Wakilii

Ssemwogerere and Another v Attorney General (Constitutional Application No. 3 of 2000)

Constitutional Court · [2004] UGCC 6 · 2004 Petition Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Constitutional petition under Article 137(3) challenging the validity of an Act of Parliament and a referendum held under it
Decision
Petition allowed; the Referendum (Political Systems) Act 2000 declared null and void; costs to the petitioners.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Constitutional Court unanimously held that the Referendum (Political Systems) Act 2000 remained challengeable under Article 137(3), even after spending its purpose, because the political system established under it endured. Parliament enacted it unconstitutionally: the Bill went to a Committee of the Whole House rather than the Standing Committee required by Article 90, and was passed by voice vote contrary to the counted majority required by Article 89. The Act was made roughly one year before the referendum, contravening Article 271(2)'s canvassing guarantee, and backdating could not cure that. Holding the referendum while Article 269 still restricted political organisations breached Article 69. Petition allowed with costs; the Act declared null and void.

Outcome

Petition allowed; the Referendum (Political Systems) Act 2000 declared null and void; costs to the petitioners.

Facts

Parliament enacted the Referendum (Political Systems) Act 2000 on 7 June 2000 to provide for a referendum to choose a political system under Article 271 of the Constitution. The Bill was tabled and the rules of procedure suspended so that it could be read a first, second and third time in a single afternoon sitting of about three hours; it was considered by a Committee of the Whole House rather than a Standing Committee, and passed by voice vote without any counting of members. The President assented on 9 June 2000 and the Act was gazetted on 12 June 2000; section 2 deemed it to have come into force on 2 July 1999. The referendum was held on 29 June 2000, leaving the people less than a month to canvass, and the Movement political system was adopted. The petitioners, aggrieved by the manner of enactment, filed this petition on 22 June 2000 before the referendum, but it was heard belatedly in 2004 after a related Supreme Court matter concluded.

Issues

  1. Whether the Referendum (Political Systems) Act 2000 is law and can be challenged.
  2. Whether the procedures applied in enacting the Act were consistent with the procedures prescribed under the Constitution.
  3. Whether the Act was made in contravention of Article 271 of the Constitution.
  4. Whether the absence of a law regulating the activities of political organisations under Article 269 contravened Article 69 by perpetuating a political environment in which the people could not make a free and fair choice of political system.
  5. Whether any reliefs should be granted.

Orders

  • Petition allowed by unanimous decision.
  • Declaration that the passing of the Referendum (Political Systems) Act 2000 on 7 June 2000 was in contravention of Articles 89, 90(1) and 90(3) of the Constitution for failure to follow the voting procedure and to refer the Bill to the relevant Standing Committee.
  • Declaration that holding the referendum under the Act before passing a law under Article 269 to free political organisations contravened Article 69.
  • Declaration that Parliament had no authority to pass the Act after expiry of the period in Article 271(2) without first amending that provision.
  • The respondent to pay the petitioners' costs of the petition.

Rules and key headnotes

Constitutional Law — Challenge to Legislation — Spent or Expired Statute
An Act of Parliament that has spent its purpose or expired remains challengeable under Article 137(3) of the Constitution for as long as anything done under its authority, or a political system established under it, remains in place.
Constitutional Law — Legislative Procedure — Reference of Bills to Standing Committees
Article 90 makes it mandatory that every Bill be referred to a Standing Committee elected under Article 90(2)(a); a Committee of the Whole House cannot substitute for it, and failure to refer a Bill renders the resulting Act null and void.
Constitutional Law — Voting in Parliament — Ascertainment of Majority
A question proposed for decision of Parliament must be determined by a counted majority of members present and voting under Article 89; voting by voice (shouts of 'Aye' or 'No') cannot ascertain that majority and is unconstitutional.
Constitutional Law — Amendment by Implication — Variation of a Constitutional Provision
Legislation that abridges or varies a time period fixed by the Constitution amends that provision by implication and is invalid unless enacted through the constitutional amendment procedure.
Statutory Interpretation — Retrospective Legislation — Limits in a Written Constitution
Although Parliament may enact retrospective legislation, it cannot validly do so to take away a right guaranteed by the Constitution or to backdate compliance with a constitutional time limit already breached, because the Constitution, not Parliament, is supreme.
Electoral Law — Free and Fair Referendum — Restrictions on Political Organisations
A referendum to choose a political system cannot be free and fair while Article 269 restrictions on political organisations remain in force; holding it before enacting the law to lift those restrictions contravenes Article 69.
Statutory Interpretation — Constitutional Interpretation — General Principles
The Constitution must be read as an integrated whole and construed broadly, liberally and purposively, with provisions conferring fundamental rights given the widest construction in favour of those on whom the rights are conferred.

Legislation cited (24)

Cases cited (16)

  • Attorney General v Dr. James Rwanyarare and Others (Constitutional Appeal No. 2 of 2003)
  • Paul K. Ssemogerere and Zachary Olum v Attorney General (Constitutional Appeal No. 1 of 2000)
  • Attorney General v Paul Kawanga Ssemogerere and 3 Others (Constitutional Appeal No. 1 of 2002)
  • Paul K. Ssemogerere and 5 Others v Attorney General (Constitutional Petition No. 5 of 2002)
  • Public Prosecutor vs Dato Yap Peng (1988) LRC (Const) 69
  • Col (Rtd) Dr. Kizza Besigye v Yoweri Kaguta Museveni and Another (Election Petition No. 1 of 2001)
  • Major General Tinyefuza v Attorney General (Constitutional Case No. 1 of 1996)
  • Attorney General v Major General Tinyefuza (Constitutional Appeal No. 1 of 1997)
  • Dr. James Rwanyarare and Another v Attorney General (Constitutional Petition No. 5 of 1999)
  • Zachary Olum and Another v Attorney General (Constitutional Petition No. 6 of 1999)
  • Paul Ssemogerere and Another v Attorney General (Constitutional Petition No. 3 of 1999)
  • Uganda Association of Women Lawyers and 5 Others v Attorney General (Constitutional Petition No. 2 of 2003)
  • Spencer vs Hooton (1920) 37 TLR 280
  • Republic vs El Mann (1969) EA 357
  • Uganda vs Kabaka's Government (1965) EA 393
  • Smith Dakota vs North Carolina, 192 US 268 (1940)

Full judgment

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

Ssemwogerere and Another v Attorney General (Constitutional Application No. 3 of 2000) [2004] UGCC 6 (25 June 2004)
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.