Wakilii

Male H Mabirizi v Attorney General Karuhanga 5 Others v Attorney General Uganda Law Society v Attorney General (Constitutional Appeal 2 of 2018 Constitutional Appeal 3 of 2018 Constitutional Appeal 4 of 2018) 2019 UGSC 102 (18 April 201

Supreme Court · [2019] UGSC 102 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Consolidated constitutional appeals to the Supreme Court from the majority decision of the Constitutional Court at Mbale
Decision
On the issues resolved in the provided portion of the judgment, the appellants' grounds on fair hearing, the basic structure doctrine and removal of the age limit fail; the removal of the presidential and LCV chairperson age limits is upheld as constitutional.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

On consolidated appeals challenging the Constitutional Court's decision upholding removal of the presidential and Local Council V chairperson age limits, the Supreme Court held that the age qualification in Article 102(b) is not part of the basic structure of the 1995 Constitution. Although the basic structure doctrine is embedded in the Constitution and limits Parliament's amending power, age qualifications were never entrenched and could be amended by Parliament under Articles 79 and 259 without a referendum. The Court found no derogation of the appellants' right to a fair hearing before the Constitutional Court and declined to interfere with that court's exercise of discretion. The respondent's preliminary objections to competence of the appeal were overruled.

Outcome

On the issues resolved in the provided portion of the judgment, the appellants' grounds on fair hearing, the basic structure doctrine and removal of the age limit fail; the removal of the presidential and LCV chairperson age limits is upheld as constitutional.

Facts

In September 2017 a private Member moved a Bill to amend the 1995 Constitution. As enacted, the Constitution (Amendment) Act No. 1 of 2018 removed the age limits for the President (Article 102(b)) and Local Council V chairpersons (Article 183(2)(b)), extended the terms of Parliament and Local Governments from five to seven years, and reinstated presidential term limits. The President assented on 27 December 2017. Mabirizi, Hon. Gerald Karuhanga and others, and the Uganda Law Society petitioned the Constitutional Court at Mbale challenging the Act's enactment and provisions. By a majority of four to one (Kakuru JCC dissenting), the Constitutional Court struck down the term-extension and term-limit provisions but upheld the removal of the age limits. The appellants appealed to the Supreme Court against the upholding of the age-limit removal, alleging breach of the basic structure doctrine, procedural irregularities and violence during the parliamentary process, and denial of a fair hearing before the Constitutional Court.

Issues

  1. Whether the learned Justices of the Constitutional Court misdirected themselves on the application of the basic structure doctrine.
  2. Whether the majority erred in holding that the entire process of conceptualizing, consulting, debating and enacting the Constitution (Amendment) Act No. 1 of 2018 did not contravene the 1995 Constitution and the Rules of Procedure of Parliament.
  3. Whether the Justices erred in holding that the violence inside and outside Parliament during enactment did not contravene the Constitution.
  4. Whether the Justices erred in applying the substantiality test in determining the petition.
  5. Whether the majority misdirected themselves in holding that removal of the age limit for the President and Local Council V offices was not inconsistent with the 1995 Constitution.
  6. Whether the Constitutional Court erred in holding that the President elected in 2016 is not liable to vacate office on attaining the age of 75 years.
  7. Whether the Justices of the Constitutional Court derogated the appellants' right to a fair hearing, injudiciously exercised their discretion and committed procedural irregularities, and if so, its effect on the decision.
  8. What remedies are available to the parties?

Orders

  • Respondent's preliminary objection to the competence of the appeal overruled.

