Wakilii

Zaake v Attorney General (Consitutional Petition 6 of 2022)

Constitutional Court · [2023] UGCC 115 · 2023 AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Constitutional petition under Article 137(3) challenging Parliament's resolution removing the petitioner from the office of Commissioner of Parliament
Decision
—

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The petitioner challenged Parliament's resolution removing him as a Commissioner of Parliament. In the judgment of Mulyagonja JCC, the preliminary objection that the petition raised no question of constitutional interpretation was overruled. The court held that Parliament lacked the quorum required by rule 110(6) to remove a Commissioner — only 161 of the required 264 voting members were present — contravening Articles 2(1) and (2), 88 and 94(1). It further held that suspending the rules guaranteeing notice and the right to be heard breached the non-derogable right to fair hearing under Articles 28, 42 and 44(c). The Committee, however, had jurisdiction and the requisite quorum.

Facts

On 8 February 2022, while presiding over a parliamentary debate on torture, the Deputy Speaker remarked that the petitioner had won a gold medal despite a broken leg. The petitioner, himself a torture victim, allegedly posted retaliatory social-media comments criticising her. On 15 February 2022, Hon Mapenduzi brought the posts to Parliament's attention as misconduct, and the Deputy Speaker referred the matter to the Committee on Rules, Privileges and Discipline. The petitioner objected to the Committee's jurisdiction and declined to appear. On 10 March 2022 the Committee's report was presented; a motion was moved to amend it to recommend that the petitioner be found unfit to hold office. Parliament then suspended rules 24, 110(5) and (6), 111(2) and 175(2) and voted to remove the petitioner as Commissioner. Only 161 of 529 voting members participated. The petitioner contended the resolution was passed without quorum, without notice, and in breach of his right to a fair hearing.

Issues

  1. Whether the petition raises any questions as to the interpretation of the Constitution under Article 137.
  2. Whether the proceedings are barred by res judicata.
  3. Whether the Committee on Rules, Privileges and Discipline had jurisdiction to investigate the petitioner's social-media conduct made outside the precincts of Parliament.
  4. Whether Parliament had the requisite quorum when it passed the resolution removing the petitioner as Commissioner of Parliament.
  5. Whether Parliament passed the resolution without the vote of at least half of all voting members as required by rule 110(6) of the Rules of Procedure.
  6. Whether the Committee on Privileges made its impugned report without the requisite quorum.
  7. Whether the suspension of rules 24, 110(5) and (6), 111(2) and 175(2) compromised the rules of natural justice and contravened Articles 28, 42 and 44 of the Constitution.
  8. Whether the then Deputy Speaker presiding over the proceedings amounted to a conflict of interest.
  9. Whether the ex-gratia payment of UGX 6,000,000 to each Committee member imposed an illegal charge on the Consolidated Fund in contravention of Articles 8A, 93 and 79(3).
  10. Whether the amendment of the Committee's report to recommend the petitioner's removal was lawful.
  11. Whether the presentation, debate and adoption of the motion for the petitioner's removal complied with the Rules of Procedure and the Constitution.
  12. Whether Parliament's omission to prescribe different quorums for different purposes contravened Article 88(2).

