 21(1) but not Article 38(1)

Observed later treatment

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Holding

The Court held the petition competent, since the Constitutional Court's power under Article 137 is to harmonise constitutional provisions and, under Article 2, to declare laws (including amendments) void for inconsistency with the Constitution. It found Article 80(4) — requiring public officers to resign 90 days before nomination — inconsistent with Articles 1(4) and 21(1) because it excluded the political class under Article 257(2)(b), denying a level electoral playing field and amounting to discrimination. However, Article 80(4) was held not inconsistent with Article 38(1), which does not bar participation in government. The Court also affirmed its power to interpret words and phrases, and the petition succeeded in part.

Outcome

Petition succeeded in part; Article 80(4) declared inconsistent with Articles 1(4) and 21(1) but not Article 38(1)

Facts

Parliament amended Article 80 of the Constitution by introducing clause (4), requiring a public officer, or a person employed in any government department or agency, or an employee of a local government or body in which government has a controlling interest, who wishes to stand in a general election as a Member of Parliament, to resign at least 90 days before nomination day. The amendment came into effect on 26 September 2005. The nomination days scheduled for 12 and 13 January 2006 were gazetted on 23 December 2005, leaving insufficient time for aspirants to resign within the prescribed 90-day period. Article 80(4) targeted public officers as defined under Articles 175 and 257(1) but excluded the political class specified under Article 257(2)(b), such as the President, Vice-President, Speaker, Ministers, Attorney General and Members of Parliament. The petitioner challenged Article 80(4) as inconsistent with Articles 1(4), 21(1) and 38(1) of the Constitution and sought interpretation of the phrase 'a person employed in any government department or agency of the government'.

Issues

  1. Whether, in so far as the petition seeks to have parts of the Constitution nullified, it is incompetent.
  2. Whether Article 80(4) of the Constitution is inconsistent with and in contravention of Articles 1(4), 21(1) and 38(1) of the same Constitution.
  3. Alternatively, what is the proper interpretation of the phrase 'a person employed in any government department or agency of the government'.
  4. Whether the petitioner is entitled to the remedies sought.

Orders

  • The petition is competent.
  • Article 80(4) of the Constitution is inconsistent with and in contravention of Articles 1(4) and 21(1).
  • Article 80(4) is not inconsistent with Article 38(1).
  • The petition succeeds in part.
  • Each party to bear its own costs.

Rules and key headnotes

Constitutional Law — Jurisdiction of Constitutional Court — Harmonisation versus Nullification of Provisions
The Constitutional Court has no power to nullify a provision of the Constitution; its role under Article 137 is to harmonise all provisions on a subject to give effect to the whole document. This is distinct from its correlated power under Article 2 to declare void an Act of Parliament, including a Constitution (Amendment) Act, that is inconsistent with the Constitution.
Electoral Law — Free and Fair Elections — Level Playing Field
A constitutional amendment that requires public officers to resign before contesting an election, while exempting the politically dominant class, fails to level the electoral playing field and is inconsistent with the right to free and fair elections under Article 1(4).
Human Rights — Equality and Non-Discrimination — Political Opinion
A law that employs state machinery to favour certain classes of candidates, thereby giving different treatment to persons attributable to their political opinion, is discriminatory and inconsistent with the guarantee of equality under Article 21(1).
Human Rights — Right to Participate in Government — Scope of Article 38(1)
The right to participate in the affairs of government under Article 38(1) does not expressly or by implication bar any citizen from participating; a requirement to resign public office before standing does not contravene Article 38(1).
Statutory Interpretation — Constitutional Interpretation — Power to Interpret Words and Phrases
The Constitutional Court's power under Article 137(3) embraces giving meaning to words and expressions in the Constitution; reviewing the consistency of provisions cannot be done without interpreting the words and phrases in question.
Statutory Interpretation — Constitutional Construction — Reading Provisions Together
All provisions bearing upon a particular subject must be brought into view and interpreted together so as to effectuate the purpose of the Constitution as a whole, rather than considering any single provision in isolation.

Legislation cited (14)

Cases cited (4)

  • P. K. Semwogerere and Others v Attorney General (Constitutional Petition No. 1 of 2002)
  • P. K. Semwogerere and Others v Attorney General (Constitutional Petition No. 1 of 2001)
  • Smith Dakota v North Carolina 192 1940 268
  • Dr. Kiiza Besigye v Museveni Yoweri Kaguta (Election Petition No. 1 of 2001)

Full judgment

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

Kwizera Eddie v Attorney General (Constitutional Petition No. 14 of 2005) [2006] UGCA 2 (25 August 2006)
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.