Prof. J Oloka-Onyango and 9 Others v Attorney General (Constitutional Petition 8 of 2014)

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 Constitutional Court held that the Anti-Homosexuality Act 2014 was passed by the 9th Parliament on 20 December 2013 without the quorum required by Article 88 of the Constitution and Rule 23 of the Parliamentary Rules of Procedure, and is therefore inconsistent with the Constitution, null and void. Although the burden of proving absence of quorum lay on the petitioners, the Attorney General's failure to specifically deny the allegations in his pleadings meant they were presumed admitted under Order VIII Rule 5. The Speaker's failure to ascertain quorum after the Prime Minister and another member objected was an illegality that, once brought to the court's attention, overrode questions of pleading and tainted the entire enactment process, rendering the Act unconstitutional. This issue disposed of the whole petition.

Outcome

Anti-Homosexuality Act 2014 declared unconstitutional, null and void for having been enacted without quorum; petition allowed on issue one which disposed of the whole petition

Facts

The ten petitioners challenged the constitutionality of the Anti-Homosexuality Act 2014, contending among other things that it had been passed by the 9th Parliament on 20 December 2013 without the quorum required by Article 88 of the Constitution. At the hearing, both parties agreed that the court should first hear the issue concerning the manner of enactment, as it could dispose of the whole petition. According to the certified Hansard, when the Bill was put to a vote the Prime Minister (twice) and Hon. Betty Aol raised a procedural concern that there was no quorum. The Speaker proceeded to put the question to a vote without ascertaining whether a quorum was present as required by Rule 23 of the Parliamentary Rules of Procedure. In his answer to the petition and the supporting affidavit of Dennis Bireije, Commissioner for Civil Litigation, the Attorney General did not specifically deny the allegations of lack of quorum and violation of the Constitution and the Rules.

Issues

1. Whether the Anti-Homosexuality Act 2014 was passed by Parliament in accordance with the law.
2. Whether the petitioners proved that, during the enactment of the Anti-Homosexuality Act, the Speaker failed to invoke Rule 23 of the Parliamentary Rules of Procedure when objections were raised that there was no quorum at the time the Bill was put to vote.

Orders

• Declaration that the 9th Parliament, in enacting the Anti-Homosexuality Act 2014 on 20 December 2013 without quorum in the House, acted inconsistently with and in contravention of Articles 2(1) and (2) and 88 of the Constitution of the Republic of Uganda 1995 and Rule 23 of the Parliamentary Rules of Procedure, and the Act is thus null and void.
• Declaration that the act of the Speaker in not entertaining the objection that there was no quorum was an illegality under Rule 23 of the Rules of Procedure which tainted the enacting process and rendered it a nullity, so that the Act so enacted is unconstitutional.
• The petitioners are awarded 50% of the taxed costs.
• The respondent's application for a stay of the hearing pending an intended appeal is declined.

Rules and key headnotes

Legislation cited (13)

• Constitution of Uganda art.2(1) & (2)
• Constitution of Uganda art.79(1)
• Constitution of Uganda art.88
• Constitution of Uganda art.89
• Constitution of Uganda art.91
• Constitution of Uganda art.94
• Constitution of Uganda art.137(1)
• Anti-Homosexuality Act 2014 ss.1, 2, 3, 4, 7, 8, 11, 13
• Evidence Act s.56
• Civil Procedure Rules Order VIII rule 5
• Constitutional Court (Petitions and References) Rules 2005 SI 91 rule 23
• Constitutional Court (Petitions and References) Rules 2005 SI 91 rule 2(2)
• Parliamentary Rules of Procedure rule 23

Cases cited (5)

• Ssemwogerere and Olum v Attorney General (Constitutional Petition No. 3 of 1999)
• Ssemwogerere v Attorney General (Constitutional Petition No. 7 of 2000)
• Okello Okello and others v Attorney General (Constitutional Petition No. 4 of 2005)
• Makula International Ltd v Cardinal Nsubuga
• "drains Trust Ltd against the Attorney General" (OCR-garbled; identity uncertain)

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.

• Promised Lands of Praise Limited & Another v Ntalo (HCT-03-CV-MA 91 of 2023)
• Luyenjje Najjimu and Others v Uganda (Criminal Applications No. 10, 12 & 13 of 2023) followed
• Hard Rock Quarry Limited v Lukonge Cotton Company Limited (Miscellaneous Application 97 of 2023)
• Nassuna & Another v Kiwanuka & Another (Civil Suit 95 of 2015)
• Rusfar Trading Co. Limited v Chongqing International Construction Corporation Limited and Others (Miscellaneous Application 1702 of 2021)
• Omuut and Others v Okello (Miscellaneous Application 3 of 2022)
• Centre For Health, Human Rights and Development and Other v Attorney General and Another (CONSTITUTIONAL PETITION NO. 22 OF 2O1 5)
• Naloda v Attorney General (Constitutional Petition No. 28 of 2014)
• Male Mabirizi & Ors v Attorney General (Constitutional Petitions No. 49 of 2017)
• Rushfar Trading company Limited v Chongqing International Construction corporation Limited and 2 Others (Miscellaneous Application 1702 of 2021)

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