Wakilii

Namiro and 7 Others v Attorney General and 2 Others (Constitutional Petition No. 7 of 2018)

Constitutional Court · [2021] UGCC 26 · 2021 Petition Struck Out AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Constitutional petition under Article 137 challenging High Court and Court of Appeal election judgments; determined on the respondents' preliminary objection to jurisdiction.
Decision
Petition struck out for want of jurisdiction as a disguised appeal; costs awarded to the respondents

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Constitutional Court upheld the respondents' preliminary objection and struck out the petition for want of jurisdiction. Following Ismail Serugo v Kampala City Council, the Court held that its jurisdiction under Article 137 is engaged only where the face of the petition shows that interpretation of a constitutional provision is genuinely required; merely alleging contravention is insufficient. The petitioners' grievance was, in substance, dissatisfaction with the Court of Appeal's judgment confirming the High Court's election decision. The act of delivering a judgment cannot itself contravene the Constitution; an erroneous judgment is a matter for appeal or review, not a constitutional question. The petition was therefore a disguised appeal, frivolous and vexatious, and was struck out with costs.

Outcome

Petition struck out for want of jurisdiction as a disguised appeal; costs awarded to the respondents

Facts

Parliamentary elections for the directly elected Member of Parliament for Nansana Municipality, Wakiso District, were held by the Electoral Commission. Wakayima Musoke Nsereko polled 25,053 votes and was declared winner; the third respondent, Kasule Robert Sebunya, polled 23,415 votes and came second. The third respondent challenged the result in High Court Election Petition No. 004 of 2016. Justice Vincent Okwanga annulled the election on the grounds that Wakayima Musoke Nsereko was not a registered voter and lacked academic qualifications, and declared the third respondent the validly elected Member of Parliament. Wakayima Musoke Nsereko appealed to the Court of Appeal, which upheld the High Court judgment, and the third respondent was gazetted as the elected member. The petitioners, voters who had supported Wakayima Musoke Nsereko, then brought this constitutional petition contending that the High Court and Court of Appeal judgments and Section 63 of the Parliamentary Elections Act contravened the Constitution by declaring a winner without a fresh election.

Issues

  1. Whether the petition raises any question for constitutional interpretation under Article 137 of the Constitution such that the Constitutional Court has jurisdiction to entertain it.
  2. Whether the petition is a disguised appeal against the decision of the Court of Appeal in an election petition.

Orders

  • The petition is struck out under Rule 23 of the Constitutional Court (Petitions and References) Rules and Order VI Rule 30 of the Civil Procedure Rules.
  • The petitioners shall pay costs to the respondents.

Rules and key headnotes

Constitutional Law — Jurisdiction of the Constitutional Court — Article 137 — Requirement that interpretation of a constitutional provision be shown on the face of the petition
The Constitutional Court has jurisdiction only where the petition shows on its face that interpretation of a provision of the Constitution is genuinely required; a bare allegation that a constitutional provision has been violated is insufficient to invoke the Court's jurisdiction under Article 137.
Constitutional Law — Enforcement of rights — Article 50 confers no jurisdiction independent of Article 137 — Redress only on a petition brought principally for interpretation
Article 50 confers no separate or additional jurisdiction on the Constitutional Court to enforce rights; the Court may grant redress only in the context of a petition under Article 137 brought principally for interpretation of the Constitution, and a claim for redress not calling for such interpretation must be brought before another competent court.
Constitutional Law — Disguised appeal — Delivery of a judgment is not an act inconsistent with the Constitution — Recourse is appeal or review, not a constitutional petition
The act of a court delivering a judgment cannot itself be inconsistent with the Constitution; where a party is aggrieved by the contents of a judgment, the proper recourse is appeal or review, and a petition recasting that grievance as a question of constitutional interpretation is a disguised appeal which the Constitutional Court will strike out.
Electoral Law — Finality of election petition appeals — Limited right of appeal under section 66 of the Parliamentary Elections Act
The right of appeal in parliamentary election petitions is limited by section 66 of the Parliamentary Elections Act as amended, and a litigant cannot circumvent the finality of the Court of Appeal's decision in an election petition by reframing the matter as a constitutional petition.

Legislation cited (15)

Cases cited (5)

  • Ismail Serugo v Kampala City Council and Attorney General (Constitutional Petition No. 2 of 1998)
  • Attorney General v David Tinyefuza
  • Mbabali Jude v Hon. Edward Kiwanuka Sekandi (Constitutional Petition No. 28 of 2012)
  • Charles Kabagambe v Uganda Electricity Board (Constitutional Petition No. 2 of 1999)
  • Baku Raphael Obudra and Obiga Kania v Attorney General (Constitutional Appeal No. 1 of 2005)

Full judgment

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

Namiro and 7 Others v Attorney General and 2 Others (Constitutional Petition No. 7 of 2018) [2021] UGCC 26 (11 March 2021)
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.