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Wadada and Another v The Electoral Commission and Another (CONSTITUTIONAL PETITION NO. 44 OF 2016)

Constitutional Court · [2021] UGCC 49 · 2021 Petition Partly Succeeds AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Constitutional petition under Article 137(3) of the Constitution challenging the conduct of elections, the competence of the Electoral Commission, and the appointment of Members of Parliament to Cabinet
Decision
Petition partly succeeds: the August 2016 elections in the newly created districts declared unconstitutional, but no further orders made as the underlying inconsistency was cured by the 2020 amendment of the Parliamentary Elections Act; the remaining grounds (EC competence and MPs holding cabinet office) dismissed.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Constitutional Court held that the Electoral Commission's organisation of parliamentary and local government elections in five newly created districts in August 2016, after the February 2016 general election, contravened Article 61(a)(c)(h) and section 63(c), as section 20(2) of the Electoral Commission Act provides that a new district becomes an electoral district only for subsequent elections; the conflicting section 8(5) of the Parliamentary Elections Act was discriminatory and has since been repealed, rendering the issue moot, so no further orders were made. The Court held the alleged incompetence of the Electoral Commission raises no question of constitutional interpretation, and that appointing Ministers from among MPs under Article 113(1) does not breach the Constitution. The petition succeeded only in part.

Outcome

Petition partly succeeds: the August 2016 elections in the newly created districts declared unconstitutional, but no further orders made as the underlying inconsistency was cured by the 2020 amendment of the Parliamentary Elections Act; the remaining grounds (EC competence and MPs holding cabinet office) dismissed.

Facts

Parliament created five new districts — Kagadi, Kakumiro, Omoro, Rubanda and Kibaale — on 9 June 2016, effective 1 July 2016, after the general election of 18 February 2016. On 30 June 2016 the Electoral Commission issued a press release announcing an electoral programme, and on 26 and 29 August 2016 it organised parliamentary (district woman representative and special interest group) and local government council elections in those districts, relying on section 8(5) of the Parliamentary Elections Act, 2005 (as amended), which required elections within sixty days of creation of a new district. The petitioners contended this breached section 20(2) of the Electoral Commission Act, under which a district created after election proceedings have commenced becomes an electoral district only for subsequent elections. They also challenged the alleged incompetence of the Electoral Commission and the appointment of MPs to cabinet. Section 8(5) of the Parliamentary Elections Act was subsequently repealed by the 2020 amendment.

Issues

  1. Whether the Parliamentary and Local Government elections organised on 26th and 29th August 2016 by the Electoral Commission in the newly created districts were in contravention of the Constitution.
  2. Whether the existence of an allegedly incompetent Electoral Commission contravenes the Constitution.
  3. Whether the holding of cabinet positions by Members of Parliament creates a conflict of allegiances and is therefore inconsistent with the Constitution.
  4. What remedies are available to the parties.

Orders

  • Declaration that the Parliamentary elections organised by the Electoral Commission in the newly created districts of Kagadi, Kakumiro, Omoro, Rubanda and Kibaale in August 2016 were inconsistent with and in contravention of the Constitution, but no further orders made in this regard.
  • The continued existence of the Electoral Commission does not contravene Article 60(1)(a) and Article 62 and is not inconsistent with Article 60(8) of the Constitution.
  • The appointment of Members of Parliament to cabinet who thereafter continue as members of Parliament is not inconsistent with or in contravention of Article 113(4) of the Constitution.
  • The appointment of Ministers by the President from among Members of Parliament under Article 113(1) is not inconsistent with or in contravention of Articles 115 and 81(4) of the Constitution.
  • The petition succeeds in part.
  • Each party shall bear its own costs.

Rules and key headnotes

Statutory Interpretation — Conflicting Statutes — Constitutional Presumption and Supremacy
Where two statutes appear to conflict, a court must first read them harmoniously; if they cannot be reconciled, each is tested against the Constitution, which under Article 2 prevails over legislation, so that any statute inconsistent with the Constitution is void to the extent of its inconsistency.
Electoral Law — Newly Created Districts — Timing of Elections
Under section 20(2) of the Electoral Commission Act a district established after election proceedings have commenced becomes an electoral district only for subsequent elections; the creation of a new district does not create a parliamentary vacancy where the population is already represented, so elections held for it before the next general election are premature and unconstitutional.
Constitutional Law — Equality and Non-Discrimination — Affirmative Action
Affirmative action under Article 32(1) is positive discrimination intended to redress historical imbalances against marginalised groups and cannot be applied so as to generate reverse discrimination; legislation that advantages one gender without providing equivalent provision for the other offends Article 21.
Constitutional Law — Jurisdiction of the Constitutional Court — Article 137
The jurisdiction of the Constitutional Court under Article 137 is confined to the interpretation of the Constitution; the competence of a constitutional organ such as the Electoral Commission is a question of fact, redressable under Article 50, and does not by itself raise a question requiring constitutional interpretation.
Constitutional Law — Separation of Powers — Ministers Drawn from Parliament
Article 113(1) expressly empowers the President to appoint Ministers from among Members of Parliament; the simultaneous holding of the offices of Member of Parliament and Cabinet Minister does not contravene Articles 81(4), 85(2), 113(4) or 115 of the Constitution.

Legislation cited (21)

Cases cited (10)

  • Amama Mbabazi v Yoweri Kaguta Museveni, Electoral Commission and Attorney General (Presidential Election Petition No. 01 of 2016)
  • Kizza Besigye v Y.K. Museveni and Electoral Commission (Presidential Election Petition No. 01 of 2006)
  • Nambooze Betty Bakireke v Bakaluba Peter Mukasa and Electoral Commission (Election Petition No. 14 of 2016)
  • Katuntu Abdu v Kirunda Kivejinja and Electoral Commission (Election Petition No. 07 of 2006)
  • Mpuuga David v Ninsiima Boaz Kairabo and Electoral Commission (Election Petition No. 009 of 2016)
  • Okwir Samuel v Amuge Rebecca Otengo and Electoral Commission (Civil Appeal No. 002 of 2016)
  • Eddie Kwizera v Attorney General and Electoral Commission (Constitutional Petition No. 20 of 2018)
  • Mbabali Jude v Edward Kiwanuka Sekandi (Constitutional Petition No. 0028 of 2012)
  • Major General David Tinyefuza v Attorney General (Constitutional Appeal No. 1 of 1997)
  • Reilly v Ozzard 116 A.2d 360 (N.J 1960)

Full judgment

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Wadada and Another v The Electoral Commission and Another (CONSTITUTIONAL PETITION NO. 44 OF 2016) [2021] UGCC 49 (29 July 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.