Rules and key headnotes

Constitutional Law — Basic Structure Doctrine — Applicability in Uganda
The basic structure doctrine is embedded in Uganda's 1995 Constitution; Parliament's power to amend the Constitution is limited and cannot be exercised so as to abrogate or destroy the fundamental features that give the Constitution its identity.
Constitutional Law — Amendment — Presidential Age Limit (Article 102(b))
The age qualification for the President and Local Council V chairperson under Articles 102(b) and 183(2)(b) is not a basic or entrenched feature of the Constitution and may be amended by Parliament under Articles 79 and 259 without the approval of the people in a referendum.
Constitutional Interpretation — Purposive and Integrated Approach
The Constitution must be read as an integrated whole, with each provision sustaining the others, and ambiguous provisions given a liberal, generous and purposive interpretation that effectuates the spirit of the instrument; both purpose and effect are relevant to determining constitutionality.
Constitutional Petitions — Article 137(3) — Cause of Action
A petition under Article 137(3) sufficiently discloses a cause of action where it describes the act or omission complained of, identifies the constitutional provision alleged to be contravened, and prays for a declaration to that effect; a liberal and broad interpretation applies.
Preliminary Objections — Competence of Appeal — Supreme Court Rules 78 and 98
A respondent who challenges the competence of an entire appeal must proceed by application to strike out under Rule 78 and obtain leave under Rule 98(b); such an objection cannot be raised informally for the first time at the hearing without leave, and a new objection not raised before the lower court cannot be entertained on appeal.
Fair Hearing — Articles 28 and 44(c) — Appellate Interference with Discretion
An appellate court will only interfere with a trial court's exercise of discretion over the conduct of proceedings where the judge misdirected himself on the governing principles, took into account or failed to consider relevant matters, or where the exercise of discretion was plainly wrong.
Constitutional Remedies — Severance — Article 137(4)
The remedy of severance need not be specifically pleaded; the Constitutional Court may, in exercise of its discretion under Article 137(4), grant redress including severance of unconstitutional provisions from an otherwise valid Act.

Legislation cited (35)

Cases cited (26)

  • Kesavananda Bharati v State of Kerala AIR 1973 SC 1461
  • Minerva Mills v Union of India AIR 1980 SC 1789
  • Anwar Hossain Chowdhury v Bangladesh, 10 41 DLR 1989, App Div 169
  • Executive Council of the Western Cape Legislature v President of the Republic of South Africa [1995] ZACC 8
  • Njoya v Attorney General & Ors [2004] LLR 4788 HCK
  • Attorney General v Rev. Christopher Mtikila, Civil Appeal No. 45 of 2009 (Tanzania)
  • Miria Matembe v Attorney General (Constitutional Petition No. 2 of 2005)
  • Ismail Serugo v Kampala City Council (Civil Appeal No. 2 of 1998)
  • Baku Raphael v Attorney General (Civil Appeal No. 1 of 2003)
  • Cardinal Nsubuga v Makula International Ltd [1982] HCB 11
  • Beatrice Kobusingye v Nyakana (Civil Appeal No. 5 of 2008)
  • Hwang Sung Ltd v M & D Timber Merchants and Transporters Ltd (Civil Appeal No. 2 of 2018)
  • Rachhobhau Shivabhai Patel v Henry Wambuga (Civil Appeal No. 6 of 2017)
  • Bitamisi v Rwabuganda (Civil Appeal No. 16 of 2014)
  • Hamid v Roko Construction (Civil Appeal No. 1 of 2013)
  • Tororo Cement Co. Ltd v Frokina International Ltd (Civil Appeal No. 2 of 2001)
  • Nsekikubo & Others v Attorney General (Constitutional Appeal No. 1 of 2015)
  • Mbogo v Shah [1968] EA 93
  • British American Tobacco (U) Ltd v Shadrach Mwijukubi (Civil Appeal No. 1 of 2012)
  • American Express International Banking Ltd v Atul [1990-94] EA 10
  • P.K. Ssemwogerere v Attorney General (Constitutional Appeal No. 1 of 2002)
  • Attorney General v Tinyefuza (Constitutional Appeal No. 1 of 1997)
  • Attorney General v Salvatori Abuki (Constitutional Appeal No. 1 of 1998)
  • Attorney General v Uganda Law Society (Constitutional Appeal No. 1 of 2006)
  • Livingstone Okello Okello v Attorney General (Constitutional Petition No. 4 of 2005)
  • Amama Mbabazi v Yoweri Kaguta Museveni (Presidential Election Petition No. 1 of 2016)

Full judgment

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Male H Mabirizi v Attorney General Karuhanga 5 Others v Attorney General Uganda Law Society v Attorney General (Constitutional Appeal 2 of 2018 Constitutional Appeal 3 of 2018 Constitutional Appeal 4 of 2018) 2019 UGSC 102 (18 April 201
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.