Rules and key headnotes

Constitutional Law — Jurisdiction of the Constitutional Court — Article 137
The jurisdiction of the Constitutional Court under Article 137(3) is broader than giving meaning to constitutional words; it includes reviewing Acts of Parliament and other laws and determining whether any act or omission is inconsistent with or contravenes the Constitution, and a petition discloses a cause of action where it alleges such an act or omission and the provision contravened.
Civil Procedure — Res Judicata — Constitutional Petitions
Res judicata in the Constitutional Court is concerned not only with the parties to a previous cause but with whether the same provisions of the Constitution have already been authoritatively interpreted; a later petition is not barred unless it raises substantially the same provisions or facts relating to the same constitutional provisions.
Constitutional Law — Parliamentary Privilege — Internal Procedure as a Constitutional Matter
Where the Rules of Procedure of Parliament flow directly from constitutional provisions such as Articles 88 and 89, an allegation that Parliament breached those rules raises a constitutional question, and the court cannot decline jurisdiction merely because the dispute arises from Parliament's internal procedure.
Constitutional Law — Quorum of Parliament — Removal of a Commissioner
A Commissioner of Parliament may only be removed upon the vote of at least one half of all voting members as required by rule 110(6) of the Rules of Procedure; a resolution to remove a Commissioner passed without that quorum contravenes Articles 2(1) and (2), 88 and 94(1) of the Constitution.
Human Rights — Right to Fair Hearing — Suspension of Procedural Rules
The deliberate suspension of rules of procedure that secure notice, adequate time to prepare a defence and the right to be heard, in order to facilitate a member's removal from office, contravenes the non-derogable right to a fair hearing protected by Articles 28, 42 and 44(c) of the Constitution.
Administrative Law — Parliamentary Discipline — Jurisdiction over Conduct Outside Parliament
The Committee on Rules, Privileges and Discipline has jurisdiction under rule 175 and the Code of Conduct to sanction a member's misconduct even where the conduct, such as social-media publications, occurs outside the precincts of Parliament, because the Code of Conduct regulates the behaviour of members both within and outside Parliament.
Evidence — Judicial Notice — Parliamentary Proceedings
A court may take judicial notice under section 56 of the Evidence Act of the course of proceedings of Parliament, but it may, under section 56(3), decline to do so until the party calling for it produces the documents necessary to enable the court to take such notice.

Legislation cited (27)

Cases cited (23)

  • Zaake Francis v Attorney General (Miscellaneous Cause No. 85 of 2020)
  • Mbabali Jude v Edward Kiwanuka Sekandi (Constitutional Petition No. 28 of 2012)
  • Ismail Serugo v Kampala City Council & Attorney General (Constitutional Appeal No. 2 of 1998)
  • Oloka-Onyango & 9 Others v Attorney General (Constitutional Petition No. 8 of 2014)
  • National Council for Higher Education v Anifa Bangirana Kawooya (Constitutional Petition No. 4 of 2011)
  • Parliamentary Commission v Adolf Mwesigye (Constitutional Appeal No. 8 of 2016)
  • Raphael Baku & Another v Attorney General (Constitutional Appeal No. 1 of 2003)
  • Attorney General v Major General Tinyefuza (Constitutional Appeal No. 1 of 1997)
  • Paul Kawanga Ssemwogerere & Another v Attorney General (Constitutional Appeal No. 1 of 2000)
  • Mansukhlal Karia v Attorney General & 2 Others (Civil Appeal No. 20 of 2002)
  • Paul Kawanga Ssemwogerere & Zachary Olum v Attorney General (Constitutional Petition No. 3 of 1999)
  • Uganda v Godfrey Onegi Obel (Constitutional Petition/Reference No. 24 of 2011)
  • Male H. Mabirizi Kiwanuka v Attorney General (Constitutional Appeal No. 2 of 2018)
  • Karuhanga Kafuureeka Gerald & 5 Others v Attorney General (Constitutional Appeal No. 3 of 2018)
  • Uganda Law Society v Attorney General (Constitutional Appeal No. 4 of 2018)
  • [2009] UGSC 1
  • [2010] UGSC 1
  • De Souza v Tanga Town Council [1961] EA 377
  • Severino Twinobusingye v Attorney General (Constitutional Petition No. 47 of 2011)
  • Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
  • The Queen v Big M Drug Mart Ltd [1986] LRC 322
  • Zachary Olum & Others v Attorney General (Constitutional Petition No. 6 of 1999)
  • Saleh M. W. Kamba v Attorney General, Theodore Ssekikubo & 3 Others (Constitutional Petition No. 16 of 2013)

Full judgment

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

Zaake v Attorney General (Consitutional Petition 6 of 2022) [2023] UGCC 115 (28 September 2023)
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.