Wakilii

Ssemwogerere and others v Attorney General (Constitutional Appeal 1 of 2002)

Supreme Court · [2004] UGSC 49 · 2004 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal to the Supreme Court from the majority decision of the Constitutional Court dismissing a constitutional petition challenging the Constitution (Amendment) Act No. 13 of 2000
Decision
Appeal substantially allowed; section 5 of the Constitution (Amendment) Act No. 13 of 2000 declared null and void.

Observed later treatment

Cited — treatment unverified cited in 1 (treatment unverified) Sequitur — Uganda’s citator · Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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.

No adverse treatment recorded Cited 1 time with no adverse treatment recorded; not yet tested on the merits. Derived from citing cases in the Wakilii corpus — a deterministic signal, not legal advice.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.

Holding

The Supreme Court allowed the appeal, holding that the Constitutional Court has jurisdiction under Article 137 to interpret and harmonise one constitutional provision against another and erred in declining it. The Court held that a constitutional amendment may be effected by implication or infection, so that what matters is the effect, not the express words, of the amending Act. Section 5 of the Constitution (Amendment) Act No. 13 of 2000, in restricting access to parliamentary information, amended by infection the entrenched rights in Articles 28, 41 and 44 without the mandatory referendum, the 14-day interval between readings, and the Speaker's and Electoral Commission's certificates. It was therefore null and void.

Outcome

Appeal substantially allowed; section 5 of the Constitution (Amendment) Act No. 13 of 2000 declared null and void.

Facts

Following an earlier decision in which the Constitutional Court struck down the Referendum and Other Provisions Act 1999 for want of a quorum, Parliament reacted by enacting the Constitution (Amendment) Act No. 13 of 2000. It was introduced, debated, passed and assented to on the same day, 31 August 2000. The Act expressly amended Articles 88, 89, 90, 97 and 257 and introduced Article 257A. Section 5 amended Article 97 by adding clauses restricting any member or officer of Parliament from giving evidence of parliamentary proceedings without Parliament's special leave — language reproducing section 15 of the National Assembly (Powers and Privileges) Act, which had previously been declared unconstitutional. The appellants petitioned the Constitutional Court alleging the Act amended entrenched Articles by implication and was passed without the referendum, the 14-day interval between readings, and the Speaker's and Electoral Commission's certificates. The Constitutional Court, by majority, held it lacked jurisdiction to construe one provision against another and dismissed the petition.

Issues

  1. Whether the Constitutional Court had jurisdiction to construe one provision of the Constitution against another and to harmonise the provisions of the Constitution.
  2. Whether the Constitution (Amendment) Act No. 13 of 2000 amended Articles 1, 2, 28, 41, 44, 128 and 137 of the Constitution by implication or infection.
  3. Whether the correct procedure prescribed by Articles 258 to 262 of the Constitution was followed in enacting the Constitution (Amendment) Act No. 13 of 2000.
  4. Whether the appellants discharged the burden of proving non-compliance with the constitutional amendment procedure.

Orders

  • Appeal allowed (substantially succeeding).
  • Declarations made that section 5 of the Constitution (Amendment) Act No. 13 of 2000 is null and void for non-compliance with the mandatory amendment procedure.
  • Costs of the appeal and of the Constitutional Court awarded to the appellants.
  • Certificate for two counsel allowed.

Rules and key headnotes

Constitutional Law — Jurisdiction of the Constitutional Court — Harmonisation of Constitutional Provisions
The Constitutional Court has unlimited jurisdiction under Article 137 to interpret the Constitution, which includes the power and responsibility to construe two or more apparently conflicting provisions together and harmonise them; it is not precluded from construing one provision against another.
Constitutional Law — Amendment of the Constitution — Amendment by Implication or Infection
A constitutional amendment may be effected expressly, by implication or by infection; where an Act of Parliament has the effect of adding to, varying or repealing a provision of the Constitution it amends that provision, and it is the effect rather than the express words of the amending Act that determines what has been amended.
Constitutional Law — Amendment Procedure — Mandatory Requirements Not Waivable
The procedural requirements for amending the Constitution under Articles 258 to 262 — including a referendum or ratification by district councils, the 14-day interval between the second and third readings, and the relevant certificates — are mandatory conditions which Parliament cannot waive under its own rules of procedure.
Constitutional Law — Speaker's and Electoral Commission's Certificates — Condition Precedent to Assent
Where a supreme-law clause requires the Speaker's certificate (and, where applicable, the Electoral Commission's certificate) to accompany a bill amending the Constitution, that certificate is a necessary part of the legislative process and not a mere procedural or administrative formality; a bill lacking it remains invalid even after presidential assent.
Human Rights — Access to Information and Fair Hearing — Restriction of Parliamentary Records
A law restricting a citizen's right of access to information in the possession of Parliament, subject to Parliament's discretion to release or withhold it, conflicts with the right of access to information under Article 41 and impairs the entrenched right to a fair hearing under Article 28 (read with Article 44), and is to that extent null and void.
Constitutional Law — Colourable Legislation — Indirect Achievement of a Prohibited Object
Legislation framed so as to achieve indirectly what the legislature cannot do directly is colourable legislation and is invalid; the doctrine turns on the competence of the legislature to enact the law, not on the good or bad faith of the legislature.
Evidence — Burden of Proof — Facts Within the Special Knowledge of a Party
Where petitioners make a prima facie case by unchallenged affidavit that constitutional procedural requirements were not complied with, and the relevant facts are within the special knowledge of the respondent, the burden shifts to the respondent to prove compliance.

Legislation cited (21)

Cases cited (19)

  • Attorney General v Major General David Tinyefuza (Constitutional Appeal No. 1 of 1997)
  • Ssemogerere and Olum v Attorney General (Constitutional Appeal No. 1 of 2000)
  • The Queen v Big M Drug Mart Ltd (1986) LRC (Const) 332
  • Bribery Commissioner v Ranasinghe [1965] AC 172
  • Teo Soh Lung v Minister for Home Affairs [1990] LRC (Const) 490
  • Kesavananda Bharati v State of Kerala AIR 1973 SC 1461
  • Opolot v Attorney General (1969) EA 631
  • Dodhia v National & Grindlays Bank Ltd (1970) EA 195
  • Young v Bristol Aeroplane Co Ltd [1944] KB 718
  • Kiriri Cotton Co Ltd v Dewani (1958) EA 239
  • Phato Vs Attorney General (1994) 3 LRC
  • Union Colliery Co of British Columbia v Bryden [1899] AC 580
  • Attorney General of Ontario v Reciprocal Insurers [1924] AC 328
  • K.C. Gajapati Narayan Deo v State of Orissa (1954) SCR 1
  • South Dakota v North Carolina 192 US 268 (1904)
  • Rwanyarare and Wegulo v Attorney General (Constitutional Petition No. 5 of 1999)
  • Uganda Law Society and Semuyaba v Attorney General (Constitutional Petition No. 8 of 2000)
  • Karuhanga Chapaa and Others v Attorney General (Constitutional Petition No. 6 of 2000)
  • Sowabiri and Another v Uganda (Criminal Appeal No. 5 of 1990)

Cases citing this judgment (1)

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.

Full judgment

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

Ssemwogerere and others v Attorney General (Constitutional Appeal 1 of 2002) [2004] UGSC 49 (29 January 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.